Manifest Injustice (45 page)

All through that summer and fall of 2010, Hammond had been consumed by a death penalty murder trial up in Prescott. Not until October did he review the partial draft and to-do list Sarah Cooper had left him before returning to England. He was impressed. Those affidavits—what a job they’d done, going out into the field, finding everyone, getting them to talk. But no, as much as he’d like to, he could not say they were ready to file a petition. They still didn’t have enough.

CHAPTER 23

An Impossible Goal

OCTOBER 2010–APRIL 2011

As time went by, the Macumber PCR petition—and Macumber’s exoneration— seemed more and more to be an impossible goal. Larry Hammond had told the Board of Executive Clemency that the absence of DNA left Macumber without a clear basis for setting aside his conviction, that they were deeply grateful for the board’s interest because defendants without DNA evidence have “no place else to even be heard.” Yet given the reality of politics in Arizona, the Justice Project could not count on clemency. However long the odds, they had to keep trying for post-conviction relief within the legal system.

This meant, Hammond decided, that they needed to more aggressively and thoroughly attack the ballistics evidence. That’s what their partial draft petition lacked. They had to take full advantage of the National Academy of Sciences’ 2009 report
Strengthening Forensic Science in the United States: A Path Forward
. Hammond loved it that the prestigious academy had actually held hearings into topics such as arson, bite marks and DNA. The resulting report, the first comprehensive review of the forensic sciences, had crystallized the shortcomings inherent in firearms identification, giving the team a significant scientific foothold—evidence that they could “newly discover.” The Justice Project badly needed such new evidence. Hammond understood that a cloud had started to settle over the project’s handling of the Macumber case, just as he’d feared. If they ever managed to get into court, a judge would surely ask, Has there been due diligence? Have you done everything you could, and within a reasonable time span? Hammond shuddered as he imagined how a judge might look at their performance over the years, even though they were a volunteer nonprofit operation with limited resources. All the delays, the cycling generations of students, their failure to hire a paid fingerprint expert, his own sabbatical at a critical moment.… That’s why they needed continuous lawyers, people who could own a case.

The NAS report, Hammond reasoned, gave them an out. The NAS report represented new evidence not available at Macumber’s trials or during the Justice Project’s first decade on his case. The NAS report breathed new life into a possible PCR petition. Only now could they try to rebut FBI agent Robert Sibert’s testimony at Macumber’s trials, something the original defense had failed to do. Nine times the jurors at the second trial had heard Sibert call Macumber’s gun the murder weapon “to the exclusion of all others in the world,” and four times they’d heard the prosecutor echo those words. Hammond didn’t think Sibert would even be allowed to make such an absolutist statement today. If he did, the NAS report—which considered firearms identification a subjective art form—would readily discredit him.

To craft an enhanced ballistics review, the Justice Project turned to Andrew Hacker, who’d just graduated from the ASU law school but remained involved with the project and the Macumber case. Hacker scrambled to educate himself about guns, even while preparing to take his bar exam. He reread Robert Sibert’s trial testimony forty times. He parsed out the language Sibert used on the witness stand. He examined the 2009 NAS report. He pored through a pile of studies about firearms comparisons. Always, he looked at the footnotes, building a bibliography of further readings. Weekends, nights—he’d pick up another report whenever he had a chance. He liked doing innocence work whether paid or not, and beyond that, he liked working on the cutting edge of law and forensics.

Just as they’d once sought fingerprint experts, now the Justice Project associates looked for ballistics experts—which Macumber never had at his trials. Hacker first found William Tobin, a former FBI supervisory special agent and forensic metallurgist who, since retiring in 1998, had started questioning how the FBI matched bullets to crime suspects. Hacker also enlisted a firearms and ballistics consultant, John Nixon. He approached, as well, an ASU law professor, Michael J. Saks, a specialist in the field of law and science. Hacker carefully cultivated relationships with all of them. For a while the effort stalled: Tobin hesitated and withdrew—he felt uncomfortable criticizing Robert Sibert, a friend and former colleague. But he returned, galvanized, after happening to see the
Nightline
broadcast about the Macumber case. By the spring of 2011, the team had all three experts lined up, Tobin and Saks working pro bono. Three experts who unequivocally said Robert Sibert could not possibly have matched Macumber’s gun to the shell casings by means of the ejector markings. Those ejector markings weren’t a unique signature, they maintained: One weapon can make different marks, and different weapons can make identical marks. Sibert, they believed, should have eliminated Bill’s pistol because the firing pin and breech face marks didn’t match. Instead, he’d made a “selective search for marks” that supported his conclusion. Tobin’s judgment: “The evidence does not support an inference that Macumber’s weapon was, in fact, the murder weapon.” With these three experts’ affidavits in hand, Hacker went to work, writing his section of the PCR petition—what Hammond now considered the “linchpin” of their appeal.

