Manifest Injustice

by Barry Siegel

  He came to regard his stuttering as a sign of intellectual inadequacy. While attending the University of New Mexico, though, he noticed that his stutter abated when he spoke in a foreign language—so he majored in Russian. Then he enrolled at the University of Texas law school, forcing himself to stand and stutter before large lecture classes. He flourished there, becoming editor of the law review, a job that required research and writing, not speaking. As he liked to put it, he’d “never knocked over an idea and looked at it” until law school, but now, encouraged by an older student, he came to see that the fun of law school was pondering and debating big ideas. He hadn’t really done that before; he’d never read or argued deeply. He didn’t transform overnight—even in the political and cultural tumult of the late sixties, he mainly remained closeted in his studies. His incremental evolution continued when, upon graduating in 1970, he was selected to clerk for a renowned U.S. Court of Appeals judge, Carl McGowan, who in a gentle, unpretentious way urged him to devote part of his time to pro bono work. Then Justice Hugo Black picked Hammond to clerk for him at the U.S. Supreme Court, and when Black died months later, his replacement, Justice Lewis Powell, kept Hammond on. Hammond’s evolution continued: While researching and writing drafts for Powell in the landmark capital punishment case Furman v. Georgia, he privately came to believe the death penalty unconstitutional, at least when imposed in an arbitrary way. (He kept this view to himself, for it conflicted with Powell’s thinking.) After his Supreme Court clerkship, Hammond took a position as assistant Watergate special prosecutor under Archibald Cox, serving on a task force prosecuting former U.S. Attorney General Richard Kleindienst, accused of lying to Congress to protect President Nixon. He quit in late 1974 when special prosecutor Leon Jaworski approved a lenient plea deal for Kleindienst, and ended up at an elite ten-lawyer firm in Phoenix where half the attorneys were former U.S. Supreme Court clerks.

  When he arrived there, Hammond still had no clear idea of what he wanted to do as a lawyer. He knew only that whatever path he chose, he’d have to talk, and this terrified him. Then his firm assigned him to serve as co-counsel on a school desegregation case in Tucson, where his clients were a group of black children who’d been deprived of resources and dumped into the district’s poorest schools. Because of a judge’s mandate, he first spent a full year working on written witness statements, something he could do easily for it involved no public speaking. When the trial began, Hammond felt his old familiar terror, for now he’d have to talk in a courtroom—a capacious one at that, fitted with a microphone at the podium. But as he began to cross-examine his first witness, a statistician for the school district, Hammond could hear his own voice booming from the speakers, resonating across the room—and he found he could speak clearly, his stutter gone.

  This trial would prove pivotal to his development as a lawyer. Hammond not only gained his voice, he won the case. It was classic NAACP fodder: black children, intentional discrimination, a school district assigning blacks to all-black schools, busing patterns that bypassed white schools, uneven allocation of resources. Hammond thought the case great fun—living in a Tucson hovel of an apartment for months, fighting for something important instead of plodding through the usual boring practice of law. Everything he did mattered. Everything he did had an impact. Hammond came to see how bad things could be if lawyers like him didn’t volunteer to help. That’s how it started for Hammond, that’s how he found his calling.

  Later, during the Carter administration, he returned to Washington to serve as first deputy assistant attorney general in the Office of Legal Counsel. In that job, death penalty issues once again drew his attention, for President Carter asked his team to prepare a white paper about capital punishment. He also once again had to talk—in fact, he often had to testify before Congress. As before, he discovered that when he spoke into a microphone—when he heard his voice resonating through the room—his stutter receded. By 1980, he was back practicing at his small, exclusive law firm in Phoenix and speaking without hindrance in the courtroom.

  His firm handled mainly civil litigation, often representing plaintiffs on a contingency basis. Hammond was doing what he thought right, his clients often powerless victims of malfeasance. But by now he had an urge to develop a criminal law practice and tackle death penalty cases. He got his chance at a backyard barbecue in early 1981, when a deputy public defender, John Foreman, struck up a conversation with him and his law partner, James Scarboro, who had clerked for Justice Byron White. Foreman described the challenges of representing people on death row. Scarboro, intrigued, suggested that Foreman give them a call if he ever needed help. Well, Foreman said, we need help right now.

