Manifest Injustice

by Barry Siegel

  She poured out her memories about growing up with Bill. She testified to his steadfast character. She spelled out her understanding of the case. Hammond, who’d been overseeing the Justice Project’s investigation from one step back, listened raptly, gaining a new, focused perspective. He thought Jackie a fascinating woman, living out there in the New Mexico wilderness, clearly so devoted to Bill, convinced of his innocence. He admired her tenacity and already, during their first conversation, felt the pressure she would come to apply constantly on behalf of her cousin. She pushed Hammond on, she compelled him forward.

  So much about the Macumber case bothered him. Judge Corcoran, as much as anything. Hammond knew Corcoran. He thought it unforgivable judicial conduct to essentially tell a defense attorney he should have taken a police report. He didn’t believe Corcoran could sit up there on the bench after barring Valenzuela’s confession and think he’d done the right thing.

  Carol’s August 23 statement also left Hammond shaking his head. Even Carol later allowed that her account, though true, “sounds … ridiculous,” and he had to agree. What an incredible notion: that Bill would portray himself as an Army CID assassin; that Carol would forget and “let it drop” between 1962 and 1974, a stretch of twelve years during which she bore and raised three sons with him; that Bill would confess a twelve-year-old double murder to his estranged wife, who worked for the sheriff’s department; that Carol would then move out of their house, leaving her three sons with Bill, and for months not mention his confession to her sheriff’s department colleagues; that Bill would shoot into his own house, endangering his kids; that Carol would suddenly come forward to report his confession hours after being interrogated as a suspect in the kitchen-window shooting. She did not, Hammond noticed, even have her details right: Bill shooting through an open car door conflicted with the victims’ contact wounds; Bill rifling the girl’s purse conflicted with reports of it sitting untouched on the car seat. Carol initially said that Bill had come home one night with blood on his clothes “approximately ten years ago,” the month unknown; then, at Bill’s second trial, she testified unequivocally that this occurred on the night of the murders—and at 10:00 P.M., precisely the time when a model homes guard testified he’d talked to a very much alive Tim, letting him and a girl look around the John F. Long Homes while he locked up for the night. Carol also testified that “the purse had been gone through so I assume from that the door would have to be touched in some way.” Hammond had to laugh.

  Then there was that marathon interrogation of Macumber on the day of his arrest. Diehl and Calles had him from 8:30 A.M. to midnight and never once turned on a tape recorder, never once called in a stenographer. Larry Hammond had seen this kind of game all too often in criminal cases. He’d represented innocent people who’d falsely confessed, innocent people who’d failed polygraph tests, innocent people who’d ended up on death row. Sixteen hours they had Macumber, and no record made of the interrogation. Even as the deputies reported it, Macumber’s statements didn’t constitute a confession. Nor did Bill’s testimony at the trial, despite those few ambiguous moments. The Justice Project had dealt with false confessions, but this wasn’t one. Rather, you had Macumber being cooperative, trying to help, saying, Let’s sort this out. The way Hammond saw it, August 28 just was not a damning day.

  The bottom line for him: The cops had no recording, no transcriber. They knew how to record and transcribe; they did that with Carol. They made a deliberate decision not to record Bill. They shouldn’t even have been allowed to testify, to put that day into evidence. It was all crap. The idea that Calles talked to Macumber from 7:00 P.M. to midnight in the sheriff’s office, with tape recorders available, and never tried to record or take notes? Crap. Just crap. They had to go out of their way to avoid making a recording. Or maybe they did record. There may very well have been a recording. Hammond had seen that game played as well. You had a room already wired. You put a tape recorder on the table, lay a cassette tape down on it. Do you mind being recorded? But let’s talk first.… The conversation begins. Who knows what they were doing?

  Once you find something wrong, Hammond liked to say, keep looking. Almost always you’ll find more things wrong than you can see initially. There’s always more. He didn’t think the Maricopa County Sheriff’s Office warranted a presumption of regularity. Either they didn’t record their hours with Macumber for reasons that didn’t serve the interests of justice, or they did record and didn’t like what they got. If they want to claim that the defense attorney made these charges unfairly—well, fuck them and feed them cheese. If they don’t want to be accused, then record. Make a record.

