Manifest Injustice (27 page)

On the long drive back to Phoenix, the team members shared their thoughts. The others, talking on, could not help but look over at Bob Bartels. Behind the wheel of his Pathfinder, he said little, his few words, as usual, almost inaudible. His law students had come to think his speaking style a manifestation of his intellect—those less intelligent might talk loudly and quickly to mask their uncertainty, but Bartels seemed to have something like three hundred well-ordered rooms lined up clearly in his brain, ready for recall. He spoke slowly and softly because he wasn’t vying for people’s attention or seeking approval. He stayed inside his mind.

Unlike the others, he had not been trying to assess Bill Macumber. He didn’t have much faith in his intuitive ability to judge a person’s innocence. He had, though, been trying to judge the appearance of credibility—in other words, how his client would do on the witness stand. Though even there, he had to be careful; how someone came across in a prison interview and in a courtroom might differ considerably. Yes, he also had been weighing whether Macumber was consistent or full of crap—but here he judged the content, not the person. That was Bartels’s way, the only approach he trusted. People fell prey to thinking they could judge, that they could rely on what a person seemed to be. Studies showed otherwise. Still—even on Bartels’s strict terms, nothing Bill Macumber had said was problematic or inconsistent. He found Macumber to be direct, steady and matter-of-fact—Bill had not been posing.

Should they put more into this case? The answer, shared by all: yes.

Ten days later, Larry Hammond expressed their commitment even more firmly in a message to the team: “I am convinced that we owe it to Mr. Macumber to go forward with his case.… We are in a position to tell the Macumber story in a way that it has never coherently been told.… As soon as we can, I think we ought to get to the business of drafting the petition.… Bob—I wonder whether it would be wise for us to go ahead and put together a team to begin drafting?… As I look at the Justice Project for the year 2003, I do not believe that we have a more important case.”

*   *   *

First, though, Carol: Among the team’s pressing tasks, none ranked higher than a visit with her. That March, some six weeks after their journey to the state prison, Rich Robertson and Hayden Williams flew up to Portland. They rented a car there and started the drive north on Interstate 5 through a forest of towering redwoods, heading toward Olympia, Washington. Williams, an ex-cop, now a private investigator who worked often for the federal public defender, had also paired up with Robertson to visit Frieda Kennedy. As with that mission, they planned to approach Carol without calling first. Better just to show up; it was a lot harder to say no to a face.

With the assistance of a local real estate agent—who offered to help solve the case with her psychic powers—they found Carol’s house on a wooded Puget Sound inlet, at the end of a winding rural road. They saw no people or vehicles, so Robertson and Williams settled in to wait, huddled in their car with coffee and doughnuts under a light, misting rain. They left and returned a number of times throughout the day and evening, hoping to catch Carol. They eventually knocked on a few neighbors’ doors. She’s away, the neighbors explained, but is due home soon. So Robertson and Williams came back the next day, again huddling for hours in their car under what Rich would recall as misty skies. Finally, they saw a dark-colored van pull up sporting a Denver Broncos flag on the rear spare-tire mount. They watched as Carol and several family members climbed out and went into the house. They waited for them to get settled, then walked up onto the porch and knocked. When Carol opened her door, they introduced themselves. We’re investigators for the Arizona Justice Project, Robertson explained. We’re working on Bill Macumber’s case. We hope you’ll be willing to talk to us.

Carol was not willing, as she quickly made clear. She visibly tensed. She couldn’t believe anyone was reviewing Bill’s case, she said. She’d had it up to here—she pointed to her forehead—having to answer questions every time she turned around. It followed her everywhere she went. As Robertson would later recall at public hearings, she then said: Bill is as guilty as Saddam Hussein and get the fuck off my porch. Robertson and Williams didn’t argue—they were trespassing, after all. Robertson left a Justice Project business card in her mailbox before driving off.

*   *   *

At a meeting one month later, in mid-April 2003, the Justice Project’s Macumber team formally decided to file a petition for post-conviction relief. Hammond wrote to Macumber on April 22. “I hope this is good news for you,” he began. “Our team had another meeting this past week and after years of careful evaluation we have come to the conclusion that, win or lose, we need to file a Petition for Post-Conviction Relief on your behalf. Between us all we have come to the conclusion that this is a case that needs to be pursued. It will take us some time to put all of the pieces together but that is what we intend to do. Please continue to be patient with us.”