  The defendant was John Henry Knapp, a Mesa taxicab driver. He’d been convicted in the arson deaths of his two young children and sentenced to death by Judge Charles Hardy on the very day before Hardy started presiding over Bill Macumber’s first trial. Foreman thought the case involved reasonable doubt, but Knapp no longer had a lawyer. The clock was ticking, his execution fast approaching.

  A complex civil case just then consumed Hammond—he was representing a group of homeowners whose community had been destroyed by floods when a panicked dam operator opened the gates at a lake above their houses. The entire firm, for that matter, had an overload of civil cases. They’d even had to turn down a lucrative lawsuit involving the collapse of a public auditorium’s roof. Nonetheless, Hammond and Scarboro decided to visit Knapp at the state prison in Florence. When they returned, they called their eight partners into a meeting and urged them to lift the moratorium on taking new cases—they wanted to represent Knapp. Sitting in the firm’s conference room, Scarboro presented their reasons, saying he considered it their obligation, as lawyers practicing in a state that had the death penalty, to understand it firsthand. Hammond agreed: If we’re going to practice law in this state, he argued, we need to get our hands dirty. A corporate partner asked, Do you think he’s innocent? Scarboro said, I don’t know. The partner asked, Could we give him a lie detector test? Scarboro said, Good idea. We’ll do it at the same time we give all our corporate clients tests.

  That ended the meeting—and started not only Hammond’s pro bono defense of John Knapp but his path toward becoming one of the best-known death penalty lawyers in Arizona. He would spend more than ten years on the Knapp case, taking over as lead counsel when Scarboro moved to Colorado in September 1984. He would win a stay of execution and then a new trial for Knapp. He would hire fire experts to conduct “flashover” arson tests, challenging the core forensic evidence against his client. He would lure Tom Henze—the prosecutor in Macumber’s first trial, now a prominent criminal defense attorney—to serve as his co-counsel. He would level prosecutorial misconduct charges, in a motion to dismiss, against the deputy county attorney who’d handled Knapp’s first trial. He would, in December 1991, see Knapp’s new trial end in a hung jury, the prosecution costing Maricopa County’s indigent-defense fund more than $450,000 and Hammond’s law firm more than $1.5 million in donated time. Everyone wanted to settle except Hammond—he was ready to go to trial again. Instead, in November 1992, Knapp entered a no-contest plea to a reduced second-degree murder charge and, for time already served, walked free.

  Hammond also won reversal of another arson-murder conviction: Ray Girdler, found guilty in 1982 of killing his wife and young daughter, gained release in 1990 after Hammond once again established that what state experts called arson had been a spontaneous “flashover” fire. He played an advising or secondary role in the exonerations of other prisoners as well—among them Paris Carriger, who faced execution for a murder and robbery, and George Peterson, a mentally disturbed veteran who’d falsely confessed to a rape and murder. He successfully pursued a mammoth pro bono case on behalf of state prisoners opposing involuntary transfer from protective segregation to the general population. He joined the board of a newly formed group meant to serve as backup support for lawyers handling capital cases. Hammond had become the go-to l
awyer for victims of manifest injustice in Arizona.

  This did not sit well with all of his partners. Hammond’s law firm split up in 1995, in good part because of his and some like-minded colleagues’ inclination to take on consuming unpaid criminal cases. The Knapp and Girdler cases in particular caused the split: With $3 million in donated time and $500,000 in expenses—the expenses a bigger issue than what they didn’t earn—Hammond could see how some of the older partners might object. They had more than eighty lawyers in the firm now, and they’d come from varying cultures and cities, so did not hold a common view or mission. Hammond and a few of his closest colleagues decided to leave the firm—but they then learned that twenty-five lawyers wanted to join them. So they elected instead to stay and to invite the others to depart. In this fashion, Hammond in 1995 presided over the founding of his current law firm, Osborn Maledon, a boutique practice with forty-five lawyers, three working full-time in criminal law.

