Manifest Injustice

by Barry Siegel

  She had also, apparently, done some thinking, some recollecting. Before they began to question her, before she sat down, Frieda, unprompted, said, “Carol told me she ‘went by the house and shot.’” That caught them way off guard. They’d been planning to ask her about the kitchen-window shooting, but later, easing into it. Now here was Frieda bringing it up herself, out of nowhere, at the top of the conversation. Katie asked, “Can you repeat that?” Frieda did, but then began to grow vague—her usual manner of speech. Such a process to get an affidavit, Sarah thought. Still—Frieda had volunteered this, she’d said it: “Carol told me she ‘went by the house and shot.’”

  For several hours that day, and over a series of later phone conversations, they walked Frieda through her memories, everyone taking notes. They didn’t have to cajole her, though they did sometimes press her to be precise. She wanted to help. Eventually, Sarah collected all the notes and drafted Frieda’s affidavit, distilling five hours of conversation into six pages. Katie and Lindsay, with Lindsay’s notary public father in tow, made one more trip to Frieda’s home. On October 11, 2010, she reviewed, then signed her statement.

  In it, event by event, Frieda recounted her experiences with Carol. When they moved in together, Frieda recalled, Carol’s three children stayed with Bill, and “she did not seem at all concerned about this arrangement.” Frieda thought nothing of it herself, since “Carol had told me Bill was a good father.” Besides, “I had seen it for myself. Before Carol and I moved in together, I had visited the house she shared with Bill and her three sons more than ten times. I also spent the night there on a few occasions. From what I saw, Bill was the one who took care of the kids; he would play with them and cook meals. He was the better parent. Carol didn’t seem to care as much. Bill was a very nice man—courteous and kind. In no way, shape or form was Bill the type of man who would ‘come on’ to you, unlike most of the guys I worked with at MCSO. It was also clear that Bill loved Carol because he would do whatever she wanted. I do not believe that feeling was reciprocated by Carol.” Frieda continued:

  It is my strong opinion that their marriage broke down because Carol wanted a man that was bigger and better than Bill. In my opinion this meant someone with more money, better physical looks and who worked in law enforcement. Carol had affairs with men like this while she was married to Bill.

  When I worked at the MCSO in 1973 and 1974, the environment was very friendly. A number of us would socialize and fraternize outside of the office. The office rules prohibited fraternizing with colleagues but most employees paid little attention to them. The MCSO was like a big playhouse. The deputies would hit on the girls that worked in the office, telling us we looked pretty and asking us to go out to coffee after work.… Going out for coffee was sometimes used as an innuendo for having a relationship. For a young woman like me, who was away from her parents for the first time, the MCSO was a fun place to be.

  I believe Carol thrived in the playhouse environment. She knew a lot of people, mostly men, and she loved the attention they would give to her. To the best of my knowledge, Carol, while she was married to Bill, had affairs with Phoenix Police Officer Dennis Gilbertson and MCSO Patrolman Jerry Hayes.… I am confident that Dennis and Jerry did not know about each other, and I am sure Bill knew nothing about Carol’s relationship with either of them.

  I also suspect that Carol had a relationship with MCSO Sergeant Ed Calles. Carol had a crush on Sergeant Calles and the two of them would go out for coffee quite often. In fact, they seemed sneaky about it; only a few people knew they went out together. It is my belief that they were sneaky about their meetings because the MCSO prohibited fraternizing with colleagues and they were both married at the time.

  It was an unspoken rule that I would not tell anyone about Carol’s relationships. I believe the reason for this rule was because Carol was married. That said, I do not think Carol was fearful of Bill Macumber finding out about her affairs. I think Carol just saw Bill as a “country bumpkin” kind of guy. He was a nice, even-tempered man and Carol knew it. Carol was not shy at all. She was charismatic, persuasive, and wasn’t very fearful of anything. She had a persona of a “come on” type personality. It appeared she could easily get the guys at work to do things for her.

