Manifest Injustice

by Barry Siegel

  Addressing Terman’s questions and requests for comments, Macumber advised that “only the palm print matched,” not his fingerprints. He knew of no action other than the appeal to the Arizona Supreme Court—“if there was, I was never told nor did I ever receive a brief, transcript or results.” (In fact, there’d also been an unsuccessful federal habeas corpus petition.) Yes, Macumber was “made aware of the Dave Brewer statement” shortly after Brewer gave it to Bedford Douglass. “As soon as I received a copy I immediately wrote back asking if that would be enough to possibly get us some kind of hearing. The reply said … that Brewer’s statement, in and by itself, was not grounds to reopen the case. My father also went down to Bedford’s office on the same errand and was told the same thing. To my knowledge, nothing was ever done about it.” As far as he knew, no one had ever attempted to find Valenzuela’s 1964 cellmate, Richard Green. Nor had Bill seen any real effort to connect the thatch of hair to Primrose’s statement. At no time, he wrote, “did I ever make a statement to Carol saying that I killed anyone.” He didn’t have “any idea” what night he came home with a bloody shirt after the fight with three boys, but “I did attempt to report the fight as you already know.” He found “the rest of the narrative to be pretty straightforward and correct.” He was “probably missing and overlooking some things but twenty-five years is a long time.” He hoped his comments helped, and he’d do his best to answer additional questions. He concluded, “Mr. Terman, thanks again for your interest and your energy. I hope it leads to some daylight on down the road.”

  * * *

  Terman kept pursuing leads through that first half of 2000. He read Bill and Carol’s divorce file. He talked to Dave Brewer. He confirmed that Ed Calles had attended classes with Carol at Glendale Community College and “apparently got her a job with the sheriff’s office.” He located Carol, living with two of her sons up in Washington State. He located former sheriff Paul Blubaum up in Idaho. He located former sheriff’s fingerprint technician Jerry Jacka. He located former sheriff’s deputy Charles Ford, who’d matched Macumber’s palm print on the day of his arrest. He compiled a list of Carol’s “alleged” and “possible” lovers and started trying to reach them.

  Terman came to suspect a strong connection between Carol and Ed Calles. He also came to suspect that Carol back then “had a hold” over the sheriff’s department, though he recognized that Dave Brewer’s statement was “hearsay as of now.” He thought it interesting that Carol gave her August 23 statement soon after being “brought in as a suspect” in the kitchen-window shooting. Despite some initial misgivings, he grew ever more convinced of Macumber’s innocence.

  The passage of so many years, however, presented sizable obstacles. Terman was trying to excavate the distant past. He still couldn’t find any of the physical evidence—no exhibits, no original fingerprints, no shell casings, no crime scene photos, nothing. He couldn’t find Frieda Kennedy or Linda Primrose. Richard Diehl had just died. So had Jack Watson, who’d picked up the shell casings at the murder site. Terman couldn’t get his hands on Valenzuela’s federal prison file—the feds were resisting. He also couldn’t track down the “Terry” in Linda Primrose’s statement. “She may be a Yaqui or Pima Indian according to Dave Brewer,” Terman reported to Hammond on May 9. “Brewer remembers seeing her around the Courthouse in the early 1980s.”

  Terman also faced the problem of the Justice Project’s limited resources. He had no substantive support, no staff or investigators. “Since I wrote my report in early February,” he advised Macumber in an update on May 10, “I was hoping to get help to track down the numerous players from the past. I have some help now but I am essentially making the contacts myself.”

  Yet he had located Carol and two of the boys. That’s what Macumber most focused on in Terman’s report. He would have dearly loved to ask where his sons were, but he suspected it probably best that he didn’t know. They had made no attempt to contact him over the years, and he imagined they had no room in their lives for him now. He could not—would not—interfere with them at this late date, however much he wanted to. “They have made it more than evident that they want nothing to do with me…” he wrote to Jackie in mid-May. “I would gladly die to change that, but of course it will not change.”

