Manifest Injustice

by Barry Siegel

  * * *

  Despite all his activity and achievement in prison, Macumber had never stopped trying to win his freedom. With the legal appeals to the courts exhausted, no funds for a lawyer and no possibility of parole, he looked to the Arizona Board of Pardons and Paroles for clemency, filing an application in the early summer of 1983, when he was forty-seven. This panel did not concern itself with questions of guilt or innocence; it assumed that verdicts were correct, sentences fair. Its purpose, rather, at least in cases such as Macumber’s, was to recommend commutation of sentences when the board members saw mitigating circumstances—usually a prisoner’s demonstration of remorse and rehabilitation. They were, in other words, dispensers of grace and mercy—to those who repented.

  Macumber, though, could not seek mercy based on remorse and rehabilitation, since he, as always, maintained his innocence. He filled out the form as best he could. Asked in one section to explain why he felt entitled to a change in sentence, he wrote, “First, because I was in no way involved with the crime for which I was convicted, and secondly because additional incarceration will have no positive bearing on my future actions and only inhibit the positive contributions I could make in the free world. Finally, I pose no threat whatsoever to any member of society.” Asked to describe his involvement in the crimes that had put him in prison, Macumber simply wrote, “I was not involved with or in the crime for which I was convicted.”

  Mainly, he documented all he had accomplished in prison over the previous four years. Macumber’s prison counselor added a confidential progress report: “I have only seen this resident once, his file is exemplary. His file reveals and substantiates his writing capabilities. He is calm, courteous and cooperative during interviews.” In further support, Macumber enclosed copies of two newspaper feature articles written about him; a pile of glowing letters from Arizona Jaycee officers and members; another pile from former neighbors, friends and colleagues; copies of his awards, commendations and certificates; samples of his poetry and a list of the prizes they’d won; and an inventory of all the writing he’d completed so far. One particularly compelling letter came from a fellow inmate in North Unit whom Macumber had recruited to be a Roadrunner vice president. “It has been my privilege to know Bill Macumber since September of 1979,” wrote Cleatus G. King. He continued:

  Over the years Bill and I have become close personal friends. Bill and I come from two entirely different worlds. He from the stable, citizen-type world and I from a totally criminal kind of environment. I have never, in all my life, been involved in any type of activity even remotely resembling the Jaycees. I would have thought such a thing to be extremely funny had someone even suggested such a thing. I was finding it difficult to stay out of trouble for two days at a time let alone get involved in something as straight as Jaycees.

  In 1979, Bill moved from the Central Unit to the North Unit and I followed a few months later. Not long after I arrived there the Roadrunners Chapter was chartered and Bill managed to talk me into joining. Bill became our first President and I, somehow, managed to get myself elected to the Internal Vice President’s position.… Bill has a management and business background and he began to school me in both management and his personal philosophies. Strangely enough, I began to notice a change in myself. Slowly but surely I was stepping away from the outlaw and towards the kind of man who was my friend and that I was learning from.…

  Now we are into our third year and I again find myself on the Board as Internal VP.… I have managed to become a model convict by the administration’s description and I attribute this directly to Bill Macumber. The difference between myself now and what I was a few years back is like night and day, and the same applies to many men in this Chapter.… Myself and many others can clearly attest to the interest and faith that Bill Macumber has placed in so many of us.… I would respectfully like to submit his name to you for your consideration.

  In the final sections of his application, Macumber spoke directly on his own behalf. “I was in no way involved in the double murder for which I was convicted…,” he wrote. “I did not know either of the victims nor did I have any motive for committing these crimes. A man by the name of Ernest Valenzuela confessed to this crime in front of four different witnesses and had a motive for this crime. There are also signed statements from an eyewitness who was present when the crime was committed. All of this information is a matter of public record … however it was never heard or known to be in existence [by] the jury.… I realize that the vast majority of people convicted of crimes make this same statement, yet the fact remains that some of them are telling the truth, and that truth has been supported in later years.… I firmly believe the same thing will happen in my case.”

  Macumber pointed out that he had never been in trouble with the law before his conviction, not even a traffic ticket. He invited the board to compare his activities and efforts to help others before and since his incarceration: “You will see that my interests and motivations have not changed … I am the same man I have always been.… My lifestyle and personality has remained constant since my teens.” He also invited the board to consider certain assumptions.

  Assumption No. 1: “If I am in fact guilty of the crimes for which I have been convicted, then you have to believe that for a few short seconds out of my forty-seven years I became a totally different man and for no known reason murdered two people that I did not know. I would have then had to immediately change back to my former self and continue my life for twelve years until my alleged crime was uncovered.”

  Assumption No. 2: “If I am in fact guilty of these crimes then I have managed to totally fool everyone including my family, friends, associates and members of the staff of D.O.C. for a total of twenty-one years, because these crimes were committed back in May of 1962.”

  Assumption No. 3: “That I am in fact not guilty of the crimes for which I was convicted, sentenced and incarcerated and that I was (a) a victim of circumstance or (b) a victim of a concentrated effort to get me out of the way by my ex-wife and her associates.”

