Manifest Injustice (53 page)

That evening, he, his family and the Justice Project team retreated to a Macayo’s Depot Cantina for dinner in a private back room. This time, Bill allowed himself a scotch and soda with his combination plate, then another back at Jay and Harleen’s home. Still, he remained on his feet.

*   *   *

Larry Hammond did not join them at this dinner. Instead, he started driving late that afternoon to Tucson, to attend an evening speech by Morris Dees, the celebrated cofounder of the Southern Poverty Law Center—who, as it happened, would be talking about the Macumber case. In his GMC Sierra pick-up truck, heading southeast on I-10, Hammond tried to sort out his thoughts. The Justice Project indeed had written a new ending to the Macumber story, a stunning and amazing end. Yet Hammond didn’t quite know how to feel. It had been absolutely right to negotiate, to settle for a no-contest plea and time served, to have Bill walk out a free man. But, as a result, people would always be able to say he’s guilty, not innocent. Which is what the county attorney Bill Montgomery had done at a press conference and in a press release after the hearing: “He’s not innocent,” Montgomery had declared. “He’s guilty.… Had the evidence not been destroyed or lost, I have no doubt the State would have prevailed for a third time in convicting him.”

Hammond understood that other people, including some who’d put enormous energy into this case, were less certain than he about Bill’s innocence. This plea deal didn’t resolve their differences, didn’t answer all the questions. Still—almost everyone he’d talked to saw the Macumber case as a striking example of manifest injustice. Hammond focused on that. He thought also of the response from his long-time assistant, Donna Toland, when he shared the news about Bill. “Well of course,” she’d said. “Why would you have invested so much time if this were not the way it was going to end?”

That was an idea he had not grasped. Hammond wondered, had he really thought success was inevitable? No, he couldn’t say that. No, he hadn’t known how it would end. Rather, he’d always thought this case just had to be pursued, win or lose. He’d always thought it the right thing to do. Hammond gripped the steering wheel of his silver blue pickup as he peered into the dimming sky. Yes. That is why he’d heeded the siren call of an impossible obsession. That is why he’d urged the Justice Project’s ceaseless, quixotic campaign to free Bill Macumber.

A Note on Sources

This book is a work of nonfiction. It is based on a wide range of interviews conducted from June 2010 through November 2012. It also draws from a great wealth of documents: complete transcripts from both of Bill Macumber’s trials and from a number of pretrial hearings; Maricopa County Sheriff’s Office investigative reports from both the original 1962 murder investigation and the 1974 arrest of Bill Macumber; county probation and social workers’ reports; Arizona Supreme Court opinions and decrees; complete records of both Arizona Board of Executive Clemency hearings; Arizona Department of Corrections files; legal petitions and appeals; depositions and affidavits; Justice Project memos and reports; internal Justice Project e-mail messages among Macumber team members; Justice Project correspondence with Bill Macumber and Jackie Kelley; correspondence between Jackie Kelley and Bill Macumber; correspondence between Ron and Bill Macumber; and Bill Macumber’s four-hundred-page personal journal.

Over a span of two years, I traveled regularly to Arizona to visit with many of the characters who populate this narrative. I spent dozens of hours in the Justice Project’s offices, then located in the basement of the library at the Sandra Day O’Connor College of Law at Arizona State University, poring over documents and talking at length with Katie Puzauskas, Lindsay Herf and Sarah Cooper. In person, via e-mail and on the phone, I spent many additional hours interviewing Larry Hammond and Bob Bartels. I spent an extended weekend with Bill Macumber at the Arizona State Prison in Douglas and another day with him at the Arizona State Prison’s medical complex in Tucson; we also exchanged some twenty letters over the course of sixteen months. I spent a day with Ron Macumber at his home in Colorado, two days with Jackie Kelley on her ranch in New Mexico, and a day with Carol, Steve and Scott Kempfert in Olympia, Washington. In Phoenix I met Rich Robertson three times for comprehensive conversations. Twice I visited Bedford Douglass at his home in Mesa, Arizona, where we turned through the pages of the second trial transcript, reconstructing various scenes. One late afternoon, I met Robert and Toots Macumber at the home of Jay and Harleen Brandon in Apache Junction, where we all talked well into the evening. On another morning, Judge Thomas O’Toole welcomed me to his home for a wide-ranging discussion about Ernest Valenzuela and the Macumber case. By phone and e-mail I talked several times with Karen Killion, Sharon Sargent-Flack and Jen Roach. In the Justice Project offices I met with Andrew Hacker, Jenifer Swisher and Pete Rodriguez. At the Maricopa County Public Defender’s Office, I talked to Paul Prato, Bedford Douglass’s junior colleague at the second trial. In his downtown Phoenix law offices, I spoke with Tom Henze, the prosecutor at the first trial. Bill Macumber’s neighbor Paul Bridgewater, who still lived in his Deer Valley house, drove me by the Macumbers’ old home on West Wethersfield and showed me the Little League field—now a barren vacant lot—that Bill tended. In September 2010 I talked at length with four of the five Board of Executive Clemency members who in May 2009 voted for Macumber’s release: Duane Belcher, Ellen Stenson, Tad Roberts and Marian Yim.

