Manifest Injustice (12 page)

Holohan’s conclusion: “When the client died there was no chance of prosecution for other crimes, and any privilege is merely a matter of property interest. Opposed to the property interest of the deceased client is the vital interest of the accused in this case in defending himself against the charge of first degree murder. When the interests are weighed, I believe that the constitutional right of the accused to present a defense should prevail over the property interest of a deceased client.… I would allow the defendant to offer the testimony of the attorneys concerning the confession of their deceased client.”

*   *   *

Bill Macumber first learned of the Arizona Supreme Court’s reversal while sitting in the crowded cell at Florence he’d now shared with another inmate for eight months. Some other prisoners along their hallway had television sets. Hearing reports on the news shows, they began calling out:
You got returned.… You got returned
. Macumber had not expected this, despite Jim Kemper’s assurances that they would appeal. Waves of joy and relief lifted him. Maybe, he allowed himself to think, this would work out.

Carol Macumber heard the news in Colorado when a local Phoenix reporter called her. “Oh God,” she exclaimed. “He’s not getting out, is he?… I’m terribly frightened.” The resulting story in the
Phoenix Gazette
the next day used that line as its headline and continued to quote Carol, who again wanted to tell her side because she was “tired of being the baddie.” If Bill gets out, she said, “we’ll spend the rest of our lives running. I’m just that scared. From what I’ve heard from people who had contact with him in prison he’s just gone completely off his rocker.… I’m practically in shock.… If he gets out I’m heading for the hills.”

Authorities soon returned Bill Macumber to the Maricopa County Jail. There he found out he’d be represented at his second trial by the Maricopa County public defender’s office, since the Macumber family had no money for a private attorney. (Jim Kemper couldn’t continue anyway, with Tom Henze now his partner.) At least he’d have a top man in the PD’s office, deputy public defender Bedford Douglass, considered one of the best in the state. When they met for the first time, Douglass offered neither high hopes nor pessimistic predictions. He would do his best to help him, he told Macumber. Okay, Bill reasoned. He could not ask for more than that.

His father and brother came to visit, too. They had already started working on his bail. If the judge approved release on bond, they felt certain they could raise the amount needed. Bill asked his father if he’d heard anything from the boys. Harold knew only that they were in Colorado, where Carol worked for a sheriff’s department. Bill’s divorce attorney, John Thomas, was trying to track them down.

At a hearing on February 19, a magistrate approved Macumber’s release on bail, setting bond at $69,000. Again relatives and neighbors put up their houses as collateral. This time the process moved quickly; Bill was out by the end of the month, back home with his parents. After a full year in the state prison, it took him several weeks to adjust. His family worked hard to keep him busy, to keep his mind occupied with matters other than the upcoming trial. They bought a gem-cutting outfit and set it up in Harold’s storage shed. Bill spent hours there, carving objects he then sold—his only income. He and his dad played golf twice a week. He went fishing often with both of his parents. He fielded regular invitations to visit the Bridgewaters and other good friends.

He also met periodically with Bedford Douglass. The public defender was quite candid. We have a difficult road ahead of us, he told Macumber, but not an impossible road. He planned to make every effort to get Valenzuela’s confession introduced. If that could be accomplished, he said, “it would help us tremendously.”

The weeks and months passed, Macumber living at his parents’ home for almost all of 1976, once again sleeping on the foldout couch in their small living room. Having no contact with his boys weighed on him, his returned letters to them a huge disappointment. He fought nervous spells and depression, swinging from moments of joy to much darker depths. Yet he felt he had a better grip on reality now than during his first time out on bail—he no longer lived in a dream world. He hoped for the best but expected nothing.

CHAPTER 9

Return to the Courtroom

DECEMBER 1976–APRIL 1977

In early meetings with his new client, Bedford Douglass found Bill Macumber to be an unusual person, quite unlike most he represented as a Maricopa County public defender. The man he came to know was intelligent, thoughtful, engaged, wry and accomplished—not the type you’d think would commit two brutal, random murders. In his line of work, Douglass tried not to make such intuitive judgments, for he had to defend all clients to the best of his ability. His belief about guilt or innocence, if he had one, would just get in the way, making his judgments subjective and his case less convincing. All that said, Douglass believed Macumber innocent. This forever remained his unqualified position. The state’s only suggested motive—Macumber playing out a one-time posse-authority-figure fantasy—seemed quite unlikely. And never before or after, just that one night?

