Manifest Injustice

by Barry Siegel

  * * *

  In late February, authorities transported Macumber from the county jail to the state prison at Florence. He heard threats and catcalls from inmates as soon as he passed through the gates, the price paid for his connection to the Maricopa County sheriff’s department. His second day there, two inmates jumped and pummeled him at a blind spot near the stairs to the second tier. The next morning, two other inmates stopped by his cell to demand protection payments. He couldn’t and wouldn’t pay, so he got beaten again. He had blood in his urine now, and pain in his ribs when he breathed deeply. The warden summoned him, demanding to know who’d attacked him, growing angry when Macumber couldn’t provide names. Eventually, the warden ordered him into administrative segregation, a form of isolation that Macumber found unpleasant. He had a cell to himself, but he could leave it only twice a week, for a five-minute shower. He ate his three daily meals alone in his cell. He felt like a pariah.

  * * *

  In early March, Carol’s attorney filed a motion for summary judgment in the divorce proceedings, which apart from division of property had involved the issue of custody and visitation. There remained nothing to contest, Carol argued, for Bill, “being civilly dead,” had no standing to appear or oppose her requests. Civilly dead—that was the legal term applied in such proceedings to one convicted of murder and sentenced to life in prison. Bill Macumber “is in fact for these proceedings dead,” Carol’s petition declared. “He has no standing to object to the motion.”

  But Judge Ed Hughes wasn’t inclined to declare him dead, as Macumber’s conviction might be “revisited” down the road. In fact, Judge Hughes was willing to consider Bill’s request for visitation rights—Macumber wanted his parents to bring his sons to the prison regularly. Judge Hughes thought the request “most unusual,” even unprecedented, “the only one I’ve ever had or ever heard of.” All the same, he noted, a convicted felon doesn’t lose all his “natural rights or property rights.” Before ruling about visitation or custody, Hughes wanted a report prepared by the Conciliation Court, a division of the Maricopa County Superior Court.

  That report arrived on March 26, written by Conciliation Court counselor Pat Ferguson, who had interviewed Carol, Bill, the boys and a range of witnesses—neighbors, friends, colleagues and family members, twenty-six in all. “Most of the witnesses,” Ferguson reported, “were provided by Mr. Macumber. Mrs. Macumber gave counselor only three witnesses that were not members of her immediate family. Two of the witnesses counselor spoke to. The third did not keep his appointment, nor did he call. Due to the lack of impartial witnesses, many of Mrs. Macumber’s allegations regarding Mr. Macumber could not be verified.”

  Carol’s allegations covered the gamut: Contact with Bill negatively affected her sons; Bill was mentally unstable; Bill had interest in hard-core pornography; Bill had taught the boys to hunt “for the love of killing.”

  Should visitation be granted, Carol told Ferguson, she would have no choice but to leave the state with the boys. Carol wanted Ferguson to know that she, “tired of being the bad guy,” had called an Arizona Republic newspaper reporter to give her side of the custody-visitation issue (“Involvement Costly Macumber’s Wife Says,” read the resulting headline. “‘I’m Fighting for My Kids’”). She’d learned from the reporter that Judge Hughes was saying she “runs around with a lot of men.” How, Carol asked Ferguson, could the judge have this information?

  “Counselor told her that this appeared to be very common knowledge,” Ferguson wrote in her report, “that many people had made the same statement unsolicited.… Many witnesses made comments regarding a number of men in connection with Mrs. Macumber. Neighbors report that there are three or four men who commonly visit Mrs. Macumber’s house in the evening.… It is apparent that there is much negative feeling about Mrs. Macumber in the neighborhood.”

  During her investigation, Ferguson heard allegations that Carol left the boys alone for long periods of time while she rode patrol with the deputies. Ferguson also heard the three boys express “a great desire” to visit with their father. She added, “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.… [Carol] does confirm that when she and Mr. Macumber had agreed to divorce, she had agreed to give him custody of the children.”

