Manifest Injustice (10 page)

Kemper began: “Now the next question is, as you probably recall from that letter that you got from O’Toole, there are two lawyers who represented a guy named Ernest Valenzuela, who told them that he committed this crime. Now, I would like to present … what is in the nature of an offer of proof.” Moving step by step, he described the extended sequence in which first Tom O’Toole, then Ron Petica heard Ernest Valenzuela’s confession on multiple occasions. “All right,” he concluded. “Everything that I have related are facts which Mr. O’Toole and Mr. Petica are prepared to testify to. Mr. O’Toole was scheduled to be here at 3:30 this afternoon. And Mr. Petica was scheduled to be here tomorrow.… We are offering these confessions as declarations against [penal] interest, as an exception to the hearsay rule. And this is the offer of proof, so that the Appellate Court will know the precise nature of the evidence which the Court is today holding inadmissible.”

Judge Hardy, for once, didn’t waver. The issue seemed cut-and-dried to him, not even a close call. The attorney-client privilege, such a bedrock principle in the legal system, didn’t go away when the client died. Hardy said, “Let the record show the Court has ruled that the proffered evidence isn’t admissible. First because the communications to Mr. O’Toole and Mr. Petica were privileged because of the attorney-client relationship. There’s been no waiver of the privilege. I said first. That is sufficient.”

*   *   *

The next day, Judge Hardy barred yet another key defense witness: Charles Byers, a ballistics expert who would have told the jury that it was impossible to match shell casings to a specific gun on the basis of ejector marks. This represented a central issue at Macumber’s trial. Microscopic ejector marks, produced when the cartridge strikes the ejector—a small protrusion that essentially “kicks” the shell casing out of the weapon—were not the normal way to match a bullet and a gun. In fact, the FBI’s Robert Sibert had never before based his analysis solely on ejector marks. He’d done so in this case because he had no other means; the firing pin, breech face and extractor marks—the usual basis for comparisons—did not match Macumber’s pistol. Sibert nonetheless had delivered his opinion with certitude: The ejector marks “could have been produced by no other ejector in the world.”

Byers didn’t think it possible for such a statement to be true. He had been an engineer overseeing production of ammunition and shell casings at Remington Arms Company, where he’d designed rifles and ammunition, and was then president of a company that manufactured .45-caliber ammunition for the U.S. Marine Corps. He’d studied firearms identification and published articles on firearms. He didn’t believe ejector marks had a distinct signature. Yet he had never testified as an expert witness in a case like this. On these grounds, deputy county attorney Tom Henze objected to his qualifications before he could take the stand.

Henze had his reasons: He believed the state’s ballistics evidence to be the key to Macumber’s conviction. Years later, Henze would not remember Carol’s statement being the meat of the case. Nor would he recall Bill’s palm print being the clincher—that could be explained away even without proving it had been planted. The Impala, after all, had been left unsecured for hours, and before the murders, its driver could have stopped at Macumber’s gas station. To Henze, the shell casings made his case. The ejector marks were the tiebreaker. So he wanted to keep Byers off the stand.

Judge Hardy had never before heard of using ejector marks to make a comparison, but he, too, questioned Byers’s qualifications. “Mr. Kemper,” he said, “I am going to have to sustain the State’s objection.”

This ruling stunned Kemper. First they’d lost the Valenzuela confession, and now their ballistics expert. “I am not sure I understand you,” he told the judge. “Could you explain that to me again.”

Hardy tried, though he had some trouble with technical ballistics terms. His explanation didn’t satisfy Kemper.

“If Your Honor please, if I may make a couple of comments?… The thing I can’t understand, that baffles me … is the biggest fallacy in this courtroom. I don’t believe Your Honor can understand it. Mr. Henze and Mr. Cantor get up here and they tell you what the standards would be of an expert in the first place. And then you say because Mr. Byers doesn’t meet what they say is an expert, he can’t testify.”

“I never said that,” Judge Hardy interrupted.

