Manifest Injustice (21 page)

Terman, even as he made these arguments, recognized certain troubling issues in the Macumber case. Though these issues gave him pause, they did not deter him. After studying and pondering, he saw reasons to dismiss each of them, reasons to believe Macumber innocent.

The defense at the second trial, he had to allow, “did not appear to have any affirmative evidence that Carol had pulled the switch of evidence.” But now they had Dave Brewer’s 1983 statement. Terman had found a transcript of this interview within weeks of opening the Macumber file and had promptly scribbled a note to Bedford Douglass: “I am getting deeper into this case. I work with Larry Hammond and the Justice Project. Attached is an interview in 1983 with Dave Brewer. Can you tell me what follow-up action resulted, if any? This reads like terrific and explosive new evidence potential. Please call.” Douglass had never responded but Brewer’s reference to an “internal investigation” of Carol, and his revelation that Macumber’s fingerprints initially didn’t match the latents, continued to intrigue Terman. Brewer, he thought, “relayed two significant facts which might justify a new trial.”

Ernest Valenzuela’s confession, Terman acknowledged, was “short on details.” But Terman believed that could easily be explained by his history of hard drug and alcohol abuse. What details Valenzuela did provide remained consistent from confession to confession, and dovetailed with Linda Primrose’s statement. Ernie had mentioned getting a .45-caliber gun from his nephew, Terman noted, and that nephew didn’t deny it when questioned by deputies. The nephew, in fact, thought Ernie “certainly capable” of such a murder.

Terman knew that Macumber came home one night around the time of the murders with a bloody shirt. But he saw that Bill had both an explanation—a fight with teenagers—and what Terman considered a “corroborating” witness: Soon after it happened, Macumber had told Phoenix police officer Robert Kimm about being in a fight “up in the northern part of the city near the freeway.” Studying the transcripts, Terman found that Kimm, who patrolled the area around the Macumbers’ gas station, had confirmed this at Bill’s second trial. Kimm testified that Macumber told him “he had stopped to help two or three kids, apparently having some car trouble, and that as he helped them, they jumped him and a little fight ensued.… As I recall we discussed the thing.… There didn’t seem to be any serious injuries involved or anything like that and I think he asked about a police report. It didn’t look like it would really do that much good. It was a mutual type combat.… If he got the best of them, they probably would just as soon forget it too.” So that, Kimm said, was the advice he gave Bill: Forget about it.

Terman turned finally to the murky issue of just what Bill and Carol said to each other during their pivotal exchange in the spring of 1974—and what Bill then said to sheriff’s deputies during his interrogation on August 28. More than one sheriff’s deputy, Terman saw, testified that Bill admitted he’d confessed to his wife, just as Carol claimed. And the Arizona Supreme Court, in affirming Macumber’s conviction, said, “In essence, Macumber admitted that he had told his wife that he had killed the two victims.” Terman bridled at that “In essence.” He looked instead to Macumber’s own account of his conversation with Carol that night in the spring of 1974.

She’d come home from her community college class at around 3:00
A.M.
, he testified at his second trial. They’d argued angrily over the terms of a divorce, he threatening to “bring up all your boyfriends,” she saying, “I will kill you first.” He retreated to their bedroom, and she followed him in sometime later.

She lay there a little while, maybe for 15 or 20 minutes, then she rolled over and said, “Do you remember the kids in Scottsdale?… The kids from the telephone company … the ones they checked your gun on?” … I said, “What about it?” And she said, “Well you know they were shot with a .45 and you have got a .45.” I said, “Well, so do a lot of other people.” And then she said something about me coming home with blood on my clothes and I said, “Yes you know about that. I told you about the night it happened.…” She said, “You know, there were fingerprints on the car.” I said, “Well if that is the case, if my prints are on that car, they can damn sure match them.” … I was mad. I said it facetiously.

Terman’s conclusion: “Somewhere in this quarrel the sheriffs said that Bill admitted to his wife something about his having killed the two in Scottsdale. But Bill denied under oath that he ever told this to his wife and denied that he told the sheriffs that he said it to her.… The police did not take or have their notes available nor did they tape record this interrogation which lasted from early morning until midnight. Bill doesn’t deny saying something to this effect but he said it was in the context of the quarrel and that he was just upset with her. Carol even testified that she did not believe him.”