  Over the years, Hammond would handle his share of lucrative civil litigation, enough to be offered membership in the prestigious American College of Trial Lawyers. The invitation, he liked to say, represented a testimonial to a fraud—though he’d handled several high-profile civil cases, he chafed at doing so. He prayed that the legal community would continue to see him as a civil attorney, for it made his firm a lot of money, but in his soul he was a civil liberties and criminal defense attorney, representing the indigent and disenfranchised. He and his closest founding partner, Bill Maledon, who’d clerked for Justice William Brennan, billed the most hours for Osborn Maledon—about 2,500 to 3,000 each a year—but their compensation differed substantially, since Maledon collected every dollar he billed and Hammond had to write off about a third of his hours. That was fine with him. After all, he had by far the better deal: He had the ability to do exactly what he wanted.

  * * *

  What Hammond most wanted was to launch the Arizona Justice Project. For some time, the Arizona Attorneys for Criminal Justice (AACJ) had been urging the creation of such a group in the state. In 1992, Barry Scheck and Peter Neufeld had founded the nationally renowned Innocence Project, the nonprofit legal clinic affiliated with the Benjamin N. Cardozo School of Law at Yeshiva University in New York. By 1998, four other such clinics had started around the country. In Arizona, AACJ lawyers weighed how to proceed. As criminal attorneys, some of them argued, we don’t defend just the innocent. To call something an “innocence” project demeaned what they did.

  On Sunday, January 18, 1998, at the AACJ annual convention in Prescott, a half dozen members were standing in a hallway. Tired of hearing the same debate again, someone said, Why don’t we call it a justice project? That solved the problem. Yes, they’d use that name. Their mission would not be to defend any and all criminal defendants. Their mission would be to handle “innocence and manifest injustice” claims. And unlike Scheck and Neufeld’s group at the Cardozo law school, which focused solely on cases with DNA evidence, they’d take cases that involved any credible evidence that might firmly establish actual innocence or significant injustice. But they wouldn’t take death penalty cases; they wanted to represent inmates who couldn’t get help elsewhere, and prisoners sentenced to death already drew the cream of the capital defense bar. After everyone finally agreed to these terms, the Arizona Justice Project came to be in January 1998—with that “innocence and manifest injustice” language in their literature, and Larry Hammond as founding chair.

  They had no money, no infrastructure at all. The AACJ itself had an office and director, but nothing for the project. Hammond’s law firm, Osborn Maledon, agreed to provide some pro bono assistance: a paralegal part-time, space for files, postage and printing. Hammond’s administrative assistant, Donna Toland, would essentially have to run the Justice Project out of her hip pocket. Hammond’s biggest fear was that someone would find out they existed. Then they’d be inundated. So they had to move slowly and quietly. AACJ members and the local criminal defense bar would stand by, provide support, handle the individual cases. The Justice Project would just be a clearinghouse. We’ll get cases, Hammond reasoned, and refer each to a lawyer.

  That’s not how things worked out, though. Hammond found it difficult to farm out cases—lots of lawyers in AACJ had promised to volunteer their time, but few did. In fact, lawyers all around the state started sending not just their most troubling cases to the Justice Project but all their mail from prisoners, all the pleas for help. Very soon, the prisoners themselves discovered the Justice Project and began writing directly to it. Within months they were inundated, just as Hammond had feared.

