Manifest Injustice (14 page)

Douglass started picking apart her August 23 statement to deputies, identifying inconsistencies, pointing to details that didn’t match the crime scene.
It is your claim now … You assume … Well, didn’t you say on August 23rd …
On the bench, Judge Corcoran grew annoyed, his face flushing. He thought Douglass was trying to get the jury to draw unfair inferences about Carol, trying to make her look inconsistent and foolish. In his chambers during the afternoon recess, Corcoran told Douglass just that. The judge’s admonishment didn’t stop the defense attorney. With Carol back on the stand, he kept hammering at inconsistencies and challenging her memory. Then he started asking Carol whether she’d had affairs with various police officers.

Q:
Prior to obtaining your divorce, you were dating other men, were you not?

A:
No, sir, I was not dating other men.

Q:
You know Dennis Gilbertson, don’t you?

A:
Yes, sir.

Q:
You were dating Dennis Gilbertson prior to your divorce, weren’t you?

A:
I saw him at school. We went out. We were with many other people.…

Q:
You were having an affair with Mr. Gilbertson?

A:
No, sir, I was not.

Bedford Douglass couldn’t go much further. At a hearing months before the trial started, he and his deputy Paul Prato had sought Carol’s personnel file, telling a judge that “we want to review the internal affairs records to confirm or refute certain information we have regarding Mrs. Macumber.” Sheriff’s department sources had told them she’d been subject to an internal investigation over “certain relationships with certain deputies” that would give her “perhaps some leverage over these individuals.” But Douglass had never found that internal affairs report, never been able to confirm what they’d heard. So he had to remain ineffectively oblique:

Q:
After Bill was arrested, you were still working for the Maricopa County Sheriff’s Office.… You had some concern about your job then, correct?

A:
Yes, sir.

Q:
Didn’t you tell Frieda Kennedy that if I’m fired I’ll take 20 or so people with me?

A:
No, sir.

Q:
You didn’t say that to Frieda?

A:
No, sir.

Douglass called two witnesses to impeach Carol, both compelled by summons to take the stand: Frieda Kennedy, who testified that yes, Carol had said if fired, she’d “take several people with her … around 20”; and Loretta Orenelas, a neighbor, who testified that yes, Carol had acknowledged to her having an affair with Dennis Gilbertson—in fact, Loretta had met Dennis at Carol’s home one afternoon when Bill was at work. Beyond that, Douglass could only wave flags in his closing argument.

There he hammered hard and directly at the notion that Carol and others had framed Bill Macumber. The palm print—unclassifiable in 1962, suddenly a good read in 1974—must have been planted. Carol had access to those prints—“the most coincidental part of the whole case.” She had the “know-how” as well; she knew how to dust and develop, lift and transfer. She also had access to Bill’s .45 automatic—“Carol could have taken it, she could have fired it.… Those cartridge casings are easily substituted.… Carol Macumber could have done it herself. It requires no expertise.” What of the lost reports, all the missing reports? “Carol Macumber had access to those files, she could have combed them for information inconsistent with her own idea.”

Carol could have.
That’s what Douglass hung his argument on, had to hang it on: reasonable doubt. “Reasonable doubt is at the center of this case,” he told the jury. “It pervades this case. There is not an aspect of this case you cannot examine without finding it saturated with doubt based on reason.”

*   *   *

The jury, limited to what it knew of the case, deliberated for three days. Despite the many competing themes advanced by the lawyers, despite the attack on Carol’s reputation and the allusions to her affairs, for these jurors it finally came down to the palm print and shell casings. Years later, one juror could not even remember the emphasis on Carol Macumber’s involvement, on the prospect of her tampering and framing. She could only vaguely remember Linda Primrose. She mainly recalled the scientific evidence. The prints and casings put Bill Macumber at the crime scene—and that, this juror believed, convicted him. Just as a frustrated, anguished Jim Kemper foretold in Judge Hardy’s chambers at the first trial, the state’s unmatched phalanx of expert professional witnesses controlled the narrative.