  Ferguson’s conclusion: “It is recommended that the three minor children be allowed to visit Mr. Macumber at the Arizona State Prison according to prison regulations.… It is further recommended that the paternal grandfather, Mr. Harold Macumber, be afforded weekly visitation on a one day per week basis.” Ferguson also recommended that the three children be afforded counseling “in order to vent their feelings and thoughts to an unbiased, noninvolved individual.”

  Judge Hughes, accepting Ferguson’s first recommendation, granted Macumber visitation rights. One day in April 1975, Bill’s parents brought two of his sons, Steve and Ronnie, to the state prison. This would be the boys’ one and only visit. True to her word, Carol soon after packed up the family and moved to Colorado. Bill kept writing letters to his boys, more than fifty in all, but the post office returned each one unopened. He lost all contact with his sons after the spring of 1975. Scott was twelve then, Steve ten, Ronnie seven.

  * * *

  Later that year, Macumber left administrative segregation only to find himself in a block with considerably smaller cells. He had a cellmate now, a youth of about twenty, half Bill’s age, and obviously afraid of him. It took Macumber several weeks to assure the boy that he meant him no harm.

  Weeks turned into months. In Phoenix, the local newspaper coverage had given way to more extended magazine articles, summing up the case that finally appeared to be closed. In these narratives, reporters cast the sheriff’s officers as heroes and reconstructed how deputies diligently pursued thousands of leads, never giving up, never doubting they would capture the killer. The young prosecutor Tom Henze also drew favorable attention, yet he soon left his job for a new one. During Macumber’s trial, he’d socialized with Jim Kemper at times, having a drink with the defense attorney after a day in the courtroom—the legal profession, in Phoenix at least, being more civil back then. Kemper had a small two-lawyer practice. If you ever want to join us, he told Henze, if you ever want to switch sides, let us know.

  In December 1975, less than a year after Macumber’s trial ended, Henze decided to accept this offer. The prosecutor became a defense lawyer in Kemper’s law firm. A month later, sitting at his desk there, he heard Jim Kemper bang on the wall. It was January 13, 1976. Kemper came running into Henze’s office, waving a piece of paper. “I told you,” he shouted. “All because of that stupid move you made. I told you!”

  The Arizona Supreme Court that day had reversed Bill Macumber’s conviction, ruling that Judge Hardy should have allowed the defense’s ballistics expert, Charles Byers, to testify. It was Henze who’d challenged Byers, Henze who’d persuaded Hardy to bar his testimony. At the time, Kemper had told Henze, If he’s convicted, this case is coming back for that. Kemper, who’d filed the appeal, had been proven right.

  The Arizona Supreme Court had almost reversed for another reason, as well: Judge Hardy’s decision to bar Tom O’Toole’s and Ron Petica’s testimony about Valenzuela’s confession. In a close, conflicted vote, the justices split three to two on that issue. The majority sided with Judge Hardy, concluding that the attorney-client privilege survives death and can be waived only by the client or “someone authorized by law to do so on his behalf.” The two other justices filed a separate concurring opinion, agreeing with the reversal but saying they would have also reversed because of the refusal to admit Valenzuela’s confession.

  Justice William Holohan, who wrote this concurring opinion, relied heavily on a landmark 1973 U.S. Supreme Court decision, Chambers v. Mississippi. Chambers would forever hover over the Macumber case, for
it concerned third-party culpability—someone other than the defendant confessing to a crime. In Mississippi, Leon Chambers had been convicted of murdering a cop, though another man had confessed three times to three separate people—people who were not allowed to testify at Chambers’s trial. The Supreme Court’s decision reversing Chambers’s conviction, authored by Justice Lewis Powell, ruled that the exclusion of testimony about another party committing the crimes had denied Chambers his fundamental due process rights under the Fourteenth Amendment. Arizona Justice Project founder Larry Hammond, as it happened, had been Powell’s law clerk at the time—and Powell had invited him to write an initial draft. Hammond, just twenty-seven then, would come to regard Chambers v. Mississippi as the most important case he ever worked on. “Chambers is my life,” he told people in later years, while poring over the Macumber file with his Justice Project team.

