Manifest Injustice

by Barry Siegel

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  To my father, who showed me the way. With much love and admiration

  Contents

  Title Page

  Copyright Notice

  Dedication

  Author’s Note

  Prologue

  PART ONE ■ CRIME AND CONSEQUENCES

  1. Why Oh Why

  2. Memories of Days Now Gone

  3. Interrogation

  4. Maricopa County Jail

  5. Valenzuela’s Confession

  6. Days of Freedom

  7. The Trial

  8. Civilly Dead

  9. Return to the Courtroom

  10. A Career in Prison

  PART TWO ■ QUEST FOR JUSTICE

  11. Arizona Justice Project

  12. A Case Worth Pursuing

  13. Stroke of Luck

  14. Journey to Douglas

  15. Shaking a Tree

  16. Playing Long Shots

  PART THREE ■ LAST CHANCE

  17. A Futile Affair

  18. A Lot of Work to Do

  19. Clemency Hearing

  20. A Corrective Role

  21. Attention Is Paid

  22. Going to the Ground

  23. An Impossible Goal

  24. Critical Condition

  25. A Second Clemency Hearing

  26. Nothing Quite Like It

  27. There Came a Day

  A Note on Sources

  Acknowledgments

  Index

  Also by Barry Siegel

  About the Author

  Copyright

  Author’s Note

  In the summer of 2010, a scattering of news accounts drew my attention to the case of William Wayne Macumber, a seventy-five-year-old man who by then had served thirty-five years of a life sentence in Arizona State Prison for a double murder he very possibly did not commit. The case, rife with extraordinary irregularities, had attracted the sustained decade-long involvement of the Arizona Justice Project, one of the first and most respected of the nonprofit groups that now represent victims of manifest injustice throughout the country. By reputation, I knew of the Justice Project’s founding director, Larry Hammond, a celebrated criminal and civil liberties attorney who had just been named winner of the prestigious 2010 Morris Dees Justice Award, given annually to a lawyer “who has devoted his or her career to serving the public interest and pursuing justice, and whose work has brought about positive change in the community, state or nation.” We arranged a phone conference and, on a Saturday morning late that June, talked for two hours. What I heard then, and subsequently discovered from my research, aroused in me an interest to write this book. I asked for Hammond’s cooperation, and he readily agreed.

  So began my unique relationship with the Justice Project team and, eventually, Bill Macumber. Without anyone saying so directly, it seemed clear that the Justice Project lawyers and I shared certain values and a mutual respect. Yet I was not on their defense team, and they weren’t my coauthors. As always between journalists and subjects, each party had its own goals and interests; there was a kind of unavoidable, collegial, unspoken maneuvering. The Justice Project associates naturally hoped to shape the narrative in a way favorable to their client, while I wanted access—intimate, authentic access. As a result, we found ourselves in a friendly yet careful kind of dance.

  Larry Hammond, by nature impulsive and forthcoming, nonetheless gave careful thought to what he’d reveal, openly telling me when he was “thinking as a lawyer.” His estimable Justice Project colleague Bob Bartels, a distinguished law professor at Arizona State University’s Sandra Day O’Connor College of Law, nicely but frankly informed me that if it were up to him, he wouldn’t share anything. Yet eventually both did share and tell, in a series of enlightening conversations. So did a journalist turned private investigator, Rich Robertson, and a group of extraordinarily committed former law student volunteers, chief among them Karen Killion, Sharon Sargent-Flack and Jen Roach, who regularly rushed to assist the Macumber team long after they’d launched their own careers.

  Each time I returned to Arizona, the door swung wider and the piles of documents on the counters of my home office grew higher. Yet the more I researched, the more I came to realize that my trove derived almost entirely from public documents chronicling events set well in the past. What I lacked was a detailed inner look at the Justice Project’s ten-year effort on Macumber’s behalf, started not long after Larry Hammond founded the organization. Good reason existed for this deficiency, of course: The case remained ongoing, with the Justice Project still serving as Macumber’s lawyer. So barriers of confidentiality and attorney-client privilege stood between me and an understanding of the more recent efforts.