  Sometimes rumors about who Carol was sleeping with would spread around the MCSO. I would say her reputation would be best described as “loose and easy.” Around August 1974, Carol was called to Paul Blubaum’s office. Paul Blubaum was the Sheriff of Maricopa County at this time. As an employee of the MCSO, you knew you were in real trouble if the Sheriff called you to his office. I remember standing in the hallway with her as she waited to be called in to the Sheriff’s office, and she said that if she was fired she would “take twenty people down with her.” I took this to mean that Carol would get those people fired too because she had something on those people. I suspected that “something” was the fact they had been fraternizing with her and other colleagues. Carol did not come across as scared when she said this to me—she would do whatever she needed to do in order to sort things out.… Carol always made shrewd decisions and was devious in her own way. She seemed to know what she was doing and most of the time she had a plan.…

  In August 1974, when Carol and I were living together, and around the same time as Carol had been called into Sheriff Blubaum’s office, I recall that there was a shooting incident at Bill Macumber’s house. To the best of my recollection, Carol told me that she “went by the house and shot.” I took this to mean that she had fired the shot into Bill’s house. It also seems that she told me someone else was with her when the shot was fired. I suspect Carol would have done something like that because she wanted out of her marriage bad.… We trusted each other and did not keep secrets from each other. I told Carol everything. This is why I believe she told me about her involvement in this incident.

  The same week as the shooting incident, while we were at our apartment, Carol said she wanted to talk to me about something she had not told anyone else before. She said “this is going to sound far-fetched” and then told me that, some time earlier, Bill had confessed to her that he had killed the two kids out in Scottsdale in 1962. I was shocked.… The story kind of came out of the blue, but Carol said she told me because she was scared that Bill would come and get her because he knew she had fired the shot into his house. I was petrified. Bill was an even-tempered person and I was shocked when Carol told me this story.…

  After this I decided that it was not a good idea for me to live with Carol … I did not want to live with her anymore. I realized that I was in “way above my head.” … Not long after Carol reported Bill to the MCSO, I moved back to Buckeye to live with my parents.… A couple of weeks or months after I moved back to Buckeye, I was in Phoenix and called Carol to meet for lunch. Carol was busy and could not meet me. I never heard from her again. To this day, I have not had any further contact with Carol.

  * * *

  They had possible new evidence now. Frieda, above all. The two jurors—reasonable fact finders, swayed by what they’d learned. Dennis Gilbertson and Gerald Hayes, undercutting Carol’s credibility. Tom O’Toole, going deeper, reliving the past. But did they have enough to sustain a PCR petition? As Sarah Cooper began to pull together a draft for Larry Hammond’s consideration, the Justice Project team weighed that question. Rule 32 posed such tough hurdles. They couldn’t just collect all the impeachment evidence into a narrative. They needed new evidence that would kick out not one but all three pillars of the case: prints, shell casings, Carol’s statement. They needed new evidence with verdict-changing capacity.

  All through that summer and fall of 2010, Hammond had been consumed by a death penalty murder trial up in Prescott. Not until October did he review the partial draft and to-do list Sarah Cooper had left him before returning to England. He was impressed. Those affidavits—what a job they’d done, going out into the field, finding everyone, getting them to talk. But no, as much as he’d like to, he could not say
they were ready to file a petition. They still didn’t have enough.

  CHAPTER 23

  An Impossible Goal

  OCTOBER 2010–APRIL 2011

  As time went by, the Macumber PCR petition—and Macumber’s exoneration— seemed more and more to be an impossible goal. Larry Hammond had told the Board of Executive Clemency that the absence of DNA left Macumber without a clear basis for setting aside his conviction, that they were deeply grateful for the board’s interest because defendants without DNA evidence have “no place else to even be heard.” Yet given the reality of politics in Arizona, the Justice Project could not count on clemency. However long the odds, they had to keep trying for post-conviction relief within the legal system.

