Manifest Injustice (36 page)

Mark had been six when the cops arrested his uncle. He visited him in prison whenever possible, first with his father, later with his own son and wife. The setting and locale changed from time to time. Sometimes Bill sat behind a screen, and Mark couldn’t touch him even to say hello or good-bye. More often he met Bill in a kind of schoolyard, a fenced area with tables and chairs, and Mark could take a short stroll with him. Bill would try to scare Mark when he was young, but it never worked, because Bill would soon break into a grin and lift Mark high in the air, higher than anyone else in the family could raise him. Then he’d laugh and give Mark a big hug. He’d talk boring adult talk to Mark’s parents, but he’d also always turn to his nephew and pay special attention just to him. He had an intense interest in Mark’s life, and there was something about him that made Mark listen when he offered advice.

Sometimes, as Mark wandered around, playing in the dirt, other inmates would come up and talk to him directly—just him. These were scary, scarred, tattooed big-muscled men—at least they looked that way to Mark. But they all had the same message: They wanted Mark to know how much they loved Bill. They wanted to tell Mark what a great man he was, how he had changed their lives, how they would do anything for him.

Mark’s account meant the world to Ron, but finally, near 3
A.M.
, his eyes closed. Drained of all adrenaline, he more or less passed out.

*   *   *

Katie also stayed up late into the night, working at the Justice Project offices alongside Karen Killion, the two preparing for the hearing and fielding e-mails from Larry Hammond. For Katie, this was a world of unknown. Would they be asked questions? What should she say? How to get Robert Macumber’s new revelation about the fingerprint card stock before the board? At least they’d completed their memo in time, a huge accomplishment. And they had the whole family here, so unusual for this kind of situation.

“Wow,” she wrote in a final e-mail to the team. “It was great talking to Bill’s family. His overwhelming support will play a great role in tomorrow’s hearing, especially with his son, Ronald, making the trip at the last minute to be at the hearing.” She closed with a reminder: “The hearing is at ASPC Phoenix in the Alhambra Reception Unit at 8:30
A.M.
We will be there at 8
A.M.
”

At home that night, reading Katie’s message, Larry Hammond felt exhausted but exhilarated. A what-the-fuck moment indeed. He couldn’t wait for the morning.

CHAPTER 19

Clemency Hearing

MAY 2009

The Department of Corrections’ Alhambra Reception Center was a straight shot down Twenty-fourth Street from the Embassy Suites where Jackie Kelley and her daughter had spent the night, but they felt uncertain of their bearings, so wanted Larry Hammond to pick them up. Instead, after some negotiation, he drove to their hotel and led them down Twenty-fourth Street as they followed in their own car. That way, everyone could leave when they wanted.

At Van Buren, the two-car caravan turned right, then left into the Alhambra complex’s large gravel parking lot. A crowd had already gathered. From the Justice Project, Hammond saw Rich Robertson, Bob Bartels, Katie Puzauskas, Karen Killion, Sharon Sargent-Flack, Pete Rodriguez, Ty Jacobson, Donna Toland and Carrie Sperling. From Macumber’s family, besides Jackie and Robyn, he saw Robert and Mark Macumber, Harleen and Jay Brandon, Harleen’s brother Henry Sanger, and a tall, husky man who had to be Bill’s son Ron. There in the lot everyone greeted each other, Ron meeting not just the Justice Project team but Jackie Kelley for the first time.

Their dreary surroundings did not match this group’s air of hopefulness. The Alhambra complex, a spare one-story brick facility, stood adjacent to a state mental hospital, sharing the same grounds in a neighborhood of old motor hotels. After being sentenced, all state convicts initially came to this unit, where officials evaluated and assigned them a prison.

The Justice Project team entered the hearing room first. Inside, they found a cramped, uncomfortably spartan chamber, all cinder blocks and chicken wire. It reminded Rich of a bunker, while Larry thought of classrooms from his childhood in El Paso. The walls were bare, the floor tile. Up front, the five members of the Board of Executive Clemency—Duane Belcher, Tad Roberts, Marian Yim, Ellen Stenson and Olivia Meza—sat behind a long laminated undraped table, a tape recorder before them, a microphone off to their left. Then came four rows of standard stackable plastic chairs, facing the board members. The place looked and felt like what it was: a prison.

