Manifest Injustice (54 page)

U.S. v. Pena
, U.S. Court of Appeals for the Fifth Circuit, 527 F. 2d 1356; 1976 U.S. App. LEXIS 12583; March 3, 1976.

The
Swidler
(Vince Foster) case before the U.S. Supreme Court in June 1998 drew widespread news media attention. Among the articles I consulted:

Walter Pincus, “Ken Starr Says Dead Men Should Tell Tales,”
Washington Post
, May 24, 1998.

Tony Mauro, “Starr to Argue Privilege Stops at Death,”
USA Today
, June 8, 1998.

Stephen Labaton, “Supreme Court Hears Case on Ex–White House Counsel’s Notes,”
New York Times
, June 9, 1998.

Simon Frankel, “A Confidence Better Kept,”
New York Times
, June 9, 1998.

Ruth Marcus and Susan Schmidt, “Attorney Client Privilege After Death Is Upheld,”
Washington Post
, June 26, 1998.

Stephen Labaton, “Justices Deal Starr a Defeat, Holding That the Attorney-Client Privilege Survives Death,”
New York Times
, June 26, 1998.

The Arizona press extensively covered the Scottsdale Road murders in 1962. The news clips from those days, collected by the Justice Project, exist only as torn, yellowing sheets that often lack a date or even the name of the newspaper. The byline of Gene McLain at the
Arizona Republic
appears often in this file. Other stories come from the
Daily Progress
and the
Evening American
.

The arrest and trials of Bill Macumber in 1974–77 also drew much press attention in Arizona. Again the clips in the Justice Project file exist only as torn sheets that often lack identifying dates or names of newspapers. The bylines of Pat Sabo and Mel Foor of the
Phoenix Gazette
appear more than once. Two full-length magazine pieces stand out: Eddie Krell, “Death Hunted the Lovers in the Desert,”
Front Page Detective
, September 15, 1974, and Robert Barrett, “How Do You Prosecute a 12-Year-Old Murder Case?,”
Arizona
, October 12, 1975.

Governor Jan Brewer’s November 2009 rejection of the recommendation from the Arizona Board of Executive Clemency triggered an extensive amount of press attention in Arizona and nationwide, starting in the spring of 2010. I cite and quote from these reports in Chapter 21, Attention Is Paid. Among the key stories and broadcasts were: Sarah Buduson, “Arizona Governor Refuses to Explain Clemency Ruling,” KPHO TV, May 18, 2010; P. S. Ruckman Jr., “Arizona: Clemency Mystery,”
Pardon Power
blog, May 19, 2010; Adam Liptak, “Governor Rebuffs Clemency Board in Murder Case,”
New York Times
, June 14, 2010; Joe Dana, “Clemency Denial Frustrates Many,”
azcentral.com/
12 News, July 12, 2010; Margaret E. Beardsley, “Group Fighting to Free Man They Believe Was Wrongly Accused of Murder,”
azfamily.com
, July 26, 2010; Dave Biscobing, “A Life of Injustice? Governor Blocks One Man’s Quest for Freedom,” ABC 15 TV, September 7, 2010; Mary K. Reinhart, “Brewer Refuses to Reconsider What Clemency Board Calls ‘Miscarriage of Justice,’”
Arizona Guardian
, October 21, 2010
;
Dan Harris, Steven Baker and Lauren Effron, “Did Wife Frame Husband for Arizona Cold Case Murders?,”
Nightline
, ABC News, October 27, 2010.

Several months later, on June 5, 2011, a comprehensive three-part series about the Macumber case appeared in the
Arizona Republic
: “Arizona Murder Mystery: Guilt of Man in 1962 Killings Thrown into Question,” by John Faherty.

My book, chapter by chapter, derives from a weave of the multiple sources listed above and below. For the most part, those sources are apparent in the narrative. Bill Macumber’s thoughts and history, for example, clearly come from his letters, his journal and my interviews with him. Accounts of the Scottsdale Road murders draw from the sheriff’s investigative reports, trial transcripts and local Arizona newspaper stories. I pieced together the Justice Project’s efforts over the years through interviews with Macumber team members and from their many letters, memos and e-mail exchanges. My reconstruction of the trials came from transcripts, news stories and interviews with, among others, Tom Henze, Bedford Douglass, Paul Prato, Thomas O’Toole and Bill Macumber.