In England, Sarah Cooper, Skype-conferencing for hours with Andrew, wrote the rest, focusing on all the familiar themes: Valenzuela and Primrose, Carol, Latent Lift 1, chain of custody. She also added a critical new dimension: the sworn affidavits they’d collected. Frieda Kennedy, Dave Brewer, the two jurors, Dennis Gilbertson and Gerald Hayes—she cited, quoted and attached every affidavit to the petition. The Justice Project still couldn’t prove a frame-up, but by adding in the dubious circumstances, they hoped to reduce the value of the palm print.

With those affidavits and the emergence of new ballistics evidence, Hammond thought this to be “a very exciting, almost riveting time” in their eleven-year battle on Macumber’s behalf. Section by section, drafts of the petition circulated among the Justice Project team, going through multiple rounds of editing. Simultaneously, the team pushed to complete and file a memorandum in support of a new clemency hearing for Bill—he would be eligible two years after the first one. They met weekly. They arranged a new analysis of the tire tracks, a new look at the fingerprints, another visit with Jerry Jacka. They assigned law students to research specific legal arguments. They tested their reasoning. They reassessed the petition’s structure.

Yet now, in the spring of 2011, obstacles and distractions once again slowed their progress. Chief among them: Bill Macumber’s health.

CHAPTER 24

Critical Condition

APRIL–JUNE 2011

Bill Macumber did not feel well when he came home from his job at Cochise College at 3:00 on the afternoon of Tuesday, April 19, 2011. In his Mohave Unit cubicle, he stretched out on his bed, hoping to improve. Over the next two hours his condition grew worse. Shortly after 5:00
P.M.
, he went to the prison’s medical office. The staff took one look at him and promptly dispatched him to Cochise Medical Center in Douglas. Doctors there, after a brief examination, put him in an ambulance bound for University Physicians Hospital in Tucson. Larry Hammond’s abiding fear had been that Macumber would die in prison before they could get him out. Now that outcome looked quite possible.

At the Tucson hospital, doctors determined that Bill had a blockage in his small intestine. On Friday, April 22, as they attempted to run a scope to observe the blockage, Macumber began hemorrhaging. They rushed him to the intensive care unit with major gastrointestinal bleeding and a blood clot in his stomach. Doctors there started plasma transfusions—eight pints in all—and hooked Macumber to a ventilator. His heart started beating irregularly. His left lung collapsed. The doctors decided to put him into a medically induced coma. Through multiple IV lines they delivered sedatives, antibiotics, painkilling narcotics and medicines to increase his blood pressure. They could not operate on the blockage, though—Macumber was too weak to undergo any type of surgical procedure. They did not think he would survive.

At his home in Aurora, Colorado, Ron Macumber received a call that Friday from the hospital’s prison-ward medical director. Ron had been trying vainly for three days to get an update about his father’s condition, ever since he’d first heard from a prison chaplain that they’d taken Bill to Tucson. The medical director now had grim news: Your father is in critical condition. We can’t stop the bleeding. You might want to get down here.

Ron started spreading the word. He called Jackie. He called Bob and Toots. He called Jay and Harleen. He called Katie. She, in turn, talked to central prison medical authorities, arranging for powers of attorney, seeking permission for family visitation. Katie soon called Ron back with an update: Prison officials had opened visitation to everyone on Bill’s list.