Yet Douglass knew that, on its face, the state’s case was strong: the palm print, the ejector marks, and Carol’s statement. He weighed how to counter. He was aware that Carol had close relationships with various sheriff’s deputies, including Ed Calles, who’d conducted the investigation and signed the murder complaint. He also knew that she’d had access to the print and shell evidence, as well as to Bill’s gun. He’d heard about various irregularities generally in the sheriff’s department. All that suggested to Douglass a conspiracy of some sort. They would have to push that theme; they would have to try to prove a frame-up. At the least, they would have to discredit Carol, to show she had motivation to lie. They also would have to suggest that someone else committed the murders—so they had to get Valenzuela’s confession admitted. Those would be the two pillars of the defense: fight for Valenzuela’s confession; directly attack Carol, Ed Calles and the Maricopa County Sheriff’s Office.

*   *   *

Bill Macumber’s second trial began on December 13, 1976, in a capacious second-floor courtroom in the Maricopa County Old Courthouse, which stood on Washington Street just south of the East Court Building. Unlike the compact, modern chamber that housed the first trial, this one, built in the 1920s and never refurbished, featured a gracious if shabby older style, with wood paneling, carved posts and windows giving onto the street. This time, Maricopa County was paying all the attorneys: for the state, Deputy County Attorney Larry Turoff; for the defense, Bedford Douglass and Paul Prato. Judge Robert Corcoran presided.

Newly appointed to the bench just months before, Corcoran had progressive roots as a lawyer. Besides several blue-chip law firms, he’d worked with the ACLU in Arizona, including a stint on the landmark
Miranda
case. He had his admirers, who appreciated his “understanding heart” and his firm belief in the role and rule of law in society. Yet there were those who thought Corcoran full of himself and abundantly ambitious. He could be intense and excitable, and he wrote long, heavily explanatory opinions. At age forty-two—one year older than Macumber—Corcoran plainly wanted to rise in the judiciary.

Bedford Douglass, thirty-three then, came from different roots. Born in Mesa, a small community just outside Phoenix, he’d grown up mostly among Mormons. His mother, a Mormon, was deeply conservative religiously and culturally. As a teenager, Douglass had an interest in the conservative politics of Barry Goldwater and William Buckley. Yet he had never been keen on authority and came to dislike both hypocritical politicians and judges who misused power. Over time, he grew more liberal, in part because of his work as a criminal defense attorney. Seeing how the state could abuse its powers, he developed a healthy regard for civil liberties and protections.

Tall and thin, with a polio-crippled left arm in a black sling, Douglass projected a kind of Lincolnesque aura in the courtroom, his manner before Judge Corcoran relentless and unflappable. With an excitable, ambitious judge and a persistently deadpan defense attorney, conflict seemed inevitable.

*   *   *

The state’s case followed much the same path as at the first trial, depending on testimony from a long, by now familiar lineup of investigators and forensic experts. For six days they paraded to the witness stand, building an effective case, though on cross-examination Bedford Douglass managed to land some punches not made in the first trial. Under his questioning, Deputies Richard Diehl and Ed Calles again seemed to suffer memory lapses. On the witness stand, Diehl couldn’t remember Bill ever denying that he’d committed the murders. Nor could Ed Calles. Calles also didn’t remember how he’d come to know Carol Macumber. He “guessed” that he met her “sometime in 1973” when she arrived at the sheriff’s department as a clerk in the ID section, before transferring to the detectives detail he supervised. He didn’t recall knowing her before she became an employee at the sheriff’s department. He didn’t recall taking classes with her at Glendale Community College. He didn’t recall serving as a reference when she applied for a job at the department. He didn’t recall telling the department back then, in January 1973, that he had been “acquainted with Mrs. Macumber now for three semesters.”

But all this was merely prelude to the main show: the battle over whether Judge Corcoran would allow the jury to hear about Ernest Valenzuela’s confession. On the afternoon of December 21, Bedford Douglass finally threw down the gauntlet, asking permission to present an offer of proof at an evidentiary hearing, without the jury present. He had Tom O’Toole and Ron Petica, among others, waiting to testify.

