by Barry Siegel
They had to do some fundamental legal research, Terman decided. How much new evidence did they need? “Do we really have to get evidence there was in fact a conspiracy in the sheriff’s department amongst a few persons … that caused the statement from the wife, the bullet casings evidence and the palm print evidence?” he jotted in his notes. Here Terman pointed to their central challenge: “It is one thing to hint there was access to doing the forgery work but how do we prove it was in fact done without getting certain co-conspirators to confess?”
Terman also turned to the Justice Project’s potential new client. On January 18, in a brief letter, he reached out to Bill Macumber for the first time: “I have been assigned by Mr. Larry Hammond of the Justice Project to review your file to determine if there has been manifest injustice. I have been given all the transcripts from your second trial. I wonder if you can obtain a secure line to speak with me. Please get in touch when you are able. I look forward to hearing from you.”
CHAPTER 12
A Case Worth Pursuing
JANUARY–AUGUST 2000
The note from Earl Terman did not startle Bill Macumber. He’d learned about the Justice Project review of his case back in September 1998, when Judge O’Toole and Larry Hammond first wrote Jackie. One morning that October, for fifteen minutes—all the prison would allow—he’d spoken by phone to Steve Wilson, the Arizona Republic columnist. He’d shipped to Jackie what transcripts and depositions he had. He’d held off typing up his latest novel because he had only two ribbons left and thought he’d better save them for possible correspondence with the Justice Project attorneys.
Then came Larry Hammond’s letter in November 1998, saying they couldn’t take his case. Macumber moved on. Even when Jackie wrote him in early January 2000, with news that the Justice Project had assigned his file to Earl Terman, he paid little attention. He was sixty-five now, with a bad heart and emphysema. The religious resurgence he’d experienced in the Maricopa County Jail had long ago ebbed, then evaporated; over so many years of unanswered prayers, he’d lost faith in God’s existence, or at least His ultimate powers. He doubted anything could or would be done for him at this late date.
His situation behind bars had changed drastically since his industrious period in the 1980s. Throughout that decade, life, even in prison, had become a pleasure for him as he threw himself into his activities, building and teaching and leading. He’d been able to do this not least because of Ellis MacDougall, director of the Arizona Department of Corrections during Macumber’s early time in prison. MacDougall, introducing innovative management techniques, greatly reduced prison violence not by power but by distributing perks. He allowed prisoners to wear personal clothing. He developed a wide-ranging recreation program for inmates. He actively supported prisoners’ involvement with the Jaycees, the Lifers’ Club, Toastmasters, and the rodeo. He actively supported Bill Macumber as well.
They had the opportunity to meet and talk on several occasions, once at a state Jaycee convention held at the Grand Canyon. There they sat together for two hours, discussing ways to expand the Jaycee program within the prison system, a conversation that eventually led to new Jaycee chapters at the Tucson and Perryville prisons. McDougall came to trust Macumber, enough so that he gave him express approval to travel all over the state to teach at Jaycee chapters, speak to civic organizations and represent the Outlaw Rodeo at other state rodeos.
Then, at the end of 1982, MacDougall retired. His replacement, James Ricketts, made few changes, so MacDougall’s departure wasn’t felt at first. After Ricketts came Samuel Lewis, who took over as director in April 1985. Lewis, an ex-Marine and former deputy director of the Arizona Department of Public Safety, had once called an ACLU lawyer a “cocksucker” at a public hearing, thereby flummoxing Arizona Republic editors wishing to include accurate quotes in their coverage. Still the MacDougall era legacy continued—at least for a while.
The first hint Macumber had of coming changes was word of the Outlaw Rodeo’s demise—the 1986 rodeo would be their last. Sam Lewis cited staffing and security concerns as his reason. Next Lewis eliminated tennis from the inmates’ recreation program, explaining that he did not want the public to view the Arizona prison system as a “country club.” Macumber loved to play tennis almost as much as he enjoyed running the rodeo, so the double loss felt like personal blows to him. Yet he knew this was only the beginning, that Sam Lewis had an agenda. Colonel Lewis—the title a carryover from his tenure at the Department of Public Safety—did not believe in “coddling” inmates.