Once more, Macumber’s relatives scrambled to his side. Ron flew into Phoenix on Friday afternoon and drove down to Tucson with Harleen and Jay. Early Saturday morning, Bob and Toots started driving from Illinois, Jackie and Robyn from New Mexico. At the hospital that weekend, Katie helped Ron with the paperwork. He felt scared when he finally saw his father. This did not look good. The doctors had Bill heavily sedated, on a ventilator, with all kinds of tubes running in and out of him. Ron had never seen so many IVs hooked up to a person. They were feeding him eight different medicines. The doctors told Ron that Bill, unable to breathe on his own, was essentially on life support. Seeking any kind of response, Ron took his dad’s hand and yelled for him to squeeze. Bill did, slightly—Ron felt pressure on his fingers. But the nurse explained that he wasn’t really conscious and probably didn’t know who was holding his hand.

Then on Monday, April 25, Bill contracted pneumonia. More treatment, more tubes, more medicines. Jackie and Robyn arrived. So did Bob and Toots. Bob felt as shocked as Ron had. Bill’s extremities were terribly swollen. A tube ran down his throat. He opened one eye when Bob hollered a greeting, but he couldn’t know his brother was there. The relatives, all staying at a nearby Holiday Inn, shuttled back and forth, taking turns, waiting and hoping. They knew little for sure about Bill’s condition—at the prison guards’ instruction, the doctors wouldn’t tell them much. This remained a Department of Corrections operation: Bill had one foot and one hand shackled to the bed’s railing.

On Tuesday afternoon, as the doctors weaned him off the sedative, he began to rise out of the induced coma. Katie, alone with him just then, called out, “Bill…” He raised an eyebrow. “Everything’s going to be okay,” she said. “Ron is here.” Bill opened his eyes, briefly, more than once. It seemed as if he was trying to speak. Katie leaned over him, waving, happy that she’d decided to drop by at this moment. She called Jackie at the Holiday Inn to report the news. Jackie and Robyn jumped into their car, heading back to the hospital.

Bill Macumber would remember nothing up to this point, nothing of the ambulance ride to Tucson or the visits by Katie and his family over the first week. He would only recall briefly waking up that Tuesday afternoon and seeing Jackie at his side, Jackie holding his hands and talking to him. He drifted back into a semicoma, the next several days as blank as before. When he finally came to again, he found himself alone in a room, surrounded by an array of IV bags, his ankle chained to the bed. He lay there for two hours, unable to move or call out, before a nurse finally appeared. Seeing him awake, she summoned a doctor, who examined and questioned him. You had a very close call, the doctor said. On two different occasions, I thought we’d lost you.

*   *   *

After a week, the doctors removed Macumber’s IVs and arranged for his transfer to Rincon Unit House 9, an ICU ward at the Arizona State Prison Complex–Tucson. This, to his regret, put him back in the hands of the Department of Corrections staff, a far less caring and considerate group than the hospital medical team. Indeed, he did not find much to appreciate at Rincon. Led by a nurse, the guards installed him in a small claustrophobic cell, sealed by a steel door, that had room for only a bunk and a toilet. The guards left him sitting on the bed. He needed to use the toilet so tried to rise on his own. He made it to his feet but then lost his balance, falling and hitting his head on the concrete floor. Eventually a nurse found him there and lifted him onto the bed.

The next day a doctor came by and gave him a walker. With it, Macumber began to force himself to move. At first, it took all his strength just to push himself into a standing position. He practiced daily with the walker, shuffling back and forth in his cell, taking a few small steps, trying to get his legs to work. Then, at the doctor’s order, the guards started letting him out of his cell twice a day for half an hour, so he could walk up and down the hallway. Slowly, his legs strengthened. After a week, he began using a cane. A week later, he discarded the cane.

Rincon remained an appalling place to him. He thought it a joke that they called it an ICU. He saw a nurse just twice a day, once in the morning for meds and vitals, once in the afternoon for more meds. The only other visitors to his cell were guards bringing his food, always cold—he never ate a hot or even a warm meal at Rincon. Rarely did he see a doctor. No human being, he came to believe, should have to live in a place like this, let alone someone recovering from a medical crisis.

On May 11, at least, he had a welcome visitor: Larry Hammond. Larry spent an hour with him. They would file the new clemency petition immediately, Hammond reported. And he hoped to soon complete the PCR petition as well. The Justice Project, he assured Bill, was still fighting on his behalf.