  So: They allow a dubious statement by a divorcing wife but not Valenzuela’s confession. That was crazy. As was the investigators’ sheer incompetence, or worse. The criminal justice system failed here, Hammond believed, just as it had in other cases. When innocent people get convicted, then exonerated by DNA, you can look back at what convicted them—and often it involved flawed or inadequate forensics. These DNA cases pointed to a far larger pool of unrecognized false convictions, for in very few cases did you even have DNA. The Macumber case, for example. The lack of DNA made this one nearly impossible. Yet Hammond did not want to let it go.

  * * *

  On June 24, six weeks after Larry talked to Jackie, the Justice Project’s Macumber team met again to consider the fingerprint evidence and discuss other angles to pursue. With Terman now sidelined and scaling back his involvement, the team included two lawyers (Hammond, Bartels), two investigators (Rich Robertson, Hayden Williams), a fingerprint expert (Steven Anderson), and two law students. Or, rather, two former law students: Karen Killion and Sharon Sargent-Flack had recently graduated, but neither wanted to let go; the case by now consumed them.

  Bartels brought to this meeting their fingerprint expert’s report, which contained pivotal news. Rich Robertson had managed to find, up in Washington, a chrome strip from the driver’s door of a 1959 Impala. Studying it and Jacka’s photos, Steve Anderson had concluded that the critical Latent Lift 1—Macumber’s palm print—could not have come from such a strip.

  Anderson’s analysis confirmed that the Latent Lift 1 impression indeed contained the right palm print of Bill Macumber—the print had well over one hundred points of identity. However, Anderson didn’t think it came off the chrome strip. “Latent #1,” he concluded, “contains a distinctive size, and distinctive shapes, that clearly reflect the surface of its origin—and it is possible to eliminate the chrome strip, and all other similar strips, as the source of Latent Lift #1.”

  This news ignited the Macumber team. They began laying plans. Rich Robertson and Hayden Williams would now try to talk to Carol, revisit Frieda Kennedy and find Dennis Gilbertson. Bartels and Robertson would seek to reinterview Jerry Jacka. Rich would track down an entire 1959 Impala driver’s door for further examination—Anderson had discovered that their chrome strip covered only part of the door. Larry would seek another expert to review the ballistics evidence. They were rolling. “I think,” Bartels e-mailed Karen and Sharon, “we are headed toward filing a PCR petition for Macumber.”

  Two days after their meeting, Hammond called Jackie Kelley to report about their fingerprint expert’s “gold mine” of a report. Jackie scribbled notes as she listened. The next day, Bartels sent Bill Macumber a similar report—uncommonly upbeat for him. “It has been a long time since I last wrote you,” he began, “for which I apologize.… The main reason has been that there have been a number of developments in the investigation of your case, and I have postponed writing to you several times to see where the latest developments would take us.” They had pursued a lot of angles, he explained, but had refocused most recently on the fingerprint evidence—and their expert had told them that Latent Lift 1 “could not have come from the chrome strip” on the victims’ Impala. “At this point we are hopeful that we will be able to wrap up our investigation in the reasonably near future.… Please let me know if you have q
uestions. I hope you are doing well.”

  At the state prison in Douglas, Bill Macumber read this letter with growing hope. Maybe he still had a chance. Maybe they were heading somewhere. At the least, he sensed a change in the Justice Project’s outlook: Now there were others besides his family and friends who believed in his innocence.

  It took the Justice Project team members—then juggling dozens of cases, with twenty more arriving for review each month—the balance of 2002 to run down all the leads they wanted to pursue. In late November they held a meeting to discuss what still needed to be done. By January, they were ready for the final step before committing to file a petition. The time had come to meet Bill Macumber, to make the four-hour drive from Phoenix down to the state prison in Douglas.

  On January 14, 2003, Hammond wrote to Macumber: “Well, we are at long last making some real progress on your case. We have a great many things to talk to you about.… We would like to come see you in two weeks. We have made arrangements through your counselor to come to the prison to meet with you at 10 a.m. on Thursday, January 30. We look forward to meeting with you and talking with you about the case.… We expect that it will be a fine day for us all.”