In the fall of 1988, Lewis ordered elimination of the prison dairy. Next he ordered elimination of the hog ranches, the prison slaughterhouse and, finally, the prison farms. This particularly rankled Macumber’s business sense, for now so much of what made the prison system self-sufficient had to be purchased from outside contractors. It rankled Macumber further when Lewis, in late 1989, ordered the confiscation of all taped movies at the Florence prison TV station. At the time, Macumber had some two thousand films on the shelf there, films the station showed nightly based on inmate requests. Prison officials told him to box them all up, place them on pallets and get them ready for shipment. He refused; he knew this would be a hard blow to the inmate population, and he wanted no part of it. As a result, he lost his job at the TV station. (Two weeks later he found another one, overseeing inmate crews for Arizona Correctional Industries.)
Then, in early 1992, Lewis began to severely limit inmate travel outside the prison. This affected Macumber more than any other prisoner. Bit by bit, he was losing the freedom and responsibility that had become a way of life for him. The final jolt came in the summer of 1995, when Lewis ordered the shutdown of all inmate clubs, explaining that he was simply making the Arizona prison system “what a prison system should be.” At the time, Macumber was president of both the ASPOT Jaycees and the Lifers’ Club. Getting advance word that Lewis intended to seize the Jaycee and Lifers’ bank accounts, Macumber wrote checks to Special Olympics, clearing both accounts.
By the time Lewis ordered the elimination of all inmate snack bars, Macumber was reeling. In his lifetime, he’d tell others in later years, only his arrest, trial and incarceration exceeded this systematic destruction of everything he’d built. “To be totally honest,” he wrote to one correspondent, “I never truly recovered.”
In 1996, Macumber’s father fell ill with bone cancer. Harold continued to visit Bill in prison when he felt up to it; the two remained close, the father never ceasing to believe in his son. One day Bill’s brother, Bob, called to report that he’d just taken Dad to a hospice. He put Harold on the phone. Hearing his father’s terribly weak voice brought tears to Bill’s eyes. I love you, he told his dad, and Harold said the same. Those were the last words they exchanged. Five days later, Harold died. When his mother had passed away a decade before, Bill had been allowed to attend her funeral dressed in a suit, without handcuffs or guards. But now prison officials said he could go to his father’s funeral only in prison garb, shackled to two guards. Bill declined—he would not debase his family or his father’s memory in that manner.
By then, Sam Lewis had retired, but the dismantling of Arizona prison life continued. Lewis’s replacement, Terry Stewart—dubbed “Son of Sam” by the inmate population—maintained Lewis’s approach. His greatest impact on Macumber came in the spring of 1997, when he ordered the removal of all lifers from minimum-custody units. Macumber ended up in East Unit, after years in the Outside Trustee quarters. The only job he could get there involved sweeping basketball courts, which took him fifteen minutes a day and paid ten cents an hour. He refused to do that, so for the first time in more than twenty years, he was unemployed.
In mid-October, authorities transferred him again, this time to another state prison entirely—the Mohave Unit at the sprawling, low-rise Douglas Complex, set on a barren reach of high desert in the far southeast corner of Arizona. There Macumber received a warm reception, for he knew a number of the inmates from
past years in the prison system, and he knew the Mohave Unit warden as well, from their time together at Florence. But Bill still couldn’t get a good job. He started initially on the yard crew, then became a clerk for the yard crew’s supervisor, which at least occupied his time. In early 2000—just as he first heard from Earl Terman—Macumber went to work for the Mohave Unit library. That truly kept him busy and engaged, for he soon set out to overhaul its inventory system and checkout procedures.
