Manifest Injustice (50 page)

Linda Primrose was “another unique feature.… She gives a detailed account, she talks about the thatch of hair that otherwise goes unmentioned. How could she have possibly known about that and what a strange thing to say, and then coincidentally to have hair found there.”

LaSota pointed next to the latent palm print. “How could it be that it was so bad an example that at the front end you couldn’t tell whether it was a palm print or a fingerprint?” LaSota held up his hand. “My, look at my palm.… Sure a lot bigger than any one of my fingerprints. And then it was so bad that it wasn’t submitted to the FBI, and yet ultimately it becomes pretty clear that this is Mr. Macumber’s palm print.”

LaSota happened to know well both of Valenzuela’s lawyers, Thomas O’Toole and Ron Petica. “Both of these men, who I consider to be of sound mind and discretion, were of the view that he was telling the truth. They are savvy individuals, and they never wavered in their belief over the years that this man had told the truth.” What’s more, Valenzuela ended up being sent to federal prison for a rape and murder on an Indian reservation. “It just strikes me that’s another unique feature of this case. Ernie was probably sentenced for a crime similar to that which he confessed to.”

Another “weird thing”: The defense appeals the first case because its ballistics expert wasn’t allowed to testify, then calls no expert at the second trial. “I can’t help but agree with the prosecution’s surmise that no expert testified because they couldn’t find a reputable expert who disagreed with Sibert. But it’s just strange that you base an appeal on something and you prevail, and then you don’t do anything with it.”

By now Hammond could see clearly that LaSota wasn’t building an argument for or against Macumber’s innocence—he was just outlining the details of a case that captivated him. Jack being Jack. On the one hand, on the other. He liked to think in an open way.

LaSota continued: “Another bizarre thing”—the polygraph exam given to Macumber on the day of his arrest. One of the questions—
Have you ever committed a serious, undetected crime
—was “pretty open-ended. I’m not sure how I’d answer that. I think I might say yes just not to err.… But what is a serious, undetected crime? It certainly doesn’t implicate him necessarily in the vile murders of these two youngsters.… It’s all open-ended. Who knows?”

LaSota wondered as well about FBI agent Robert Sibert’s claim that “no other firearm in the world” would match the casings from the murder site—“that just sort of reeks of extravagance … that’s a whole lot of assurance.” Also: “The fact that all the evidence is gone, we don’t have anything to look at now.” And: “I’m just amazed at whether there was ever any effort to find out if Macumber’s gun was cleared” during the 1962 roundup. Even more amazing: “Why would Macumber keep the gun? What’s he doing hanging onto the gun 12 years later?”

Then there were the sons: two who “loathe him so much they would actually like to see their father stay in prison for the rest of his life.” That’s “a lot of emotion” and “they said it articulately and conscientiously,” so “it means something to me.” And yet, “on the other hand, the son who’s here with us today feels 180 degrees different.”

Finally: According to Linda Primrose, there were others out there that night, but they have never come forward. That didn’t seem right to LaSota. “From what I’ve seen of conspiracies, eventually somebody blows the whistle. I would think over 50 years someone else would have come forward somewhere along the line, someone who may have been with Primrose and Ernie that night.” It was “just stunning” that “no one has ever come forward to corroborate her account.”

LaSota frowned, shook his head, studied the documents before him. “I don’t know that anyone in human form is ever going to be able to discern exactly what the truth is. It’s just totally baffling to me. I don’t know quite how I feel about it.”

Hammond took no offense at his former partner. He understood. Jack had no bile; he wasn’t opposing them. Both narratives disturbed him. The unanswered questions, the things that didn’t quite fit. The whole messy question of whether Bill confessed, what exactly he said to Carol and the deputies.

In closing, LaSota had a proposal: “I think we might well be better off to consider the question of guilt or innocence as sort of secondary to the question of whether someone who’s been in prison for 37 years for two brutal murders might nevertheless warrant clemency.” LaSota looked around at his fellow board members. “End of speech. Thank you for your time.”

Marilyn Wilkens shared his puzzlement: “I’m left with more questions than answers, which makes it very difficult, which is why this poses such a problem for me today.”

Ellen Kirschbaum, too: “For me it leaves so many gaps.… What was presented at the trials? What don’t we get here?”

