Manifest Injustice (17 page)

Macumber tried yet again, filing a third application in 1992, along with an updated proposal from the criminal justice consultant. Bill was fifty-six now and since his second conviction had been in prison for fifteen years. He well understood the difficulty of his particular situation. Because the Scottsdale murders occurred in May 1962, he’d been sentenced under Arizona’s 1956 criminal code, making him one of the few remaining “old-code lifers.” Lifers sentenced under the newer 1973 statute were by law automatically eligible for parole after twenty-five years, but the older statute didn’t specifically address parole eligibility—old-code lifers were entirely dependent on clemency for release. “As it currently stands,” Macumber wrote in his application, “I am faced with no hope for the future in that I have no possibility for parole. I am therefore requesting that my sentence be given a bottom number such that I will have some light at the end of the tunnel, regardless of what it might be.” The consultant recommended that he serve twenty years, which would put that light five years in the future.

If nothing else, the board remained consistent: In December 1992, for the third time, it denied Macumber’s application without passing him to a Phase II hearing.

*   *   *

Even while Macumber sought mercy during those years, he and his father also looked once more to the justice system and the prospect of reopening Bill’s case. In July 1983, just as Macumber was filing his first clemency petition, Bedford Douglass received a phone call from a former Maricopa County Sheriff’s Office evidence technician named Dave Brewer. The Macumber case had always troubled him, Brewer told Douglass. There’d been lots of funny business in the department back then. He wanted to talk.

Douglass explained that he didn’t represent Macumber anymore. He advised Brewer to contact Bill or his father. So on August 30, Brewer called Harold, who two days later summarized their phone conversation in a letter to his brother-in-law: “He told me … he would tell us everything that he knew and would testify in court for us if it would do any good. He said that he knew Carol and what she was up to at the sheriff’s office, that she had had affairs with several of the officers and had tapes to hold over their heads if they didn’t help her when she wanted them to.… That the shell casings were kept in the desk drawer of a Mr. Hart and were available to her at any time.… If it can be proven it should bust things wide open and bring about his release very soon.”

After talking to Brewer, Harold had called Bedford Douglass, relaying what he’d heard. He reported that conversation to his brother-in-law, as well: “Douglass told me Bill should write him and he would get into it again. In fact, he sounded rather eager to do just that.… I suppose we will be in the thick of it very soon. I believe that once we get going on it again that several ex-sheriffs will be stepping forward with what they know so it is hard to tell just how much it will snow-ball. It looks like the best chance Bill has had since he was arrested.”

Bill Macumber wrote to Bedford Douglass in early September. Yes, he affirmed, he certainly would be interested in having Bedford look into this Dave Brewer matter, though “I do not have any income, so whatever is to be done will have to be by your office.… For seven long years I have been putting together bits and pieces of information given to me by former members of MCSD that now work for the Department of Corrections, but it was never enough to do anything. Thank God I think things have finally taken a turn in our favor.… The only question left then is, are you willing to take me on again…? I have waited so long, Bedford, for something positive to happen and I truly believe that the time has finally come. If you can agree to take this case again I would be forever in your debt.”

It took Douglass a while, as he had many open cases, but he finally called Dave Brewer late that year. They arranged to meet on December 8, 1983. That morning, they talked for ninety minutes, Douglass tape-recording the conversation, with an investigator for the public defender’s office, Warren Granville, also present. Brewer began by describing the Maricopa sheriff’s department in the 1970s as a place where evidence—for the Scottsdale murders and other cases—was readily available in unlocked drawers to everyone who worked there. Shells, latent fingerprints, files, everything. Brewer then turned to a conversation he’d had with Corporal Richard Diehl on Saturday morning, August 24, 1974—one day after Carol gave her statement to deputies and four days before Bill’s arrest. They were alone together in the department’s ID room. Diehl had some latents from the Scottsdale murders he wanted Brewer to compare with Bill Macumber’s fingerprints. First, though, they fell to talking. Brewer recalled their conversation for Douglass.