  Then he discovered, to his horror, an entire room of unopened letters at the AACJ headquarters. He thought they at least had a system for managing the onslaught. The AACJ lawyers hadn’t even told Hammond about the letters, which had gone unanswered for months. Hammond decided to get a truck and move the whole room of files to Osborn Maledon. He and Donna Toland took it over, the entire operation, with a small handful of other lawyers helping. They would be the hub. If you wrote to the Justice Project, your request would come to Osborn Maledon, to Larry and Donna and the firm’s paralegals. They would respond to each letter within one month, and with a personal message, not a form. Hammond didn’t want inmates getting identical letters that suggested they weren’t respected. He set up a dedicated Justice Project mailbox at his law firm. Donna referred the emergencies right away, while other letters piled up, Hammond tossing them into a big cardboard banker’s box he hauled around with him—to his home, to his office on Sundays, and often to his cabin up in the national forest near Diamond Point, a hundred miles north of Phoenix. When the pile of letters reached the top of the box, Hammond knew he had at least eight hours’ worth of work. He’d punch his tape recorder on and start dictating his responses. It became a big part of his practice, all listed as pro bono hours. He felt compelled to treat these letters as diligently as he did Osborn Maledon’s paying clients. Yes, more than 90 percent of the letters had no real merit, and only 5 percent called for a detailed examination. At best, they’d take on 1 percent. But Hammond couldn’t know which 1 percent without reviewing all of them. He had to make sure there wasn’t a rattlesnake hiding in the pile.

  The Benitez case had been just such a rattlesnake. Steven Benitez, an inmate who had a prison gang contract on his head, was supposed to be in protective segregation but ended up in the general population. There, in his cell one night in late January 1998, Mexican Mafia members stabbed him to death. Benitez’s mother, Mary, called Hammond to report the news. You should know his name, she said, because he wrote to you a couple of times. Hammond went back, looked at their files. They hadn’t screwed up, they had responded—but they hadn’t done everything they could. Hammond didn’t feel at all good about it. From then on, he vowed, they’d open every piece of mail from inmates. They’d at least have a paralegal evaluate every single letter.

  * * *

  The Justice Project was just nine months old, still more a notion than an organization, when, on September 18, 1998, Hammond received a phone call from Judge O’Toole. At the time, O’Toole had been a Maricopa County Superior Court judge for fourteen years, including a stint as presiding criminal department judge. He had before him the letter he’d received from Macumber’s cousin Jackie Kelley. He had the Supreme Court’s Vince Foster decision. He had Steve Wilson’s column from the Arizona Republic. Most important, he had his abiding memories of Ernest Valenzuela and the irksome hearing in Judge Corcoran’s courtroom.

  Now that he was a judge himself, O’Toole could see clearly what Corcoran had done. He’d so smartly bypassed the attorney-client privilege, once the defense effectively addressed it by getting a waiver from Ernie’s mother. Instead, Corcoran had hung his denial on the hearsay rule and that “insufficient trustworthiness” language. He was sharp—O’Toole, like Bedford Douglass, had to give Corcoran that much. He’d seen the hole in Holohan’s minority Supreme Court opinion and had driven right through it. But O’Toole th
ought that Corcoran’s ruling displayed a narrow sense of justice. In his own years on the bench, he always preferred to let the jurors hear the evidence, to let them decide. Then again, he didn’t share Corcoran’s kind of ambition—Corcoran had aspired to rise to the Arizona Supreme Court, so he’d made sure to not get reversed. O’Toole knew him quite well: Though a bright, even nice guy, Corcoran, he thought, was full of himself, with a kind of smirk to his smile and what O’Toole considered a tedious, deliberate manner. Corcoran had surely used the notorious Macumber case as a springboard. Four years later, in 1981, he won appointment to the state court of appeals. Eight years after that, in 1989, he reached his goal: a seat on the Arizona Supreme Court, where he replaced, of all justices, William Holohan.

  O’Toole, looking back with the perspective of time and experience, objected not only to Corcoran’s decision but also the Arizona Supreme Court’s affirmation. O’Toole fumed particularly at how the court characterized his testimony at the evidentiary hearing: The attorney indicated that the murder confession was simply a passing comment as he and his client were concerned with the defense of another wholly unrelated charge. The justices had deliberately minimized his account. They had essentially said he should have stopped and chronicled Valenzuela’s confession—conduct that would have been utterly unethical.

  O’Toole couldn’t be certain of Macumber’s innocence; really, no one could without DNA evidence. But he’d seen Macumber convicted for murders that Valenzuela had convincingly confessed to. On top of that, he could find no motive for Bill Macumber, nothing in his life to suggest a hidden homicidal rage. Things didn’t fit. This case didn’t pass the smell test.