Duane Belcher tried to steer them back to LaSota’s proposal, the notion of considering commutation rather than the question of guilt or innocence. In 2009, he reminded them, the Board had made two recommendations. One was to at least give Macumber a bottom number, when he’d be eligible for parole. Even if there was “a doubt or question” about guilt, “then at least make him parole eligible.” Why not do that now?

LaSota seemed to agree: “I think I need to stop thinking about all the anomalies in this case.” He’d rather discuss “with a little more specificity the situation of a 77-year-old inmate who has been in 37 years and has a virtually spotless record and has serious health conditions.” On the other hand, LaSota added, “Macumber is unrepentant.”

Marilyn Wilkens: “And I guess we do have a problem with that.”

Belcher slumped in his chair, looking perplexed and frustrated. “Well, if he didn’t do it, if he’s innocent, I don’t expect him to be repentant, don’t you think?”

Macumber’s unwavering claim of innocence, restated once again at the start of this hearing, served now as both his defense and his burden, an obstacle blocking his path to freedom.

LaSota began to read from the U.S. Supreme Court’s
Herrera
decision, where Chief Justice Rehnquist wrote, “Our judicial system, like the human beings who administer it, is fallible.” He thought those words relevant. “I don’t know, I haven’t heard enough to convince me that it’s failed here, but there is sure a lot of strange goings-on. Enough to make me come to the conclusion that we really should consider whether this man merits the opportunity to in effect rejoin his family before his days are up.”

Moments later, he offered a motion: “I will move to recommend not that his sentence be commuted to time served, but that he be given a sentence with a bottom number.”

They started discussing what number, how many years. LaSota finally proposed “38 years to life,” which would make him eligible within months.

Belcher agreed: “I will second the motion.”

All eyes turned to the other two board members.

Ellen Kirschbaum paused, then shook her head. “I disagree.”

Marilyn Wilkens looked down at her hands. “I’m going to disagree.”

Belcher closed the file that sat open before him. “All right.… There is a 2-to-2 split. There is not a majority of the quorum of the Board, that would have to be 3 out of 4. So he’s not recommended to the Governor at this time.”

LaSota nodded. “We don’t change the status quo with a 2-to-2 vote.”

In his chair, Larry Hammond hung his head. He’d feared this; he’d feared a split ever since he learned Ellen Stenson wouldn’t be attending. Ellen Stenson, who strongly believed in Macumber’s innocence, who’d voted in 2009 for his immediate release. Ahead of this hearing, the Justice Project could have called Belcher and said they wanted to wait because Ellen wasn’t going to be there. It would have put Belcher in a box, though, as the rules don’t allow for such “board-member shopping.” Of course, the Justice Project could have come up with a false reason instead—we’re not ready, a family member can’t come, someone’s sick. Such dissembling would have worked, but given their relationship with the board, Hammond didn’t think they should do that. Even though he’d lost twice before on two-to-two votes. Something changed when the board sat without a fifth member. They could decide by default.

Hammond had happened to bump into Ellen Stenson at a restaurant recently. In animated fashion, she’d started telling her lunch partner about the Macumber case. Hammond knew she would have been favorable to them today.
Would have
. Another simple twist of fate.

*   *   *

In the lobby after the hearing concluded, the Justice Project team and Macumber family members wandered about, as if searching for something they’d lost. Jackie, angry and depressed, felt certain Governor Brewer had urged the county attorney to oppose, felt certain Governor Brewer had somehow caused Ellen Stenson to be absent. Ron, frustrated that the board had considered innocence over clemency issues, also sensed Brewer’s hand. Katie asked out loud, “Was this hearing worth it? Worth putting Bill through such a day, worth having Bill listen to his two older sons denounce him?”

In the weeks to come, they would all have even more to digest, more to process. They would, on the very day after this hearing, learn that the Justice Project, in another of its cases, had prevailed before the U.S. Supreme Court—in
Martinez v. Ryan
, on a 7–2 vote, Bob Bartels had successfully argued for a prisoner’s right to effective assistance of counsel in post-conviction proceedings. “A very bittersweet 24 hours,” Hammond e-mailed his team. Then they’d learn that Duane Belcher, Ellen Stenson and Marilyn Wilkens would be leaving the Board of Executive Clemency—Governor Brewer had not renewed their appointments, Belcher being told she would like to see the board go in a “new direction.” Soon after, they’d learn that Brewer had fired Duane Belcher before he could step down, having him escorted from the governor’s office by capitol police officers after a heated exchange with one of her top aides. A day later, Ellen Stenson would publicly denounce this treatment of Belcher, telling a reporter she and Belcher weren’t reappointed because they were the last remaining members of the board that in 2009 unanimously recommended commutation for Bill Macumber.

