Manifest Injustice (40 page)

Macumber said little, mainly listening.

This is not the end of the road, Katie continued. There are other options. We will keep fighting. She didn’t know if he even heard her, if he was listening, but she had to say it for herself. We can do a Rule 32 petition, she told him. We can file another clemency application. We can go to the news media. We can change the state law about old-code prisoners.

Macumber could hear her crying. That, on top of everything else, he’d say later, “just tore my heart out.” Katie asked him if he’d like her to call his family members. No, he said, he’d do that. He appreciated her offer, but he had to handle this himself.

Early that evening, Carrie Sperling sent an e-mail to the entire Justice Project team:

We just received news from Duane Belcher, Chair of the Board of Executive Clemency, that Gov. Brewer denied Bill’s commutation request. Of course, we wanted each of you to know the news. A personal phone call would have been more appropriate, but we also wanted to get the word out quickly—before you heard the news in some other way. Defeats are always hard, but they are near devastating when the person you represent has become a good friend, a person we all admire. Katie and I spoke to Bill today. He was, as always, stronger than we are. But I know this news must have been especially hard on him because we just couldn’t fathom anything other than a commutation. So please remember Bill and take time to jot a personal note to him. Thank you for your countless hours of work on Bill’s behalf.… After regrouping over the weekend, we intend to start strategizing our next steps to free Bill.

Macumber called Ron the following day. “I’m going to keep this really short,” he said. “I have received the decision from Governor Brewer, and she has denied our petition.” Ron started asking questions—
Why? How could this be? How could she
?—but Bill stopped him. He offered none of his usual wry banter—he sounded devastated. “I really can’t talk now,” Bill apologized. “I need to call Jackie, I need to call Bob.”

Tears and anger informed his calls to those two. That bitch, Jackie fumed. Why couldn’t Jan Brewer just wait out the ninety days and let the board’s recommendation take effect on its own? Bob Macumber railed at the governor’s lack of humanity. For her to snub her nose at her own board’s unanimous vote appalled him. Why have a board at all then? He didn’t think the governor had a moral bone in her body.

Two days later, Katie wrote to Bill: “Throughout the past several months, you have become a friend to us—a person we all admire—and it was our hope that we would finally see justice in your case. Coming to grips with the Governor’s disappointing decision has not been easy for us, especially because we could not fathom anything other than a grant of clemency. As hard as it has been for us, I cannot imagine how hard it must be for you.” Please know “we will keep fighting for your freedom, for as long as it takes.” He still had all their support: “We have not given up hope.”

Larry Hammond also wrote to Bill: “I started to write to you last Friday after we heard the Governor’s ruling, but I was too angry. I started to write a letter to you on Saturday, but I was totally without anything comforting to say. I started to write to you on Sunday, but by then I did not know how you might be feeling and I called Jackie instead of writing to you.” Jackie, as always, had provided him a “heart-warming visit.” Her “determination to see this case through gave me some new perspective and new energy.” They remained on his case: “We are entirely evaluating our position on your post-conviction relief petition.” They would “stay very closely in touch.”

*   *   *

Here was significant news: Hammond’s reference to “entirely evaluating” their position about a PCR petition promised a possible reversal of the 2008 decision to close the Macumber file, to not seek redress in the appellate court system. The clemency board’s unanimous recommendation had encouraged Bartels and Hammond to reconsider. Just maybe they could make an actual innocence claim under Rule 32 of the Arizona Rules of Criminal Procedure—the regulations that governed petitions for post-conviction relief.

In late November, Donna Toland sent a message to the project team. “Larry and Bob,” she reported, “would like me to schedule a meeting regarding Bill Macumber’s PCR. I am looking at the week of November 30. Can you provide me dates/times that might work for each of you?”

At 10:00
A.M.
on Monday, December 7, 2009, the team gathered in the conference room of the Justice Project’s offices, with others plugged in on speakerphone. Those participating included many who had been on the case from the start—Larry Hammond, Bob Bartels, Rich Robertson, Karen Killion, Sharon Sargent-Flack, Donna Toland—and representatives from the later generations: Carrie Sperling, Pete Rodriguez, Ty Jacobson, Jen Roach, Jen Swisher, Lindsay Herf, and Katie Puzauskas. They still wanted to do whatever they could for Macumber. How, though? What had changed, what might make action possible now? They began to consider.

