Manifest Injustice (49 page)

Jackie sat in another corner of the lobby with Robyn. She’d gone into the hearing pessimistic, prepared for what the other side would say, convinced Jan Brewer would, at any rate, veto a clemency recommendation. But still, she was shaken. Those two boys, Scott and Steve, were so young back then, nine and eleven, too young to have developed such a venomous attitude on their own. This
must
have come from Carol. How else could those boys so loathe their own father?

Katie had to walk outside the building, to the front landing, for fresh air. By the end, she’d felt seriously ill in the hearing room. Like all the oxygen had been sucked out of the chamber. It must have been so hard for Bill, so horrible, listening to his sons denounce him after thirty-seven years. It had been hard for her, too. She struggled with what she’d heard. Who knew? She wasn’t there back then; she’d been on this case for just three years. Maybe Bill and Carol did talk about this crime at one time or the other. But even if Bill confessed to the crime to keep her, that didn’t mean he committed the murders.

Ron, Jackie, Katie—they kept running everything through their minds. What Scott and Steve said about their father differed so greatly from Ron’s memories, and differed also from all the independent descriptions of Bill as the devoted, loving primary caretaker of the boys. They’d seen those descriptions in Frieda’s affidavit, in Pat Ferguson’s Conciliation Court report, in the neighbors’ testimony.
Bill was a good father, Bill was the one who took care of the kids, he would play with them and cook meals, he was the better parent, Carol didn’t care as much.… All three boys expressed a great desire to visit with their father. Not seeing him is apparently very distressing to all of them. It is apparent that in the past, Mr. Macumber was the major parental figure for the boys. Witnesses state that they spent many hours together and seem to be very devoted.

Then there were Bill’s many letters. Pages and pages over the years to Jackie, more recently to Ron and Katie. Bill’s journal as well, the four-hundred-page chronicle of his experience. Katie had read that journal, Ron and Jackie too. It did not seem possible to them for all this writing—all of
Bill
—to be false. If guilty, Bill Macumber had for fifty years delivered an extraordinary performance. In fact, his entire life—all day, every day—had then been nothing less than sustained masterful deception. Not just his public life in prison and the community but his private life on the page—all his writing a fiction, his journal, his clemency petitions, his dozens of letters to Ron and Jackie. He had to have devoted his entire existence to forging an alternative narrative—to fixing and denying one horrible, bizarre moment when he lost himself and murdered two strangers out in the desert.

To Katie and Ron and Jackie, this was flat-out unimaginable. Nothing they’d heard this morning had altered their assessment of the case. Katie remained convinced of Bill’s innocence. Ron felt even more certain now. Jackie hooted at the question: “Heavens no, I haven’t changed my mind. Not at all, not in any way, shape, or form.”

*   *   *

Outside on the landing, with minutes to go before the hearing resumed, the Justice Project team huddled around Larry Hammond under cold, misty skies. Utterly exhausted, he could barely stand. He hadn’t expected to be spending five or six hours at this hearing. Hammond seethed over everything they hadn’t seen coming. The letters from Carol and her sons, plus the unexpected testimony by Luke Haag, his revelations about seeing the evidence, talking to Sibert, advising Bedford Douglass. Hammond, fighting his fatigue, exhorted his team, punctuating his points with repeated jabs of his finger, stabbing at the air. By then, though, he’d read the tea leaves. He thought they would probably lose.

At least they’d have one more chance to argue their case. After the county attorney made his closing comments, the Justice Project could offer a final rebuttal statement. Hammond hadn’t planned to do this himself, didn’t think he could physically, but his team implored him, saying they needed him up there at the podium. He agreed, asking only that Bob Bartels and Rich Robertson participate as well. One thing he knew they’d all have to do in those few moments: be less delicate about Carol.

