Manifest Injustice (30 page)

JUNE 2003–JULY 2008

Since launching the Justice Project, Larry Hammond had watched class after class of volunteer law students go from failure to failure, despite their marvelous minds and energy. Innocence projects, by their nature, were often about failure. The legal obstacles they couldn’t get over, the injustices they couldn’t fix. They were always playing long shots. That they needed newly discovered evidence with verdict-changing capacity was tough enough. To accept non-DNA cases, as the Justice Project did, made it even tougher.

If only the Justice Project had paid professionals at the helm who could truly
own
the Macumber case. But they didn’t. Larry Hammond had his consuming private practice at Osborn Maledon, as well as various death row cases—appointments from the county and federal courts. Bob Bartels, besides his position at the ASU College of Law, served as a special assistant United States attorney for the District of Arizona. Rich Robertson had a private investigator’s firm to run, having added several PIs to his staff. The Macumber case, like the others at the Justice Project, depended on volunteer pro bono forensics experts and a steady influx of law students, who kept graduating and moving on. The Macumber case also depended on two Justice Project supervisors with distinctly different modes and outlooks. They revered each other, but Bob Bartels’s measured caution at times conflicted with Larry Hammond’s impetuous optimism. Where Hammond, far less skeptical, invariably wanted to run to court with a petition, Bartels often favored further investigation. Facts drove Bartels, feelings Hammond. The tension between these impulses now began to affect the Justice Project’s handling of the Macumber case.

In late June 2003, Bartels decided that he needed to interview Jerry Jacka once again—his third visit, the team’s fourth, to this fingerprint technician turned famous photographer. Jacka had moved from Phoenix and now lived on a 120-acre ranch near the remote town of Heber, three hours to the northeast. On June 26, Bartels drove up there alone. Since his earlier visits with Jacka, he’d had time to think about matters and carefully examine the print photos they’d obtained by court order. Despite Steve Anderson’s “gold mine” analysis the year before, Bartels still had questions. How much did Jacka really remember about this particular case? How exactly had he lifted the prints? What kind of paper card had he placed the print on? Why hadn’t he sent Latent Lift 1 to the FBI? Most important: Exactly how had Macumber’s palm print ended up on the Chevy Impala?

Bartels chewed on these issues as he drove north on Arizona 87, the Beehive Highway, then east on Highway 260 toward Heber. Gradually the scenery changed from low to high desert, then, just past Payson, to primarily ponderosa pine forest. The elevation shot up abruptly at the Mogollon Rim, the highway a steep climb now, the view at the top spectacular. Jacka’s ranch, set in a forest filled with towering pines and verdant meadows, sat at the end of a dirt road north of the highway. Bartels found the hard-to-spot spur and turned onto the property. Jacka emerged from his home to welcome him.

The photographer had preserved the historical ranch house as he added on. Bartels was impressed: the remodeling first-rate, lots of glass and views, everything rustic, the open kitchen–family room built around a big cedar tree. They settled in that room to talk, Bartels’s eyes on the tree’s thick trunk, its higher branches spreading through the twenty-foot-high ceiling. Jacka, friendly and cooperative as before, tried to answer all his questions, though Bartels’s inquiries, in 2003, concerned a job he’d done one day in 1962. Often, the best Jacka could say was
My standard procedure would have been …

They started by looking at the small Polaroids of Latent Lift 1. Jacka confirmed what he’d said before—he must have taken or been given these, to help prepare for the first trial in January 1975, as they bore the date “8-23-74” and someone else’s initials. No, he did not remember how he oriented the lift tape, in relation to the chrome strip, when he lifted the print in 1962; he could only say that he probably applied the tape parallel along the length of the strip, rather than across it. He didn’t know what would have caused the relatively faint diagonal line they both saw near the top of Latent Lift 1. He couldn’t tell whether the print card represented the same latent print he’d lifted from the chrome strip in 1962. Looking at the Polaroid photo of LL-1 and one of Steven Anderson’s blowups, he couldn’t be sure whether it was a finger- or a palm print—it looked like a palm print, but sometimes you can be fooled. He had not sent LL-1 to the FBI because in the early 1960s, it wasn’t the sort of print they could characterize for purposes of searching the FBI database. He wasn’t sure why they hadn’t included LL-1 in the prints reproduced on the flyer they distributed nationwide—he might just have concluded that the other latent prints were better for comparison purposes.