  CHAPTER 14

  Journey to Douglas

  JANUARY–APRIL 2003

  In Phoenix on Wednesday, January 29, 2003, five members of the Justice Project’s Macumber team piled into Bob Bartels’s brand-new four-by-four Nissan Pathfinder for the 230-mile drive down to Douglas. Though they had worked closely for years, this would be Bob and Larry’s first visit to a prison together. Their complicated schedules rarely allowed them to be in the same place at the same time. For both of them to make an overnight journey to Douglas, involving an eight-hour round-trip, had required weeks of planning. Yet if they meant to file something, to commit to a petition, they needed to meet the inmate. They wouldn’t make their decision based solely on this visit, but it represented the next crucial step. They had to assess the man they meant to defend.

  With them were Rich Robertson, Hayden Williams and Sharon Sargent-Flack, who’d started practicing law in northern Arizona. They left Phoenix in the early afternoon, with the goal of traveling in daylight and reaching Douglas in time for dinner. They drove southeast on Interstate 10 for the first two and a half hours, once past the Phoenix sprawl rolling through flat, open territory surrounded by the Gila, Maricopa and Papago Indian reservations. They made Tucson by midafternoon and kept going, Interstate 10 down to two lanes in each direction, the road winding through an empty stretch of Arizona that felt nearly uninhabited. Their turnoff came after 155 miles: exit 303, Arizona State Highway 80. This was more a trail than a highway—seventy-five miles of narrow curving country road, winding past barren desert flatlands dotted with sagebrush and sorrel, then gullies and gulches and low, rolling hills. Fifty miles from Douglas, they passed historic Tombstone, Arizona, with its billboard promising “Gunfights Daily!” and its lines of tourists waiting to watch costumed cowboys and lawmen reenact the bloody gunfight at the O.K. Corral. No matter that the 1881 shootout took place in a narrow alley, not at the corral, and no matter that Wyatt Earp and Doc Holliday weren’t seen as heroic until later—authorities initially charged them with murder. Back then, as now, narratives shaped outcomes in courtrooms. Or as Bob Bartels liked to tell his students, there are no facts, just evidence. Don’t conflate facts with evidence.

  He and Hammond had seen—and tried to correct—their share of faulty narratives. Recently, in one case, they’d managed to do that even without DNA evidence. In the fall of 2000, at the same time Karen and Sharon first opened the Macumber file, another law student volunteer under Bartels’s supervision, Michelle Dolezal, had opened the Lacy file. State v. Lacy involved a manslaughter and aggravated assault conviction. Reading through the court documents, Michelle decided that Lacy’s trial attorney had done a terrible job of defending him, advancing a primary theory of the case that fell apart in the courtroom. What’s more, the attorney had failed to recognize that the victim’s fatal head wound could not have been made by the .45-caliber bullet in Lacy’s gun—the hole in the dead man’s skull was literally too small. Bartels and Dolezal filed a petition for post-conviction relief, which Bartels argued at a hearing in October 2002, calling Larry Hammond as an expert witness on issues involving ineffective assistance of counsel. Judge Silvia R. Arellano issued her oral opinion from the bench that same day: Lacy’s defense counsel had been ineffective, she ruled, and “the totality of the evidence establishes that no reasonable trier of fact could have found the defendant guilty based upon the evidence presented.” Lacy walked free in January 2003—just days before the Justice Project’s journey to Douglas.

  All through that afternoon, driving across the rolling Arizona desert, the Macumber team members talked about their case and their coming visit with Bill. They wanted to look Macumber in the eye and ask him about the shooting into his kitchen window; about why he occasionally changed the parts of his .45 automatic; about his conversation with Carol in the spring of 1974; about their deteriorating relationship and what he knew of her affairs and fingerprint classes. They also wanted to hear about his prison life—the Jaycees and Florence Outlaw Rodeo, the money raised for charities, his book writing and poetry. They wanted to gain a tangible sense of this man, and this case. They wanted their client to frame everything—to transform their welter of reports into a narrative.