The first row held just three chairs. Bill Macumber was already sitting there, in the middle; he’d been brought in first, by himself, coming face-to-face with the board members as they introduced themselves. Now he rose to greet the Justice Project team. He wore, as always, the inmate’s bright orange jumpsuit. His hands and feet were shackled and tied into a belly cinch. He shuffled forward. At Hammond’s request, the officers took off his handcuffs, leaving the leg chains. Moments later, Macumber’s family members filed in. The Alhambra guards had emphatically warned that Bill could not touch or embrace them, but his eyes filled when he saw Ronnie—he hadn’t known his son would be there.

After exchanging a few words with his relatives, Macumber sat back down, with Bartels on his left, Hammond on his right. The others took their seats behind them, Ron choosing a chair in the middle of the second row, Jackie sitting between Katie and Robyn in the rear. Someone rushed for extra chairs to handle the overflow—they had twenty-two people crammed into this small chamber, including two Department of Corrections guards from Douglas, who stood against the side wall off to the right. Near the guards sat one woman the others didn’t know—a bystander likely there for a later hearing.

From his chair, Macumber could not see anyone in the room but the board members and his two lawyers, but he felt Ron’s eyes on his back, right behind him. Bill and his two guards had left the Mohave Unit in Douglas just after 4:00 that morning under still dark skies. He’d felt excited beyond words. Four hours of driving hadn’t diminished his emotions. Yet to others in the room, watching him, he seemed dazed—aged, quiet, slumped in his chair, as if worn out after all the years. On this morning, he listened more than he participated.

For a few moments, the board members studied the documents before them, provided by the Justice Project. Then the board’s chair and executive director, Duane Belcher, looked up at Bill. “Good morning, Mr. Macumber.”

“Good morning,” Bill replied.

“First off,” Belcher continued, “some information. You are serving a first degree murder conviction for life, and there is no possibility of parole on your sentencing structure, is that correct?”

“I believe it was called life without parole.”

“Life—life without parole. Okay. And that was how many years ago, when the crime was committed?”

“Well, the crime was committed in May 1962.”

Belcher turned through the pages of the Justice Project packet. The suggestion of a confession Bill had made to his wife stopped him. Belcher wanted to identify right off what they had here. “Okay now, with all the records we have.… You are professing your innocence in this matter?”

“From day one,” Macumber said.

“From day one. Okay. And is that—is that still your statement?”

“It is forever.”

*   *   *

The Justice Project’s ten-page Phase II memorandum, sitting on the table in front of each board member, provided the road map to what would follow. Here the project team once again offered up its narrative about the Macumber case, this version more detailed and comprehensive than ever before. From an overview of the case, focusing on the handkerchief, thatch of human hair, tire tracks, shell casings and latent fingerprints, the memo moved to Primrose and Valenzuela and the confessions heard by Tom O’Toole. Then to Carol Macumber’s statement, Carol who “certainly had motive to lie,” Carol who “apparently suspected nothing” until after the couple’s estrangement in the spring of 1974. The first trial, with a conviction based on an alleged “confession 12 years after the crime, a partial fingerprint and ejector markings on a bullet casing.” The second trial, where, “despite Valenzuela’s confessions to a cellmate, to his two attorneys and to a psychiatrist, the trial court refused to permit the defense to present evidence.”

Midway through the memo, the Justice Project turned to its own involvement in the case since 2000. The missing sheriff’s reports and empty evidence locker its staff had found. A ballistics comparison based solely on ejector marks. Fingerprint evidence full of questions “about Carol’s role” and whether Latent Lift 1 was in fact the Lift 1 taken by Jerry Jacka on May 24, 1962. Carol and Bill’s marital difficulties, Carol reporting the “alleged confession” during the divorce and custody proceedings, “at a time when she potentially stood to reap personal gain.” Carol’s access to the files and evidence, Carol’s classroom training in lifting latent prints. The missing sources of potential DNA evidence—the handkerchief and the all-important thatch of hair. The lack of any motive—the murders a “drug deal gone south” and Bill with “absolutely no history of drug use or drug dealing.”

Next the memo moved on to Macumber’s personal accomplishments, his history of prison and community service, his role as an educator and author, his exemplary disciplinary record. His declining medical condition. His plans upon release—with no less than four families offering to take him in, all present at this hearing.