Kemper kept going: “I am still trying to understand the basis of the Court’s ruling. May I ask some questions so I can understand?… We have got up here some pictures that we know were taken of evidence shells and we have got some pictures over here that we know hit the ejector in that gun, all right? Now, that’s what Mr. Sibert had, okay?… And he says, ‘In my opinion these look like these.’ Now, Mr. Byers on the other hand has put the evidence shells and test shells under a microscope, but he has gone one step further.… He has taken pictures of them so the Jury can … see it with their own eyes. But you say he can’t [testify].… I can’t fathom that.”

Judge Hardy: “You have left out an important step. That is, Mr. Sibert testified that he has been trained and is experienced in comparing hundreds of thousands of ejector marks and he has learned that … each ejector mark has a characteristic pattern on the casing.…”

Kemper: “Precisely. And we can come in here and tell you they don’t make a pattern. And we can show the Jury why they don’t make a reproducible pattern. Do you suppose Mr. Sibert was born in a witness chair? He had to testify for a first time at some point in his life.… You have to start somewhere. I had to try my first case. What about a court reporter? What about you? Mr. Sibert started somewhere. Mr. Byers has never testified before, but he has done the exact same thing Mr. Sibert has done, except he goes a bit farther and he can prove it to the Jury.”

Soon Kemper was beside himself: “Now I understand he is to be excluded entirely from giving any expert testimony. Is that my understanding?… I understand he can’t testify as to his opinion as to any tests or experiments that he has done. Is that the Court’s ruling?”

It was. Judge Hardy would not let the jury hear Byers. The next morning a desperate Jim Kemper continued arguing in the judge’s chambers. His agitation was understandable. He did not have other experts to summon—he’d found it hard enough for a cash-strapped defense team to find anyone to testify. Most experts worked for or were paid fees by the state. Kemper had already spent weeks vainly looking all over Phoenix for a fingerprint expert available to the defense. No such person existed. He’d also called a friend in Los Angeles, who couldn’t find anyone there in a three-day search. Kemper explained this problem to Hardy, pleading, “If this ruling stands when there’s a technical question which is vital to guilt or innocence, the guilt or innocence is going to be determined by the law enforcement agencies in this country. They’re going to have a monopoly on it. They’ve got the microscopes. They’ve got the training manuals. They’ve got all the equipment. They won’t let anybody else use them.… And anybody who has ever tried a criminal case knows that there aren’t any private laboratories where you can get an equivalent examination of evidence.… A defense lawyer has to do the best he can. He has to spend hours and hours and hours just to try to find somebody that’s qualified. And then when he finds them they really haven’t the proper equipment. The practical results of this decision are to foreclose any reasonable possibility that a criminal defendant can properly defend himself on a technical question where it’s vital to guilt or innocence.”

In fact, Kemper maintained, Judge Hardy’s ruling constituted a fundamental violation of due process. “We’re talking about due process of law here, and I take the position if we’re not allowed to present evidence on this subject through Mr. Byers, we are being denied due process of law in that we are being denied the right to present a defense.… We are being denied the right to confront the witnesses against us.… There is no way in the world that you can impeach or contradict a witness like Mr. Sibert except to put on another expert witness that says I don’t agree with him, I come to the opposite conclusions. So we take the position that if Mr. Byers is not allowed to testify before the jury we are being denied the right to confront the witnesses against us under the Sixth and Fourteenth Amendments to the United States Constitution.”

Kemper had one last plea: “And finally I say this to the Court. If the Court does not change its ruling on this subject, I respectfully ask for a two-day continuance of this matter so I can go to the Arizona Supreme Court and file a petition for a special action, and ask for a stay until this question can be resolved.”

Judge Hardy still stood firm. He denied Kemper’s plea to allow Byers’s testimony, and he denied Kemper’s request for a recess so he could appeal to the state supreme court.

The defense had no ballistics expert, no fingerprint expert, no Valenzuela confession—and also no Linda Primrose. Though her account to sheriff’s deputies back in 1962 seemingly corroborated and dovetailed with Valenzuela’s confession, and possibly explained the thatch of hair found at the murder scene, Jim Kemper did not know about Primrose. Nor, apparently, did the prosecution. The Maricopa County Sheriff’s Office had never included the Primrose reports in the Macumber case file handed to the lawyers. At this trial, Linda Primrose—and that thatch of hair—just did not exist.