  * * *

  In late May, the Justice Project finally found the means to provide Terman some much-needed help. Rich Robertson had been a journalist at the Arizona Republic for twenty-eight years, for a while serving as the city editor. Then he’d migrated to TV news, working as an on-the-air reporter. He’d discovered he didn’t like that—he’d rather investigate than stand in front of a camera. He’d decided to switch careers, to become a private investigator for lawyers. Most legal investigators were ex-cops who couldn’t write, he reasoned, but investigators needed writing skills. They had to figure out what was important, then convey it in a coherent way—the very definition of a reporter. In April 2000, Robertson hung out his shingle. The next month, Larry Hammond, who knew Rich from his work as a journalist, came calling. Of course, Robertson would have to work mainly pro bono, but it would get him started. Robertson readily agreed—he was full of piss and vinegar then and had time on his hands.

  Hammond handed him two cases that May. One he’d get paid to handle, it involving a court-appointed death penalty case. The other was the Macumber file. Robertson began by reading a pile of documents and conferring with Earl Terman. The low, limited quality of the initial investigation caught his attention right away. The very nature of gathering evidence had changed since 1962; back then, the Maricopa County Sheriff’s Office had been a small force in a medium-sized town, faced with a double murder committed far out in the rural high desert. If DNA had been used in those days, there’d be no mystery to resolve. They could still do a DNA analysis today—if only they had the handkerchief or the thatch of hair from the murder scene. But those items had gone missing, as had so many of the sheriff’s reports. The few remaining documents were scattered about at various agencies, and the fundamental government filing system had changed. Trying to find everything was, Robertson thought, like doing archaeology. Better if they’d sentenced Macumber to death. At least then everything would have been preserved for the endless appeals. Instead—as Robertson soon discovered, to his dismay—in September 1982, as part of a “housecleaning,” the Maricopa County Superior Court had authorized the destruction of all evidence and exhibits in the Macumber case.

  Robertson set out to find Linda Primrose. He started his search for her with a reverse-directory check, looking for Linda’s father, then went to the county recorder’s office to study property deeds. To locate women whose last names changed with marriage, you had to trace them through men, following the property records. Linda’s father had owned a house in downtown Phoenix that he’d transferred to Linda’s brother, who’d sold it. Robertson saw that the son had signed a deed notarized by a Durango, Colorado, notary. He dialed information there, got a phone number, and made the call. Linda had passed away in January, the brother told Rich—but here are the numbers for her daughter and twin sister.

  Bingo—a lead, at least. Robertson talked to Primrose’s daughter, Theresa Hay, on May 23. Before Linda died, Theresa said, she told her adult children all about her role in the Macumber case. But she stuck to her recantation: She’d been running around in a stolen car, she claimed, and had needed a cover story that would elicit sympathy from her abusive mother. Robertson didn’t think that rang true, since Linda’s mother (he’d found her in Redway, California) had told him that Linda never said a word to her about the murders or the statements to deputies. What Robertson thought more interesting was Theresa’s reference to her mother keeping a file or scrapbook on the Macumber case. Theresa, who lived in Phoenix, promised to search for and share whatever she found.

  The next day, Robertson talked by phone to Linda Primrose’s identical twin sister, Glenda King, living in Houston. Glenda told him she’d been “terrified” by Linda’s statement
s back in 1962, partly because the cops had “pestered” her about her sister and partly because she feared someone coming after Linda might get her instead. But bottom line, she had not believed Linda then and didn’t now. She thought her sister had made up the story to embarrass her abusive stepfather, a top executive at Mountain States Telephone, where the two victims worked. Linda, she reported, had a history of weaving “outlandish and detailed lies.” Everything Linda did from age thirteen to twenty came out of her desire to get even with her parents for all the abuse.

  Robertson’s next phone call proved more supportive of Terman’s narrative—and Dave Brewer’s statement. On June 2, he made preliminary contact with former sheriff Paul Blubaum, then living in Grangeville, Idaho. Blubaum was fuzzy on some details, but he did clearly recall that Carol Macumber had been investigated around then for having sexual relations with officers. Carol, attending class with reserve officers from all around the state, “was taking up with them after the classes,” Robertson wrote in a report to Hammond and Terman. “Blubaum doesn’t recall any formal discipline, but he remembers banning Carol from all training classes and ride-alongs with officers. He says Carol hired a lawyer who tried to get the decision reversed, but Blubaum says he stuck to it.” Robertson suggested that Terman follow with his own phone call, “now that we’ve got him thinking about the case again.”

