Manifest Injustice

by Barry Siegel

  On Tuesday afternoon, as the doctors weaned him off the sedative, he began to rise out of the induced coma. Katie, alone with him just then, called out, “Bill…” He raised an eyebrow. “Everything’s going to be okay,” she said. “Ron is here.” Bill opened his eyes, briefly, more than once. It seemed as if he was trying to speak. Katie leaned over him, waving, happy that she’d decided to drop by at this moment. She called Jackie at the Holiday Inn to report the news. Jackie and Robyn jumped into their car, heading back to the hospital.

  Bill Macumber would remember nothing up to this point, nothing of the ambulance ride to Tucson or the visits by Katie and his family over the first week. He would only recall briefly waking up that Tuesday afternoon and seeing Jackie at his side, Jackie holding his hands and talking to him. He drifted back into a semicoma, the next several days as blank as before. When he finally came to again, he found himself alone in a room, surrounded by an array of IV bags, his ankle chained to the bed. He lay there for two hours, unable to move or call out, before a nurse finally appeared. Seeing him awake, she summoned a doctor, who examined and questioned him. You had a very close call, the doctor said. On two different occasions, I thought we’d lost you.

  * * *

  After a week, the doctors removed Macumber’s IVs and arranged for his transfer to Rincon Unit House 9, an ICU ward at the Arizona State Prison Complex–Tucson. This, to his regret, put him back in the hands of the Department of Corrections staff, a far less caring and considerate group than the hospital medical team. Indeed, he did not find much to appreciate at Rincon. Led by a nurse, the guards installed him in a small claustrophobic cell, sealed by a steel door, that had room for only a bunk and a toilet. The guards left him sitting on the bed. He needed to use the toilet so tried to rise on his own. He made it to his feet but then lost his balance, falling and hitting his head on the concrete floor. Eventually a nurse found him there and lifted him onto the bed.

  The next day a doctor came by and gave him a walker. With it, Macumber began to force himself to move. At first, it took all his strength just to push himself into a standing position. He practiced daily with the walker, shuffling back and forth in his cell, taking a few small steps, trying to get his legs to work. Then, at the doctor’s order, the guards started letting him out of his cell twice a day for half an hour, so he could walk up and down the hallway. Slowly, his legs strengthened. After a week, he began using a cane. A week later, he discarded the cane.

  Rincon remained an appalling place to him. He thought it a joke that they called it an ICU. He saw a nurse just twice a day, once in the morning for meds and vitals, once in the afternoon for more meds. The only other visitors to his cell were guards bringing his food, always cold—he never ate a hot or even a warm meal at Rincon. Rarely did he see a doctor. No human being, he came to believe, should have to live in a place like this, let alone someone recovering from a medical crisis.

  On May 11, at least, he had a welcome visitor: Larry Hammond. Larry spent an hour with him. They would file the new clemency petition immediately, Hammond reported. And he hoped to soon complete the PCR petition as well. The Justice Project, he assured Bill, was still fighting on his behalf.

  On that same day, Bill wrote to Jackie, “Well, love of my life, it appears as though I went off the deep end once again, but for the life of me I don’t know what went wrong or why. One minute I was in Mohave Unit doing fine, and then next I was in some hospital in Tucson. Totally, and I do mean totally, out of it.” He remembered only “a lot of pain and fear,” but he did recall “you and Robyn being there.” He was now over at the Tucson prison ICU unit, which “is not much—I can tell you that.… Being in this place is like being in solitary confinement, only much worse.” He hadn’t been able to take anything with him when he left Mohave, so “when I got here I had to buy things. Sweatpants and sweatshirt to keep from freezing to death. Shorts, t-shirt, socks and pants, just to have a change of clothes. It’s very cool in these cells and they are cells, Jackie. They most certainly are not anything like a hospital room. One bed and one stainless steel toilet and that’s it. No TV or radio. Just terribly long days of just living here. If I can just maintain my sanity till I get back to Mohave or wherever…”

  Macumber, despite wanting always to present a positive face, couldn’t hide his despair. Those who came to visit in mid-May saw a dazed, weak, clearly unhappy man, wearing a surgical mouth mask to protect others from his germs. He had none of his usual witty verve. He had improved but still felt deeply tired. Most of all, he longed for a return to Douglas. He wanted to be back where he had friends, a routine and guards who respected him.