  Justice Holohan recognized the Chambers issues being replayed in Macumber. Boisterous in person but spare in his judicial writings, he had picked up the nickname “Wild Bill” during his years on the bench. Legal observers considered him the court’s most conservative member, a hard-line advocate on criminal appeals, yet now he wrote eloquently on behalf of Macumber’s cause. The United States Supreme Court in Chambers, Holohan pointed out, “has ruled that it is a violation of due process” for a state to bar “reliable hearsay declarations against penal interest when such evidence is offered to show the innocence of an accused.” Yes, the attorney-client privilege has been held to survive the death of the client, but “the real problem is whether the privilege can survive the constitutional test of due process.” Holohan noted that an accused has the basic right to present a defense to a criminal charge. “The problem of balancing competing interests, privilege versus a proper defense, is a difficult one, but the balance always weighs in favor of achieving a fair determination of the case,” he wrote. Again he cited Chambers: “A state’s rules of evidence cannot deny an accused’s right to present a proper defense.”

  Holohan’s conclusion: “When the client died there was no chance of prosecution for other crimes, and any privilege is merely a matter of property interest. Opposed to the property interest of the deceased client is the vital interest of the accused in this case in defending himself against the charge of first degree murder. When the interests are weighed, I believe that the constitutional right of the accused to present a defense should prevail over the property interest of a deceased client.… I would allow the defendant to offer the testimony of the attorneys concerning the confession of their deceased client.”

  * * *

  Bill Macumber first learned of the Arizona Supreme Court’s reversal while sitting in the crowded cell at Florence he’d now shared with another inmate for eight months. Some other prisoners along their hallway had television sets. Hearing reports on the news shows, they began calling out: You got returned.… You got returned. Macumber had not expected this, despite Jim Kemper’s assurances that they would appeal. Waves of joy and relief lifted him. Maybe, he allowed himself to think, this would work out.

  Carol Macumber heard the news in Colorado when a local Phoenix reporter called her. “Oh God,” she exclaimed. “He’s not getting out, is he?… I’m terribly frightened.” The resulting story in the Phoenix Gazette the next day used that line as its headline and continued to quote Carol, who again wanted to tell her side because she was “tired of being the baddie.” If Bill gets out, she said, “we’ll spend the rest of our lives running. I’m just that scared. From what I’ve heard from people who had contact with him in prison he’s just gone completely off his rocker.… I’m practically in shock.… If he gets out I’m heading for the hills.”

  Authorities soon returned Bill Macumber to the Maricopa County Jail. There he found out he’d be represented at his second trial by the Maricopa County public defender’s office, since the Macumber family had no money for a private attorney. (Jim Kemper couldn’t continue anyway, with Tom Henze now his partner.) At least he’d have a top man in the PD’s office, deputy public defender Bedford Douglass, considered one of the best in the state. When they met for the first time, Douglass offered neither high hopes nor pessimistic predictions. He would do his best to help him, he told Macumber. Okay, Bill reasoned. He could not ask for more than that.

  His father and brother came to visit, too. They had already started working on his bail. If the judge approved release on bond, they felt certain they could raise the amount needed. Bill asked his father if he’d heard anything from the boys. Harold knew only that they were in Colorado, where Carol worked for a sheriff’s department. Bill’s divorce attorney, John Thomas, was trying to track them down.

  At a hearing on February 19, a magistrate approved Macumber’s release on bail, setting bond at $69,000. Again relatives and neighbors put up their houses as collateral. This time the process moved quickly; Bill was out by the end of the month, back home with his parents. After a full year in the state prison, it took him several weeks to adjust. His family worked hard to keep him busy, to keep his mind occupied with matters other than the upcoming trial. They bought a gem-cutting outfit and set it up in Harold’s storage shed. Bill spent hours there, carving objects he then sold—his only income. He and his dad played golf twice a week. He went fishing often with both of his parents. He fielded regular invitations to visit the Bridgewaters and other good friends.