  Five days later, Terman did so. In this conversation the former sheriff remembered more, remembered particularly that control over evidence had been loose; he recalled hearing about the evidence being kept in Roger Hart’s unlocked desk drawer. And he confirmed what he’d told Rich days before about Carol. “Yes, he remembers she was being investigated for sex activities with sheriffs from various counties,” Terman reported. “She was found guilty apparently and her sanction was that she was suspended from the ride-along program, and suspended from attending classes at the Sheriff’s Academy, and some other penalties like leave without pay.… Yes, they did have records kept of internal investigations but he has no idea if they would still be around. He does not remember any pressure being put on him directly from her to trade tapes to keep her job. But he does not rule out that this could have happened. He was particularly displeased that Carol would have hired an attorney to try and keep him from implementing any sanctions against her.”

  Blubaum repeated to Terman another memory he’d shared with Rich Robertson days before: that Macumber had been mentioned as a possible suspect during the initial 1962 investigation, that Jerry Hill had in fact asked Macumber to bring in his .45 pistol for testing. Terman thought this quite odd, since he’d seen nothing at all about it in the records. He thought it odder still when Blubaum recalled that at one time Macumber “had worked with” the two victims—something Terman knew to be untrue. Terman concluded that Blubaum “may have been kept out of the loop on this case.” In fact, Blubaum allowed as much to him in their conversation. He’d become sheriff, he told Terman, just after a new law placed the sheriff’s department into civil service. That meant he could hire and fire only two people himself: his secretary and his deputy chief. All others were grandfathered in, and Blubaum couldn’t touch them. “This led me to ask whether he felt he was really knowledgeable about what went on in his office and he told me he wasn’t,” Terman reported. “He said it was very probable that underlings could have kept info from him (such as the threats made by Carol Macumber to keep her job).”

  Terman’s to-do list now included eight items, among them “find the internal investigative file on Carol Macumber.” He knew that the defense had futilely looked for it during Bill’s second trial, that without it Bedford Douglass could only “allude” to certain matters. This file, Terman believed, would “confirm that Carol had an incentive to take action on her behalf to get out of trouble.” Equally important to him was the physical evidence. His last item, No. 8, remained as always: “Find the crime scene photos, fingerprint lifts, gun casings, etc. from this case.”

  Larry Hammond thought this report “very interesting.” He suggested that of the tasks on Terman’s list, “the most telling may be No. 8.” As intriguing as Carol’s activities might be, and the whole Valenzuela-Primrose angle, “the physical evidence will make the most difference here.” They needed a gateway into the appellate legal system, and actual innocence wasn’t enough; they needed rights denied or new evidence that would sway a jury. So often, that sort of new evidence involved the ever-evolving forensic sciences—Hammond had seen as much in his successful fight to overturn the Knapp and Girdler arson convictions. Alas, Hammond himself could not assist directly just then. He was burdened by his own legal work and preparing to leave that August on a five-month sabbatical. “I wish I had time to help in some meaningful way,” he wrote Terman and Robertson, “but life is a total blur these days.”

  * * *

  Rich Robertson—like Terman, working pro bono—kept going. In June 2000, he vainly combed through superior court and sheriff’s department records, searching for physical evidence. He wrote reports about what had gone missing. Then, on June 12, he made what would be a pivotal phone call. He’d recognized the name of the sheriff’s deputy who’d lifted the prints in 1962, for Jerry Jacka was now one of the most widely published photographers in the southwestern United States. Robertson had interviewed him while preparing a big report for the Arizona Republic on the theft of artifacts from Indian reservations—Jacka’s specialties included photographing such artifacts for Arizona Highways and dozens of other magazines. Robertson had been to Jacka’s Phoenix home and had spent time there with him, so he knew Jacka was a pack rat; he also knew that most cops liked to keep souvenirs. Robertson called him. Jerry, he asked, do you remember this case? By some chance, did you keep anything? Do you have a file on this?