  All the same, if I were to tell the story I had in mind, I needed both to chronicle the present and reconstruct the past. This I explained to Larry Hammond during a marathon four-day session we held in late February 2011 at his Phoenix law office, four days in which we talked constantly, morning to night, about the legal system, the Justice Project and the Macumber case—except when we stopped on a balmy Saturday afternoon to sneak in three innings of a spring training game between the Dodgers and Giants, baseball being Larry’s other great passion besides social justice. Even there, with Hammond keeping a detailed scorecard, unabashed about his statistical fanaticism, I pressed him about my needs as he explained the fine points of legal confidentiality. I could tell he was at least listening and considering. “Renegade” might be too strong a word for Hammond, but he did seem a lawyer inclined to think outside the box. What’s more, he had his own compelling reasons for me to tell Macumber’s story.

  Our visit would prove pivotal. Days later, Hammond sent a message to his Justice Project team members, urging their “full cooperation” with me, even if that involved divulging client confidences and disclosing in detail some of the “awkward reasons” it had taken the project so long to file a petition on Macumber’s behalf. “I think we have a good story to tell,” he explained. Bill Macumber “has been briefed extensively on this question and he is in full accord and wants to waive the privilege.”

  With that, the locks came off the file cabinets. Three young, talented Justice Project attorneys, Katie Puzauskas, Lindsay Herf and Sarah Cooper, gathered around, excitedly offering accounts of their recent months out in the field, a “girl team” of lawyer-detectives going to the ground to track down witnesses from long ago. Katie, a vivacious twenty-seven-year-old of chiefly Italian descent; Lindsay, a sunny thirty-year-old college track and swim team jock; Sarah, an intense twenty-four-year-old wunderkind barrister with a strong British accent—together they walked me through their still fresh investigation, spreading their reports on a conference room table, recalling details, setting scenes, building a chronology. The earlier Macumber team volunteers, the former law students Karen Killion, Sharon Sargent-Flack and Jen Roach, provided their accounts as well, along with piles of their notes and reports. Bill Macumber contributed, too, in a major way. After I spent a singular weekend visiting him at his Arizona State Prison home, a full Saturday and Sunday together from 9:00 A.M. to 4:00 P.M. each day, he decided to provide me with a thick file of personal letters and his entire four-hundred-page journal, a chronicle spanning his early life, arrest, conviction, and decades behind bars.

  In this fashion, my understanding of the Macumber case and the Justice Project’s efforts kept expanding. Inevitably, so did my evolving sense of ambiguit
y: The more I could see, the more complicated matters appeared. The complexities only deepened when I finally had the chance to meet with Macumber’s ex-wife, Carol Kempfert. This case certainly involved a long list of strikingly dubious elements, as well as a convicted killer whose wit, erudition, calm decency and exemplary conduct (in prison and out) had inspired many to support him. Yet the record also included what seemed to be some quite damaging evidence against Bill Macumber—his own lawyer at trial had warned that the jury might not believe him because, though true, his account did sound “fishy.” So why Larry Hammond’s passion and the Justice Project’s unflagging decade-long commitment? By its nature, the cash-strapped Justice Project, with limited resources and manpower, had to be highly selective. The group’s manifesto assigned to its staff only cases involving innocence or “manifest injustice” (obvious unfairness), and in reality, that alone wasn’t enough: The Justice Project associates had to choose just those few cases where they could have an impact, where they could win. That they’d even selected the Macumber case was telling. That they’d stuck with it for more than a decade spoke volumes.

  Larry Hammond, after all, knew from the start how hard it would be to ever convincingly prove Macumber’s innocence. This because they had no DNA evidence—no physical or biological evidence of any sort remained in the Macumber file. DNA exonerations by then had become a familiar story, many of them won by Barry Scheck and Peter Neufeld’s renowned Innocence Project at Yeshiva University in New York. But such outcomes were the exception, since most cases didn’t include DNA, making it far harder to win post-conviction relief—in fact, so hard that Scheck and Neufeld’s Innocence Project wouldn’t touch non-DNA cases. Larry Hammond’s Justice Project did all the time.