He was now many years older than most of the inmates. Both staff and prisoners at Douglas had taken to calling him “Pops,” the younger inmates accepting him as a sort of surrogate parent—or grandparent. The prison guards, too, treated him with a genial, affectionate respect. Yet life among youngsters could be trying at times, especially given his ten-by-seven-foot “home” in a large dorm room, an open bathroom off to one side. He could never truly be alone, with the younger inmates, so full of energy, always hollering. He had a small personal TV in his cubicle, which he listened to over headphones, favoring the news and sports, but to hear he sometimes had to yell for the others to quiet down. On occasion, Pops couldn’t help it, he came across as the old cuss parent. He had not heard from his own sons in twenty-five years, since they last came to see him in the spring of 1975.
* * *
After reaching out to Bill in January 2000, Earl Terman kept working. Poring through all he could find about the Macumber case, he began to identify the chief issues and assemble, step by step, a coherent ten-page, single-spaced “Macumber Narrative.” He focused first on the murder scene, recording in his notebook a number of relevant facts: no evidence of theft; a thatch of human hair sixty feet from the bodies; tire track impressions never cast; the Impala towed downtown before being dusted for prints, the route taken not established, “nor were the times the truck left and arrived at the downtown sheriff’s station.” Terman scoured the newspaper and TV coverage from thirty-eight years ago, noting, “It did not appear that there was any mention of the hair.… Also there was no clear mention that the shooting had occurred in a rhythm, whereby the first shot fired into each victim was at a distance … followed by execution bullets to the head.” He saw that Linda Primrose’s statements—judged truthful by a polygraph and a psychiatrist—reflected those unreported facts: Terry screaming and yanking her hair, Ernie shooting the running girl then shooting again up close to her head. “She also led them to the scene of the crime and successfully pointed out the positions of the cars and the people on the ground, in detail which was not in the newspapers,” Terman wrote. He thought it “noteworthy” that “the sheriff’s people did not connect” Valenzuela with Primrose. He thought it “noteworthy” as well that the defense at Macumber’s second trial “did not strongly argue the corroboration” that Primrose’s statements provided for the Valenzuela confession. “If there could have been a stronger emphasis on the Linda Primrose corroboration, and additional instances of Valenzuela’s confessions which occurred outside context of a privilege, such as his confession to cellmate Richard Green, or his confession to the sheriff’s officer, these may support an argument that the Judge abused his discretion. Neither the officer nor Richard Green were contacted. Thus it is not ‘new’ evidence, but instead it is the attorney’s failure to get it into the record.”
Terman, even as he made these arguments, recognized certain troubling issues in the Macumber case. Though these issues gave him pause, they did not deter him. After studying and pondering, he saw reasons to dismiss each of them, reasons to believe Macumber innocent.
The defense at the second trial, he had to allow, “did not appear to have any affirmative evidence that Carol had pulled the switch of evidence.” But now they had Dave Brewer’s 1983 statement. Terman had found a transcript of this interview within weeks of opening the Macumber file and had promptly scribbled a note to Bedford Douglass: “I am getting deeper into this case. I work with Larry Hammond and the Justice Project. Attached is an interview in 1983 with Dave Brewer. Can you tell me what follow-up action resulted, if any? This reads like terrific and explosive new evidence potential. Please call.” Douglass had never responded but Brewer’s reference to an “internal investigation” of Carol, and his revelation that Macumber’s fingerprints initially didn’t match the latents, continued to intrigue Terman. Brewer, he thought, “relayed two significant facts which might justify a new trial.”
Ernest Valenzuela’s confession, Terman acknowledged, was “short on details.” But Terman believed that could easily be explained by his history of hard drug and alcohol abuse. What details Valenzuela did provide remained consistent from confession to confession, and dovetailed with Linda Primrose’s statement. Ernie had mentioned getting a .45-caliber gun from his nephew, Terman noted, and that nephew didn’t deny it when questioned by deputies. The nephew, in fact, thought Ernie “certainly capable” of such a murder.
