Manifest Injustice (11 page)

Macumber’s last entry in his journal came the next evening: “Very little happened in court today.… The judge decided to recess until tomorrow morning when the final arguments will be made.… When that is done the jury will then deliberate until they arrive at a verdict. I can only pray to God it will be not guilty.”

His prayers went unanswered. Two days later, on Friday, January 24, 1975, the jury returned its verdict: guilty on two counts of first-degree murder.

CHAPTER 8

Civilly Dead

FEBRUARY 1975–DECEMBER 1976

Bill Macumber’s trial occurred during a four-year moratorium on the death penalty brought about by the 1972 U.S. Supreme Court opinion in
Furman v. Georgia,
which declared that the “arbitrary and inconsistent imposition of the death penalty” violated the Eighth and Fourteenth Amendments. So on February 18 Judge Hardy sentenced Macumber to life in prison, under circumstances that essentially meant no possibility of parole. Authorities revoked Macumber’s bail and returned him to the Maricopa County Jail. There he wrote two letters to a local newspaper. “Myself, my wife and my God are the only ones that know … beyond any doubt that I am innocent…,” he began the first one. He continued:

The jury convicted me because of the evidence that they were permitted to hear. I believe with all my heart that had they been allowed to hear the rest of the evidence, I would have been found not guilty. The evidence that we want to present in our defense was not circumstantial. It was hard facts with all of the necessary supportive information. It consists of a confession of the real killer made not to one but to two reliable and responsible attorneys. We were also ready to present evidence the casings found at the murder scene were not and could not have been fired from my gun. None of this evidence was allowed to go to the jury.…

I pray to God that those of you who believe in me will not let this end here. For the first time in my life, I am asking for help. Please write to the media and to those who can help change this terrible mistake.

In his second letter, he expanded on this theme:

Each and every one of us are guaranteed by our Constitution the right to trial by jury and the right to face and confront our accusers. This does not merely mean a face-to-face confrontation, but also to present evidence in our own behalf which may first create a question as to the accuracy of our accusers’ evidence altogether.…

I am behind bars because I was denied the right to face my accusers and present evidence that would have proven my innocence and let me return to my home and my sons.… What has happened to me can happen to any man or woman in this land.… It is the people who have the power to right the wrongs and correct the inequities. That is why I am writing this.… I’m not asking you to believe in my innocence but I am asking you to help me so that I might have a chance to present my evidence—all the evidence—to a jury.… You will be helping me but more importantly you will be helping yourselves by standing up and protecting your rights and privileges as an American citizen.

In a presentencing report, a county probation officer had seen matters differently. Relying on the sheriff’s accounts, Basil Wiederkehr thought the evidence “overwhelming,” Macumber “guilty beyond a doubt.” From what Ed Calles told him, he also thought “no possibility of a frame-up exists.” Yet Wiederkehr remained puzzled: “The difficult part of this whole affair is trying to determine a motive for the crime.” Robbery or an intended sexual attack seemed unlikely. Macumber “gives the impression of being a calm, composed, articulate, sane person.” His parents, Wiederkehr noted, insist that he has always been so, and his neighbors and colleagues confirm this. Still—Carol had advised Wiederkehr that Bill possessed “a very violent temper” and “told crazy stories about being an executioner for the Army’s C.I.D.” So perhaps Macumber “just acted out the policeman and executioner roles that he used to talk about.” Perhaps he even suffered “temporary insanity” at the time. Perhaps the victims annoyed him in some way and his “violent temper” erupted.

The probation officer relied on Carol’s characterizations throughout his report. To keep her, she’d advised Wiederkehr, Bill had also threatened suicide and claimed he had cancer. Then he’d staged that shot through the kitchen window—to her, the final straw. At the time, she didn’t believe him truly guilty. She was just annoyed, thinking he was trying to frame her, so she’d gone to the authorities. “She pointed out that she has suffered greatly from the whole affair,” Wiederkehr wrote, “and would be much better off if she had never told. For example, she had moved into an apartment and was having the time of her life. Now she is back at home with her three sons and is not earning enough money to support them.”