  The deeper I plunged into the record, the more I wanted to understand the Justice Project’s ceaseless, quixotic campaign to free Bill Macumber.

  Prologue

  On June 10, 1998, in the Arizona State Prison at Douglas, an isolated border town in the far southeast corner of Arizona, a fellow inmate handed Bill Macumber an article from that day’s newspaper. Macumber carried it back to what he called his “home”—a small cubicle in the prison’s flat, single-story Mohave Unit. He wasn’t feeling well, as he’d been having trouble getting his heart medication from the prison’s medical staff. He knew one nice lady on the prison staff who treated him like a human being. That helped. But the temperature in Douglas had suddenly dropped by twenty degrees, the nights falling into the low forties, and there’d be no heat for at least another week. Two light blankets and his sluggish circulation made for chilly nights. He stood a lanky and angular six foot seven, so he needed a special bed. It filled most of his ten-by-seven-foot stall, set in a large dorm room with twenty-eight other such cubes, each divided by low partitions. Even in such a crowd, he remained alone, being decades older than the other prisoners.

  In his cubicle, he read the article, written by an Arizona Republic columnist, Steve Wilson. Its subject, a case just then before the U.S. Supreme Court, involved the suicide of deputy White House counsel Vince Foster. The justices had heard oral argument two days before. Wilson’s local interest: “A controversial decision by the Arizona Supreme Court two decades ago might figure in the outcome.”

  Macumber kept reading. Yes, he could see what the reporter meant. At the Supreme Court hearing, an old Arizona murder case indeed had haunted the conversation: his murder case. Arizona v. Macumber.

  He recalled Vince Foster’s suicide. Facing possible scandal, Foster had shot himself in the head. A legal battle had ensued, the independent prosecutor Kenneth Starr trying to get access to notes taken by Foster’s lawyer at their last meeting. Did attorney-client privilege survive the death of a client? That’s what they were arguing at the Supreme Court. The very same issue they’d argued at Macumber’s murder trial.

  He read on. How interesting—Justice Sandra Day O’Connor, being from Arizona, knew his case well. At the oral hearing, she’d posed a question to Vince Foster’s lawyer: “Mr. Hamilton, you take the position that there can be no compelled testimony by someone in your circumstance, even if the information would be essential to show that a third person was not guilty of a crime, such as in the Macumber case in Arizona?” Faced with Macumber, Hamilton conceded that disclosure of a dead client’s confession might have been appropriate there—but that such a “singular situation” didn’t warrant wholesale overriding of the attorney-client privilege.

  Steve Wilson agreed with Hamilton. Macumber’s case, he told his readers, involved a lovers’ lane double homicide. Bill Macumber had been “an unlikely suspect” with “no known motive and no prior record.” What’s more, “someone else admitted to the killings.” Ernest Valenzuela, on trial for another rape and murder, had confessed to his attorney, Thomas O’Toole, now a prominent Maricopa County Superior Court judge. So both the Foster and the Macumber cases involved attorney-client privilege. Yet the two differed. “For the privilege to be breached,” Wilson concluded, “the circumstances should be extremely compelling. They were in 1974 when an Arizona man stood trial for murder. They aren’t in 1998 when Starr is fishing for evidence.”

  To Macumber, this column told a familiar story. He knew of his case’s notoriety, that it had been the subject of multiple law review articles, symposium panels, textbook chapters. He knew that to certain critics, his case had become a symbol of just how seriously the legal system places attorney-client privilege over the search for truth. What did it matter? He didn’t see how any of it had done any good. Still, maybe this time. Macumber could only try. The next morning, he mailed the column to his closest friend and ally, his cousin Jackie Kelley.