At the start of Chapter 1, I drew from Tom Henze’s memories of partying on the Scottsdale desert as a youth. Bill Macumber’s “memories of days now gone” in Chapter 2 came largely from his journal, as did the summary in Chapter 4 of his thoughts while in the Maricopa County Jail. The account of the jury’s reasoning and vote in Chapter 9 derived from juror Sarah Elliot’s September 8, 2010, affidavit and jury foreman Dick Adams’s letter to Carol Kempfert, dated January 13, 1977. In Chapter 10, my report of Bill Macumber’s life in prison drew in part from Arizona Department of Corrections logs and the supporting letters and award certificates in his clemency petitions; my own visit with Macumber in the state prison at Douglas allowed me to confirm directly the high regard inmates and guards have for him there. An interview with Gary Phelps, former deputy to Arizona Department of Corrections director Sam Lewis, provided confirmation of the account, in Chapter 12, of how life changed for Macumber under Lewis.

My reconstruction in Chapter 14 of the Justice Project team’s journey to meet Macumber at the state prison in Douglas derived from interviews with Larry Hammond, Bob Bartels, Rich Robertson, Sharon Sargent-Flack and Bill Macumber. Sharon also shared with me the handwritten notes she took during the visit, and Bill Macumber reconstructed the day in a series of letters. My description of the team’s drive from Phoenix to Douglas drew as well from my own journey to Douglas, following the same route the team took. The passage about the history of Douglas and the Gadsden Hotel derived in part from a Wikipedia posting and local newspaper accounts. My description of the team’s entry into the prison drew from my own experience going through that security process.

My account, also in Chapter 14, of Rich Robertson’s visit to Carol Kempfert’s home in Olympia drew from interviews with Robertson, his testimony at two clemency hearings, and his written report to the Justice Project team dated March 9, 2003. I also talked to Carol, Scott and Steve Kempfert about this visit. Their memories differed from Rich’s. In their version, Carol did not say, “Now get the fuck off my porch,” though they allowed that Steve might have. And in their version, it was sunny. In checking the National Climatic Data Center Global Surface Summary of Day weather reports for Olympia, Washington, during the two days of Robertson’s visit (March 1–2, 2003), I saw .17 precipitation, “rain and/or melted snow reported during the day” for March 1, and 0.00 precipitation, “rain and/or melted snow reported during the day” for March 2. Given the conflicting accounts, I chose to allow both parties to share their memories, Carol offering hers in Chapter 27.

In Chapter 15, the summary of Larry Hammond’s first phone conversation with Ron drew in part from Hammond’s written report to the team about that event. In Chapter 16, the story of Bob Bartels’s visit with Jerry Jacka derived in part from Bartels’s written report to the Justice Project team about that day. In Chapter 18, Mark Macumber’s memories of his visits with Bill in prison drew from an account he wrote, “Bill’s Story,” and from his letter to the clemency board.

I attended Sigmund Popko’s Post-Conviction Clinic on September 8, 2010, where Katie, Lindsay and Sarah recruited for the Justice Project, so I described this session from direct observation at the start of Chapter 22. Katie provided me with written timelines that helped in my reconstruction of their “going to the ground campaign” in the summer and fall of 2010. My discussion in Chapter 23 about the evolving world of forensic science drew in part from the NAS report mentioned there: Committee on Identifying the Needs of the Forensic Sciences Community, National Research Council,
Strengthening Forensic Science in the United States: A Path Forward
(National Academies Press, 2009).

I attended the second Phase II clemency board hearing described in Chapter 25, witnessing the six-hour session firsthand and taking extensive notes. I subsequently obtained a transcript of the hearing and, using it as a road map, interviewed Larry Hammond, Bob Bartels, Jackie Kelley, Ron Macumber, Rich Robertson and Katie Puzauskas. Bill Macumber and I exchanged letters. I spoke to Bedford Douglass by phone, confirming his contact before the second Macumber trial with the ballistics expert Lucien Haag.

In writing that chapter, I also drew on a number of key documents: Macumber’s Petition for Post-Conviction Relief, filed February 9, 2012; the Justice Project’s Memorandum in Support of William Wayne Macumber’s Application for Executive Clemency, June 2011; State of Arizona’s Memorandum in Opposition to the Application for Executive Clemency of William Wayne Macumber, March 2012; letter to the Arizona Board of Executive Clemency from Carol Kempfert, January 30, 2012; letter to the Arizona Board of Executive Clemency from Scott Kempfert, March 9, 2012; letter to the Arizona Board of Executive Clemency from Steve Kempfert, March 12, 2012; Linda Primrose’s letter to Bedford Douglass, July 1976; jury foreman Dick Adams’s letter to Carol Kempfert, January 13, 1977.