Hammond copied this letter to Jackie Kelley. She wrote back on April 27: “I cannot begin to tell you of the relief and joy with which I received your letter!”

Bill wrote back as well: “You cannot possibly understand my feelings after reading your letter.… It is the first real ray of hope I have had after twenty-eight years of hopeless existence. I am now an old man and yet I have an almost feeling of being reborn.”

CHAPTER 15

Shaking a Tree

MAY 2003–APRIL 2005

Once again, Rich Robertson discovered the benefit of shaking a tree. First with Jerry Jacka, now with Carol Kempfert. They didn’t get their interview with her, but the trip to Washington certainly yielded rich fruit.

In May 2003, Carol called her youngest son, Ron, to report about the visit by Larry Hammond’s investigators. They knocked at her door, she explained. They’re looking into your father’s case, trying to get him out. She didn’t talk to them. She demanded they leave her alone. She didn’t want anything to do with them, and neither did Ron’s two older brothers, Scott and Steve. She figured Ron felt the same. They’re looking for you, too, she warned. But they don’t know where you are.

Ron was thirty-five then, living in Colorado and going by the last name of Kempfert, his mom’s maiden name. Twenty-eight years had passed since he’d last seen or communicated with his father; he’d been seven at the time of that final visit to Florence in the spring of 1975. Despite so much elapsed time, he had enduring memories of his dad. How he’d take his three sons to the desert for hiking and camping and hunting. How they’d go clamming at Pismo Beach and up in Oregon. How he taught them to race BMX bicycles and built them a bike ramp using neighborhood garbage cans. How he assembled that life-sized replica of the NASA
Apollo
space capsule, complete with working buttons, flashing lights and radio sounds. Every summer, his dad would set up an above-ground swimming pool. He’d also take them to Lake Pleasant; once Ron had drifted far from shore, his father swimming out to retrieve him. He made them belts and belt buckles, sometimes from snakeskins—he liked bringing snakes home in burlap bags, a habit that set their babysitter Donna screaming one day. Ron recalled those early years as a happy time, he and his brothers so close, all of them loving to be with their dad. When their parents separated and his mother moved out to live with Frieda Kennedy, they stayed home with him; he was the main person taking care of them and always had been. Ron had few memories of his mother from before Bill’s arrest.

He didn’t remember much about the split, either. Just vaguely, Dad sitting them down, June 1974 or maybe a little earlier, saying their mother was moving out. Nothing more. Oh yes, Ron did remember the shot through the kitchen window that August. Late that night, Dad burst into their bedroom; Steve and Ron had bunk beds. He woke them up, put them in the bathtub, told them to stay there until he came to get them. Ron recalled being set down in that bathtub, but not what happened next: when the police came or whether he fell asleep. The following morning, he saw a bullet hole in the kitchen cabinet. He vaguely remembered Dad saying someone had shot from the alleyway. He recalled nothing being said about who’d fired or why. He just knew his father seemed upset.

Then, days later, came his dad’s arrest. Ron remembered arriving home from school, Mom there, saying Dad was at the police station. She took them all down to the sheriff’s department, he in the backseat of their Gran Torino, Scott up front looking unhappy. Ron recalled someone running out when they got there, in the garage, saying,
Carol, the prints match, get the kids out of here
. She took them to “Denny’s” house; Ron recalled that they were rear-ended on the way. Ron thought he’d met this “Denny” before, but he mainly knew of Denny because his mother talked about him a lot. They stayed there a few days, the boys and Carol. Only later would Ron figure out this must have been Dennis Gilbertson.

He had just a faint memory of seeing his father in the county jail. He remembered more clearly going back to school, having a lot of problems there, people making comments about Dad, Scott defending the family, Scott getting into a couple of fights. Ron also recalled the news media, the reporters and TV cameras camped outside their house, Mom being upset because the press wouldn’t leave them alone, Steve and Scott even shooting their BB guns at the reporters. In the early going, Ron didn’t remember ever being told why his father had been arrested. Yet he did recall Dad telling his boys how much he loved and cared about them, and asking them to believe him innocent.