  On May 21, he wrote Jackie again, now making no effort to mask his misery: “Quite honestly, I find it a wonder that I’m still alive.… I am still very weak and especially so in my legs.… I have lost over 30 pounds and I feel all worn out all day long. I don’t get any sleep that is over an hour and the time drags so terribly. I’ve never known days and nights so terrible. If I don’t leave here soon I don’t know what will happen to me.… Sorry this is so short but I am worn out. Know you are forever in my thoughts and forever in my heart.”

  In late May, prison authorities told Macumber he’d be leaving the Rincon Unit. Bill took that to mean they were returning him to Douglas. Instead, they transferred him to another unit at the Tucson state prison complex, Manzanita, which housed inmates with medical conditions and “special needs.” Not going back to Douglas pulled him into a deep depression. He had to admit, conditions at Manzanita were better than at Rincon—they even had a microwave, so he could heat the cold food—but nothing like at Douglas. In his mind, Douglas constantly beckoned now, looming as a kind of nirvana: the goal, the finish line.

  Yet it appeared he would never get there. After two weeks at Manzanita, a doctor finally came to evaluate him. Given your age (almost seventy-six now) and medical conditions, the doctor told him, you will probably have to stay here in Manzanita’s special needs unit, close to Tucson’s hospitals. With this news Macumber sank deeper into an anxious depression. In certain relaxed moments before falling ill, he had talked of what he “will do” when he got out—his writing and his life on Jackie’s ranch. Now he corrected himself: “No, I mean would do.… Time is not on our side.” On occasion, he thought back over his life, over all that had happened, over what he might have done differently. “Well,” he told a visitor, “I might have had less trust in law and lawmen.” Though he’d never shown bitterness, he’d years before privately fixed on one abiding way to express his feelings: At the Cochise College graduation ceremonies each spring, he declined to recite the Pledge of Allegiance. “Show me where there is ‘liberty and justice for all,’” he explained.

  At the Justice Project, Katie, aware of Bill’s suffering, swung into action. She worked the phone lines, she fired off e-mails, she arranged meetings with Department of Corrections medical personnel. The entire Justice Project team pitched in, pulling strings, lobbying hard for Macumber’s return to Douglas. So, too, did the warden and deputy warden at Douglas—they wanted Bill back, they let it be known, even if he had to return in a wheelchair.

  In the Tucson state prison’s Manzanita Unit, Macumber engaged in his own form of lobbying. To the doctor who’d told him he’d have to stay there, Bill said: That’s not going to happen. Well, the doctor replied, you really don’t have a choice. Bill disagreed: I most certainly do have a choice.

  They looked at each other. The doctor asked, How do you figure you have a choice?

  Bill said, I’ll refuse to take any of my meds.

  That will kill you, the doctor pointed out.

  Life has to have some quality as well as quantity, Bill replied. If I have to live here, I would rather end it.

  Two days later, the doctor signed Macumber’s release. At 4:00 A.M. on June 20, guards woke him and told him to pack up: They were transporting him back to the Mohave Unit at Douglas. “Words,” Macumber would say later, “cannot even begin to express what I
felt at that moment.” Not long after, he found himself sitting in a bus bound for Douglas. They were taking an indirect route with intermediate stops, making it a long ride, but he didn’t mind; he’d soon be among friends and people he knew. In an instant, the grave depression he’d been suffering for weeks evaporated. In its place came a feeling of hope, a feeling that “life might still hold something for this old man.”

  His reception at the Mohave Unit overwhelmed him. As he walked through the gate, a large crowd of inmates surrounded him, shaking his hand, slapping him on the back, asking how he was doing. Guards and other prison staff joined in as well, offering greetings and best wishes. When he reached his dorm, he found every inmate on his run lined up to welcome him. Turning to look at his “home,” he saw that his buddies had repainted his cubicle and locker and put everything into top shape for his return.

  For days, the steady parade of inmates and staff continued, everyone stopping to welcome him back. The warden came by, the deputy warden, the unit captain. More than two hundred inmates in all, and a good portion of the civilian staff. Macumber felt humbled, realizing how many people cared about him. He felt grateful as well, for they promptly gave him back his old job; he started working again at Cochise College on June 27, a week after his return.