First, though, Vince Imbordino had his turn. “It is not our intent to retry the case,” he told the board when the hearing resumed. Yes, it “would be fair to say and honest to say” that if the case were investigated today, “there’s no doubt that the crime scene would have been handled somewhat differently.” And yes, in the years since this trial, “there clearly have been changes suggested in how experts testify in all the sciences.” Yet the fact remained, “those casings were matched to that gun” by FBI agent Robert Sibert. As for Bill Macumber, when you read the record, “there’s no question” he admitted to telling his wife he committed the murders. In his own short bit of testimony—
I suppose to keep her from leaving us
—he “is admitting to saying it, but trying to spin it if you will.” Then Detective Ed Calles, in his testimony, confirms that Macumber admitted confessing to Carol—“unless you believe he is a part of the conspiracy.” Yes, Macumber’s fingerprints didn’t match any off the car, but “his palm print wasn’t taken until he was brought in for questioning.” Valenzuela’s confession was excluded by “a judge who ultimately became a Justice on the State Supreme Court,” and now “here we are, forty years later, arguing about whether this confession was really valid.” After reviewing all the evidence “there’s no question in our mind that William Macumber killed these two young people.” Yes, “obviously the people who are here believe that he didn’t do it.” But “if we believed that he didn’t do it, we certainly wouldn’t be opposing his release from prison.”

By the time Larry Hammond approached the podium, the hearing was inching into its sixth hour. “Mr. Chairman,” he began, “I know we all have been here a good long while today, and we are not going to restate and replow the ground that we have laid out before.” He knew the board members “have looked carefully” at all the documents provided, all the statements and affidavits. Over the years, “we have come to respect your independent review of the materials.” So we “are not going to stand up here and respond to each of the things that we heard today that we think you all know are incorrect.” He would, instead, offer just “a very few points.” Most particularly, about Carol Kempfert.

Here the gloves came off: Years ago, the Justice Project associates went “to considerable length to try to communicate with Ms. Kempfert.” Above all, they had wanted to ask her about “the testimony she gave at trial with respect to whether she had any motive to lie … or to assist in the fabrication of evidence.” We have “provided to you affidavits.… You have seen those affidavits.” Ms. Kempfert “has not responded to those, nor has she responded today in all her remarks to the core question, whether she in fact was having affairs with members of the sheriff’s office and, most critically, lied about that under oath at trial.” Justice Project investigators had vainly “tried to interview her up in Washington” about this. Instead, they’d found others willing to talk. Hammond directed the board to Frieda Kennedy’s affidavit: “There is no question—and we wanted to be delicate this morning—but there is no question that now we have multiple witnesses, all of whom say that Carol Kempfert lied at the time of trial about whether she was having affairs. She was having multiple affairs. And those affairs provided her the motive to do what she did.” In her affidavit, “Frieda Kennedy also pointed out that Carol Kempfert told Frieda that Carol was the one who shot through the window.… We now have sworn testimony … that Carol fired that shot.” Hammond left the rest unsaid, relying on the documents sitting before the board: “I’d like to say nothing further about that. I think that the questions about her credibility have been properly addressed in the papers we have filed.”

He turned next to the suggestion that Macumber confessed to his wife. “This issue has gone on now for years,” he pointed out, fueled by conflicting testimony. The police officers needn’t be “lying or part of a grand conspiracy” to get it wrong. “Mr. Imbordino and I have been around too long to think that’s necessarily the case. Police officers hear often what they want to hear. That’s why we beg police officers to record. If we’d had a recording of the interview of Bill Macumber, we would know what he said and what he didn’t say.” Instead, “all we have are the various pieces of testimony.” What we have “is total imprecision on that, and to suggest otherwise, I think, would be a false conclusion.”

Hammond finished with a comment he’d later allow was “not kosher, normally.” But he’d been so irritated by Vince Imbordino’s claim that his office cared mightily about wrongful convictions, that his office had studied the case thoroughly before deciding on Macumber’s guilt. “Mr. Imbordino has been involved in this matter for about five weeks,” he informed the board. “He called me and we spoke—I think it was his first day having anything to do with this matter. And he told me he personally had no doubt that Bill Macumber had murdered these two people. I asked him what he had reviewed, and he very candidly told me, ‘Nothing.’ At that point he had not looked at the trial transcripts—indeed, he asked us to provide him the evidence—yet he had already made up his mind.” Hammond understood well “why a prosecutor’s office would want to stand behind a conviction,” but for Imbordino to say to this board that he personally “after study” had decided on Macumber’s guilt “I think is a little short of the mark.”