  He also met periodically with Bedford Douglass. The public defender was quite candid. We have a difficult road ahead of us, he told Macumber, but not an impossible road. He planned to make every effort to get Valenzuela’s confession introduced. If that could be accomplished, he said, “it would help us tremendously.”

  The weeks and months passed, Macumber living at his parents’ home for almost all of 1976, once again sleeping on the foldout couch in their small living room. Having no contact with his boys weighed on him, his returned letters to them a huge disappointment. He fought nervous spells and depression, swinging from moments of joy to much darker depths. Yet he felt he had a better grip on reality now than during his first time out on bail—he no longer lived in a dream world. He hoped for the best but expected nothing.

  CHAPTER 9

  Return to the Courtroom

  DECEMBER 1976–APRIL 1977

  In early meetings with his new client, Bedford Douglass found Bill Macumber to be an unusual person, quite unlike most he represented as a Maricopa County public defender. The man he came to know was intelligent, thoughtful, engaged, wry and accomplished—not the type you’d think would commit two brutal, random murders. In his line of work, Douglass tried not to make such intuitive judgments, for he had to defend all clients to the best of his ability. His belief about guilt or innocence, if he had one, would just get in the way, making his judgments subjective and his case less convincing. All that said, Douglass believed Macumber innocent. This forever remained his unqualified position. The state’s only suggested motive—Macumber playing out a one-time posse-authority-figure fantasy—seemed quite unlikely. And never before or after, just that one night?

  Yet Douglass knew that, on its face, the state’s case was strong: the palm print, the ejector marks, and Carol’s statement. He weighed how to counter. He was aware that Carol had close relationships with various sheriff’s deputies, including Ed Calles, who’d conducted the investigation and signed the murder complaint. He also knew that she’d had access to the print and shell evidence, as well as to Bill’s gun. He’d heard about various irregularities generally in the sheriff’s department. All that suggested to Douglass a conspiracy of some sort. They would have to push that theme; they would have to try to prove a frame-up. At the least, they would have to discredit Carol, to show she had motivation to lie. They also would have to suggest that someone else committed the murders—so they had to get Valenzuela’s confession admitted. Those would be the two pillars of the defense: fight for Valenzuela’s confession; directly attack Carol, Ed Calles and the Maricopa County Sheriff’s Office.
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  Bill Macumber’s second trial began on December 13, 1976, in a capacious second-floor courtroom in the Maricopa County Old Courthouse, which stood on Washington Street just south of the East Court Building. Unlike the compact, modern chamber that housed the first trial, this one, built in the 1920s and never refurbished, featured a gracious if shabby older style, with wood paneling, carved posts and windows giving onto the street. This time, Maricopa County was paying all the attorneys: for the state, Deputy County Attorney Larry Turoff; for the defense, Bedford Douglass and Paul Prato. Judge Robert Corcoran presided.

  Newly appointed to the bench just months before, Corcoran had progressive roots as a lawyer. Besides several blue-chip law firms, he’d worked with the ACLU in Arizona, including a stint on the landmark Miranda case. He had his admirers, who appreciated his “understanding heart” and his firm belief in the role and rule of law in society. Yet there were those who thought Corcoran full of himself and abundantly ambitious. He could be intense and excitable, and he wrote long, heavily explanatory opinions. At age forty-two—one year older than Macumber—Corcoran plainly wanted to rise in the judiciary.

  Bedford Douglass, thirty-three then, came from different roots. Born in Mesa, a small community just outside Phoenix, he’d grown up mostly among Mormons. His mother, a Mormon, was deeply conservative religiously and culturally. As a teenager, Douglass had an interest in the conservative politics of Barry Goldwater and William Buckley. Yet he had never been keen on authority and came to dislike both hypocritical politicians and judges who misused power. Over time, he grew more liberal, in part because of his work as a criminal defense attorney. Seeing how the state could abuse its powers, he developed a healthy regard for civil liberties and protections.