Manifest Injustice (20 page)

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Terman was sixty-six, a veteran attorney on the road to retirement, still handling cases but eager for new challenges. He had moved to Phoenix from Virginia in August 1974—the very month of Bill Macumber’s arrest. Terman remembered the case hitting the newspapers just days after he’d arrived in town. Now he tore into the Macumber file. He had only partial transcripts and a scattering of other documents. Where were the trial exhibits, where the sheriff’s reports, where all the evidence? So much seemed to be missing. Reading through what he had, searching for what he didn’t have, Terman began burrowing into the past, laboring to reconstruct a thirty-eight-year-old murder, a twenty-six-year-old trial. On January 5, just one day after getting the file, he fired off an e-mail to Hammond, asking questions, making requests, mapping strategies.
Was there procedural due process?… Where’s the police report? I didn’t see it.… Did you get cooperation from the public defender or prosecutor?… How much help can I get re investigation?
On his checklist:
Get newspapers articles of the event … Speak to the attorneys and to Tom O’Toole … Speak to the defendant, wherever he is … Talk to the jurors … Talk to the original witnesses … Check to see if there is any DNA evidence … Get info on the deceased Valenzuela … Research the Vince Foster case … Look at Arizona dicta about how to reopen a case.

“This really does require investigatory staff,” Terman concluded. “As you might tell, I am excited and hope to be able to get something done.”

Hammond weighed Terman’s enthusiasm against his need for staff support. At the start of the Justice Project, with a reputation still to cultivate, Hammond wanted to be careful with their first few cases, choosing genuinely righteous ones. “I think we should talk by telephone before you invest more serious time in the case,” he e-mailed Terman. “This is a good outline and we can work from it in thinking what tasks can be performed productively. Thanks for jumping on this so quickly.”

A week later, Terman again reported to Hammond. By then, he’d spoken to Judge O’Toole and from him had learned there existed substantive “corroborating evidence” for the Ernest Valenzuela confession: the statement of an eyewitness at the murders. “In reading more of the trial transcripts,” he wrote, “it’s hard not to get excited about this case.… I believe you have a winner here.”

Hammond liked winners. “This does sound promising,” he replied. “Keep up the good work.”

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They were under way. By mid-January 2000, Terman had constructed an ambitious “working status checklist,” listing thoughts, people to interview, things to do. He wanted to speak with Paul Prato and Bedford Douglass. He wanted to talk to James Kemper. He wanted the police file, the court file, the Valenzuela file, old newspaper clippings and all of the physical evidence (“where are the exhibits?”). He wanted to find Linda Primrose (“this is definitely something I need help on”). He wanted to find Dave Brewer. He wanted to find Frieda Kennedy. He wanted to visit with Bill Macumber. He wanted to speak to Tom O’Toole, Ron Petica, Dr. Erickson, Dr. Rubinow. What about the tire-track evidence? What about Valenzuela’s fingerprints? What about all the missing police reports? What about that probation officer’s presentencing report—how could he conclude “no possibility of a frame-up exists,” how could he refer to Bill’s “violent temper” and bizarre Army CID stories when the only evidence came from Carol? What about Corcoran finding Valenzuela’s confession untrustworthy? “Let’s make it trustworthy with more evidence,” Terman declared.

That last item drew his particular focus. Reading through the Macumber file, Terman believed he saw much evidence supporting the legitimacy of Valenzuela’s confessions: everything from Linda Primrose’s corroborating statements to the psychiatrists’ evaluations and Valenzuela’s fantasies. Valenzuela had a violent record and Valenzuela had a motive, his two victims in the way of a drug-stash retrieval. What they now needed, Terman suggested: more people from that night in the desert turning on Valenzuela and more details of his confessions to those not under attorney-client privilege—his cellmate, his girlfriend, the sheriff’s deputy. And what of all this, he asked, could they frame as “new evidence”—the threshold to reopen the case? What about the discovery that the sheriff’s department had failed to connect Primrose and Valenzuela in 1964?

They had to do some fundamental legal research, Terman decided. How much new evidence did they need? “Do we really have to get evidence there was in fact a conspiracy in the sheriff’s department amongst a few persons … that caused the statement from the wife, the bullet casings evidence and the palm print evidence?” he jotted in his notes. Here Terman pointed to their central challenge: “It is one thing to hint there was access to doing the forgery work but how do we prove it was in fact done without getting certain co-conspirators to confess?”

Terman also turned to the Justice Project’s potential new client. On January 18, in a brief letter, he reached out to Bill Macumber for the first time: “I have been assigned by Mr. Larry Hammond of the Justice Project to review your file to determine if there has been manifest injustice. I have been given all the transcripts from your second trial. I wonder if you can obtain a secure line to speak with me. Please get in touch when you are able. I look forward to hearing from you.”