*   *   *

In late February, authorities transported Macumber from the county jail to the state prison at Florence. He heard threats and catcalls from inmates as soon as he passed through the gates, the price paid for his connection to the Maricopa County sheriff’s department. His second day there, two inmates jumped and pummeled him at a blind spot near the stairs to the second tier. The next morning, two other inmates stopped by his cell to demand protection payments. He couldn’t and wouldn’t pay, so he got beaten again. He had blood in his urine now, and pain in his ribs when he breathed deeply. The warden summoned him, demanding to know who’d attacked him, growing angry when Macumber couldn’t provide names. Eventually, the warden ordered him into administrative segregation, a form of isolation that Macumber found unpleasant. He had a cell to himself, but he could leave it only twice a week, for a five-minute shower. He ate his three daily meals alone in his cell. He felt like a pariah.

*   *   *

In early March, Carol’s attorney filed a motion for summary judgment in the divorce proceedings, which apart from division of property had involved the issue of custody and visitation. There remained nothing to contest, Carol argued, for Bill, “being civilly dead,” had no standing to appear or oppose her requests.
Civilly dead—
that was the legal term applied in such proceedings to one convicted of murder and sentenced to life in prison. Bill Macumber “is in fact for these proceedings dead,” Carol’s petition declared. “He has no standing to object to the motion.”

But Judge Ed Hughes wasn’t inclined to declare him dead, as Macumber’s conviction might be “revisited” down the road. In fact, Judge Hughes was willing to consider Bill’s request for visitation rights—Macumber wanted his parents to bring his sons to the prison regularly. Judge Hughes thought the request “most unusual,” even unprecedented, “the only one I’ve ever had or ever heard of.” All the same, he noted, a convicted felon doesn’t lose all his “natural rights or property rights.” Before ruling about visitation or custody, Hughes wanted a report prepared by the Conciliation Court, a division of the Maricopa County Superior Court.

That report arrived on March 26, written by Conciliation Court counselor Pat Ferguson, who had interviewed Carol, Bill, the boys and a range of witnesses—neighbors, friends, colleagues and family members, twenty-six in all. “Most of the witnesses,” Ferguson reported, “were provided by Mr. Macumber. Mrs. Macumber gave counselor only three witnesses that were not members of her immediate family. Two of the witnesses counselor spoke to. The third did not keep his appointment, nor did he call. Due to the lack of impartial witnesses, many of Mrs. Macumber’s allegations regarding Mr. Macumber could not be verified.”

Carol’s allegations covered the gamut: Contact with Bill negatively affected her sons; Bill was mentally unstable; Bill had interest in hard-core pornography; Bill had taught the boys to hunt “for the love of killing.”

Should visitation be granted, Carol told Ferguson, she would have no choice but to leave the state with the boys. Carol wanted Ferguson to know that she, “tired of being the bad guy,” had called an
Arizona Republic
newspaper reporter to give her side of the custody-visitation issue (“Involvement Costly Macumber’s Wife Says,” read the resulting headline. “‘I’m Fighting for My Kids’”). She’d learned from the reporter that Judge Hughes was saying she “runs around with a lot of men.” How, Carol asked Ferguson, could the judge have this information?

“Counselor told her that this appeared to be very common knowledge,” Ferguson wrote in her report, “that many people had made the same statement unsolicited.… Many witnesses made comments regarding a number of men in connection with Mrs. Macumber. Neighbors report that there are three or four men who commonly visit Mrs. Macumber’s house in the evening.… It is apparent that there is much negative feeling about Mrs. Macumber in the neighborhood.”

During her investigation, Ferguson heard allegations that Carol left the boys alone for long periods of time while she rode patrol with the deputies. Ferguson also heard the three boys express “a great desire” to visit with their father. She added, “Not seeing him is apparently very distressing to all of them.… It is apparent that in the past, Mr. Macumber was the major parental figure for the boys. Witnesses state that they spent many hours together and seem to be very devoted.… [Carol] does confirm that when she and Mr. Macumber had agreed to divorce, she had agreed to give him custody of the children.”

Ferguson’s conclusion: “It is recommended that the three minor children be allowed to visit Mr. Macumber at the Arizona State Prison according to prison regulations.… It is further recommended that the paternal grandfather, Mr. Harold Macumber, be afforded weekly visitation on a one day per week basis.” Ferguson also recommended that the three children be afforded counseling “in order to vent their feelings and thoughts to an unbiased, noninvolved individual.”

Judge Hughes, accepting Ferguson’s first recommendation, granted Macumber visitation rights. One day in April 1975, Bill’s parents brought two of his sons, Steve and Ronnie, to the state prison. This would be the boys’ one and only visit. True to her word, Carol soon after packed up the family and moved to Colorado. Bill kept writing letters to his boys, more than fifty in all, but the post office returned each one unopened. He lost all contact with his sons after the spring of 1975. Scott was twelve then, Steve ten, Ronnie seven.