  Bill Macumber still prayed for the Justice Project to succeed, still dreamed of life with Jackie on her New Mexico ranch. Yet he felt at peace for the moment, he felt as if he’d arrived. You have no idea, he told a visitor late that June, how wonderful it is to be back here in Mohave. It was, he said, “almost like coming home.” Home—a place where he never felt lonely, where he never cast shadows.

  CHAPTER 25

  A Second Clemency Hearing

  JUNE 2011–MARCH 2012

  In mid-2011, just as Macumber returned to Douglas, Bob Bartels had to step away for months when the U.S. Supreme Court agreed to hear his appeal of another Justice Project case, Martinez v. Ryan—which, as it happened, argued for a prisoner’s right to effective assistance of counsel in post-conviction proceedings. At the same time, Larry Hammond fell seriously ill, sidelined for months by a devastating bout with a mysterious pneumonia of no known cause or cure. After thirteen days in an intensive care unit and repeated trips to hospital wards, he remained tethered to an oxygen tank. For help on the Macumber case, he eventually turned to an eight-hundred-attorney law firm, Perkins Coie, which took over the drafting of the PCR petition in October 2011. Within weeks, its lawyers, led by senior partner Jordan Green, completed the Justice Project’s work.

  On February 9, 2012—fourteen years after Judge O’Toole first called Hammond—attorneys for Macumber finally filed a post-conviction relief petition on his behalf in Maricopa County Superior Court. By then, another Justice Project petition had persuaded the Board of Executive Clemency to schedule a second hearing for Macumber, to be held on the morning of March 19. Both petitions included the sworn affidavits collected by Katie, Lindsay and Sarah. Both put all the Justice Project claims about Carol in the public record. Both offered a narrative and an argument.

  Then, one morning in mid-February, Larry Hammond took a phone call from Deputy Maricopa County Attorney Vince Imbordino. We’re going to oppose you at the clemency hearing, Imbordino told Hammond. We’re going to call witnesses, we’re going to argue the case. Macumber is guilty.

  In the end, the Justice Project team knew, all criminal law was storytelling. They’d been the only storytellers for the past dozen years. Now they had company. From the moment he received Imbordino’s call, Hammond understood that this second clemency hearing would be quite different from the one in 2009—not just for the Justice Project but for the clemency board as well. The board’s members were used to getting no more than a letter from the county attorney. For the prosecutor to show up was pretty damned unusual. Maybe in a last-minute death penalty case involving a pardon or commutation. But not here, not over clemency.

  Eventually, Hammond learned that the victims’ families would also be attending and speaking to the board. So would Carol, on a phone link from her home in Washington. And a renowned ballistics expert, recruited by the county attorney. This hearing would, in effect, be an adversarial proceeding. Hammond realized it would be a challenge. The presence of Carol and the victims’ families—whatever they said—would have an effect. How would the board handle competing narratives?

  The Justice Project team members debated whether they should pull the hearing. All in all, they felt they had a better chance with their PCR petition. And whatever the board decided, it was quite unlikely that Governor Brewer would approve clemency for Macumber. So why risk a reversal of the board’s 2009 recommendation?

  For days, the team members thought it over. In the end, they decided they had to try—partly because of Bill’s age and health, partly because of their own tremendous commitment over the last twelve years. How could they stop now? How could they forswear all they’d done, all they believed? The siren call still rang in their ears.

  * * *

  At long last, all the players in the Macumber case came together on the same stage. At 8:00 A.M. on March 19, a damp, misty Monday morning, some of them edged into a small, cramped conference room at the Board of Executive Clemency’s headquarters on West Jefferson Street in downtown Phoenix, sitting knee to knee in three rows of chairs facing the board members, while others, in distant cities and states, pushed buttons on their phones, plugging into the board’s conference system. Whether in the room or on speakerphone, they could not avoid each other now.

  Macumber’s family and the Justice Project team claimed one side of the chamber. Jackie Kelley and her daughter, Robyn, had once again driven in from New Mexico. Ron had flown in from Colorado. Jay and Harleen had come from Apache Junction. Representing the Justice Project were Larry Hammond and Bob Bartels, Rich Robertson, Andrew Hacker, Katie Puzauskas and Lindsay Herf (Katie and Lindsay now held the title of co-executive director for the Justice Project). Close by, across the aisle: the county attorney’s team, led by Vince Imbordino; members of the victims’ families, among them Joyce’s brother and sister and Tim’s cousin; and the state’s ballistics expert, Lucien Haag, a former director of the Phoenix Police Department Crime Laboratory.

