Manifest Injustice (42 page)

*   *   *

On the long drive back to Phoenix, Katie and Lindsay and Sarah couldn’t stop talking about Bill Macumber. Early on, even they had wondered at times about his story. The bloody-shirt incident had troubled Katie when she’d first opened the file, though she knew that twenty-seven-year-old men did get into fights. The prints and ballistics had bothered Lindsay. The conspiracy theory had given Sarah pause. Yet they’d grown ever more convinced of Macumber’s innocence. As they headed northwest on I-10, winding through barren reaches of high desert, they renewed their vows to do whatever might be necessary to help free him. Among other things, they told each other, that meant they had to try even harder to find out what had happened back in 1962 and 1974. They couldn’t learn this, they now understood, just by sifting through the thousand-page record. They had to hit the pavement, go to the ground. They had to find the few people still alive who could tell them about the past.

CHAPTER 22

Going to the Ground

JULY 2010–OCTOBER 2010

We have a nonpresence when we go around questioning people
. That’s what Katie, Lindsay, and Sarah explained to first-year law school students early that September.
People talk to us. Maybe they think we’re young, naïve girls. We’re not a fifty-five-year-old cop or lawyer. That helps. That gets us in the door.

They were recruiting for Sigmund Popko’s Post-Conviction Clinic. Non-DNA cases, they and Zig told the students, required a lot of hard work—tracking down witnesses, document pulls, inmate visits, finding facts. You’re reconstructing, trying to imagine the crime, factoring in human nature. Nobody knows what truly happened. You can’t find it in the law books. This has nothing to do with the statutes and legal concepts you study in class. You’ll be trying to learn things on the ground. You’ll need to get out there, talk to people. “If that interests you,” they told the students, “we invite you to join the Post-Conviction Clinic.”

Katie, Lindsay and Sarah had by then been practicing what they preached for many weeks, trying to run down everyone they could from the time of Bill Macumber’s arrest and conviction. They’d started with former Maricopa County sheriff Paul Blubaum, Lindsay driving out to the trailer park where they understood he lived. She looked in a window and saw no sign of him, so she dropped by a business address they had for him—only to learn he’d been dead for six months. A literal dead end, but they were hooked now, driven not just by their belief in Bill Macumber but also by their faith in the pursuit of justice. They consciously called themselves “the girls”—Sarah twenty-three, Katie twenty-seven, Lindsay thirty in the summer of 2010—which partly reflected their clever “Columbo” posture, partly their genuine hesitation. They shied from intruding; they had to force themselves to make calls, to get in people’s faces about a long-ago double-murder investigation. Yet they realized this truly represented a last-ditch attempt. Being trained lawyers, they decided to regard each interview as if they were conducting the direct exam of a witness on the stand. Their goal: to collect a raft of sworn affidavits—newly discovered evidence—to attach to their PCR and clemency petitions.

With Blubaum gone, they turned next to Dave Brewer, the former sheriff’s evidence technician who’d given his revealing statement to Bedford Douglass in 1983. Would he still be around twenty-seven years later? Would he still tell the same story? Would he have more to add? Lindsay, along with a law student, started looking for him. Online searches yielded three Dave Brewers in the Phoenix area. Lindsay struck out with the first two. One last Brewer to go, with an address listed on Ludlow Drive. Lindsay went casual that day, jeans and flip-flops, having been taught not to dress up on investigations—she didn’t want to look like a cop or lawyer. Raised in Arizona, educated in California, she loved the outdoors and sports, especially swimming and distance running, and this showed in her open, sunny demeanor.

What she saw first, walking up the steps to this Dave Brewer’s house, wasn’t welcoming: A No Trespassing, No Soliciting sign and a political poster for a super-conservative Republican who’d run against Arizona’s Senator John McCain. Lindsay knocked on the door. No answer. They started back to her car. Just then, a one-legged man came cruising up the street on a scooter. He looked at them; they watched him. He headed into the house they’d just knocked at. Lindsay turned, stepped toward him. “Dave Brewer?” Yes, he said. “We’re here to talk about an old case,” she explained. “The Macumber case.” Brewer didn’t hesitate. “Come on in.”