Terman knew that Macumber came home one night around the time of the murders with a bloody shirt. But he saw that Bill had both an explanation—a fight with teenagers—and what Terman considered a “corroborating” witness: Soon after it happened, Macumber had told Phoenix police officer Robert Kimm about being in a fight “up in the northern part of the city near the freeway.” Studying the transcripts, Terman found that Kimm, who patrolled the area around the Macumbers’ gas station, had confirmed this at Bill’s second trial. Kimm testified that Macumber told him “he had stopped to help two or three kids, apparently having some car trouble, and that as he helped them, they jumped him and a little fight ensued.… As I recall we discussed the thing.… There didn’t seem to be any serious injuries involved or anything like that and I think he asked about a police report. It didn’t look like it would really do that much good. It was a mutual type combat.… If he got the best of them, they probably would just as soon forget it too.” So that, Kimm said, was the advice he gave Bill: Forget about it.
Terman turned finally to the murky issue of just what Bill and Carol said to each other during their pivotal exchange in the spring of 1974—and what Bill then said to sheriff’s deputies during his interrogation on August 28. More than one sheriff’s deputy, Terman saw, testified that Bill admitted he’d confessed to his wife, just as Carol claimed. And the Arizona Supreme Court, in affirming Macumber’s conviction, said, “In essence, Macumber admitted that he had told his wife that he had killed the two victims.” Terman bridled at that “In essence.” He looked instead to Macumber’s own account of his conversation with Carol that night in the spring of 1974.
She’d come home from her community college class at around 3:00 A.M., he testified at his second trial. They’d argued angrily over the terms of a divorce, he threatening to “bring up all your boyfriends,” she saying, “I will kill you first.” He retreated to their bedroom, and she followed him in sometime later.
She lay there a little while, maybe for 15 or 20 minutes, then she rolled over and said, “Do you remember the kids in Scottsdale?… The kids from the telephone company … the ones they checked your gun on?” … I said, “What about it?” And she said, “Well you know they were shot with a .45 and you have got a .45.” I said, “Well, so do a lot of other people.” And then she said something about me coming home with blood on my clothes and I said, “Yes you know about that. I told you about the night it happened.…” She said, “You know, there were fingerprints on the car.” I said, “Well if that is the case, if my prints are on that car, they can damn sure match them.” … I was mad. I said it facetiously.
Terman’s conclusion: “Somewhere in this quarrel the sheriffs said that Bill admitted to his wife something about his having killed the two in Scottsdale. But Bill denied under oath that he ever told this to his wife and denied that he told the sheriffs that he said it to her.… The police did not take or have their notes available nor did they tape record this interrogation which lasted from early morning until midnight. Bill doesn’t deny saying something to this effect but he said it was in the context of the quarrel and that he
was just upset with her. Carol even testified that she did not believe him.”
* * *
In early February 2000, Terman sent Bill a copy of his ten-page Macumber Narrative, a document punctuated by animated passages written in all caps, signifying issues Terman deemed particularly telling (such as THE SHERIFF’S PEOPLE DID NOT CONNECT THIS “ERNIE” WITH THE ERNEST MENTIONED BY LINDA PRIMROSE). In a cover note, he wrote, “Enclosed is a narrative to date on your case. Please read and comment (additions, corrections, thoughts).” His Macumber file being incomplete, Terman also had a few questions: Did the original set of fingerprint tips match yours, or just the palm print? Was your second conviction ever appealed on the federal level or in a post-conviction relief petition? Were you previously aware of the 1983 Dave Brewer statement? What was done as a result of Brewer’s comments?
In his cubicle on the evening of February 8, Macumber read through Terman’s narrative, then reached for pen and paper, eager to respond right away. “I would first like to thank you from the bottom of my heart,” he wrote, “for the time and effort you have already expended in my behalf. I had begun to believe that any thoughts of the truth ever being known was all but impossible. Whichever way this goes I want you to know I truly appreciate what you’re attempting to do.”