Bartels next asked Jacka if he remembered whether he’d photographed Latent Lift 1 while it was still on the chrome strip, before lifting it. Jacka had no specific recollection of doing so but said that was part of his standard operating procedure. Together, they looked at the blowup from Jacka’s file, which seemed to show the same palm print as in LL-1 but in an unlifted state on a shiny surface. At Macumber’s first trial, a Phoenix Police Department technician, Joe Garcia, had thought them identical, “one and the same.” Jacka, studying the enlargement now, agreed that it probably was a blowup of the photo he’d taken of Latent Lift 1 before lifting it. Again, though, he didn’t have a specific recollection; he’d possibly been given the blowup before the first trial in 1975.

Toward the end of his visit, Bartels shared with Jacka some of what bothered the Justice Project about the Macumber case, including the Primrose statements, the Valenzuela confessions, and Carol’s history and access to the sheriff’s file. He also told Jacka about their fingerprint expert’s opinion that the version of Latent Lift 1 used at trial, as depicted in the Polaroid photos, could not have come from the chrome strip. As best he could, Bartels explained why, emphasizing the faint diagonal line near the top of LL-1. This information appeared to energize Jacka. He knew that Bartels had a 1959 Impala’s chrome strip in his truck. Earlier he’d passed on inspecting it. Now he suggested that they take a look.

In Jacka’s garage, they studied it and the LL-1 photo, with Bartels pointing out how the portion of lift tape above the faint diagonal line in the photo appeared different from the portion below. Jacka, testing theories about the line’s provenance, put his own fingerprint on the chrome strip, but his decades-old lift tape crumbled, keeping him from completing the experiment. As they played around with his fingerprint kit, Jacka brought out some small squares of paper-thin plastic-like material, similar to photographic film. He’d sometimes used that material to make lift cards, he said. He again studied the Polaroid photos of LL-1. In fact, he added, it’s very likely he’d used this plastic-like material for LL-1. Bartels thought that significant; from experience, he knew it wasn’t hard, using Scotch tape, to lift prints off any kind of paper, but photographic paper made it easier still—a piece of cake.

After more than an hour together, Bartels thanked Jacka, loaded the chrome strip back into his truck, and drove off. Winding his way through the ponderosa pines, Bartels weighed what he now understood about the palm print evidence. Looking at Latent Lift 1 today, Bartels saw an obvious and distinct palm print, yet back in 1962, Jacka hadn’t. To Bartels, it seemed logical to conclude that the current Latent Lift 1 wasn’t what Jacka handled in 1962. But maybe Jacka hadn’t paid close attention back then. You could say much the same about why Jacka hadn’t sent Latent Lift 1 to the FBI, especially given the limited classification system at the time. Still, everything but the palm print pointed to Macumber’s innocence. Bill’s background and lack of motives, Valenzuela’s confession, Carol’s role—these elements combined seemed to increase the likelihood that someone had fabricated LL-1.

But
how
? That question remained unanswered after Bartels’s visit to Jacka’s ranch. Steve Anderson’s opinion that Latent Lift 1 couldn’t have come off the chrome strip was obviously quite favorable to Macumber. So, too, was Jacka’s surmise that he’d used plastic-like material for his LL-1 lift card. All the same, Bartels saw potential problems. Though he had confidence in Anderson, the primary basis for his opinion—that no explanation for the diagonal line existed consistent with LL-1 being lifted from the chrome strip—might just mean that Steve couldn’t
think
of any explanation. They also had to address that blowup photo of what appeared to be Latent Lift 1 on the chrome strip, before Jacka lifted it. If that’s what it was—possible but not certain—then they needed to develop evidence, or at least a theory, about how it, too, could have been falsified. They had to figure out how someone could make not just a switch but a double switch. Such a switch was doable, but it wouldn’t suffice to simply raise disturbing suspicions, to show how the print metamorphosed between 1962 and 1974. They had the burden of proof: They had to demonstrate exactly
how
Macumber’s print ended up on the Impala’s door.

Steve Anderson’s analysis provided a powerful defense, for it suggested that
something
was not right about the trial version of Latent Lift 1. Now, though, in the summer of 2003, Bartels decided they needed to get a second fingerprint expert’s opinion. He wanted confirmation of Anderson’s judgment.