Except for a half dozen character witnesses, in the end the defense had nothing to offer but Bill Macumber himself. He took the stand on Monday, January 20.

Kemper walked Macumber through his personal history, aiming to convey to the jury a full sense of this man. Bill talked of his upbringing, his education, his background with hunting and guns, his time in the army, his employment record, his involvement in the Deer Valley Little League, and his launching of the Desert Survival Unit. He talked also of his marriage and his separation from Carol in the spring of 1974. “She started staying out later and later every night after school,” he said. “And I questioned her about it, just asked her more or less why she was out so late, and she always had an excuse, and I guess I just had a feeling—”

The prosecutor objected at this point: “I would like to remind the Court, Your Honor, we can sit here and turn this thing into a tremendous character assassination on Carol Macumber. We can’t call anyone else in the world to refute that testimony.” Judge Hardy, after considering, allowed testimony about Carol studying fingerprinting at Glendale Community College but not about Carol “running around with someone else, I can’t see that has any relevancy.”

Kemper eventually asked Macumber about his statements of August 28 to Deputies Diehl and Calles.

KEMPER:
You will recall, and this again is from Officer Diehl, that he saw or heard another sheriff’s detective named Barnby place his arm around your shoulders and Officer Diehl said that he heard Barnby say to you, “Did you tell Carol you killed those people?” And Officer Diehl testified that he heard you say, “Yes” to Barnby. Now, did Barnby in fact ask you that question?

MACUMBER:
No, sir, he did not.

KEMPER:
Did he ask any question?

MACUMBER:
Yes, he did.… He asked me why would I say that to my wife.

KEMPER:
And what did you say?

MACUMBER:
Well, there was some preliminary—there were other things that went on prior to that, and I said, “I suppose to keep her from leaving us.”

It had been, Macumber would forever after explain, a hypothetical answer to a hypothetical question. He didn’t regard it as an admission of any sort, so he never disavowed it, here or in subsequent interviews. Minutes later, Kemper asked Macumber to recount his conversation with Deputy Ed Calles. Macumber’s unequivocal response: “He asked me first of all, he said, ‘Bill did you kill those kids?’ And I said, ‘No sir, I did not.’ And he asked, ‘Did you tell your wife that you killed those kids?’ And I said, ‘No, I did not tell her I killed those kids.’”

On cross-examination, prosecutor Larry Cantor hammered at the notion that Macumber’s defense essentially hinged on a claim that everyone in law enforcement was lying, everyone framing him. Macumber struggled to respond, for he would not, could not, point a finger.

Q:
Is Sergeant Calles a liar?

A:
I would prefer to say Sergeant Calles is mistaken, sir.

Q:
Are you telling us that you in no way ever said words to the effect to Sergeant Calles that you told your wife you had shot and killed those kids?

A:
No, sir, I did not tell Sergeant Calles that I told my wife I killed those kids.

Q:
Now, you say he’s very mistaken when he testified to that, is that correct?

A:
I didn’t say very mistaken, sir. I said I would tend to say that he was mistaken rather than lying.

Q:
Does he have any motive to lie?

A:
I don’t know.

Q:
You’re saying he may have a motive to lie?

A:
Yes, sir, he may have a motive for lying.

Q:
What you are saying is, someone tried to frame you?

A:
I’m saying something has happened.

Q:
Let’s get this straight now. Officer Jacka has substituted a phony print, is that your testimony?

A:
No, sir.

Q:
Who substituted a phony print?

A:
I would have to make an accusation on the stand if I was to say that. And without proof, sir.

That night, back home at his parents’ home, Macumber wrote in his journal, “Today I was cross-examined by the State and it was not a pleasant thing to have to go through. All I could do was answer the questions as honestly and as accurately as possible.… Perhaps I made errors though it was not intentional.”

He had his boys with him this evening. “I tried my best to prepare them for what is about to happen.… All I was able to do was assure them that I loved them with all my heart and that no matter what happens I shall be with them always in their minds and in their hearts.”