*   *   *

In early February 2000, Terman sent Bill a copy of his ten-page Macumber Narrative, a document punctuated by animated passages written in all caps, signifying issues Terman deemed particularly telling (such as THE SHERIFF’S PEOPLE DID NOT CONNECT THIS “ERNIE” WITH THE ERNEST MENTIONED BY LINDA PRIMROSE). In a cover note, he wrote, “Enclosed is a narrative to date on your case. Please read and comment (additions, corrections, thoughts).” His Macumber file being incomplete, Terman also had a few questions: Did the original set of fingerprint tips match yours, or just the palm print? Was your second conviction ever appealed on the federal level or in a post-conviction relief petition? Were you previously aware of the 1983 Dave Brewer statement? What was done as a result of Brewer’s comments?

In his cubicle on the evening of February 8, Macumber read through Terman’s narrative, then reached for pen and paper, eager to respond right away. “I would first like to thank you from the bottom of my heart,” he wrote, “for the time and effort you have already expended in my behalf. I had begun to believe that any thoughts of the truth ever being known was all but impossible. Whichever way this goes I want you to know I truly appreciate what you’re attempting to do.”

Addressing Terman’s questions and requests for comments, Macumber advised that “only the palm print matched,” not his fingerprints. He knew of no action other than the appeal to the Arizona Supreme Court—“if there was, I was never told nor did I ever receive a brief, transcript or results.” (In fact, there’d also been an unsuccessful federal habeas corpus petition.) Yes, Macumber was “made aware of the Dave Brewer statement” shortly after Brewer gave it to Bedford Douglass. “As soon as I received a copy I immediately wrote back asking if that would be enough to possibly get us some kind of hearing. The reply said … that Brewer’s statement, in and by itself, was not grounds to reopen the case. My father also went down to Bedford’s office on the same errand and was told the same thing. To my knowledge, nothing was ever done about it.” As far as he knew, no one had ever attempted to find Valenzuela’s 1964 cellmate, Richard Green. Nor had Bill seen any real effort to connect the thatch of hair to Primrose’s statement. At no time, he wrote, “did I ever make a statement to Carol saying that I killed anyone.” He didn’t have “any idea” what night he came home with a bloody shirt after the fight with three boys, but “I did attempt to report the fight as you already know.” He found “the rest of the narrative to be pretty straightforward and correct.” He was “probably missing and overlooking some things but twenty-five years is a long time.” He hoped his comments helped, and he’d do his best to answer additional questions. He concluded, “Mr. Terman, thanks again for your interest and your energy. I hope it leads to some daylight on down the road.”

*   *   *

Terman kept pursuing leads through that first half of 2000. He read Bill and Carol’s divorce file. He talked to Dave Brewer. He confirmed that Ed Calles had attended classes with Carol at Glendale Community College and “apparently got her a job with the sheriff’s office.” He located Carol, living with two of her sons up in Washington State. He located former sheriff Paul Blubaum up in Idaho. He located former sheriff’s fingerprint technician Jerry Jacka. He located former sheriff’s deputy Charles Ford, who’d matched Macumber’s palm print on the day of his arrest. He compiled a list of Carol’s “alleged” and “possible” lovers and started trying to reach them.

Terman came to suspect a strong connection between Carol and Ed Calles. He also came to suspect that Carol back then “had a hold” over the sheriff’s department, though he recognized that Dave Brewer’s statement was “hearsay as of now.” He thought it interesting that Carol gave her August 23 statement soon after being “brought in as a suspect” in the kitchen-window shooting. Despite some initial misgivings, he grew ever more convinced of Macumber’s innocence.

The passage of so many years, however, presented sizable obstacles. Terman was trying to excavate the distant past. He still couldn’t find any of the physical evidence—no exhibits, no original fingerprints, no shell casings, no crime scene photos, nothing. He couldn’t find Frieda Kennedy or Linda Primrose. Richard Diehl had just died. So had Jack Watson, who’d picked up the shell casings at the murder site. Terman couldn’t get his hands on Valenzuela’s federal prison file—the feds were resisting. He also couldn’t track down the “Terry” in Linda Primrose’s statement. “She may be a Yaqui or Pima Indian according to Dave Brewer,” Terman reported to Hammond on May 9. “Brewer remembers seeing her around the Courthouse in the early 1980s.”