They talked for two hours. In his sheriff’s job back then, he explained, he’d tagged, processed and photographed evidence, made fingerprint comparisons, and testified as an expert witness. He recalled being handed the latents and Bill’s prints on the Saturday before Macumber’s arrest, and he recalled the two not matching. He remembered contacting Bedford Douglass, giving him a statement in 1983—he hadn’t realized nothing ever came of that. He didn’t know if Bill was guilty or innocent, but there’d been shady things going on back then.

This first interview wandered all over the map, Lindsay letting Brewer go where he wished. He clearly enjoyed the chance to talk about old days. He seemed sharp, though, and lived in the present; she could tell he read newspapers, followed the news. And his account hadn’t changed over twenty-seven years: His statements now were almost verbatim what he’d said to Bedford Douglass in 1983. Lindsay had brought a transcript of that taped statement, to jog Brewer’s memory, but she didn’t need it.

Weeks later, she returned to Brewer’s home, her questions more focused this time, aimed at getting what they needed for a formal statement. She came back soon after with a draft affidavit, but he—careful and precise—wanted to make changes. Sarah Cooper joined Lindsay on the next visit, as she had her own questions. Finally they brought a six-page affidavit for him to sign in front of a notary.

Brewer’s statement first addressed chain-of-custody issues, reinforcing what he’d told Bedford Douglass in 1983. All Maricopa County Sheriff’s Office employees who worked in the Identification Section “could access latent print evidence and crime reports, even if the employee was not assigned to the case.” He’d voiced his concern about this chain-of-custody problem but “was told that in Arizona a chain of custody was not needed.” The shell casings from the Sterrenberg-McKillop case were kept in an “often unlocked” desk drawer that, when locked, could be “opened with a paper clip.” One evening while he was in the sheriff’s office basement processing evidence, “the officers who conducted a search of Mr. Macumber’s house returned to the department with a bucket of shell casings.” He asked what that was for—shell casings collected from Macumber’s house, not the crime scene, were of no importance. As a result of all this, “I did not trust that the shell casings were properly maintained in Mr. Macumber’s case.” The latent print cards as well, kept in unlocked file cabinets along with the crime reports, “were accessible to anyone who worked in the ID Bureau.”

Brewer turned next to his only direct involvement with the Sterrenberg-McKillop investigation, that Saturday-morning shift “when Det. Richard Diehl brought me latent fingerprints from the case and asked me to compare the latent prints to Mr. Macumber’s prints, which were on file from Mr. Macumber’s Sheriff’s Posse application.” He made the comparison and found that “Mr. Macumber’s prints did not match the latent prints.” This he reported to Diehl, after which “I was not asked to do any more work on the McKillop/Sterrenberg investigation.”

Brewer finally focused on Carol Macumber, his account here unequivocal—and entirely consistent with his 1983 statement:

Carol Macumber was very abrasive and two-faced. I did not trust her. Carol Macumber had access to the crime reports, shell casings and latent prints in the McKillop/Sterrenberg case. In 1974, around the time Carol Macumber turned Mr. Macumber on the unsolved double homicide, I learned from Detective Richard Diehl that Carol Macumber was the subject of an internal investigation as a result of … sexual activities with other law enforcement deputies.… Detective Diehl, who at that time worked in Internal Affairs at MCSO, informed me that Carol Macumber tape recorded some sexual activities with other law enforcement employees and threatened to use the tape recordings to blow the whistle on the department. A deal was struck: Carol turned over the recordings, turned Mr. Macumber on the unsolved double homicide and kept her job until they worked out a transfer.…

I recall having coffee with Ed Calles right around this time. Carol Macumber was Calles’s secretary at one point. Calles and I had a close professional relationship and I trusted that he would tell me the truth. I asked Calles, “How could you possibly help … Carol Macumber?” Calles responded that they had to save the department. I took this to mean that they had to stop the department receiving bad publicity about the sex scandal surrounding Carol Macumber.

In a courtroom, what Diehl and Calles told Brewer might be inadmissible hearsay, but the Justice Project could attach Brewer’s sworn affidavit to any petition they filed. They weren’t at an evidentiary hearing yet—they were just trying to get there.