  * * *

  Jackie and Bill had grown up together back in Iowa, more like brother and sister than cousins. Ever since his conviction, she’d been endlessly battling for his release. Sixty-seven years old, five years Bill’s senior, she and her husband lived on a remote 160-acre spread in northwest New Mexico. Sitting at her kitchen counter in late June, she read and reread the newspaper piece. Her eyes kept traveling back to the name Thomas O’Toole. “If Valenzuela was lying, he was very convincing,” Judge O’Toole had told Wilson. “He had details about the crime that were only known to police.”

  On June 27, Jackie turned to her typewriter. “I am writing to you concerning the attached article from the Arizona Republic,” she began a letter addressed to Judge O’Toole. “This article was sent to me by my cousin, William Wayne Macumber.…”

  Bill has always been like a brother to me. Bill did not, at the time of his arrest, have a great deal of money, nor did his family. For this reason he could rely only on the services of a public defender.… I have the same problem as does Bill—no access to a great deal of money. I am also quite ignorant in the ins and outs of our legal system. Actually, about all I have is determination! Is it possible for either you, or someone in your office, to give me any suggestions, any assistance in gaining my dear cousin’s freedom? For the life of me I cannot understand how the rights of a dead, confessed killer can supersede those of a living, innocent man! We are God-fearing people, as is my cousin. If there is any assistance or suggestions you could give to me, I would be eternally grateful.

  Judge O’Toole, who preferred the cool air of Flagstaff during the blazing hot Phoenix summers, did not immediately attend to Jackie’s letter. When he did pick it up, he stiffened: Ernest Valenzuela. Back in 1967, O’Toole had been a young federal public defender. He’d represented thousands of clients since then. Most were a blur now. But he’d never forgotten Ernie Valenzuela. Valenzuela had scared the wits out of him. As the years went by, even after he became a judge in 1984, and then the Maricopa County presiding criminal department judge, O’Toole would regularly reflect about Valenzuela and how he’d confessed to the lovers’ lane killings—not bragging, not running his mouth, not huffing and puffing, just talking, his eyes flat and cold. So eerie, like a wild animal. The way he recalled the murders with obvious relish, savoring and cheris
hing the memory. O’Toole had never stopped thinking about this case, had never managed to shake it. He knew Ernie was a hardened killer, he knew Ernie liked to prey on couples in lovers’ lanes. He’d absolutely believed Valenzuela’s confession. So he’d tried to testify at Macumber’s trial. The judge wouldn’t let him. That had been hard, watching Bill Macumber get convicted.

  Finally, though, it had not been his case, his concern. Life went on. Until now—until he opened Jackie Kelley’s letter. If there is any assistance or suggestions you could give to me, I would be eternally grateful. He couldn’t again let it go, Judge O’Toole decided. This time he had to push harder.

  He could think of only one person to call: Larry Hammond. O’Toole knew him mainly by reputation. Hammond was a legend, having battled zealously for years on behalf of the wrongly accused. He’d collected all sorts of lustrous awards—and a fair amount of resentment—for fighting to correct systemic injustice in the legal system. He sat on indigent-defense task forces, human rights committees, capital representation agencies. Most important, he’d recently launched the Arizona Justice Project. Hammond had no funding, no office, no staff, no structure—just volunteer lawyers and law students. Yet if anyone could help Macumber, O’Toole reasoned, it would be Hammond.

  O’Toole reached him in the early afternoon on September 18, 1998. Hammond didn’t field many such calls from judges. Though he’d served as law clerk for two U.S. Supreme Court justices (Hugo Black and Lewis Powell), his dealings with judges in more recent years had usually involved arguing before them in courtrooms or fuming at their authority behind their backs. Now here was O’Toole, urging the Justice Project to look at Macumber. If there’s any case you should take, O’Toole told Hammond, it’s this one. O’Toole pointed to the Vince Foster litigation. Reassess Macumber in light of Foster, O’Toole advised. Foster might apply. The judge openly pled: I am aware of this case. I have known of it for years. I represented a man who confessed to the murders. Larry, I represented the killer.