  Yes, Jacka recalled the case, but he had no idea if he had anything. Just then he was packing up, preparing to move eventually to a new home three hours north of Phoenix. He’d keep an eye out for a file, he promised. If he found it, he’d let Rich know. Robertson hung up feeling satisfied: He’d planted a seed.

  Robertson also managed to locate Carol’s old roommate, Frieda Kennedy, even though he didn’t know her married name. He called the personnel department at the Maricopa County Sheriff’s Office. Someone—it must have been a new clerk—gave him Frieda’s Social Security number and date of birth. He asked, the clerk gave—simple as that. You create your own luck, Robertson reminded himself. You don’t edit your questions, you don’t rule on your own motions. He went to see Frieda with a fellow investigator, Hayden Williams, an ex-cop. She lived out in Buckeye, a sparse farming community west of Phoenix that the freeway had bypassed years before, leaving a downtown composed of a few dozen decaying buildings. Driving into Buckeye, Robertson felt as if he’d traveled back into the 1950s. Frieda’s house stood near the center of town, showing its age. They knocked on her door unannounced, with no call before—that would make it too easy to say no. She turned out to be nice and welcoming, letting them into a clean, homey living room, inviting them to sit down on a sofa covered with a blanket. They sank deep into that couch—the springs had given up long before. Hayden Williams did a double take: He realized now that he knew Frieda—she worked at the phone company with his wife, and they’d met a number of times at office parties. That connection helped break the ice. But in the end, Frieda remained evasive, denying knowledge of Carol’s affairs; she knew only of her going out for “coffee” with various deputies and officers. She did know Carol had access to evidence in the sheriff’s department. Nothing else. Robertson intended to return for another visit after she’d had time to think everything over. He never did, though. Why didn’t I, he wondered years later. Why didn’t I go back?

  Of course, he knew why. In those days, he’d been trying to figure out how to make a living, how to blend journalism and private investigation into a paying job. So he was always scrambling. He’d just started out as an investigator and had no staff, no income. Working the Macumber case pro bono for the
Justice Project took him away from paying jobs. He regretted this limit. He felt he could have done more, found more, helped Bill Macumber more. He didn’t do all he could. But at least he shook the tree. When you shake trees, he reminded himself, you get fruit eventually. So much of investigating was serendipity.

  * * *

  In the summer of 2000, Earl Terman’s efforts on behalf of Macumber also began to stall, as the Justice Project’s dependence on unpaid volunteers took its toll. He’d grown increasingly convinced of Macumber’s innocence. Yet on August 16, in a status memo to the Macumber file, Terman reported that “there has been little activity over the past three months.” He’d learned nothing to rule out Valenzuela as the prime suspect, but he hadn’t received all the records he wanted from the Federal Bureau of Prisons and the federal public defender’s office. He and Rich Robertson intended to revisit Linda Primrose’s relatives and try to see her scrapbook, but they hadn’t yet done so. Although he’d discovered Carol Macumber’s whereabouts, he wasn’t “ready to confront her.” His search for Primrose’s companion Terry continued; following a lead from Dave Brewer, he now awaited a call back from an Indian reservation law enforcement official who might know her. He was also on the trail of a former deputy, Major Love, who’d apparently conducted the internal affairs investigation of Carol. He still needed to contact Ron Petica. Ditto for Ernie’s old cellmate, Richard Green; Deputy Charles Ford, who’d made the palm print match; Officer Joe Rieger, who’d investigated the kitchen-window shooting; Sergeant Jerry Hill, the lead investigator; and Pat Ferguson, the Conciliation Court counselor. Terman also listed four men “alleged to have had an affair with Carol.” He hoped to talk with all of them.

  On the day he wrote this memo, August 16, Terman met for two hours with Larry Hammond and Rich Robertson. Hammond was about to leave on his sabbatical from Osborn Maledon; he and his wife would spend the rest of the year traveling through Europe and the Middle East. He thought the Macumber case warranted more support now, particularly since he’d be away for five months. He wanted to hand the Macumber file to a team at the Arizona State University College of Law—a team that by then had become a critical part of the Justice Project arsenal.