“This was at the time they were breaking the case…,” he began. “Macumber, I’m not sure if he was already charged but they were preparing to charge him. And as I remember [Diehl] was in internal affairs at the time.…” Diehl told him that they had “done an investigation on Carol.” They were going to fire her. They found out that she had been “involved with several deputies and Phoenix police officers,” that she “had tape recorded some of the meetings.” So they “made a deal.” Carol kept her job and “she turned Macumber on the homicide.”

“This conversation…,” Douglass asked, “it was around the time he was first arrested?”

“Yeah because Diehl told me about it and then brought the latents in for comparison. I ran the comparison, as I remember it was a two finger sequence of fingerprints. They weren’t Macumber’s.”

DOUGLASS:
How long after you had the conversation with Diehl did he bring the prints in for you to compare?

BREWER:
Same morning.

DOUGLASS:
And he told you that Internal Affairs had been investigating … Carol Macumber?

BREWER:
Carol, that’s right.…

DOUGLASS:
The sheriff’s office had to make a deal?

BREWER:
Right.…

DOUGLASS:
So Carol agreed to make a case against her husband for not being fired and being allowed to keep her job?

BREWER:
Right.

DOUGLASS:
And what happened to the tapes?

BREWER:
I don’t know.

DOUGLASS:
Did Diehl say that the sheriff got the tapes from Carol?

BREWER:
No I don’t remember him saying that.…

Warren Granville, Douglass’s investigator, here joined the conversation, drawing Brewer back to his comparison that morning of Macumber’s prints.

GRANVILLE:
Can I just interject here.… Who presented those to you for comparison, was that Diehl?

BREWER:
Diehl, yeah.

GRANVILLE:
Do you recall where he got those latents for a comparison?

BREWER:
He went down the hall and came back with them.

GRANVILLE:
And when you did your comparison you found out there was no comparison.…

BREWER:
There was no identification.

GRANVILLE:
No identification. Did you tell Diehl at that time and what did Diehl say to you?

BREWER:
He said thank you.

GRANVILLE:
Did he come back with an additional set of prints?

BREWER:
I never had any more to do with it.

Douglass and Granville then turned the conversation back to Bill and Carol.

DOUGLASS:
You mentioned that you were not convinced that Macumber committed the murders, or that the casings introduced at trial were the casings actually found at the scene of the homicide? Why are you not convinced?

BREWER:
Well, I knew Macumber.… I’d known him for awhile at parties and stuff and he was active in the Sheriff’s Posse and he didn’t seem to me like he was a homicidal maniac or anything, and then they were having a lot of marital problems.

DOUGLASS:
He and Carol?

BREWER:
He and Carol … I just, I just never was convinced that Bill would have done anything.… And with the casings.… Because there was no chain of custody and I always wondered if those casings could have been handled by anybody.…

GRANVILLE:
Did you know Carol Macumber personally?

BREWER:
I worked with her, you know.… I knew enough to stay away from her.

GRANVILLE:
Well, what do you mean by that?

BREWER:
I didn’t care for her. She was very abrasive. I didn’t trust her.

*   *   *

Long ago, Bedford Douglass had heard similar reports about Carol from sheriff’s department sources. It was these reports he’d vainly tried to confirm by seeking Carol’s personnel file at a hearing months before Macumber’s second trial. Yet now, in 1983, he saw little use for Brewer’s account, which likely involved hearsay. Douglass never followed up with Brewer, and many years later could not recall taking his statement. The public defender’s office just was not going to reopen and reinvestigate a closed case. For that, Bill Macumber would need an innocence project.

PART TWO

QUEST FOR JUSTICE

CHAPTER 11

Arizona Justice Project

JANUARY 1998–JANUARY 2000

By the time the Macumber case came to Larry Hammond’s attention, he was both an icon and a lightning rod in the legal world—at least that part of the legal world concerned with such matters as public interest, civil liberties and criminal justice. He’d accrued his outsized achievements by fighting hard, which meant offending others when needed. In fact, he’d had to battle even to become a lawyer. Born in Wichita, raised in El Paso by religious Episcopalian parents—his father a wholesale druggist, his mother a music teacher—Hammond as a child suffered from asthma and a crippling stutter. The stutter hampered him as a student, the asthma as an athlete—he instead became a fanatic baseball fan.