Yet the jurors, at first, weren’t certain or unanimous. On their initial ballot, three of the twelve thought Macumber innocent. On their second and third ballots, four voted for innocence. Then the tide turned. The next ballot split ten to two for guilt. The next, eleven to one. The last holdout finally gave up. At 3:00
P.M.
on January 7, the jurors delivered their verdict: guilty on two counts of first-degree murder.

That afternoon, Judge Corcoran addressed the jurors. “You were faced with a great deal of conflicting testimony, a great deal of scientific testimony.… You have come up with a verdict which is … well within the evidence.… I think you came up with a fair verdict and one which you can be proud of.” Yet he knew they would “look back on this experience with perhaps some mixed emotions.” He also knew they would soon learn about Ernest Valenzuela’s confession. Clearly, this concerned Corcoran. “You can go through [the newspaper articles] at this time. I can tell you that, if you do that, you will find that there was testimony during the trial out of your presence which you may consider to be material to the case had you known about it. But you didn’t know about it and that information was kept out by me because I felt the rules of law required that it be kept out. I am sure that will be the subject of an appeal in this case so that Mr. Macumber will have a full opportunity to present those matters on an appeal.”

With bond revoked, authorities returned Bill Macumber to the county jail. He felt nothing now, as if anesthetized. Bedford Douglass kept fighting for him. First he forced a hearing over a newly emerged witness, then another over a juror who he’d learned had been a heavy user of Percocet and Demerol during the trial. That move particularly enraged Corcoran, especially when Douglass began grilling the juror on the witness stand, characterizing her as an addict. “You are making a direct attack on her integrity, her honesty, and her ability to act as a juror in this case,” Corcoran snapped, his face flushed again. Unflappable as always, Douglass disagreed: “What I am doing is presenting the facts that came out to me, which I did not solicit.”

By this time, Corcoran was openly seething at the public defender and his mounting claim of a frame-up. He’d fumed as Douglass had attacked first Carol, then the sheriff’s department, and now the attorney had gone after a juror. At the sentencing of Bill Macumber on February 17, Corcoran gave vent to his feelings. “In the trial of this matter,” he began, “we have seen a number of trials.… During the trial itself Mr. Macumber was on trial for two counts of murder, first degree. During that trial also the former Mrs. Macumber was put on trial by Mr. Douglass. At the same time, Mr. Douglass put on trial the Maricopa County Sheriff’s Office. After the convictions of guilt, we then had another trial. One of the jurors … was put on trial by Mr. Douglass.” Corcoran glared at Douglass. “The defendant has had the benefit of the services of the Maricopa County Public Defender’s Office, which spared no effort.… It even seemed to me the trial went to the point of not only trying to show reasonable doubt but to manufacture it.”

Manufacture reasonable doubt.
Corcoran’s mocking words would make it into headlines and TV news broadcasts, much to Douglass’s dismay. He’d never before been attacked like that in a courtroom, and never would again. The judge had publicly accused him of doing something improper, something immoral if not illegal. Yet Douglass had a duty to zealously defend his client; he had an obligation to try his best to establish reasonable doubt. He obviously hadn’t succeeded, that was the real problem. And he hadn’t succeeded, Douglass believed, because the judge had excluded witnesses who would have created reasonable doubt.

*   *   *

At this sentencing hearing, Corcoran turned on Bill Macumber as well. It began after the judge asked if the defendant had anything to say. Macumber did. He sat erect in his chair, hands on the table. When he spoke, his voice was, as usual, low and steady:

“Yes, Your Honor, I would. I realize that I am going back to prison and that’s a fact that I can do nothing about. The fact also remains, Your Honor, that I did not kill these two people. That’s another fact that can’t be disputed, no matter how many witnesses you put on that stand or what judgment you might make here today. I am not the only one, Your Honor, that knows without a doubt that I did not do that. At least three other people do. Three people sat on that witness stand that know. My wife—former wife, for one … and Ed Calles for another … even though he sat up there and tried very hard to deny that there was a relationship [with Carol]. I doubt seriously there was anybody in this courtroom that didn’t realize the relationship existed. And then there was Linda Primrose Chavez. She, probably more than anyone else, with the exception of myself, knows that I didn’t do it because she was there that night and she saw the killer and she knew it wasn’t me.… My wife in her twisted way, I guess, feels that she has got her revenge on the kind of life she might have had or should have had. And Ed Calles … doesn’t have to worry about recrimination.… And Mrs. Chavez [Linda Primrose] … doesn’t have to worry about ever being charged with an accessory to murder. Well, I can’t do anything about that, and evidently nobody else will. But the fact remains, Your Honor, that there is going to come a day, as it does for all of us, when they have got to meet final judgment.… I am innocent before this Court, Your Honor, and I am innocent before God, and there is no way on this earth that you or the jury or anyone else is ever going to change that.…”