  With that, Macumber concluded his petition by thanking the board “for taking the time to look through all of this information as well as the supportive documents that are included.”

  Whether the board in fact looked through all the information cannot be said. Following usual procedure, the board held a preliminary Phase I commutation of sentence hearing, without the prisoner present, to decide whether to advance to a Phase II personal hearing. That decision, as conveyed to Macumber: “To DENY and NOT to pass you to a Phase II personal hearing at this time.”

  Macumber tried again in November 1988, filing a second application for commutation of sentence. This time his letters of recommendation included enthusiastic paeans from the chief security officer for the prison’s North Unit (“He was traveling throughout the State of Arizona teaching personal development and attending various meetings.… Not once was he ever involved in a problem”); his ACI job supervisors (“He has had a major impact on the Florence Complex.… His leadership abilities have aided him in training other inmates, giving them a sense of worth and responsibility”); Charlie Dumar (“On many occasions I have sent Bill by himself to do various jobs. I have no problem with him leaving this facility alone.… If I was in business I would hire Bill without a second thought”); and the president of the Arizona Jaycees (“I consider it a privilege to write a letter for him and wish that I could do more.… If Bill was released today he would be welcome in my home or as my next door neighbor. I consider him to be a very special individual who cares a great deal for his fellow man”). Macumber included as well a formal commutation of sentence proposal, prepared by a professional criminal justice consultant hired by his father. “Mr. Macumber has maintained his innocence in this case from the very beginning,” the consultant wrote at the end of his proposal. “He is not asking the Board to rule on that issue.… Rather the issue is whether or not Mr. Macumber has satisfactorily demonstrated his ability to return t
o the community with minimum danger to others.”

  Once more, the board rejected Macumber’s petition without advancing to the second stage: “It was the decision of the Board at your Phase I Commutation of Sentence Hearing on February 1, 1989, to DENY and NOT to pass you to a Phase II personal hearing at this time.”

  Macumber tried yet again, filing a third application in 1992, along with an updated proposal from the criminal justice consultant. Bill was fifty-six now and since his second conviction had been in prison for fifteen years. He well understood the difficulty of his particular situation. Because the Scottsdale murders occurred in May 1962, he’d been sentenced under Arizona’s 1956 criminal code, making him one of the few remaining “old-code lifers.” Lifers sentenced under the newer 1973 statute were by law automatically eligible for parole after twenty-five years, but the older statute didn’t specifically address parole eligibility—old-code lifers were entirely dependent on clemency for release. “As it currently stands,” Macumber wrote in his application, “I am faced with no hope for the future in that I have no possibility for parole. I am therefore requesting that my sentence be given a bottom number such that I will have some light at the end of the tunnel, regardless of what it might be.” The consultant recommended that he serve twenty years, which would put that light five years in the future.

  If nothing else, the board remained consistent: In December 1992, for the third time, it denied Macumber’s application without passing him to a Phase II hearing.

  * * *

  Even while Macumber sought mercy during those years, he and his father also looked once more to the justice system and the prospect of reopening Bill’s case. In July 1983, just as Macumber was filing his first clemency petition, Bedford Douglass received a phone call from a former Maricopa County Sheriff’s Office evidence technician named Dave Brewer. The Macumber case had always troubled him, Brewer told Douglass. There’d been lots of funny business in the department back then. He wanted to talk.

  Douglass explained that he didn’t represent Macumber anymore. He advised Brewer to contact Bill or his father. So on August 30, Brewer called Harold, who two days later summarized their phone conversation in a letter to his brother-in-law: “He told me … he would tell us everything that he knew and would testify in court for us if it would do any good. He said that he knew Carol and what she was up to at the sheriff’s office, that she had had affairs with several of the officers and had tapes to hold over their heads if they didn’t help her when she wanted them to.… That the shell casings were kept in the desk drawer of a Mr. Hart and were available to her at any time.… If it can be proven it should bust things wide open and bring about his release very soon.”

  After talking to Brewer, Harold had called Bedford Douglass, relaying what he’d heard. He reported that conversation to his brother-in-law, as well: “Douglass told me Bill should write him and he would get into it again. In fact, he sounded rather eager to do just that.… I suppose we will be in the thick of it very soon. I believe that once we get going on it again that several ex-sheriffs will be stepping forward with what they know so it is hard to tell just how much it will snow-ball. It looks like the best chance Bill has had since he was arrested.”

  Bill Macumber wrote to Bedford Douglass in early September. Yes, he affirmed, he certainly would be interested in having Bedford look into this Dave Brewer matter, though “I do not have any income, so whatever is to be done will have to be by your office.… For seven long years I have been putting together bits and pieces of information given to me by former members of MCSD that now work for the Department of Corrections, but it was never enough to do anything. Thank God I think things have finally taken a turn in our favor.… The only question left then is, are you willing to take me on again…? I have waited so long, Bedford, for something positive to happen and I truly believe that the time has finally come. If you can agree to take this case again I would be forever in your debt.”