  This meant, Hammond decided, that they needed to more aggressively and thoroughly attack the ballistics evidence. That’s what their partial draft petition lacked. They had to take full advantage of the National Academy of Sciences’ 2009 report Strengthening Forensic Science in the United States: A Path Forward. Hammond loved it that the prestigious academy had actually held hearings into topics such as arson, bite marks and DNA. The resulting report, the first comprehensive review of the forensic sciences, had crystallized the shortcomings inherent in firearms identification, giving the team a significant scientific foothold—evidence that they could “newly discover.” The Justice Project badly needed such new evidence. Hammond understood that a cloud had started to settle over the project’s handling of the Macumber case, just as he’d feared. If they ever managed to get into court, a judge would surely ask, Has there been due diligence? Have you done everything you could, and within a reasonable time span? Hammond shuddered as he imagined how a judge might look at their performance over the years, even though they were a volunteer nonprofit operation with limited resources. All the delays, the cycling generations of students, their failure to hire a paid fingerprint expert, his own sabbatical at a critical moment.… That’s why they needed continuous lawyers, people who could own a case.

  The NAS report, Hammond reasoned, gave them an out. The NAS report represented new evidence not available at Macumber’s trials or during the Justice Project’s first decade on his case. The NAS report breathed new life into a possible PCR petition. Only now could they try to rebut FBI agent Robert Sibert’s testimony at Macumber’s trials, something the original defense had failed to do. Nine times the jurors at the second trial had heard Sibert call Macumber’s gun the murder weapon “to the exclusion of all others in the world,” and four times they’d heard the prosecutor echo those words. Hammond didn’t think Sibert would even be allowed to make such an absolutist statement today. If he did, the NAS report—which considered firearms identification a subjective art form—would readily discredit him.

  To craft an enhanced ballistics review, the Justice Project turned to Andrew Hacker, who’d just graduated from the ASU law school but remained involved with the project and the Macumber case. Hacker scrambled to educate himself about guns, even while preparing to take his bar exam. He reread Robert Sibert’s trial testimony forty times. He parsed out the language Sibert used on the witness stand. He examined the 2009 NAS report. He pored through a pile of studies about firearms comparisons. Always, he looked at the footnotes, building a bibliography of further readings. Weekends, nights—he’d pick up another report whenever he had a chance. He liked doing innocence work whether paid or not, and beyond that, he liked working on the cutting edge of law and forensics.

  Just as they’d once sought fingerprint experts, now the Justice Project associates looked for ballistics experts—which Macumber never had at his trials. Hacker first found William Tobin, a former FBI supervisory special agent and forensic metallurgist who, since retiring in 1998, had started questioning how the FBI matched bullets to crime suspects. Hacker also enlisted a firearms and ballistics consultant, John Nixon. He approached, as well, an ASU law professor, Michael J. Saks, a specialist in the field of law and science. Hacker carefully cultivated relationships with all of them. For a while the effort stalled: Tobin hesitated and withdrew—he felt uncomfortable criticizing Robert Sibert, a friend and former colleague. But he returned, galvanized, after happening to see the Nightline broadcast about the Macumber case. By the spring of 2011, the team had all three experts lined up, Tobin and Saks working pro bono. Three experts who unequivocally said Robert Sibert could not possibly have matched Macumber’s gun to the shell casings by means of the ejector markings. Those ejector markings weren’t a unique signature, they maintained: One weapon can make different marks, and different weapons can make identical marks. Sibert, they believed, should have eliminated Bill’s pistol because the firing pin and breech face marks didn’t match. Instead, he’d made a “selective search for marks” that supported his conclusion. Tobin’s judgment: “The evidence does not support an inference that Macumber’s weapon was, in fact, the murder weapon.” With these three experts’ affidavits in hand, Hacker went to work, writing his section of the PCR petition—what Hammond now considered the “linchpin” of their appeal.

  In England, Sarah Cooper, Skype-conferencing for hours with Andrew, wrote the rest, focusing on all the familiar themes: Valenzuela and Primrose, Carol, Latent Lift 1, chain of custody. She also added a critical new dimension: the sworn affidavits they’d collected. Frieda Kennedy, Dave Brewer, the two jurors, Dennis Gilbertson and Gerald Hayes—she cited, quoted and attached every affidavit to the petition. The Justice Project still couldn’t prove a frame-up, but by adding in the dubious circumstances, they hoped to reduce the value of the palm print.

