Manifest Injustice (26 page)

JANUARY–APRIL 2003

In Phoenix on Wednesday, January 29, 2003, five members of the Justice Project’s Macumber team piled into Bob Bartels’s brand-new four-by-four Nissan Pathfinder for the 230-mile drive down to Douglas. Though they had worked closely for years, this would be Bob and Larry’s first visit to a prison together. Their complicated schedules rarely allowed them to be in the same place at the same time. For both of them to make an overnight journey to Douglas, involving an eight-hour round-trip, had required weeks of planning. Yet if they meant to file something, to commit to a petition, they needed to meet the inmate. They wouldn’t make their decision based solely on this visit, but it represented the next crucial step. They had to assess the man they meant to defend.

With them were Rich Robertson, Hayden Williams and Sharon Sargent-Flack, who’d started practicing law in northern Arizona. They left Phoenix in the early afternoon, with the goal of traveling in daylight and reaching Douglas in time for dinner. They drove southeast on Interstate 10 for the first two and a half hours, once past the Phoenix sprawl rolling through flat, open territory surrounded by the Gila, Maricopa and Papago Indian reservations. They made Tucson by midafternoon and kept going, Interstate 10 down to two lanes in each direction, the road winding through an empty stretch of Arizona that felt nearly uninhabited. Their turnoff came after 155 miles: exit 303, Arizona State Highway 80. This was more a trail than a highway—seventy-five miles of narrow curving country road, winding past barren desert flatlands dotted with sagebrush and sorrel, then gullies and gulches and low, rolling hills. Fifty miles from Douglas, they passed historic Tombstone, Arizona, with its billboard promising “Gunfights Daily!” and its lines of tourists waiting to watch costumed cowboys and lawmen reenact the bloody gunfight at the O.K. Corral. No matter that the 1881 shootout took place in a narrow alley, not at the corral, and no matter that Wyatt Earp and Doc Holliday weren’t seen as heroic until later—authorities initially charged them with murder. Back then, as now, narratives shaped outcomes in courtrooms. Or as Bob Bartels liked to tell his students, there are no facts, just evidence.
Don’t conflate facts with evidence.

He and Hammond had seen—and tried to correct—their share of faulty narratives. Recently, in one case, they’d managed to do that even without DNA evidence. In the fall of 2000, at the same time Karen and Sharon first opened the Macumber file, another law student volunteer under Bartels’s supervision, Michelle Dolezal, had opened the Lacy file.
State v. Lacy
involved a manslaughter and aggravated assault conviction. Reading through the court documents, Michelle decided that Lacy’s trial attorney had done a terrible job of defending him, advancing a primary theory of the case that fell apart in the courtroom. What’s more, the attorney had failed to recognize that the victim’s fatal head wound could not have been made by the .45-caliber bullet in Lacy’s gun—the hole in the dead man’s skull was literally too small. Bartels and Dolezal filed a petition for post-conviction relief, which Bartels argued at a hearing in October 2002, calling Larry Hammond as an expert witness on issues involving ineffective assistance of counsel. Judge Silvia R. Arellano issued her oral opinion from the bench that same day: Lacy’s defense counsel had been ineffective, she ruled, and “the totality of the evidence establishes that no reasonable trier of fact could have found the defendant guilty based upon the evidence presented.” Lacy walked free in January 2003—just days before the Justice Project’s journey to Douglas.

All through that afternoon, driving across the rolling Arizona desert, the Macumber team members talked about their case and their coming visit with Bill. They wanted to look Macumber in the eye and ask him about the shooting into his kitchen window; about why he occasionally changed the parts of his .45 automatic; about his conversation with Carol in the spring of 1974; about their deteriorating relationship and what he knew of her affairs and fingerprint classes. They also wanted to hear about his prison life—the Jaycees and Florence Outlaw Rodeo, the money raised for charities, his book writing and poetry. They wanted to gain a tangible sense of this man, and this case. They wanted their client to frame everything—to transform their welter of reports into a narrative.

*   *   *

Some twenty-five miles beyond Tombstone, the Macumber team passed another historic town: Bisbee, with its charmingly restored and brightly painted neighborhoods of Victorian and European-style homes perched improbably on hillsides, overlooking narrow gullies. On another day, another trip, they might have stopped there for a while—its allure far surpassed Tombstone’s. But they were eager to reach their destination. The team arrived in Douglas late that afternoon.