Bob Bartels wrapped up the presentation for the Justice Project. He did his best to cast doubt on Lucien Haag’s testimony, arguing once again that the millions of ejectors used in Ithaca .45 caliber pistols don’t each produce unique marks on cartridge casings. He tried also to “cut through all the details and complications” by bringing the board’s focus back to Valenzuela, Primrose and that thatch of hair. “Those seem to me to be the anchors,” Bartels said in closing. Those are “what’s necessary to look at whenever you’re evaluating any other piece of evidence.”

The board members had one more voice to hear before turning to their deliberations. “Mr. Macumber?” Duane Belcher asked. “Is there anything final you want to say…?”

*   *   *

Little remained for Bill Macumber. After listening to the proceedings for six hours, after hearing Steve and Scott denounce him, he had nothing more to offer in his defense. He had only a question: “Are my sons still on the line?”

“Yes,” Duane Belcher said. “I believe they are.”

Macumber’s voice ached, his one word an urgent plea. “Scott—”

“No, no, no,” Belcher interrupted. “Mr. Macumber,… I said initially your comments are to the Board. Not talking to anybody, whether it’s your sons or whatever. Your comments are to the Board.”

“Okay … I’m sorry. I misunderstood that.”

“Okay.”

Macumber rushed his words now, warding off another interruption. “But I will comment to the Board that I love my three sons with all my heart. Regardless of how my two older sons feel, that will never change till the day I die.”

“Okay.”

“I can’t say anything more than that.”

CHAPTER 26

Nothing Quite Like It

MARCH 2012–MAY 2012

They’d arrived at the endgame. “We are going to have some discussion,” Belcher began. “You can stay right here, you can hear us.… The only thing we demand is you respect this Board, you respect our decision whether you agree or disagree with what we ultimately do.”

Sitting next to him, Jack LaSota, the former state attorney general, took the lead. Hammond knew him well. They’d been friends since 1974 and law firm partners for ten years, 1985 to 1995. LaSota had been their firm’s lobbyist, a power broker in the halls of state government. Hammond admired him and appreciated his great, self-deprecating sense of humor. He could tell LaSota had come to this hearing well prepared, more than Hammond had anticipated. He had really studied the case.

“Mr. Chairman and my fellow Board members,” LaSota began, “this isn’t an easy case. There’s nothing quite like it. It’s one of the most extraordinary I have ever seen. It has some of the stranger juxtapositions of facts and evidence that I’ve ever encountered in my 40-some years of serving in the legal business.” Point by point, “in no particular order,” he began to identify the elements that most intrigued him.

At the top of his list: testimony in the case file from the security guard at the model homes complex Tim and Joyce visited on the night of their murders. The guard was certain they’d come by shortly before 10:00
P.M.
, just as he was closing up. The guard’s account seemed significant to LaSota for two reasons. First, the timeline: “He has them leaving there quite alive after 10 o’clock, and Carol has Bill arriving home at around 10, maybe even earlier. I have trouble squaring those two, what I’ll call facts.” Second, a particular detail that LaSota thought both “fascinating” and unexplored by either side—“maybe because it doesn’t square with either the prosecution or defense’s theory of what happened here.” The security guard, he pointed out, noticed not one but two cars at closing time that night, the second either a Pontiac or Oldsmobile. “And he doesn’t say much else about it other than that they left at the same time. Now, whether that’s connected to the Sterrenberg car, whether it’s hostile or it’s friendly, we never again hear about it. And maybe it’s impossible to hear about it. That’s just another tantalizing element that makes this case unique.”

Next on his list: “I wonder why Tim and Joyce were out there. And I don’t mean that in any sort of salacious way. It’s never really established why they’re out there, which makes me wonder if they weren’t out there at the behest of somebody else we haven’t even heard about. Maybe the Pontiac or the Oldsmobile, I don’t know, but what were they doing out there? It’s never said. Highly unusual. They weren’t in any state of disarray or undress or anything, and yet they were out there remote from either where he lived or where she lived.”

For that matter, “why would Bill Macumber have been there, if he would somehow manage to get there and get back home before 10 o’clock? What was he doing there? And that’s part of it … the lack of motive here that’s bedeviled this case from day one.”