  * * *

  Some twenty-five miles beyond Tombstone, the Macumber team passed another historic town: Bisbee, with its charmingly restored and brightly painted neighborhoods of Victorian and European-style homes perched improbably on hillsides, overlooking narrow gullies. On another day, another trip, they might have stopped there for a while—its allure far surpassed Tombstone’s. But they were eager to reach their destination. The team arrived in Douglas late that afternoon.

  Douglas, with a population of eighteen thousand spread over almost eight square miles, sat on the border with Mexico, across from Agua Prieta, a pueblo in the Mexican state of Sonora. Founded as an American smelter town, after the Spanish had earlier settled and then abandoned the area in the eighteenth century, it still felt abandoned in some ways, or at least eerily remote, tucked into the far southeast corner of Cochise County, 6,169 square miles of scrub brush, ranches and tiny towns. Yet it offered several prominent features, chief among them the venerable Gadsden Hotel. Opened in 1907, named for the Gadsden Purchase and now recognized as a national historic site, the dignified five-story hotel included a capacious main lobby featuring a white Italian marble staircase, four marble columns and vaulted stained glass skylights.

  This is where the Macumber team dined and spent the night. Early the next morning, Larry Hammond went jogging down to the border crossing—he was an avid runner of marathons until his knees gave out. He watched the flow of pedestrians and cars passing through the checkpoints, something not everyone in this region bothered with; Cochise County had been an established crossing corridor since the mid-1990s for smugglers of both narcotics and illegal immigrants. Hammond turned finally and resumed his jogging. Back at the hotel, he showered and met his colleagues in the lobby. Their drive to the state prison took no more than ten minutes. A right onto Pan American Avenue, a left at Arizona 80, then a right onto Highway 191. Seven miles down that road, they saw the sign for the state prison.

  The Douglas prison complex sat on a vast, isolated semiarid steppe, a sprawling collection of plain one-story structures surrounded by miles of chain-link fence. The Macumber team stopped first at a gated guardhouse at the complex’s main entrance, which stood by itself far from the prison buildings. They climbed out of Bartels’s SUV under a bright blue sky, with a brisk wind blowing in their faces. They had to produce identification, declare all possible “contraband”—including cell phones and laptops—and open the car’s trunk for inspection. Back in the Pathfinder, they drove across the complex to the low-rise Mohave Unit, Bill Macumber’s home. Sharon Sargent-Flack looked wide-eyed
at everything. Hammond had prepared her, instructing her on how to dress: no brown, tan or khaki clothing (the shades worn by the prison security staff) or orange (the inmate’s uniforms); all skirts and dresses at least knee-length; no spandex-like material; no sheer, see-through or open-netted fabric; no sleeveless tops, no tank, tube or halter tops; no necklines lower than the collarbone; no bare midriffs. They could bring in only their personal identification, prescription medicine, one unopened package of cigarettes, one engagement or wedding ring, one religious medallion, one wristwatch, one pair of earrings (or two observable body-piercing adornments), and two car keys (or one key and a vehicle’s remote-control entry device). They could also bring in a maximum of $20 in coins, in a clear plastic bag—this to be used for the vending machines in the visitation area. It had been many years since Macumber’s prison featured a snack bar.

  One by one, the team members handed their IDs to the guard at the entrance to the medium-security Mohave Unit, then stepped through the metal detector and removed their shoes for inspection. A second guard arrived to escort them down a short hallway, which led into the large open visitation area, a big room filled with round tables, watched over by a single guard standing behind a counter. A door and windows on the far wall opened to an outside area featuring picnic tables ringed by a high chain-link fence.

  The team first saw Bill Macumber as he stepped into the room through an interior doorway near the guard’s counter, stooping a bit to clear his head. He wore a bright orange jumpsuit that didn’t quite seem to fit his tall, lanky frame. They knew he stood six foot seven but were still struck by his height. With arthritis now in his knees and hip, he appeared to lope toward them, looking as if he had extra hinges. At sixty-seven, he was gray-haired, with a narrow, craggy face. He seemed genuinely happy to meet them, greeting the team members one by one, shaking their hands, his manner courtly, his voice deep and resonant, a baritone full of gravel. They chose to sit down at a table in the outside picnic area, to gain privacy away from the guard but also to allow Bill a cigarette—he’d been a smoker all his life. So, Macumber began, what do you want to ask me?