Douglas, with a population of eighteen thousand spread over almost eight square miles, sat on the border with Mexico, across from Agua Prieta, a pueblo in the Mexican state of Sonora. Founded as an American smelter town, after the Spanish had earlier settled and then abandoned the area in the eighteenth century, it still felt abandoned in some ways, or at least eerily remote, tucked into the far southeast corner of Cochise County, 6,169 square miles of scrub brush, ranches and tiny towns. Yet it offered several prominent features, chief among them the venerable Gadsden Hotel. Opened in 1907, named for the Gadsden Purchase and now recognized as a national historic site, the dignified five-story hotel included a capacious main lobby featuring a white Italian marble staircase, four marble columns and vaulted stained glass skylights.

This is where the Macumber team dined and spent the night. Early the next morning, Larry Hammond went jogging down to the border crossing—he was an avid runner of marathons until his knees gave out. He watched the flow of pedestrians and cars passing through the checkpoints, something not everyone in this region bothered with; Cochise County had been an established crossing corridor since the mid-1990s for smugglers of both narcotics and illegal immigrants. Hammond turned finally and resumed his jogging. Back at the hotel, he showered and met his colleagues in the lobby. Their drive to the state prison took no more than ten minutes. A right onto Pan American Avenue, a left at Arizona 80, then a right onto Highway 191. Seven miles down that road, they saw the sign for the state prison.

The Douglas prison complex sat on a vast, isolated semiarid steppe, a sprawling collection of plain one-story structures surrounded by miles of chain-link fence. The Macumber team stopped first at a gated guardhouse at the complex’s main entrance, which stood by itself far from the prison buildings. They climbed out of Bartels’s SUV under a bright blue sky, with a brisk wind blowing in their faces. They had to produce identification, declare all possible “contraband”—including cell phones and laptops—and open the car’s trunk for inspection. Back in the Pathfinder, they drove across the complex to the low-rise Mohave Unit, Bill Macumber’s home. Sharon Sargent-Flack looked wide-eyed at everything. Hammond had prepared her, instructing her on how to dress: no brown, tan or khaki clothing (the shades worn by the prison security staff) or orange (the inmate’s uniforms); all skirts and dresses at least knee-length; no spandex-like material; no sheer, see-through or open-netted fabric; no sleeveless tops, no tank, tube or halter tops; no necklines lower than the collarbone; no bare midriffs. They could bring in only their personal identification, prescription medicine, one unopened package of cigarettes, one engagement or wedding ring, one religious medallion, one wristwatch, one pair of earrings (or two observable body-piercing adornments), and two car keys (or one key and a vehicle’s remote-control entry device). They could also bring in a maximum of $20 in coins, in a clear plastic bag—this to be used for the vending machines in the visitation area. It had been many years since Macumber’s prison featured a snack bar.

One by one, the team members handed their IDs to the guard at the entrance to the medium-security Mohave Unit, then stepped through the metal detector and removed their shoes for inspection. A second guard arrived to escort them down a short hallway, which led into the large open visitation area, a big room filled with round tables, watched over by a single guard standing behind a counter. A door and windows on the far wall opened to an outside area featuring picnic tables ringed by a high chain-link fence.

The team first saw Bill Macumber as he stepped into the room through an interior doorway near the guard’s counter, stooping a bit to clear his head. He wore a bright orange jumpsuit that didn’t quite seem to fit his tall, lanky frame. They knew he stood six foot seven but were still struck by his height. With arthritis now in his knees and hip, he appeared to lope toward them, looking as if he had extra hinges. At sixty-seven, he was gray-haired, with a narrow, craggy face. He seemed genuinely happy to meet them, greeting the team members one by one, shaking their hands, his manner courtly, his voice deep and resonant, a baritone full of gravel. They chose to sit down at a table in the outside picnic area, to gain privacy away from the guard but also to allow Bill a cigarette—he’d been a smoker all his life. So, Macumber began, what do you want to ask me?