The documents—thousands of pages—provided the book’s critical foundation. Using these records, I was often able to compare, clarify, question or confirm people’s recollections. I could see whether events remembered now, years later, were also reported or described back when they actually happened, either in writing or conversations. Most important, by looking at the dates on the documents, I could build an accurate, unified chronology—an essential task in writing narrative and a difficult one, for people often blur and jumble time sequences.

The documents also allowed me to write from the interior point of view of various characters, including Bill Macumber. When I describe what they thought or felt at a particular moment, it often comes from what they told me, but it derives as well from what they wrote—at the time—in letters, journals and e-mail messages. By comparing different accounts and matching memories to dated documents, I was often able to corroborate a person’s story. (For example, when Bill Macumber’s journal says that his lawyer James Kemper informed him in early October 1974 about Ernest Valenzuela’s confession, I can see that, indeed, Thomas O’Toole first wrote to Judge Hardy that very week.) Where memories diverged in critical ways that couldn’t be resolved by documents or interviews—Bill’s accounts versus Carol’s, for example—I chose to identify the “competing narratives” rather than declare one to be the “truth.”

Much of this chronicle relies on reconstruction. Again, the wealth of documents provided the foundation. Wherever possible, I supplemented the documents by interviewing those present at the scene of an event, seeking to weave multiple points of view into a unified, coherent account. That is how I chronicled Bill Macumber’s first Phase II clemency board hearing in 2009, which I didn’t attend (I hadn’t yet started this project). Working with a transcript of the hearing, I talked to virtually everyone present that day, walking each person page by page through the two-hour session. I also persuaded Marian Yim, one of the board members, to scroll through the transcript, annotating and clarifying. Katie Puzauskas then drew me a detailed diagram of the hearing room, complete with a seating chart. I needed less help with the second clemency board hearing, which I attended, but afterward, again working with a transcript, I interviewed many present that day, seeking their perspective and memories.

Beyond the full court record and supplementary documents from both 1962 and 1974–77, I was able to draw from a range of internal memos and reports prepared by the Justice Project after its lawyers took up the case. Chief among them: Earl Terman’s “Macumber Narrative” (February 3, 2000) and assorted e-mail summaries (January–August 2000); Sharon Sargent-Flack’s spreadsheet summary (February 10, 2003); Karen Killion’s “Top 10 Action Plan” (January 30, 2001) and “Macumber Part I” narrative (January 31, 2001); Sharon Sargent-Flack’s “Firearms Evidence Trail” memo (February 7, 2001); Karen Killion’s “Summary of Fingerprint Efforts” memo (September 8, 2001); Jen Roach’s seventy-five-page “Macumber Outline” (June 2004); Sarah Cooper’s draft of the initial PCR petition (October 2010); and the Justice Project’s memorandums in support of both clemency applications (2009 and 2011).

The affidavits collected by Katie Puzauskas, Lindsay Herf and Sarah Cooper in 2010 also added to my chronicle. So did Pat Ferguson’s Custody/Visitation Report for the Conciliation Court (No. A-2956, March 26, 1975), Basil Wiederkehr’s Presentencing Report (Case No. 83402, February 11, 1975), and the letters provided to the Board of Executive Clemency by Carol, Steve and Scott Kempfert in early 2012. I drew as well from the Arizona Supreme Court’s two decisions in Macumber’s case:
State of Arizona v. William Wayne Macumber
, 112 Ariz. 569, January 13, 1976, following the first trial;
State of Arizona v. William Wayne Macumber
, 119 Ariz. 516, June 9, 1978, following the second trial.

In recounting Larry Hammond’s personal background and the genesis of the Justice Project, I found my interviews with Hammond helpfully supplemented by Roger Parloff’s
Triple Jeopardy
(Little, Brown, 1996), an account of the John Knapp case that also informed me about Judge Charles Hardy. Because Hammond told Parloff and me the same stories, using much the same language, there is overlap between certain of our passages. I asked Hammond to review and confirm all biographical information in Parloff’s book.