  With those affidavits and the emergence of new ballistics evidence, Hammond thought this to be “a very exciting, almost riveting time” in their eleven-year battle on Macumber’s behalf. Section by section, drafts of the petition circulated among the Justice Project team, going through multiple rounds of editing. Simultaneously, the team pushed to complete and file a memorandum in support of a new clemency hearing for Bill—he would be eligible two years after the first one. They met weekly. They arranged a new analysis of the tire tracks, a new look at the fingerprints, another visit with Jerry Jacka. They assigned law students to research specific legal arguments. They tested their reasoning. They reassessed the petition’s structure.

  Yet now, in the spring of 2011, obstacles and distractions once again slowed their progress. Chief among them: Bill Macumber’s health.

  CHAPTER 24

  Critical Condition

  APRIL–JUNE 2011

  Bill Macumber did not feel well when he came home from his job at Cochise College at 3:00 on the afternoon of Tuesday, April 19, 2011. In his Mohave Unit cubicle, he stretched out on his bed, hoping to improve. Over the next two hours his condition grew worse. Shortly after 5:00 P.M., he went to the prison’s medical office. The staff took one look at him and promptly dispatched him to Cochise Medical Center in Douglas. Doctors there, after a brief examination, put him in an ambulance bound for University Physicians Hospital in Tucson. Larry Hammond’s abiding fear had been that Macumber would die in prison before they could get him out. Now that outcome looked quite possible.

  At the Tucson hospital, doctors determined that Bill had a blockage in his small intestine. On Friday, April 22, as they attempted to run a scope to observe the blockage, Macumber began hemorrhaging. They rushed him to the intensive care unit with major gastrointestinal bleeding and a blood clot in his stomach. Doctors there started plasma transfusions—eight pints in all—and hooked Macumber to a ventilator. His heart started beating irregularly. His left lung collapsed. The doctors decided to put him into a medically induced coma. Through multiple IV lines they delivered sedatives, antibiotics, painkilling narcotics and medicines to increase his blood pressure. They could not operate on the blockage, though—Macumber was too weak to undergo any type of surgical procedure. They did not think he would survive.

  At his home in Aurora, Colorado, Ron Macumber received a call that Friday from the hospital’s prison-ward medical director. Ron had bee
n trying vainly for three days to get an update about his father’s condition, ever since he’d first heard from a prison chaplain that they’d taken Bill to Tucson. The medical director now had grim news: Your father is in critical condition. We can’t stop the bleeding. You might want to get down here.

  Ron started spreading the word. He called Jackie. He called Bob and Toots. He called Jay and Harleen. He called Katie. She, in turn, talked to central prison medical authorities, arranging for powers of attorney, seeking permission for family visitation. Katie soon called Ron back with an update: Prison officials had opened visitation to everyone on Bill’s list.

  Once more, Macumber’s relatives scrambled to his side. Ron flew into Phoenix on Friday afternoon and drove down to Tucson with Harleen and Jay. Early Saturday morning, Bob and Toots started driving from Illinois, Jackie and Robyn from New Mexico. At the hospital that weekend, Katie helped Ron with the paperwork. He felt scared when he finally saw his father. This did not look good. The doctors had Bill heavily sedated, on a ventilator, with all kinds of tubes running in and out of him. Ron had never seen so many IVs hooked up to a person. They were feeding him eight different medicines. The doctors told Ron that Bill, unable to breathe on his own, was essentially on life support. Seeking any kind of response, Ron took his dad’s hand and yelled for him to squeeze. Bill did, slightly—Ron felt pressure on his fingers. But the nurse explained that he wasn’t really conscious and probably didn’t know who was holding his hand.

  Then on Monday, April 25, Bill contracted pneumonia. More treatment, more tubes, more medicines. Jackie and Robyn arrived. So did Bob and Toots. Bob felt as shocked as Ron had. Bill’s extremities were terribly swollen. A tube ran down his throat. He opened one eye when Bob hollered a greeting, but he couldn’t know his brother was there. The relatives, all staying at a nearby Holiday Inn, shuttled back and forth, taking turns, waiting and hoping. They knew little for sure about Bill’s condition—at the prison guards’ instruction, the doctors wouldn’t tell them much. This remained a Department of Corrections operation: Bill had one foot and one hand shackled to the bed’s railing.