As they started to talk, Hammond studied the man. Macumber came across as uncommonly helpful and attentive. Like other prisoners, he had things he wished to address; he particularly wanted to express his objections to how the authorities ran this prison. The unidentified “sleeper” gang members, the prisoners not really protected in protective segregation—he didn’t fear for his own well-being any longer, but he worried about other inmates. Hammond wanted to listen to these concerns, but Bartels, always the most organized, kept Macumber from straying too far off message.

Together, the two lawyers began asking Macumber questions. He responded in a slow, methodical way, not trying—as prisoners often did—to glibly fill in gaps if he didn’t know something. They had him recount in detail the window-shooting event: where he stood, the trajectory of the bullet, how he could be in the line of sight. Macumber told them about the shattered window, the wobbly but climbable fence, the neighbors who heard the shot. They also asked him about his palm print on the Impala. Hammond hoped Bill would flat out say, No way I ever touched that car, and Macumber almost did, but in the end he declined to be so unequivocal. I guess it’s possible the car came by our gas station that evening, he allowed, though he didn’t think it likely. What about earlier, another time? No, Macumber pointed out, the kids had washed the car just before leaving home. Rich and Hayden, knowing the most about guns, asked him about the ejector markings. Macumber explained the inner mechanism of pistols, why you couldn’t use those markings to make a match. No, he said, he’d never changed out the firing pin on that gun. Yes, deputies picked up his gun for test-firing in 1962, within two weeks or so of the murders. Hammond asked about his fight with the three juveniles, the night he came home with a bloody shirt. Larry had some skepticism about that event, but his concerns eased as he listened to Macumber’s response, his measured recollection of the encounter. It sounded rational, Bill being a mechanic accustomed to helping stranded motorists. Hammond believed him. They also asked him about Carol’s fingerprint education. She had a fingerprint kit and would practice on him, he said. Yes, she took his prints. They talked to Macumber finally about Carol’s statement, and about just what he said to her that spring night in 1974. Macumber didn’t equivocate now: No, he most certainly did not tell her he killed the couple on Scottsdale Road.

The conversation continued for well over three hours, eventually evolving from questions to plans. They explained to Macumber their intent to focus mainly on the palm print and the shell casings. To that end, they told him, they’d recently secured an entire driver’s-side door from a 1959 Impala and would be examining it closely. They also told him they had located Carol, along with his sons Scott and Steve, in Olympia, Washington, and would be making a trip up there to speak to her, if she would be willing. They told him as well to hang in there, that they would be doing their very best to compile enough evidence to support the filing of a post-conviction relief petition.

Macumber listened with mounting appreciation. His visitors’ words and manner made him feel more confident than at any time since his arrest.

*   *   *

Macumber had read it correctly: The Justice Project team left the Douglas prison that day with a deeply favorable impression of him. Here, Hammond believed, was an innocent man who was somehow not angry or bitter. Macumber, always courteous and patient, hadn’t raged at them or anyone. Understanding the complexities of his case, he’d avoided glib responses. If he had said things they couldn’t reconcile, if he had caused them to doubt his veracity, they’d likely be at the end of the road. He hadn’t, and they weren’t.

Rich Robertson also believed that Bill had been truthful. Except for those represented by the Justice Project, most of his clients were guilty—if not of the actual charge, at least a modified one. Prisons just weren’t full of innocents. When Robertson investigated what clients told him, he usually discovered it to be bullshit. Their stories kept changing as Rich found new information. But Bill differed. His story never changed—in fact, it had never changed over many years. He offered little to refute. Robertson had been around long enough to recognize bullshit, and didn’t see bullshit here. Macumber wasn’t like the other prisoners Rich had known. Rich instinctively, genuinely liked Bill. He wanted to help him. He couldn’t imagine how Macumber had endured in prison for twenty-six years—how he’d endured in a place where only he knew himself innocent, where everyone else considered him a murderer.

The visit cemented Sharon Sargent-Flack’s impression of Bill Macumber as well. She’d joined this trip to Douglas because she continued to believe in both the Justice Project and Macumber. Meeting Bill confirmed her belief. His character, his love for his sons, his involvement in the Jaycees and the rodeo and charities, his being allowed to leave the compound as a trustee—really, his whole life informed her belief. So did the elements of the case. How, she wondered, could any jury find Macumber guilty beyond a reasonable doubt?