Even after he’d been charged with the murders, the boys visited and stayed with him many times when he was out on bail. Ron recalled sitting at the table with his grandparents and father, being told by his grandma to eat his creamed corn. He remembered going to a shopping mall with his dad, and out to the desert. He recalled his dad writing a letter to his Desert Survival Unit buddies, saying he needed help, he needed money for bail so he could see his boys. But memories of his father began to fade after that—Ron could summon just bits and pieces. He didn’t remember anything about the first trial or conviction; he recalled only something about a letter—his dad trying to get a letter to them through the judge, his mom being upset, the judge bringing all three boys into his chambers. This must have been after the first conviction, Ron figured, Dad just trying to talk to us. But they never saw that letter. Mom didn’t want them to.

Only vaguely did Ron recall visiting his dad in the state prison at Florence, his grandparents taking him. On that last visit, just he and Steve went. Scott didn’t want to go—maybe he was angry or scared, since he’d been closest to Dad, since Bill had coached his Little League team. In truth, Ron didn’t remember the visit with Dad itself, just the drive there. That would have been in the spring of 1975. At the time, Ron didn’t know this would be his last contact with his father.

His mom moved their family to Colorado that spring or summer. They were living there at the time of the reversal and second trial. Ron remembered more of that period: his mom finding out about the reversal, his dad getting out of prison, Carol eventually going to Phoenix to testify. Also, Bill’s parents, Harold and Meryle, coming to look for the boys in Colorado. Carol spotted them in Colorado Springs and told her sons their grandparents meant to take them away. They began identifying hiding places—among them, a drainage pipe—in case their grandparents showed up. When they heard the court had reversed their dad’s conviction, the boys felt scared, fearing they’d be separated from their mother.

They knew now what he’d been accused of, whom he’d killed. Their mom had told them:
Dad was driving out in the desert. At Bell and Scottsdale, someone ran a red light in front of him. He went after them with his bright lights on, got out of his car, went to the driver’s side, asked for ID. The boy, realizing he wasn’t a cop, challenged him, and Bill shot him. The girl started running, he grabbed and shot her, too. That’s how he got blood on his shirt
. This didn’t fit with the father Ron knew. But his mom told him, so it must be true. And the court did convict him. Ron wanted nothing to do with him. He began telling people at school his dad had died.

For Ron, that was essentially true. He grew up without a father. His mom had other men in their house, but none filled that role. One, a sculptor, stayed for a good while and treated them well, but he left after they moved from Colorado to Washington. Others came and went. Carol wasn’t a bad mother; Ron would never want to bad-mouth her—she did her best, working a swing shift in the Aspen, Colorado, sheriff’s department, leaving them most days just as they arrived home from school. Scott, almost five years older than Ron, played the role of father figure, with Steve in the middle, Ron a mama’s boy. During this time, as Ron recalls it, he had no clue their father was writing letters to them. Only later did he come to understand that his mother had returned Bill’s letters to their sender. So to Ron, his dad was not just a murderer but a father who’d abandoned them, who didn’t want anything to do with them.

He first began looking into his dad’s case while in junior high school. They lived in Eugene then, having moved there in the summer of 1979. Ron had no clear idea why; he just started reading some old newspaper stories, local coverage of the trials his grandma had given him. He learned now about the three key prongs of evidence, the prints and the shell casings and Carol’s statement. He also learned about the dispute over the Valenzuela confession. Then, in July 1983, when he was fifteen, Grandma Meryle sent him a news article about Bill Macumber published that month in the
Phoenix Gazette
. “Jaycee Chapters in Prison Earn Recognition” read the banner headline across the top of the Metro section. Paragraph after paragraph chronicled Bill’s leadership role with the Roadrunner Jaycees. “Jaycees are dedicated to community service,” the article quoted Macumber, “and doing outside projects is our way of contributing to the society most of us will return to one day.” It also, he added, helped dispel the misconception the public had about convicts: “All criminals aren’t total anti-social animals. We’re concerned about people too.”