Through it all, Larry Hammond would tell those who asked that the beat still went on for Macumber. He would offer to discuss with everyone “what our next steps will be.” He had lots of ideas. He’d learned things they could use at a post-conviction relief hearing. Things about Carol, things about the ballistics evidence, things about how to respond to the state. “New perspectives” he thought would be very helpful in the PCR process. Nothing had changed in his commitment or his fundamental assessment of the Macumber case. “Are we drinking Kool-Aid?” he told a visitor in early May 2012. “No. Absolutely not.”

*   *   *

That spring, in his Mohave Unit cubicle at the state prison in Douglas, Bill Macumber could barely respond to the steady flow of letters and phone calls from his supporters. He couldn’t pretend, couldn’t hide his sense of devastation. The board’s ruling mattered little to him. Only his sons’ words had meaning, his boys’ obvious hatred for him. On a notepad in his cubicle, he wrote, “We live in a sad world and for me it became sadder still as a result of that hearing.” He stared at those words, a pen motionless in his hand. He searched for something better than that, a way to get himself through, a way to go on. Pen went back to paper. “Still, I did get to tell my two oldest sons that I love them,” he wrote. “And I did get to hear their voices for the first time in 37 years. I will carry that memory to the grave as I’m certain I shall never hear their voices again.”

CHAPTER 27

There Came a Day

After the second clemency hearing, Bill Macumber and the Arizona Justice Project had just one hope left, one last chance. The petition for post-conviction relief, filed by the Perkins Coie legal team headed by Jordan Green in February 2012, a month before the clemency hearing, was still winding its way through the legal pipeline. After requesting three extensions of the deadline to respond, the county attorney’s office finally submitted a fifty-eight-page document in early July. Weeks later, Jordan Green countered with a last written reply. All the briefs then went to Maricopa County Superior Court judge Bruce R. Cohen, who would decide whether to grant an evidentiary hearing. The waiting began. If Macumber’s lawyers somehow managed to get to a hearing—a longshot—they’d have the burden of proof, and the standard they’d face would be a “preponderance of the evidence,” not just “reasonable doubt.” Which is why Larry Hammond had turned with such hope to the clemency board, explaining that for the many defendants “who don’t have the benefit of DNA, there’s no place else to even be heard.”

Many defendants indeed: Although the Macumber case is highly unusual, aspects of it reflect much of what transpires in courtrooms across the country. To learn the truth by means of a trial is surprisingly and uncomfortably difficult. Invariably, courtroom transcripts are full of complex and conflicting evidence. Certitude rarely seems justified, especially in light of what DNA testing now suggests about the legal system. It’s impossible to say how many innocent people sit behind bars, only that the 300 DNA exonerations to date represent a small slice of the whole.

As with Macumber, in many of these DNA exonerations the case against the defendant seemed strong. As with Macumber, in many the defense could not find reliable forensics experts, could not locate crime scene evidence, could not sway reluctant appellate judges. Three reversals involved trial judges who suppressed evidence of third-party guilt.

Most attorneys, like Larry Hammond and Bob Bartels, acknowledge that criminal trials aren’t searches for truth. In constructing stories, lawyers recognize only the evidence consistent with their theory of the case. So do the police, the forensic experts, the judges and—finally—the jurors. Everyone sees what they want, sees what fits their particular take.

I was reminded of this when, after Bill Macumber’s second clemency hearing, I spent a day in Olympia, Washington, with Carol, Scott and Steve Kempfert. For hours, they eagerly served up their version of the Macumber tale, reprising all they’d said at the clemency hearing, sounding as convincing as they had on speakerphone. They pointed out that no one has ever offered hard proof that Carol tampered with the evidence or even explained how she might have done so. They denied the stories of Carol’s affairs—“blatantly false” said Steve—but asked, “Where in the scheme of things does it matter anyway?” They challenged as well Rich Robertson’s account of his visit to their home in March 2003—it was sunny and Carol didn’t say, “Get the fuck off my porch.”