The public defender’s office in Mesa suggested John Jolly, then a fingerprint examiner with the Arizona Department of Public Safety. Larry Hammond knew Jolly, too—Jolly had come forward in 1991 to provide important testimony on behalf of John Knapp. Hammond called him on September 5, asking for help, explaining they wanted a second look as a “sanity check.” It would not only have to be unpaid but also more or less low profile; though in transition to a private practice, Jolly still did some work for the state police, and his supervisor there bristled at Hammond for his frequent critiques of forensic lab work. Jolly nonetheless agreed, with enthusiasm—he had high respect for both the Justice Project and Steve Anderson. A month later, he picked up the Macumber fingerprint binders.

What did the faint diagonal line on Latent Lift 1 represent? Was it possibly a reflection from Jacka’s camera flash? Was it a line on the Impala’s door itself, where the car window and frame met? Or was it an edge of some sort that might suggest a planted print? Steve Anderson had reached one conclusion. Now Jolly would study the matter as well, though at his unavoidably slow pace: He was an unpaid moonlighter, after all.

*   *   *

Weeks slipped by. Jackie Kelley grew impatient, nearly frantic. Winter, fierce as ever, had blown into the New Mexico highlands. She watched the snowstorms from her kitchen counter, smoking Marlboros and, when the chill set in, sipping Canadian Hunter whiskey. She’d always tried to balance being polite with getting what she wanted. She’d worked ten years for professors at Scripps Institution of Oceanography, two years for the CEO at a big computer-information company in Washington, D.C., and then—after moving to New Mexico—ten years as secretary to the principal at Durango High School, over the border in Colorado. She’d found it fascinating but frustrating to get an inside look at the public education system, where teachers couldn’t much discipline the kids, given all the rules. Where Jackie came from, men took their hats off when they entered a room, but these students sailed into the principal’s office with snugly covered heads. At least they did until Jackie went to work there: They learned soon enough to remove their cowboy hats. Jackie didn’t mind that she had a reputation at Durango High for being strict.

Early that December, she called Larry Hammond, urging him on, expressing concern about the delay, warning about Bill’s declining health. Larry and Jackie had never met—all their communication had been by letter or phone—yet they’d acquired the complicated dimensions of a relationship. Though he thought her more apologetic than pushy, he by now very much felt her pressure. Apparently, it got to him during that phone conversation. Two weeks later, Jackie wrote to him: “I want to thank you for talking with me when I last called,” she began. “I think I got your message, however, which is not to call you again. That’s why I am writing this letter to you.” She felt concerned now “about what I perceive as a loss of interest in this case.” She appreciated the pro bono nature of their work, she understood all the difficulties, she remained eternally grateful. However, she was also “confused over what I am sensing as a change of heart on the part of the Justice Project.” She suspected that “this change took place about the time Professor Bartels went north to visit with the retired deputy [Jacka] about the fingerprints.” She was “at a loss to understand just why.” She remained grateful to everyone, all the same, and wanted “to wish you and the team a very Merry Christmas and a Happy New Year.”

Hammond, regretful and chastened, wrote back within days: “You are such a sweet and thoughtful person and I now feel guilty about discouraging you from calling me. To whatever extent my remarks imposed an embargo on communication with you, I wish to lift it.” He assured her that he remained “very concerned” about Bill’s case. He had, in fact, just e-mailed Professor Bartels, expressing his worry that “nothing—or at least very little—appeared on the surface to be happening.” He had not heard back from Bartels directly, but he had some assurance to offer Jackie. The delay came not from waning interest but because “we are extremely concerned about making sure that we do the right thing and it was with that in mind that we took the extra steps of seeking a second opinion on the fingerprints.” The delay stemmed, as well, from “the sheer volume of work that the Project has under way.” (At the time, they had some twenty cases in court, thirty to forty more in an intense level-two evaluation, and twenty new files arriving each month for review.) Most cases, Hammond explained, had a private volunteer lawyer as supervisor, but with Earl Terman falling ill, the Macumber case didn’t, leaving Bartels and Hammond directly in charge, a situation they tried to avoid because of their many commitments. Yet their roles, if limiting, also reflected their abiding interest: “The Macumber case has been different because we care so much about it. I can only make you this promise. This case is one of my highest Justice Project priorities. We will see it through.”