*   *   *

Katie and Lindsay also began looking for Nancy Halas, the sheriff’s department stenographer who took down Carol’s statement on August 23, 1974. What happened in that interrogation room? Did Halas’s indecipherable shorthand notes—which they had—possibly differ from the official typed statement? Halas had been twenty-five back then, so she’d be sixty-one now. Was she still around? Yes. They found an address for her in north Phoenix. Katie and Lindsay drove up there, as usual parking their car down the street. They knocked at her door. No answer. Over the next few days, they returned several times, never finding her home. They left a business card and on one visit talked to a neighbor. Still no response. They began to feel as if they were stalking this woman, but they didn’t stop. Lindsay, with Sarah this time, drove out one blazing hot weekend afternoon. They sat outside Halas’s home, across the street in the shade, composing a note to her. As they wrote, Halas’s front door opened. They jumped up, darted over. “Are you Nancy Halas?” Halas, looking stricken, backed away, saying, “I’m not interested, I’m not interested, I’m not going to talk about it,” before closing the door. This response shocked Lindsay. Nancy Halas obviously knew who they were. Why didn’t she want to talk to them? Why didn’t she just say, “What do you want?” or “I can’t recall”? What made her so wary and resistant? Lindsay later wrote her a letter, but Nancy Halas never answered.

They struck out also in their efforts to interview Ernest Valenzuela’s two sisters—Katie hoped that Valenzuela had confessed to them. She and a clinic student drove around for days, following address leads, checking with local churches, contacting the Pima and Gila Indian reservations. She found only dead ends, though. Or, rather, an empty lot. That’s where the address for one sister led them.

They tried vainly, as well, to reach Thomas Hakes, the former sheriff’s detective who’d taken statements from Linda Primrose. Calling him in Florida, they reached his widow.

Katie did manage to locate Theresa Hay, Linda Primrose’s daughter. One weekday afternoon, without calling ahead, Katie and two clinic students drove out to her home. When they knocked, Theresa opened the door and nicely welcomed them in. No, she said, she didn’t recall the visit years before by Rich Robertson. But yes, her mom had kept a scrapbook about the killings on Scottsdale Road. Katie explained the scrapbook’s importance, and Theresa promised to look around. Theresa also asked them a good many questions about the case, their conversation lasting about forty-five minutes. Katie left thinking Theresa up-front and cooperative, but then weeks passed without a word from her, even after they followed up with a letter. So Katie drove out to Theresa’s house once more, this time with Sarah, and left a note when they found her not there. Early the next morning, Theresa called Katie. She’d looked for her mom’s scrapbook, she reported, but had been unable to find it. Okay, Katie said. If anything turns up, please let us know.

*   *   *

One summer afternoon, Katie and Sarah called Valenzuela’s former attorney Ron Petica—retired and living in Bullhead City, Arizona—and took down his most detailed statement yet, which they then sent to him for notarized signature. That same week, they drove out to Judge O’Toole’s house. O’Toole had already provided two affidavits but now they wanted him to drill even deeper. O’Toole obliged, leaning back in his chair, recalling the past, reliving his hours with Ernest. He filled five pages, his account not the least bit vague or uncertain. “I will never forget Valenzuela,” he concluded. “To this day I could pick him out in a crowd. I have no reason to doubt that Mr. Valenzuela was telling the truth when he confessed to killing Joyce Sterrenberg and Timothy McKillop.”

They found Dennis Gilbertson as well that summer. The Phoenix police officer had retired in 1999 after thirty-one years in law enforcement. They approached him through a former Phoenix cop turned private investigator, William De La Torre—they had De La Torre make the initial call, since he knew Gilbertson. Dennis agreed to talk, so Lindsay, Sarah, and Bill De La Torre met him at a Denny’s in Peoria, where they spoke for a good two hours. Gilbertson had questions about the case, and comments to make based on his background in ballistics. Halfway through the conversation, Lindsay finally asked, Were you having an intimate relationship with Carol? Yes, Gilbertson allowed. But he hadn’t known that she was married, with three kids. Something else he wanted to say: He had a clear memory of the shot fired from the alley through the Macumbers’ kitchen window—because he was initially a suspect. The internal affairs investigators apparently knew of his connection to Carol.

They talked on, Lindsay taking notes. Days later, she and Katie met with Gilbertson again at Denny’s, to have him sign a notarized affidavit; Lindsay’s father, a notary public, joined them. Gilbertson wanted to talk more but had no changes to make to his statement. “In approximately 1972,” it began, “I started taking classes at Glendale Community College.… I met Carol Macumber while attending school at GCC. Carol and I first became friends through a study group.” Gilbertson continued: