by Barry Siegel
Only after laying down that argument did Belcher turn to the more traditional reasons to grant clemency: Macumber’s stellar prison record and staggering list of accomplishments. Macumber, Belcher pointed out, “would have been eligible for parole almost ten years ago had he been convicted under the criminal code in effect at the time of his trial.” Macumber “has already served more than fifteen years longer than the average person convicted of murder in Arizona.” Prior to his arrest and conviction, Macumber had no criminal record, and he has been “a law-abiding citizen” in prison. Testimony from his family indicates he will, once released, have “the resources and support to live as a law-abiding, productive citizen.”
Belcher’s conclusion: “The evidence that now exists certainly casts serious doubt upon Mr. Macumber’s conviction. The evidence presented to this Board leads us to believe that a jury presented with the same evidence would have reasonable doubt about Mr. Macumber’s guilt. Based on this new evidence, his lack of legal remedy, and this Board’s role under Herrera v. Collins, the Board concludes that Mr. Macumber’s sentence of life is, today, no longer warranted.” Therefore, the Board recommends his sentence be commuted to “time served” or in the alternative, “to a sentence of 35 years to life.”
Never before had the Board of Executive Clemency done this. Never before had a unanimous board called for a prisoner’s release based on a miscarriage of justice.
* * *
On September 25, seven members of the Justice Project team, including Hammond, Bartels and Katie Puzauskas, met with the legal counsel for Governor Brewer, Joe Kanefield. They came to present and advocate. Hammond had known Kanefield for a long time; he found him this day pleasant but not responsive, other than to assure them that the governor’s office would look at the file and take the matter seriously. But the decision, he reminded them, rested with the governor—it was not theirs to make. As Hammond put it to a colleague, he “heard nothing from Kanefield that indicated the governor had a pulse.”
A month later, on October 23, Governor Brewer’s office contacted Duane Belcher. Her people were still deliberating, and they had a question: Had the victims’ families taken a position on Macumber’s commutation? Did the victims’ families wish to comment? This was, of course, a familiar issue in clemency proceedings, one often considered by politicians wary of potential backlash. That the Scottsdale murders had occurred almost half a century ago made the query more difficult than normal to address.
Belcher did some digging. No one in the McKillop family seemed to be around anymore—Tim had been an only child. But Joyce Sterrenberg’s mother, sister and brother were still alive. At age ninety, the mother, Joan, lived in Chandler, Arizona. Belcher called the number he had for her. Joan’s daughter Judy Michael happened to pick up the phone. With the mother listening in the background, Belcher asked if the family would object to the governor releasing Bill Macumber, following a board recommendation made after a commutation hearing in May 2009. The daughter—Joyce’s sister—relayed the question to her mother, who, as Belcher days later reported to the governor’office, “stated that she understood and was alright with this information and was not objecting to any future release of Mr. Macumber. [The daughter] stated that she would ‘prefer’ that he not be released, however respected her mother’s position of not opposing a Commutation of Sentence.… [The daughter] did not want to receive future notices of hearings on Mr. Macumber and only, respectfully requested, that I inform her by telephone if he was ultimately released on parole.” (Later, to a local Arizona reporter, Joan Sterrenberg added that she wasn’t consumed with the mystery of who’d killed Joyce, that she had “no way of knowing.”) Belcher, after conveying this response to the governor’s office, informed Larry Hammond as well.
All during the summer of 2009, Hammond had been uncharacteristically pessimistic about how the governor would respond. Despite their celebration on the day of the hearing, he and others at the Justice Project had recognized that governors didn’t as a matter of course grant clemency to convicted double murderers. He’d talked to Macumber twice, in fact, warning him not to get his hopes up too much, with Bill always saying, Sure, I know, I won’t. But this news of Governor Brewer inquiring about the victims’ families raised Hammond’s hopes. The question alone meant the governor was thinking about accepting the board’s recommendation.
* * *
At the time of Bill Macumber’s Phase II hearing in May 2009, Jan Brewer had been governor of Arizona for less than four months, and she had come to the job indirectly, not having been elected by the voters. That January, at age sixty-four, she was serving as Arizona’s secretary of state, managing thirty-eight employees, when Democratic governor Janet Napolitano resigned to become secretary of Homeland Security in the Obama administration. In accordance with the state constitution, Brewer automatically stepped in as governor. A longtime state legislator and Maricopa County supervisor before becoming secretary of state in 2003, with a community college education in radiological technology, she’d forged a reputation as a fiscal conservative. But in her early months as governor, nothing was clear about her—not even whether she’d choose to run for election in her own right in 2010. Some in the Justice Project, at the time of Bill’s hearing, thought she might not. That would be a good thing for them; it meant politics wouldn’t affect her response to Macumber’s clemency petition. The project team and the Macumber family had talked about this possibility at Macayo’s on May 8, clinging to it as a reason for hope. Governors facing voters had strong reason to shy from releasing convicted murderers—there was little political upside to granting clemency but substantial risk, as more than one governor had learned when freed convicts attacked again. If Brewer didn’t have an election to worry about, she just might be more willing to accept her board’s unanimous recommendation.
Or, as an alternative, she could do nothing: State law specified that if the governor did not act on a unanimous recommendation for commutation within ninety days after its submission, the recommendation automatically took effect. Hammond had raised that possibility with the governor’s legal counsel. No, not likely, Joe Kanefield had told him. She won’t do that.
The waiting continued. On October 21, Katie made the eight-hour round-trip drive to visit Macumber at Douglas, along with Lesley Hoyt-Croft, a community college film student interested in producing a documentary about Macumber. This was Katie’s first trip to the state prison. She and Lesley met Bill in his counselor’s office and talked for ninety minutes. The aspiring filmmaker, feeling hopeful, asked what he’d do when he got out. Well, Bill said, my cousin Jay wants to take me fishing. And I’d sure like to eat some Dairy Queen.
More waiting. Word finally reached the project of certain internal differences among Brewer’s advisers, the legal team at odds with the political team. This fanned some hope. But that hope lost most of its footing on Thursday, November 5: At an event in the Phoenix suburb of Glendale, where she lived, Brewer announced that she would indeed run for reelection. Bob Bartels thought that sharply reduced their chances. In the absence of actual hard DNA proof, they were now asking a conservative Republican governor, up for reelection, to go in the face of her base, her main constituency. Bartels proved prescient. Eight days later, on Friday, November 13, Governor Brewer conveyed her decision to Duane Belcher in a spare one-sentence letter: “The application for clemency for William Macumber, ADC #33867, is denied.”
* * *
Belcher called Hammond with the news. Larry tried to shrug, to be stoic. As a lawyer, he needed to be the stable anchor; he needed to avoid making it about how he felt. After his many legal battles over the years, after seeing two clients executed, he just wouldn’t let anything devastate him. Privately, though, he fumed. Katie, by contrast, didn’t try to hide her tears. This hurt too much.
She consulted Hammond and Bartels, and Carrie Sperling. They all agreed Macumber had to be notified right away, that afternoon—they had to tell him before he heard the news elsewhere. Kati
e and Carrie would make the call.
Which one would lead, though? Katie shied from the task. “Carrie, why don’t you tell him,” she suggested as they put through their call. She knew, though, that she had to do it. She’d been the main contact with Bill and his family; she’d been the one talking regularly to him.
On the phone, she heard Macumber’s usual cowboy baritone. Despite herself, she began to cry. We just got word, she said through her tears. The governor denied the petition, rejected the board’s recommendation.
Macumber said little, mainly listening.
This is not the end of the road, Katie continued. There are other options. We will keep fighting. She didn’t know if he even heard her, if he was listening, but she had to say it for herself. We can do a Rule 32 petition, she told him. We can file another clemency application. We can go to the news media. We can change the state law about old-code prisoners.
Macumber could hear her crying. That, on top of everything else, he’d say later, “just tore my heart out.” Katie asked him if he’d like her to call his family members. No, he said, he’d do that. He appreciated her offer, but he had to handle this himself.
Early that evening, Carrie Sperling sent an e-mail to the entire Justice Project team:
We just received news from Duane Belcher, Chair of the Board of Executive Clemency, that Gov. Brewer denied Bill’s commutation request. Of course, we wanted each of you to know the news. A personal phone call would have been more appropriate, but we also wanted to get the word out quickly—before you heard the news in some other way. Defeats are always hard, but they are near devastating when the person you represent has become a good friend, a person we all admire. Katie and I spoke to Bill today. He was, as always, stronger than we are. But I know this news must have been especially hard on him because we just couldn’t fathom anything other than a commutation. So please remember Bill and take time to jot a personal note to him. Thank you for your countless hours of work on Bill’s behalf.… After regrouping over the weekend, we intend to start strategizing our next steps to free Bill.
Macumber called Ron the following day. “I’m going to keep this really short,” he said. “I have received the decision from Governor Brewer, and she has denied our petition.” Ron started asking questions—Why? How could this be? How could she?—but Bill stopped him. He offered none of his usual wry banter—he sounded devastated. “I really can’t talk now,” Bill apologized. “I need to call Jackie, I need to call Bob.”
Tears and anger informed his calls to those two. That bitch, Jackie fumed. Why couldn’t Jan Brewer just wait out the ninety days and let the board’s recommendation take effect on its own? Bob Macumber railed at the governor’s lack of humanity. For her to snub her nose at her own board’s unanimous vote appalled him. Why have a board at all then? He didn’t think the governor had a moral bone in her body.
Two days later, Katie wrote to Bill: “Throughout the past several months, you have become a friend to us—a person we all admire—and it was our hope that we would finally see justice in your case. Coming to grips with the Governor’s disappointing decision has not been easy for us, especially because we could not fathom anything other than a grant of clemency. As hard as it has been for us, I cannot imagine how hard it must be for you.” Please know “we will keep fighting for your freedom, for as long as it takes.” He still had all their support: “We have not given up hope.”
Larry Hammond also wrote to Bill: “I started to write to you last Friday after we heard the Governor’s ruling, but I was too angry. I started to write a letter to you on Saturday, but I was totally without anything comforting to say. I started to write to you on Sunday, but by then I did not know how you might be feeling and I called Jackie instead of writing to you.” Jackie, as always, had provided him a “heart-warming visit.” Her “determination to see this case through gave me some new perspective and new energy.” They remained on his case: “We are entirely evaluating our position on your post-conviction relief petition.” They would “stay very closely in touch.”
* * *
Here was significant news: Hammond’s reference to “entirely evaluating” their position about a PCR petition promised a possible reversal of the 2008 decision to close the Macumber file, to not seek redress in the appellate court system. The clemency board’s unanimous recommendation had encouraged Bartels and Hammond to reconsider. Just maybe they could make an actual innocence claim under Rule 32 of the Arizona Rules of Criminal Procedure—the regulations that governed petitions for post-conviction relief.
In late November, Donna Toland sent a message to the project team. “Larry and Bob,” she reported, “would like me to schedule a meeting regarding Bill Macumber’s PCR. I am looking at the week of November 30. Can you provide me dates/times that might work for each of you?”
At 10:00 A.M. on Monday, December 7, 2009, the team gathered in the conference room of the Justice Project’s offices, with others plugged in on speakerphone. Those participating included many who had been on the case from the start—Larry Hammond, Bob Bartels, Rich Robertson, Karen Killion, Sharon Sargent-Flack, Donna Toland—and representatives from the later generations: Carrie Sperling, Pete Rodriguez, Ty Jacobson, Jen Roach, Jen Swisher, Lindsay Herf, and Katie Puzauskas. They still wanted to do whatever they could for Macumber. How, though? What had changed, what might make action possible now? They began to consider.
The science of ballistics evidence had evolved, making it much easier to discredit the shell casing match from 1974. Forensic science reform in general had everyone’s attention, having become the subject of assorted conferences and an extended new study by the National Academy of Sciences. Robert Macumber’s revelation about the palm print card was new and compelling. Tom O’Toole’s statements had grown ever more definite, detailed and insistent. The law and Larry Hammond’s thinking had advanced about confessions from third parties—a central theme in both Macumber and Chambers.
Above all, they had the Clemency Board’s unanimous recommendation, recognizing a miscarriage of justice. Rule 32 required the defendant, in claims of actual innocence, to demonstrate “by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would have found defendant guilty … beyond a reasonable doubt.” No reasonable fact-finder—didn’t they have that now? Didn’t the clemency board qualify as a “reasonable fact-finder?” Yes, certainly. And didn’t that give them a realistic chance of prevailing with a petition?
In the Justice Project conference room, all eyes turned to Bob Bartels. The team knew Larry’s position, but what about Bartels?
Bartels weighed his response. Though as always inclined to caution, he couldn’t deny that the board’s action had affected him. After all, these board members were not wild-eyed liberals. They were, rather, fairly stern adjuncts of the state corrections system. The board’s finding had changed Bartels’s estimate of the project’s possibilities. And something else had also affected him: He wasn’t good at psychological analysis, particularly of himself, but he suspected he felt a bit guilty that the project associates hadn’t filed a clemency petition themselves, that Bill had to do it on his own. That was a part of it, he had to admit—a part of why he now felt inclined to once again attempt a PCR petition.
One more thing, after nearly a decade on the case: Though he couldn’t say there was no possibility Bill was a murderer—“The only person I’m pretty sure didn’t do it is me”—he thought there was little possibility, and a lot more than reasonable doubt. He wasn’t a gambler, but if he had to bet, he’d put his money on not guilty.
Yes, he told the Justice Project team. We have a chance.
That Bartels thought it possible carried a lot of weight. When the time came for a show of hands, the group voted unanimously to work on a PCR petition. They still weren’t sure how they’d do it, though. Katie’s message to the team later that day reflected the tentative agreement: “First, thank you for meeting this m
orning regarding Bill Macumber’s case. It looks like we are preparing to move forward with a Petition for Post-Conviction Relief based on actual innocence and new evidence. At this point we are unsure about who will write the petition and argue Bill’s case, but we will be talking in the next couple of weeks to make those decisions.”
* * *
Eleven days later, on December 18, Larry Hammond rose to deliver the commencement address to the graduating class at ASU’s College of Law. He chose to devote his speech to the Bill Macumber story and the Justice Project’s decade-long fight on his behalf, driven by “four generations of ASU law students.” After reviewing the history of the Justice Project and its involvement in the case, he explained how on May 8 the Board of Executive Clemency had voted unanimously to commute Bill Macumber’s sentence “on a ground never heretofore embraced”—and had done so “because of their significant doubt about his guilt.” Four generations of law students were able to walk out of that hearing “with the knowledge that their efforts had contributed to righting an injustice.” But just weeks ago—since Hammond had agreed “to accept the honor of speaking to you today”—Governor Brewer had decided to reject her board’s recommendation, without explanation. Hammond looked out at the crowd: “What do you suppose happened next?”
He waited, savoring this moment. He hadn’t told the Justice Project team he was going to publicly announce the reopening of the case. The team’s decision had felt a bit tentative to him, as if some of them were still thinking it over. Hammond wanted to goad them, wanted to push them beyond thinking now. “This is what happened,” he told the commencement crowd. “Last week, these four generations of present and former students gathered again and unanimously committed themselves to continue to work on Bill’s case. Someday, these ASU students and graduates will be able to write a different end to this story.”