The science of ballistics evidence had evolved, making it much easier to discredit the shell casing match from 1974. Forensic science reform in general had everyone’s attention, having become the subject of assorted conferences and an extended new study by the National Academy of Sciences. Robert Macumber’s revelation about the palm print card was new and compelling. Tom O’Toole’s statements had grown ever more definite, detailed and insistent. The law and Larry Hammond’s thinking had advanced about confessions from third parties—a central theme in both
Macumber
and
Chambers
.

Above all, they had the Clemency Board’s unanimous recommendation, recognizing a miscarriage of justice. Rule 32 required the defendant, in claims of actual innocence, to demonstrate “by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would have found defendant guilty … beyond a reasonable doubt.”
No reasonable fact-finder
—didn’t they have that now? Didn’t the clemency board qualify as a “reasonable fact-finder?” Yes, certainly. And didn’t that give them a realistic chance of prevailing with a petition?

In the Justice Project conference room, all eyes turned to Bob Bartels. The team knew Larry’s position, but what about Bartels?

Bartels weighed his response. Though as always inclined to caution, he couldn’t deny that the board’s action had affected him. After all, these board members were not wild-eyed liberals. They were, rather, fairly stern adjuncts of the state corrections system. The board’s finding had changed Bartels’s estimate of the project’s possibilities. And something else had also affected him: He wasn’t good at psychological analysis, particularly of himself, but he suspected he felt a bit guilty that the project associates hadn’t filed a clemency petition themselves, that Bill had to do it on his own. That was a part of it, he had to admit—a part of why he now felt inclined to once again attempt a PCR petition.

One more thing, after nearly a decade on the case: Though he couldn’t say there was no possibility Bill was a murderer—“The only person I’m pretty sure didn’t do it is me”—he thought there was little possibility, and a lot more than reasonable doubt. He wasn’t a gambler, but if he had to bet, he’d put his money on not guilty.

Yes, he told the Justice Project team. We have a chance.

That Bartels thought it possible carried a lot of weight. When the time came for a show of hands, the group voted unanimously to work on a PCR petition. They still weren’t sure how they’d do it, though. Katie’s message to the team later that day reflected the tentative agreement: “First, thank you for meeting this morning regarding Bill Macumber’s case. It looks like we are preparing to move forward with a Petition for Post-Conviction Relief based on actual innocence and new evidence. At this point we are unsure about who will write the petition and argue Bill’s case, but we will be talking in the next couple of weeks to make those decisions.”

*   *   *

Eleven days later, on December 18, Larry Hammond rose to deliver the commencement address to the graduating class at ASU’s College of Law. He chose to devote his speech to the Bill Macumber story and the Justice Project’s decade-long fight on his behalf, driven by “four generations of ASU law students.” After reviewing the history of the Justice Project and its involvement in the case, he explained how on May 8 the Board of Executive Clemency had voted unanimously to commute Bill Macumber’s sentence “on a ground never heretofore embraced”—and had done so “because of their significant doubt about his guilt.” Four generations of law students were able to walk out of that hearing “with the knowledge that their efforts had contributed to righting an injustice.” But just weeks ago—since Hammond had agreed “to accept the honor of speaking to you today”—Governor Brewer had decided to reject her board’s recommendation, without explanation. Hammond looked out at the crowd: “What do you suppose happened next?”

He waited, savoring this moment. He hadn’t told the Justice Project team he was going to publicly announce the reopening of the case. The team’s decision had felt a bit tentative to him, as if some of them were still thinking it over. Hammond wanted to goad them, wanted to push them beyond thinking now. “This is what happened,” he told the commencement crowd. “Last week, these four generations of present and former students gathered again and unanimously committed themselves to continue to work on Bill’s case. Someday, these ASU students and graduates will be able to write a different end to this story.”