*   *   *

Later that year, Macumber left administrative segregation only to find himself in a block with considerably smaller cells. He had a cellmate now, a youth of about twenty, half Bill’s age, and obviously afraid of him. It took Macumber several weeks to assure the boy that he meant him no harm.

Weeks turned into months. In Phoenix, the local newspaper coverage had given way to more extended magazine articles, summing up the case that finally appeared to be closed. In these narratives, reporters cast the sheriff’s officers as heroes and reconstructed how deputies diligently pursued thousands of leads, never giving up, never doubting they would capture the killer. The young prosecutor Tom Henze also drew favorable attention, yet he soon left his job for a new one. During Macumber’s trial, he’d socialized with Jim Kemper at times, having a drink with the defense attorney after a day in the courtroom—the legal profession, in Phoenix at least, being more civil back then. Kemper had a small two-lawyer practice. If you ever want to join us, he told Henze, if you ever want to switch sides, let us know.

In December 1975, less than a year after Macumber’s trial ended, Henze decided to accept this offer. The prosecutor became a defense lawyer in Kemper’s law firm. A month later, sitting at his desk there, he heard Jim Kemper bang on the wall. It was January 13, 1976. Kemper came running into Henze’s office, waving a piece of paper. “I told you,” he shouted. “All because of that stupid move you made. I told you!”

The Arizona Supreme Court that day had reversed Bill Macumber’s conviction, ruling that Judge Hardy should have allowed the defense’s ballistics expert, Charles Byers, to testify. It was Henze who’d challenged Byers, Henze who’d persuaded Hardy to bar his testimony. At the time, Kemper had told Henze,
If he’s convicted, this case is coming back for that
. Kemper, who’d filed the appeal, had been proven right.

The Arizona Supreme Court had almost reversed for another reason, as well: Judge Hardy’s decision to bar Tom O’Toole’s and Ron Petica’s testimony about Valenzuela’s confession. In a close, conflicted vote, the justices split three to two on that issue. The majority sided with Judge Hardy, concluding that the attorney-client privilege survives death and can be waived only by the client or “someone authorized by law to do so on his behalf.” The two other justices filed a separate concurring opinion, agreeing with the reversal but saying they would have also reversed because of the refusal to admit Valenzuela’s confession.

Justice William Holohan, who wrote this concurring opinion, relied heavily on a landmark 1973 U.S. Supreme Court decision,
Chambers v. Mississippi
.
Chambers
would forever hover over the Macumber case, for it concerned third-party culpability—someone other than the defendant confessing to a crime. In Mississippi, Leon Chambers had been convicted of murdering a cop, though another man had confessed three times to three separate people—people who were not allowed to testify at Chambers’s trial. The Supreme Court’s decision reversing Chambers’s conviction, authored by Justice Lewis Powell, ruled that the exclusion of testimony about another party committing the crimes had denied Chambers his fundamental due process rights under the Fourteenth Amendment. Arizona Justice Project founder Larry Hammond, as it happened, had been Powell’s law clerk at the time—and Powell had invited him to write an initial draft. Hammond, just twenty-seven then, would come to regard
Chambers v. Mississippi
as the most important case he ever worked on. “
Chambers
is my life,” he told people in later years, while poring over the Macumber file with his Justice Project team.

Justice Holohan recognized the
Chambers
issues being replayed in
Macumber
. Boisterous in person but spare in his judicial writings, he had picked up the nickname “Wild Bill” during his years on the bench. Legal observers considered him the court’s most conservative member, a hard-line advocate on criminal appeals, yet now he wrote eloquently on behalf of Macumber’s cause. The United States Supreme Court in
Chambers
, Holohan pointed out, “has ruled that it is a violation of due process” for a state to bar “reliable hearsay declarations against penal interest when such evidence is offered to show the innocence of an accused.” Yes, the attorney-client privilege has been held to survive the death of the client, but “the real problem is whether the privilege can survive the constitutional test of due process.” Holohan noted that an accused has the basic right to present a defense to a criminal charge. “The problem of balancing competing interests, privilege versus a proper defense, is a difficult one, but the balance always weighs in favor of achieving a fair determination of the case,” he wrote. Again he cited
Chambers
: “A state’s rules of evidence cannot deny an accused’s right to present a proper defense.”