CHAPTER 12

A Case Worth Pursuing

JANUARY–AUGUST 2000

The note from Earl Terman did not startle Bill Macumber. He’d learned about the Justice Project review of his case back in September 1998, when Judge O’Toole and Larry Hammond first wrote Jackie. One morning that October, for fifteen minutes—all the prison would allow—he’d spoken by phone to Steve Wilson, the
Arizona Republic
columnist. He’d shipped to Jackie what transcripts and depositions he had. He’d held off typing up his latest novel because he had only two ribbons left and thought he’d better save them for possible correspondence with the Justice Project attorneys.

Then came Larry Hammond’s letter in November 1998, saying they couldn’t take his case. Macumber moved on. Even when Jackie wrote him in early January 2000, with news that the Justice Project had assigned his file to Earl Terman, he paid little attention. He was sixty-five now, with a bad heart and emphysema. The religious resurgence he’d experienced in the Maricopa County Jail had long ago ebbed, then evaporated; over so many years of unanswered prayers, he’d lost faith in God’s existence, or at least His ultimate powers. He doubted anything could or would be done for him at this late date.

His situation behind bars had changed drastically since his industrious period in the 1980s. Throughout that decade, life, even in prison, had become a pleasure for him as he threw himself into his activities, building and teaching and leading. He’d been able to do this not least because of Ellis MacDougall, director of the Arizona Department of Corrections during Macumber’s early time in prison. MacDougall, introducing innovative management techniques, greatly reduced prison violence not by power but by distributing perks. He allowed prisoners to wear personal clothing. He developed a wide-ranging recreation program for inmates. He actively supported prisoners’ involvement with the Jaycees, the Lifers’ Club, Toastmasters, and the rodeo. He actively supported Bill Macumber as well.

They had the opportunity to meet and talk on several occasions, once at a state Jaycee convention held at the Grand Canyon. There they sat together for two hours, discussing ways to expand the Jaycee program within the prison system, a conversation that eventually led to new Jaycee chapters at the Tucson and Perryville prisons. McDougall came to trust Macumber, enough so that he gave him express approval to travel all over the state to teach at Jaycee chapters, speak to civic organizations and represent the Outlaw Rodeo at other state rodeos.

Then, at the end of 1982, MacDougall retired. His replacement, James Ricketts, made few changes, so MacDougall’s departure wasn’t felt at first. After Ricketts came Samuel Lewis, who took over as director in April 1985. Lewis, an ex-Marine and former deputy director of the Arizona Department of Public Safety, had once called an ACLU lawyer a “cocksucker” at a public hearing, thereby flummoxing
Arizona Republic
editors wishing to include accurate quotes in their coverage. Still the MacDougall era legacy continued—at least for a while.

The first hint Macumber had of coming changes was word of the Outlaw Rodeo’s demise—the 1986 rodeo would be their last. Sam Lewis cited staffing and security concerns as his reason. Next Lewis eliminated tennis from the inmates’ recreation program, explaining that he did not want the public to view the Arizona prison system as a “country club.” Macumber loved to play tennis almost as much as he enjoyed running the rodeo, so the double loss felt like personal blows to him. Yet he knew this was only the beginning, that Sam Lewis had an agenda. Colonel Lewis—the title a carryover from his tenure at the Department of Public Safety—did not believe in “coddling” inmates.

In the fall of 1988, Lewis ordered elimination of the prison dairy. Next he ordered elimination of the hog ranches, the prison slaughterhouse and, finally, the prison farms. This particularly rankled Macumber’s business sense, for now so much of what made the prison system self-sufficient had to be purchased from outside contractors. It rankled Macumber further when Lewis, in late 1989, ordered the confiscation of all taped movies at the Florence prison TV station. At the time, Macumber had some two thousand films on the shelf there, films the station showed nightly based on inmate requests. Prison officials told him to box them all up, place them on pallets and get them ready for shipment. He refused; he knew this would be a hard blow to the inmate population, and he wanted no part of it. As a result, he lost his job at the TV station. (Two weeks later he found another one, overseeing inmate crews for Arizona Correctional Industries.)

Then, in early 1992, Lewis began to severely limit inmate travel outside the prison. This affected Macumber more than any other prisoner. Bit by bit, he was losing the freedom and responsibility that had become a way of life for him. The final jolt came in the summer of 1995, when Lewis ordered the shutdown of all inmate clubs, explaining that he was simply making the Arizona prison system “what a prison system should be.” At the time, Macumber was president of both the ASPOT Jaycees and the Lifers’ Club. Getting advance word that Lewis intended to seize the Jaycee and Lifers’ bank accounts, Macumber wrote checks to Special Olympics, clearing both accounts.