  It took Douglass a while, as he had many open cases, but he finally called Dave Brewer late that year. They arranged to meet on December 8, 1983. That morning, they talked for ninety minutes, Douglass tape-recording the conversation, with an investigator for the public defender’s office, Warren Granville, also present. Brewer began by describing the Maricopa sheriff’s department in the 1970s as a place where evidence—for the Scottsdale murders and other cases—was readily available in unlocked drawers to everyone who worked there. Shells, latent fingerprints, files, everything. Brewer then turned to a conversation he’d had with Corporal Richard Diehl on Saturday morning, August 24, 1974—one day after Carol gave her statement to deputies and four days before Bill’s arrest. They were alone together in the department’s ID room. Diehl had some latents from the Scottsdale murders he wanted Brewer to compare with Bill Macumber’s fingerprints. First, though, they fell to talking. Brewer recalled their conversation for Douglass.

  “This was at the time they were breaking the case…,” he began. “Macumber, I’m not sure if he was already charged but they were preparing to charge him. And as I remember [Diehl] was in internal affairs at the time.…” Diehl told him that they had “done an investigation on Carol.” They were going to fire her. They found out that she had been “involved with several deputies and Phoenix police officers,” that she “had tape recorded some of the meetings.” So they “made a deal.” Carol kept her job and “she turned Macumber on the homicide.”

  “This conversation…,” Douglass asked, “it was around the time he was first arrested?”

  “Yeah because Diehl told me about it and then brought the latents in for comparison. I ran the comparison, as I remember it was a two finger sequence of fingerprints. They weren’t Macumber’s.”

  DOUGLASS: How long after you had the conversation with Diehl did he bring the prints in for you to compare?

  BREWER: Same morning.

  DOUGLASS: And he told you that Internal Affairs had been investigating … Carol Macumber?

  BREWER: Carol, that’s right.…

  DOUGLASS: The sheriff’s office had to make a deal?

  BREWER: Right.…

  DOUGLASS: So Carol agreed to make a case against her husband for not being fired and being allowed to keep her job?

  BREWER: Right.

  DOUGLASS: And what happened to the tapes?

  BREWER: I don’t know.

  DOUGLASS: Did Diehl say that the sheriff got the tapes from Carol?

  BREWER: No I don’t remember him saying that.…

  Warren Granville, Douglass’s investigator, here joined the conversation, drawing Brewer back to his comparison that morning of Macumber’s prints.

  GRANVILLE: Can I just interject here.… Who presented those to you for comparison, was that Diehl?

  BREWER: Diehl, yeah.

  GRANVILLE: Do you recall where he got those latents for a comparison?

  BREWER: He went down the hall and came back with them.

  GRANVILLE: And when you did your comparison you found out there was no comparison.…

  BREWER: There was no identification.

  GRANVILLE: No identification. Did you tell Diehl at that time and what did Diehl say to you?

  BREWER: He said thank you.

  GRANVILLE: Did he come back with an additional set of prints?

  BREWER: I never had any more to do with it.

  Douglass and Granville then turned the conversation back to Bill and Carol.

  DOUGLASS: You mentioned that you were not convinced that Macumber committed the murders, or that the casings introduced at trial were the casings actually found at the scene of the homicide? Why are you not convinced?

  BREWER: Well, I knew Macumber.… I’d known him for awhile at parties and stuff and he was active in the Sheriff’s Posse and he didn’t seem to me like he was a homicidal maniac or anything, and then they were having a lot of marital problems.

  DOUGLASS: He and Carol?

  BREWER: He and Carol … I just, I just never was convinced that Bill wo
uld have done anything.… And with the casings.… Because there was no chain of custody and I always wondered if those casings could have been handled by anybody.…

  GRANVILLE: Did you know Carol Macumber personally?

  BREWER: I worked with her, you know.… I knew enough to stay away from her.

  GRANVILLE: Well, what do you mean by that?

  BREWER: I didn’t care for her. She was very abrasive. I didn’t trust her.

  * * *

  Long ago, Bedford Douglass had heard similar reports about Carol from sheriff’s department sources. It was these reports he’d vainly tried to confirm by seeking Carol’s personnel file at a hearing months before Macumber’s second trial. Yet now, in 1983, he saw little use for Brewer’s account, which likely involved hearsay. Douglass never followed up with Brewer, and many years later could not recall taking his statement. The public defender’s office just was not going to reopen and reinvestigate a closed case. For that, Bill Macumber would need an innocence project.

  PART TWO

  QUEST FOR JUSTICE

  CHAPTER 11

  Arizona Justice Project

  JANUARY 1998–JANUARY 2000

  By the time the Macumber case came to Larry Hammond’s attention, he was both an icon and a lightning rod in the legal world—at least that part of the legal world concerned with such matters as public interest, civil liberties and criminal justice. He’d accrued his outsized achievements by fighting hard, which meant offending others when needed. In fact, he’d had to battle even to become a lawyer. Born in Wichita, raised in El Paso by religious Episcopalian parents—his father a wholesale druggist, his mother a music teacher—Hammond as a child suffered from asthma and a crippling stutter. The stutter hampered him as a student, the asthma as an athlete—he instead became a fanatic baseball fan.