Terman also faced the problem of the Justice Project’s limited resources. He had no substantive support, no staff or investigators. “Since I wrote my report in early February,” he advised Macumber in an update on May 10, “I was hoping to get help to track down the numerous players from the past. I have some help now but I am essentially making the contacts myself.”

Yet he had located Carol and two of the boys. That’s what Macumber most focused on in Terman’s report. He would have dearly loved to ask where his sons were, but he suspected it probably best that he didn’t know. They had made no attempt to contact him over the years, and he imagined they had no room in their lives for him now. He could not—would not—interfere with them at this late date, however much he wanted to. “They have made it more than evident that they want nothing to do with me…” he wrote to Jackie in mid-May. “I would gladly die to change that, but of course it will not change.”

*   *   *

In late May, the Justice Project finally found the means to provide Terman some much-needed help. Rich Robertson had been a journalist at the
Arizona Republic
for twenty-eight years, for a while serving as the city editor. Then he’d migrated to TV news, working as an on-the-air reporter. He’d discovered he didn’t like that—he’d rather investigate than stand in front of a camera. He’d decided to switch careers, to become a private investigator for lawyers. Most legal investigators were ex-cops who couldn’t write, he reasoned, but investigators needed writing skills. They had to figure out what was important, then convey it in a coherent way—the very definition of a reporter. In April 2000, Robertson hung out his shingle. The next month, Larry Hammond, who knew Rich from his work as a journalist, came calling. Of course, Robertson would have to work mainly pro bono, but it would get him started. Robertson readily agreed—he was full of piss and vinegar then and had time on his hands.

Hammond handed him two cases that May. One he’d get paid to handle, it involving a court-appointed death penalty case. The other was the Macumber file. Robertson began by reading a pile of documents and conferring with Earl Terman. The low, limited quality of the initial investigation caught his attention right away. The very nature of gathering evidence had changed since 1962; back then, the Maricopa County Sheriff’s Office had been a small force in a medium-sized town, faced with a double murder committed far out in the rural high desert. If DNA had been used in those days, there’d be no mystery to resolve. They could still do a DNA analysis today—if only they had the handkerchief or the thatch of hair from the murder scene. But those items had gone missing, as had so many of the sheriff’s reports. The few remaining documents were scattered about at various agencies, and the fundamental government filing system had changed. Trying to find everything was, Robertson thought, like doing archaeology. Better if they’d sentenced Macumber to death. At least then everything would have been preserved for the endless appeals. Instead—as Robertson soon discovered, to his dismay—in September 1982, as part of a “housecleaning,” the Maricopa County Superior Court had authorized the destruction of all evidence and exhibits in the Macumber case.

Robertson set out to find Linda Primrose. He started his search for her with a reverse-directory check, looking for Linda’s father, then went to the county recorder’s office to study property deeds. To locate women whose last names changed with marriage, you had to trace them through men, following the property records. Linda’s father had owned a house in downtown Phoenix that he’d transferred to Linda’s brother, who’d sold it. Robertson saw that the son had signed a deed notarized by a Durango, Colorado, notary. He dialed information there, got a phone number, and made the call. Linda had passed away in January, the brother told Rich—but here are the numbers for her daughter and twin sister.

Bingo—a lead, at least. Robertson talked to Primrose’s daughter, Theresa Hay, on May 23. Before Linda died, Theresa said, she told her adult children all about her role in the Macumber case. But she stuck to her recantation: She’d been running around in a stolen car, she claimed, and had needed a cover story that would elicit sympathy from her abusive mother. Robertson didn’t think that rang true, since Linda’s mother (he’d found her in Redway, California) had told him that Linda never said a word to her about the murders or the statements to deputies. What Robertson thought more interesting was Theresa’s reference to her mother keeping a file or scrapbook on the Macumber case. Theresa, who lived in Phoenix, promised to search for and share whatever she found.