The prosecutor jumped up to object. He did not want Valenzuela in this trial. “If the Court please,” Larry Turoff said, “I think there should be no hearing whatsoever. This matter has already been resolved by the Supreme Court in the appeal of this case, and this is the law of the case. The Justices stated that testimony that [Douglass] now intends to attempt to introduce through these witnesses cannot be introduced, and that was the majority opinion in this case. And I might indicate to the Court that the three Justices who wrote that decision or concurred in that opinion are still sitting on the Supreme Court.”

Douglass had an answer to that: The Arizona Supreme Court, in reversing Macumber’s conviction, said the attorney-client privilege could be waived only by the client or “someone authorized by law to do so on his behalf.” They now had such a person: Valenzuela’s mother.

Thomas O’Toole, working with Douglass, had sent an investigator in search of her. They’d finally located Nina Reems in a rest home on the Salt River Pima-Maricopa Indian Reservation, at sixty-two already an aged, worn-down woman. They’d told her of Bill Macumber’s arrest, her son’s confession and their need for her waiver. She’d listened, then agreed to help. In mid-December, in the presence of her daughter and the rest home’s director of nurses, she had signed a notarized affidavit.

“If the Court please,” Douglass said, “we plan to present Mrs. Reems, the mother of Ernest Valenzuela, who will waive the privilege if there was one.”

“How did this proceed at the last trial?” Judge Corcoran asked. “Did it go by testimony or simply an offer of proof [in chambers]?”

“There was an offer of proof, Your Honor. No testimony.”

Corcoran knew little of the matter at this point—the Arizona Supreme Court’s opinion the previous January hadn’t set out the facts. His own experience, he now told Douglass and Turoff, “is that offers of proof often exceed by a wide margin the facts that they are based upon.” But he felt that “the Court should have a full hearing,” because “should the defendant be convicted there will be an appeal … and there will be no evidence on record relating to exactly what happened.” He wanted a hearing “so that a record can be made” for the appeal, a record based on “the facts of this case rather than an offer of proof by an attorney.”

Corcoran clearly wanted to avoid another reversal. He knew well that the Arizona Supreme Court had split three to two over admitting Valenzuela’s confession. The switch of a single vote the next time Macumber came before that court could result in yet another reversal if Corcoran didn’t at least allow a hearing. He made this plain: “The additional reason I have for having a hearing,” he told the lawyers, “is that the Supreme Court decision is three to two.” Witnesses’ testimony should be preserved “in the event that a reversal of their decision should come about in the Arizona Supreme Court”—or in case “a federal court would take a different position relying on
Chambers v. Mississippi
, decided by the US Supreme Court in 1973.” Here was Larry Hammond’s handiwork once again, “the most important case” he’d ever worked on.

*   *   *

Bedford Douglass began the evidentiary hearing by calling Thomas O’Toole, but Turoff objected before O’Toole could even state his name, arguing that this witness could not be called, could not testify. So at Corcoran’s suggestion, O’Toole stepped down and Nina Reems instead took the witness stand. Ernest Valenzuela’s mother wept and struggled with language issues, not making much sense, until Corcoran assumed the questioning. Slowly, he explained the situation to her, as if for the first time. Because her son “may have done something for which another man is charged,” he asked, can the lawyers who represented him “tell us what your son said? Would you permit them to do that?”

“Yes,” Nina Reems replied.

On came the witnesses. Bedford Douglass, deciding to hold O’Toole back for a moment, first called Maier Tuchler, the psychiatrist who’d seen Valenzuela in 1964. Douglass gambled here, for Tuchler was well known among lawyers (Douglass, Prato and O’Toole included) as a “prosecution whore,” a professional witness for the state, always aware of who paid his bills. Yet Tuchler had heard Valenzuela confess, so Douglass wanted him in the record. At first, the gamble appeared to pay off. Yes, Tuchler testified, he’d heard Valenzuela confess, and yes, he’d thought him “exceedingly dangerous.” On cross-examination, though, Tuchler, guided by the prosecutor, said he basically didn’t believe Valenzuela. Valenzuela spoke in a “dreamy” and “vague” way, a detached drawl that “appeared to be almost unreal.” Tuchler thought he was out for recognition, parroting what he’d read in the newspapers. No, Tuchler did not think Valenzuela had actually committed the murders.