Corcoran responded: “The one thing that impressed me during the trial was during your appearance on the stand you did not … indicate that it was your feeling or belief that your wife was framing you, and I was surprised at that since it was the thrust of Mr. Douglass’s defense.… This is the first time that I can recognize that you have taken the position that she has framed you.…”

“May I answer that, Your Honor?

“You may.”

“I sat here. I listened to the evidence, and I grant you, I can’t give you any hard fact that my wife framed me. That’s true. Neither can Mr. Turoff give you any hard facts that I was out there and killed those two young people that night.… The circumstantial evidence … that Mr. Turoff has produced convicted me without any consideration of the circumstantial evidence produced that my wife framed me.… I believe, Your Honor, that [in] honesty and justice, the two balance themselves.”

Corcoran disagreed: “My own conclusion was that the evidence showed you guilty beyond a reasonable doubt. I would not have been shocked had the jury acquitted you. I would have been surprised, however. If the matter were tried to me sitting without a jury, I would have found you guilty on the same evidence. It would have taken me a lot deal shorter in time to do so, inasmuch as I wouldn’t have to concur with 11 other people.”

Corcoran turned to the matter of sentencing. He ordered that Bill Macumber be incarcerated “for the term of your natural life” on Count 1, the murder of Timothy McKillop, and Count 2, the murder of Joyce Sterrenberg. He further ordered that the two life sentences “run consecutively”—that is, back to back, one after the other, rather than concurrently.

Douglass instantly rose to object: “Judge Hardy has previously, at the first trial, sentenced the defendant to concurrent terms. The Court by its sentence here would have doubled the sentence imposed by Judge Hardy, which I submit would be contrary to the Constitution.” Douglass was right: The judge could impose a harsher sentence only if the defendant had shown “baser mental or moral propensities” than at the first trial. To Corcoran, though, that’s just what Macumber had shown by asserting an aggressive frame-up defense.

“Well, I submit that it would be justice,” Corcoran told Douglass. “And you can take that up on your appeal also.”

*   *   *

For a time, Macumber remained in the Maricopa County Jail, pending appeals—including a motion for change of judge filed by Douglass, vainly seeking to replace Corcoran for all post-trial judgments because his comments and conduct “evidenced a bias toward both defense counsel and the defendant.” In his jail cell, Bill kept to his bed, crying for hours on end. He was not a particularly religious person, even though his family and friends had been urging him for many months to have faith in God, to put his life in God’s hands. In fact, some years before he had walked away from God, had even denied that God existed. Yet now, days after his second conviction, he wrote to his father, asking Harold to send a minister to see him. Not a particular minister, as he had none, but someone. Macumber also asked a jail guard to bring him a Bible. He began to read, and felt a degree of peace. Then a Pastor Bowers came to talk and pray with him. He asked Macumber if he would accept the Lord Jesus Christ as his Savior. Bill, crying, said he would. “Praise God,” exclaimed Pastor Bowers.

“Look around you,” Macumber wrote in a letter to his parents. “Look everywhere you can. See the skies and the mountains, the hills and the valleys. See the trees and the oceans. Look at all the creatures of the land and those of the sea. Feel the raindrops and crystals of snow.… Feel the warmth of the sun.… What is the probability that all this randomly found its way into place?… What you see about you is creation.”

In April, authorities transported Macumber back to the state prison in Florence, where the warden returned him to administrative segregation in Cellblock 2, the oldest section of the penitentiary. As before, that meant restricted recreation, limited visits and meals consumed alone in his cell. Besides his parents and brother, the “special woman” he’d spent time with while out on bond came down to Florence. During her second visit, Macumber told her not to return—it would be too painful for both of them. With tears, she agreed. He would never see her again.