  They all looked straight ahead, eyes fixed on the board members. Up front, Duane Belcher threw switches and checked lights, confirming the speakerphone connections: Bill Macumber at the state prison in Douglas. Bob, Clara and Mark Macumber in Illinois. Sharon Sargent-Flack in Prescott. And Carol, Steve and Scott Kempfert in Olympia, Washington. Bill Macumber had not heard their voices in thirty-seven years.

  “All right, thank you,” Duane Belcher began. “I think we’re ready to go. We’re going to do this in an orderly fashion. Everybody will respect everyone else. We’re not going to get into a shouting match, we’re not going to get into a debate. All of your comments, please address them to the Board. We won’t want individuals talking to one another.”

  One more thing, Belcher added: While executive clemency is “mercy and grace” for prisoners who admit their guilt, it could also be granted for “a claim of innocence.” Either way, today “we’re not here to retry the trial.”

  This was not the same board that had heard Macumber’s case in 2009; only two members remained from then, Duane Belcher and Ellen Stenson, and Stenson was absent that day, traveling out of state. Three new board members sat beside Belcher now: Marilyn Wilkens, with an administrative background in the Arizona Department of Corrections; Ellen Kirschbaum, with over thirty-one years in the Arizona criminal justice system, including two decades in the adult and juvenile correctional field; and Jack LaSota, a longtime Phoenix attorney, former state attorney general, and chief of staff to Governor Bruce Babbitt. With four rather than the usual five board members, just two could derail a recommendation, but that’s how the clemency process worked sometimes. Before each board member sat a thick pile of documents. They thumbed through the pages.

  The Justice Project’s nineteen-page
memorandum covered the familiar arguments, but now it also featured critical attachments—all the affidavits collected in 2010 by Katie, Lindsay and Sarah, including those from Frieda Kennedy, Dave Brewer, Dennis Gilbertson, Gerald Hayes and Rich Robertson on his conversation with Sheriff Blubaum regarding Carol. The sanctions imposed, her threat to “take twenty people down” if fired. Her affairs, her “job on the line.” As the Justice Project’s memo put it, her “motive to lie.”

  The board members, though, also had before them the county attorney’s six-page memo in opposition to clemency, which argued that the fingerprints matched and so did the shell casings. Linda Primrose lied, her story was “fully explored and refuted.” Valenzuela, too, Judge Corcoran finding his confession “unreliable and not supported by any physical evidence.” Valenzuela’s lawyers—Thomas O’Toole and Ron Petica—“were not equipped with any special truth-detecting abilities.” The state’s memo, like the Justice Project’s, came complete with an arsenal of attachments, including sheriff’s reports and pages pulled from the trial transcripts. There was testimony from sheriff’s deputies that Macumber “admitted to police he had confessed the murders to his then wife.” There was testimony from Macumber himself, offering his ambiguous, speculative “I suppose to keep her from leaving us” comment. There was testimony from Phoenix police technician Joe Garcia, saying that Latent Lift 1 and the photo of the print on the Impala were one and the same—so to tamper, someone would have to “fabricate a photo of the palm print and the latent palm print lift.”

  There also was a curious handwritten letter from Linda Primrose to Bedford Douglass from July 1976, begging him not to call her to the stand at the second trial, threatening to recant if he did. From the trial transcript, the Justice Project team knew of the threat, but they had never seen this letter before. In her seat, Katie studied it along with the board members. I am guilty of making false statements in 1962 in an attempt to strike back at my mother. For all of this I am more than sorry. I am not guilty of being present at a murder. I was not there. All those lies I told at that time was just to hurt my mother who had hurt me. Since that time I have slowly put my life in order. I have married, I have two children.… I will not be used to cast doubt. I will make very certain the jury knows I lied in 1962. I am not a good person and I know it but God is with me. I would urge you to reconsider using me to cast doubt. If your man is not guilty, you should not need me. I’ve done enough wrong in my life—that I couldn’t live with myself if a lie got a guilty man off on a murder charge. Enclosed is a little book for your man. Pass it on to him. No need to say where it came from.