For my understanding of the DNA exonerations that provide one context for Macumber’s case, I found helpful Brandon L. Garrett’s
Convicting the Innocent
(Harvard University Press, 2011), which lucidly analyzes just what went wrong in the cases of the first 250 wrongfully convicted people to be exonerated by DNA testing.

Janet Malcolm’s
Iphigenia in Forest Hills: Anatomy of a Murder Trial
(Yale University Press, 2011) provided me with yet another reminder—if I needed one—that lawyers are storytellers and courtrooms are venues for competing narratives.

A good number of law journal articles—some citing or focusing specifically on the Macumber case—educated me about the attorney-client privilege and its role in the Macumber trials. Among them:

Tyson A. Ciepluch, “Overriding the Posthumous Application of Attorney-Client Privilege: Due Process for a Criminal Defendant,”
Marquette Law Review
83 (1999–2000): 785–806.

Geoffrey C. Hazard Jr., “An Historical Perspective on the Attorney-Client Privilege,”
California Law Review
66 (1978): 1061–91.

W. William Hodes, “Executing the Wrong Person,”
Loyola of Los Angeles Law Review
29 (June 1996): 1547.

Brian R. Hood, “The Attorney-Client Privilege and a Revised Rule 1.6: Permitting Limited Disclosure After the Death of a Client,”
Georgetown Journal of Legal Ethics
7 (1993–94): 741–81.

Peter A. Joy and Kevin C. McMunigal, “Confidentiality and Wrongful Incarceration,”
Criminal Justice
23, no. 2 (Summer 2008).

Deborah L. Rhode and David Luban, “Confidentiality and Attorney-Client Privilege,” in
Legal Ethics
, 3rd ed., University Casebook Series. New York: Foundation Press, 2001.

Paul Rosenzweig, “Federal Prosecution Policy and the Attorney-Client Privilege,” testimony in February 2005 before the American Bar Association Task Force on the Attorney-Client Privilege, derived from Rosenzweig’s “Truth, Privileges, Perjury and the Criminal Law,”
Texas Review of Law and Politics
7 (2002): 513.

66th American Law Institute Proceedings, “Illustration 4 [Macumber Case],”
66th
ALI Proceedings
(1989): 332.

A number of pivotal appellate court decisions regarding the attorney-client privilege also helped me better understand the privilege’s role in the Macumber case. Among them:

Swidler & Berlin and James Hamilton v. United States
[the Vince Foster Case], U.S. Supreme Court, 524 U.S. 399, 141 L. Ed. 2d 379, 118 S. Ct. 2081 [No. 97-1192], argued June 8, 1998, decided June 25, 1998. Dissenting opinion by Justice O’Connor, joined by Justice Scalia and Justice Thomas. Transcript of Oral Hearing, June 8, 1998, 1998 U.S. Trans. LEXIS 48.

In Re: Sealed Case
, U.S. Court of Appeals for the District of Columbia Circuit, 124 F3d 230; 326 U.S. App. D.C. 317; 1997 U.S. App. LEXIS 22814; 47 Fed. R. Evid. Serv. (Callaghan) 327; argued June 20, 1997, decided August 29, 1997.

Chambers v. Mississippi
, U.S. Supreme Court, 410 U.S. 284; 93 S. Ct. 1038; 35 L. Ed. 2d 297; 1973 U.S. LEXIS 107; argued November 15, 1972, decided February 21, 1973.

In the Matter of a John Doe
, Supreme Judicial Court of Massachusetts, Suffolk; 408 Mass. 480; 562 N.E. 2d 69; 1990 Mass. LEXIS 461; argued September 7, 1990, decided November 5, 1990.

Jose Morales v. Portuondo
, U.S. District Court for the Southern District of New York; 154 F. Supp. 2d 706; 2001 U.S. Dist. LEXIS 10377; filed July 24, 2001, decided July 24, 2001.

State v. Doster
, Supreme Court of South Carolina, 276 S.C. 647; 284 S.E. 2d 218; 1981 S.C. LEXIS 318, March 4, 1981.

State v. Valdez,
Supreme Court of New Mexico, 95 N.M. 70; 618 P. 2d 1234; 1980 N.M. LEXIS 2725; September 15, 1980.

People v. Ernest Edwards
, Supreme Court of Michigan, 396 Mich. 551; 242 N.W. 2d 739; 1976 Mich. LEXIS 270; 92 A.L.R. 3d 1149; argued September 12, 1974, decided June 3, 1976.

Arizona v. Pina
, Court of Appeals of Arizona, 469 P. 2d 481; 1770 Ariz. App. LEXIS 623; 12 Ariz. App. 247; May 18, 1970.