CHAPTER 21

Attention Is Paid

DECEMBER 2009–JULY 2010

On the same day Larry Hammond delivered his commencement speech at the ASU College of Law, Katie Puzauskas sent a four-page memo to the Macumber team, outlining the battle plan for Bill’s PCR. The petition, she advised, would include an argument of actual innocence—“which we must show by clear and convincing evidence”—and an argument “based on newly discovered material facts.” Addressing how to make those arguments, Katie listed the issues they’d discussed on December 7 and the “things that still need to be investigated.”

They would hang the actual innocence claim on Valenzuela’s confessions and the affidavits from Tom O’Toole and Ron Petica; Linda Primrose’s statements and the judgment of her truthfulness by Dr. Erickson and a polygrapher; Carol Macumber’s conduct, access and ability to lift prints; Ron’s testimony before the clemency board; and—above all—the clemency board’s “entertaining Bill’s innocence claim.”

They would base the newly discovered material facts primarily on a new National Academy of Sciences report that discredited the type of ballistics and fingerprint evidence used in Macumber’s case. They would try, as well, to cite the palm print backing paper—if they could ever prove it; Linda Primrose’s scrapbook—if they could ever retrieve it; the sheriff’s list of .45-caliber guns tested in 1962—if they could ever find it; and testimony from Primrose’s friend Terry—if they could ever locate her.

Larry Hammond also wanted the team to consider questions about third-party confessions. He saw this as a growing issue in the legal system; recent cases had lowered the “reliability” threshold governing when the defense could offer testimony about such confessions. In 1987, the Arizona Supreme Court in
State v. LaGrand
had significantly altered the standard. After
LaGrand
, if a trial court believed that “a reasonable person could conclude from evidence in the record that the declarant’s statement
could
be true, then [it]
must
admit the statement into evidence.” And in 2010, the Arizona Supreme Court had applied the
LaGrand
standard to another case,
State v. Machado
, ruling that the trial court had erred in excluding an anonymous telephone call from someone who’d confessed to the murder. Attorney-client privilege remained in place, but if the Valenzuela confession came along now, Hammond believed it would be allowed under these new rulings. Hammond again pointed the team members to
Chambers
, writing a memo about its issues. He asked them to consider when and how third-party confessions were used. What most bothered him about Bill’s case: If the State had charged Valenzuela with the murders, rather than Macumber, the courts would have relied completely on Primrose’s statement and Valenzuela’s confessions. But because they’d charged Macumber instead, the jurors could not hear this evidence.

Switch it around some more, Hammond suggested. If they’d charged Valenzuela with the murders, if he’d been on trial, Carol’s statement about Bill would be absolutely inadmissible. Even if Valenzuela’s lawyer sank to his knees and begged, no judge would allow it. Shame on you, the judge would tell him, for trying to blame a third party. Since lawyers employed this type of evidence all the time to convict, why not also to show innocence? Hammond proposed that the team research other cases where the prosecutor had depended on statements like Primrose’s and confessions like Valenzuela’s.

*   *   *

By April 2010, the Justice Project team had fully launched a renewed, expanded Macumber campaign. Associates had held several phone conferences with Bill; they’d created a Free Bill website; and they’d started screening a twenty-one-minute documentary,
Life: The Bill Macumber Stor
y, produced by Lesley Hoyt-Croft. They had also established a new ASU law school post-conviction relief clinic and had pointed that class at the Macumber case; Katie and Lindsay, its guiding spirits, attended every clinic session, working with the six enrolled students and recruiting others.

On April 30, the clinic left the ASU law school at 5:30
A.M.
, boarding a van for the four-hour drive down to Douglas. Katie and Lindsay joined the students and their instructor, Sigmund Popko, a former lawyer at Hammond’s old law firm. They had assigned each student a particular aspect of Macumber’s case, so they wanted the students to meet Bill and have a chance to ask him questions.

At the prison, they all gathered in the large visitation room. Katie greeted Macumber with a hug, then introduced the students and Lindsay. Macumber answered their queries for ninety minutes. Katie apologized as they went on, knowing he’d heard these questions many times in the past. Bill didn’t care, though—he welcomed the company.