On these last matters, Bill’s record and prospects, the project team sought to hang the case, still regarding an actual innocence claim as beyond the board’s reach. “Respectfully, we urge the Board to conclude that commutation is warranted based on his exemplary record alone. We may all remain haunted by the injustice that may have been done to him, but we know that this Board cannot retry his case. Restoring him to liberty is a step toward justice that we hope the State of Arizona will take based on who this man is today.”

In truth, Duane Belcher, at least, sounded perfectly willing to consider an actual innocence claim, even though the board could not “retry” Macumber’s case. “Let me just explain a little bit about the commutation process…” he said, addressing Macumber. “Basically, the standard is, it’s a mercy and grace issue, but the Board is looking at some specific things. The Board is looking at whether or not, number one, is the sentence … proportionate to the crime that was committed? We understand your statement to the Board that you’re innocent of the crime, and that is perfectly a stand that you can take for this particular process. So, we’d look at—we’d look at, is the sentence clearly excessive? Now, obviously, if it’s true that you’re innocent, then one day in jail was clearly excessive.” That was one of two chief factors the board considered. The other: “Would a person be law abiding should the sentence be commuted.”
Clearly excessive
and
law abiding
—that’s what the board needed to see, needed to find.

Hammond deftly responded. Bill was an “old-code lifer,” he pointed out, not eligible for parole. Those convicted of first-degree murder under the newer code have generally been eligible for parole after twenty-five years. Only thirty-seven prisoners sentenced under the “no-parole old-code” policy remained in the state prison system. The board members well understood Hammond’s point: This disparity could be a factor in determining if Macumber’s sentence was “excessive” in relation to other cases.

Standing before the board, Hammond prepared to offer his opening comments. Normally he and Bartels let the students present, but for this hearing, they’d decided to do the talking themselves and have the students learn by watching. Staying true to their natures, Larry would go first, handling the emotional dimension; then Bob would follow with the facts and their investigation. Hammond began by introducing not only Macumber’s relatives but also the entire Justice Project team, one by one, the volunteers reaching back to 2000, this being “one of the great glories to us in this project, that people who start, students have stayed with us.” Larry here aimed not just to give his colleagues their due—more important, he wanted to underscore the project’s decade-long commitment to Macumber.
Every person who touched this case can’t let go
, he’d told the board at the Phase I hearing. Now he wanted the board to see these people.

Hammond next invoked Thomas O’Toole, so respected by the board members: “We have gone back to Judge O’Toole and he has very thoughtfully given us an affidavit, which we attached to the memorandum you all received this morning. I think it is very clear—and you all know Judge O’Toole—he was on the Superior Court bench here for 24 years and was presiding criminal judge several times—but he continues to feel very strongly that his former now deceased client, Ernest Valenzuela, was telling him the truth.… He believed it then and he believes it now, and he so stated in his affidavit.”

Then Hammond sounded his most fundamental theme about this proceeding and Macumber’s case: “I want to observe the challenge that Bill has and that we have in these cases. DNA has changed the face of the way people look at criminal justice in America, and we understand that and we are deeply invested in cases where there is biological evidence.” But unlike Barry Scheck’s nationally famous Innocence Project, the Arizona Justice Project also took on cases that lacked DNA evidence—such as Macumber’s. “Because of the age of this case, and because of the loss of evidence over the years … whatever biological evidence [there] might have been … is long gone. And so we don’t have the ability to look to biological evidence, and it has made our job over the last nine years a much more difficult one.” This constituted one reason why they were so sincerely “grateful to have an opportunity to be heard by you.” For the many people “who don’t have the benefit of DNA, there’s no place else to even be heard.”

*   *   *

Bob Bartels followed, laying out the facts of the case and the Justice Project’s investigation, underscoring and expanding on the first six pages of the memorandum. The prints, the ejector markings, Carol’s statement—but now he added a claim not explicitly stated in the memo: That Carol “had been under investigation at that point for impropriety … that she had been involved in inappropriate relationships with a number of people in the Maricopa County Sheriff’s Office … and this is something that we actually were able to confirm.” He also added that “at least two family members, including her son Ronald, believe that she was capable of falsely accusing Bill of murder.” And “one of the details in Carol’s story”—that Bill said “he was acting under orders from the Army CID”—is “very similar to some information in a report in the Sheriff’s file about another person.”