He came to regard his stuttering as a sign of intellectual inadequacy. While attending the University of New Mexico, though, he noticed that his stutter abated when he spoke in a foreign language—so he majored in Russian. Then he enrolled at the University of Texas law school, forcing himself to stand and stutter before large lecture classes. He flourished there, becoming editor of the law review, a job that required research and writing, not speaking. As he liked to put it, he’d “never knocked over an idea and looked at it” until law school, but now, encouraged by an older student, he came to see that the fun of law school was pondering and debating big ideas. He hadn’t really done that before; he’d never read or argued deeply. He didn’t transform overnight—even in the political and cultural tumult of the late sixties, he mainly remained closeted in his studies. His incremental evolution continued when, upon graduating in 1970, he was selected to clerk for a renowned U.S. Court of Appeals judge, Carl McGowan, who in a gentle, unpretentious way urged him to devote part of his time to pro bono work. Then Justice Hugo Black picked Hammond to clerk for him at the U.S. Supreme Court, and when Black died months later, his replacement, Justice Lewis Powell, kept Hammond on. Hammond’s evolution continued: While researching and writing drafts for Powell in the landmark capital punishment case
Furman v. Georgia
, he privately came to believe the death penalty unconstitutional, at least when imposed in an arbitrary way. (He kept this view to himself, for it conflicted with Powell’s thinking.) After his Supreme Court clerkship, Hammond took a position as assistant Watergate special prosecutor under Archibald Cox, serving on a task force prosecuting former U.S. Attorney General Richard Kleindienst, accused of lying to Congress to protect President Nixon. He quit in late 1974 when special prosecutor Leon Jaworski approved a lenient plea deal for Kleindienst, and ended up at an elite ten-lawyer firm in Phoenix where half the attorneys were former U.S. Supreme Court clerks.

When he arrived there, Hammond still had no clear idea of what he wanted to do as a lawyer. He knew only that whatever path he chose, he’d have to talk, and this terrified him. Then his firm assigned him to serve as co-counsel on a school desegregation case in Tucson, where his clients were a group of black children who’d been deprived of resources and dumped into the district’s poorest schools. Because of a judge’s mandate, he first spent a full year working on written witness statements, something he could do easily for it involved no public speaking. When the trial began, Hammond felt his old familiar terror, for now he’d have to talk in a courtroom—a capacious one at that, fitted with a microphone at the podium. But as he began to cross-examine his first witness, a statistician for the school district, Hammond could hear his own voice booming from the speakers, resonating across the room—and he found he could speak clearly, his stutter gone.

This trial would prove pivotal to his development as a lawyer. Hammond not only gained his voice, he won the case. It was classic NAACP fodder: black children, intentional discrimination, a school district assigning blacks to all-black schools, busing patterns that bypassed white schools, uneven allocation of resources. Hammond thought the case great fun—living in a Tucson hovel of an apartment for months, fighting for something important instead of plodding through the usual boring practice of law. Everything he did
mattered.
Everything he did had an impact. Hammond came to see how bad things could be if lawyers like him didn’t volunteer to help. That’s how it started for Hammond, that’s how he found his calling.

Later, during the Carter administration, he returned to Washington to serve as first deputy assistant attorney general in the Office of Legal Counsel. In that job, death penalty issues once again drew his attention, for President Carter asked his team to prepare a white paper about capital punishment. He also once again had to talk—in fact, he often had to testify before Congress. As before, he discovered that when he spoke into a microphone—when he heard his voice resonating through the room—his stutter receded. By 1980, he was back practicing at his small, exclusive law firm in Phoenix and speaking without hindrance in the courtroom.