By the time Lewis ordered the elimination of all inmate snack bars, Macumber was reeling. In his lifetime, he’d tell others in later years, only his arrest, trial and incarceration exceeded this systematic destruction of everything he’d built. “To be totally honest,” he wrote to one correspondent, “I never truly recovered.”

In 1996, Macumber’s father fell ill with bone cancer. Harold continued to visit Bill in prison when he felt up to it; the two remained close, the father never ceasing to believe in his son. One day Bill’s brother, Bob, called to report that he’d just taken Dad to a hospice. He put Harold on the phone. Hearing his father’s terribly weak voice brought tears to Bill’s eyes. I love you, he told his dad, and Harold said the same. Those were the last words they exchanged. Five days later, Harold died. When his mother had passed away a decade before, Bill had been allowed to attend her funeral dressed in a suit, without handcuffs or guards. But now prison officials said he could go to his father’s funeral only in prison garb, shackled to two guards. Bill declined—he would not debase his family or his father’s memory in that manner.

By then, Sam Lewis had retired, but the dismantling of Arizona prison life continued. Lewis’s replacement, Terry Stewart—dubbed “Son of Sam” by the inmate population—maintained Lewis’s approach. His greatest impact on Macumber came in the spring of 1997, when he ordered the removal of all lifers from minimum-custody units. Macumber ended up in East Unit, after years in the Outside Trustee quarters. The only job he could get there involved sweeping basketball courts, which took him fifteen minutes a day and paid ten cents an hour. He refused to do that, so for the first time in more than twenty years, he was unemployed.

In mid-October, authorities transferred him again, this time to another state prison entirely—the Mohave Unit at the sprawling, low-rise Douglas Complex, set on a barren reach of high desert in the far southeast corner of Arizona. There Macumber received a warm reception, for he knew a number of the inmates from past years in the prison system, and he knew the Mohave Unit warden as well, from their time together at Florence. But Bill still couldn’t get a good job. He started initially on the yard crew, then became a clerk for the yard crew’s supervisor, which at least occupied his time. In early 2000—just as he first heard from Earl Terman—Macumber went to work for the Mohave Unit library. That truly kept him busy and engaged, for he soon set out to overhaul its inventory system and checkout procedures.

He was now many years older than most of the inmates. Both staff and prisoners at Douglas had taken to calling him “Pops,” the younger inmates accepting him as a sort of surrogate parent—or grandparent. The prison guards, too, treated him with a genial, affectionate respect. Yet life among youngsters could be trying at times, especially given his ten-by-seven-foot “home” in a large dorm room, an open bathroom off to one side. He could never truly be alone, with the younger inmates, so full of energy, always hollering. He had a small personal TV in his cubicle, which he listened to over headphones, favoring the news and sports, but to hear he sometimes had to yell for the others to quiet down. On occasion, Pops couldn’t help it, he came across as the old cuss parent. He had not heard from his own sons in twenty-five years, since they last came to see him in the spring of 1975.

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After reaching out to Bill in January 2000, Earl Terman kept working. Poring through all he could find about the Macumber case, he began to identify the chief issues and assemble, step by step, a coherent ten-page, single-spaced “Macumber Narrative.” He focused first on the murder scene, recording in his notebook a number of relevant facts: no evidence of theft; a thatch of human hair sixty feet from the bodies; tire track impressions never cast; the Impala towed downtown before being dusted for prints, the route taken not established, “nor were the times the truck left and arrived at the downtown sheriff’s station.” Terman scoured the newspaper and TV coverage from thirty-eight years ago, noting, “It did not appear that there was any mention of the hair.… Also there was no clear mention that the shooting had occurred in a rhythm, whereby the first shot fired into each victim was at a distance … followed by execution bullets to the head.” He saw that Linda Primrose’s statements—judged truthful by a polygraph and a psychiatrist—reflected those unreported facts: Terry screaming and yanking her hair, Ernie shooting the running girl then shooting again up close to her head. “She also led them to the scene of the crime and successfully pointed out the positions of the cars and the people on the ground, in detail which was not in the newspapers,” Terman wrote. He thought it “noteworthy” that “the sheriff’s people did not connect” Valenzuela with Primrose. He thought it “noteworthy” as well that the defense at Macumber’s second trial “did not strongly argue the corroboration” that Primrose’s statements provided for the Valenzuela confession. “If there could have been a stronger emphasis on the Linda Primrose corroboration, and additional instances of Valenzuela’s confessions which occurred outside context of a privilege, such as his confession to cellmate Richard Green, or his confession to the sheriff’s officer, these may support an argument that the Judge abused his discretion. Neither the officer nor Richard Green were contacted. Thus it is not ‘new’ evidence, but instead it is the attorney’s failure to get it into the record.”