In Chapter 26, the reference to Governor Brewer’s ouster of three clemency board members drew from several Arizona newspaper accounts: Gary Grado, “Dust-up Leads to Clemency Director’s Firing,”
Arizona Capitol Times
, April 24, 2012; Bob Ortega, “Clemency Board Faces Legal Hurdles: Brewer-Appointed Members’ Training Called into Question,”
Arizona Republic
, May 6, 2012; and Bob Ortega, “Arizona Prisoners Rarely Granted Clemency: Governor Seldom Uses Sentencing ‘Safety Valve,’” by
Arizona Republic
, May 12, 2012.

In Chapter 27, my reference to what Carol told a reporter in January 1976 about Bill’s letters comes from “I’m Terribly Frightened,” an article in the
Phoenix Gazette
by Pat Sabo, published on January 14, 1976. My sources for the time sequence involving Macumber family members are several: In a letter to me dated July 3, 2012, Bill Macumber advised that Harold carted items from the house on West Wethersfield Road soon after Bill’s arrest—Bill couldn’t have done that himself, as he was in jail. Macumber’s journal records his plan to buy the motocross bike for his sons on Friday, October 25, 1974, while he was out on bail before the first trial, and Ron Macumber confirms that’s when his father bought them the bike. Judge Hughes didn’t request a conciliation court report until March 1975, which is when Pat Ferguson interviewed Steve and Scott; Pat Ferguson’s report is dated March 26, 1975.

My account in Chapter 27 about the post-conviction relief proceedings, plea bargain, evidentiary hearing and Macumber’s press conference drew from court documents and interviews with all those involved, particularly Jordan Green at the law firm of Perkins Coie. I attended the evidentiary hearing in Phoenix on November 7, 2012, and also drew from local news stories, particularly two by Richard Ruelas in
The
Arizona Republic
, “Ex-inmate Savors 1st Breaths of Freedom” (November 9, 2012) and “Man Convicted in ’62 Murders Freed” (November 8, 2012).

I am acutely aware of how hard it is to get everything right in this kind of reconstructed nonfiction narrative. I realize also that as well as I may do my job, some players in the story may be unhappy about their depictions, feeling I have not represented them as they see themselves. That is inevitable and unavoidable. In the end, as harsh as it sounds, I am telling my story, not theirs.

Acknowledgments

Assembling a nonfiction chronicle such as this requires the cooperation of a great many people, to whom I am forever indebted. Most particularly, I thank Larry Hammond, who opened the doors of the Arizona Justice Project to me and then spent dozens of hours sharing his memories and insights. Without his gracious, patient cooperation, and his decision to urge the Justice Project’s “full cooperation,” my task would have been impossible. I am equally grateful to Katie Puzauskas, who provided a wealth of documents, constant guidance and invaluable support, fielding my unending flow of queries and requests over two years. She also proved to be a most considerate host, affording me use of the Justice Project conference room and a priceless copier-scanner.

I’m obliged as well to Bob Bartels and Rich Robertson, who spent hours guiding me through the Justice Project’s decade-long work on the Macumber case, and to a number of others on the Justice Project team: Lindsay Herf, Sarah Cooper, Karen Killion, Sharon Sargent-Flack, Andrew Hacker and Jen Roach. I thank Ron Macumber and Jackie Kelley for serving up resonant memories and boxes of invaluable documents; Bedford Douglass for reliving the second Macumber trial; Judge Thomas O’Toole for recalling Ernest Valenzuela; Carol, Steve and Scott Kempfert for graciously welcoming me to their home. I’m most grateful to Bill Macumber for his sustained cooperation and pivotal decision to provide me his journal and private correspondence.

A special thanks to Marc LaRocque, who as my research associate in the early stages of this project helped me navigate several complex topics. Marc holds a PhD in history from University of California–Irvine but proved to be equally adept at legal research, gathering a rich portfolio of articles and rulings about the attorney-client privilege.

Once the research is completed, the writing—and rewriting—begins. I am deeply indebted to Gillian Blake, the editor-in-chief at Henry Holt, for her superb editing advice, which ranged from meta-considerations to a rigorous line edit. Her close read of several drafts inspired me to keep revising my manuscript. So did the meticulous work by Bonnie Thompson, a gifted copyeditor. I’m grateful as well to Henry Holt’s publisher, Stephen Rubin, for his continued support and faith in me.

My regard and appreciation for Kathy Robbins—after all these years still my agent, friend, mentor and scold—knows no bounds. Throughout this project she encouraged, championed and challenged all at once. She greatly improved both my spirit and my prose.