Manifest Injustice (22 page)

The next day, Robertson talked by phone to Linda Primrose’s identical twin sister, Glenda King, living in Houston. Glenda told him she’d been “terrified” by Linda’s statements back in 1962, partly because the cops had “pestered” her about her sister and partly because she feared someone coming after Linda might get her instead. But bottom line, she had not believed Linda then and didn’t now. She thought her sister had made up the story to embarrass her abusive stepfather, a top executive at Mountain States Telephone, where the two victims worked. Linda, she reported, had a history of weaving “outlandish and detailed lies.” Everything Linda did from age thirteen to twenty came out of her desire to get even with her parents for all the abuse.

Robertson’s next phone call proved more supportive of Terman’s narrative—and Dave Brewer’s statement. On June 2, he made preliminary contact with former sheriff Paul Blubaum, then living in Grangeville, Idaho. Blubaum was fuzzy on some details, but he did clearly recall that Carol Macumber had been investigated around then for having sexual relations with officers. Carol, attending class with reserve officers from all around the state, “was taking up with them after the classes,” Robertson wrote in a report to Hammond and Terman. “Blubaum doesn’t recall any formal discipline, but he remembers banning Carol from all training classes and ride-alongs with officers. He says Carol hired a lawyer who tried to get the decision reversed, but Blubaum says he stuck to it.” Robertson suggested that Terman follow with his own phone call, “now that we’ve got him thinking about the case again.”

Five days later, Terman did so. In this conversation the former sheriff remembered more, remembered particularly that control over evidence had been loose; he recalled hearing about the evidence being kept in Roger Hart’s unlocked desk drawer. And he confirmed what he’d told Rich days before about Carol. “Yes, he remembers she was being investigated for sex activities with sheriffs from various counties,” Terman reported. “She was found guilty apparently and her sanction was that she was suspended from the ride-along program, and suspended from attending classes at the Sheriff’s Academy, and some other penalties like leave without pay.… Yes, they did have records kept of internal investigations but he has no idea if they would still be around. He does not remember any pressure being put on him directly from her to trade tapes to keep her job. But he does not rule out that this could have happened. He was particularly displeased that Carol would have hired an attorney to try and keep him from implementing any sanctions against her.”

Blubaum repeated to Terman another memory he’d shared with Rich Robertson days before: that Macumber had been mentioned as a possible suspect during the initial 1962 investigation, that Jerry Hill had in fact asked Macumber to bring in his .45 pistol for testing. Terman thought this quite odd, since he’d seen nothing at all about it in the records. He thought it odder still when Blubaum recalled that at one time Macumber “had worked with” the two victims—something Terman knew to be untrue. Terman concluded that Blubaum “may have been kept out of the loop on this case.” In fact, Blubaum allowed as much to him in their conversation. He’d become sheriff, he told Terman, just after a new law placed the sheriff’s department into civil service. That meant he could hire and fire only two people himself: his secretary and his deputy chief. All others were grandfathered in, and Blubaum couldn’t touch them. “This led me to ask whether he felt he was really knowledgeable about what went on in his office and he told me he wasn’t,” Terman reported. “He said it was very probable that underlings could have kept info from him (such as the threats made by Carol Macumber to keep her job).”

Terman’s to-do list now included eight items, among them “find the internal investigative file on Carol Macumber.” He knew that the defense had futilely looked for it during Bill’s second trial, that without it Bedford Douglass could only “allude” to certain matters. This file, Terman believed, would “confirm that Carol had an incentive to take action on her behalf to get out of trouble.” Equally important to him was the physical evidence. His last item, No. 8, remained as always: “Find the crime scene photos, fingerprint lifts, gun casings, etc. from this case.”

Larry Hammond thought this report “very interesting.” He suggested that of the tasks on Terman’s list, “the most telling may be No. 8.” As intriguing as Carol’s activities might be, and the whole Valenzuela-Primrose angle, “the physical evidence will make the most difference here.” They needed a gateway into the appellate legal system, and actual innocence wasn’t enough; they needed rights denied or new evidence that would sway a jury. So often, that sort of new evidence involved the ever-evolving forensic sciences—Hammond had seen as much in his successful fight to overturn the Knapp and Girdler arson convictions. Alas, Hammond himself could not assist directly just then. He was burdened by his own legal work and preparing to leave that August on a five-month sabbatical. “I wish I had time to help in some meaningful way,” he wrote Terman and Robertson, “but life is a total blur these days.”

*   *   *

Rich Robertson—like Terman, working pro bono—kept going. In June 2000, he vainly combed through superior court and sheriff’s department records, searching for physical evidence. He wrote reports about what had gone missing. Then, on June 12, he made what would be a pivotal phone call. He’d recognized the name of the sheriff’s deputy who’d lifted the prints in 1962, for Jerry Jacka was now one of the most widely published photographers in the southwestern United States. Robertson had interviewed him while preparing a big report for the
Arizona Republic
on the theft of artifacts from Indian reservations—Jacka’s specialties included photographing such artifacts for
Arizona Highways
and dozens of other magazines. Robertson had been to Jacka’s Phoenix home and had spent time there with him, so he knew Jacka was a pack rat; he also knew that most cops liked to keep souvenirs. Robertson called him. Jerry, he asked, do you remember this case? By some chance, did you keep anything? Do you have a file on this?

Yes, Jacka recalled the case, but he had no idea if he had anything. Just then he was packing up, preparing to move eventually to a new home three hours north of Phoenix. He’d keep an eye out for a file, he promised. If he found it, he’d let Rich know. Robertson hung up feeling satisfied: He’d planted a seed.

Robertson also managed to locate Carol’s old roommate, Frieda Kennedy, even though he didn’t know her married name. He called the personnel department at the Maricopa County Sheriff’s Office. Someone—it must have been a new clerk—gave him Frieda’s Social Security number and date of birth. He asked, the clerk gave—simple as that. You create your own luck, Robertson reminded himself. You don’t edit your questions, you don’t rule on your own motions. He went to see Frieda with a fellow investigator, Hayden Williams, an ex-cop. She lived out in Buckeye, a sparse farming community west of Phoenix that the freeway had bypassed years before, leaving a downtown composed of a few dozen decaying buildings. Driving into Buckeye, Robertson felt as if he’d traveled back into the 1950s. Frieda’s house stood near the center of town, showing its age. They knocked on her door unannounced, with no call before—that would make it too easy to say no. She turned out to be nice and welcoming, letting them into a clean, homey living room, inviting them to sit down on a sofa covered with a blanket. They sank deep into that couch—the springs had given up long before. Hayden Williams did a double take: He realized now that he knew Frieda—she worked at the phone company with his wife, and they’d met a number of times at office parties. That connection helped break the ice. But in the end, Frieda remained evasive, denying knowledge of Carol’s affairs; she knew only of her going out for “coffee” with various deputies and officers. She did know Carol had access to evidence in the sheriff’s department. Nothing else. Robertson intended to return for another visit after she’d had time to think everything over. He never did, though. Why didn’t I, he wondered years later. Why didn’t I go back?

Of course, he knew why. In those days, he’d been trying to figure out how to make a living, how to blend journalism and private investigation into a paying job. So he was always scrambling. He’d just started out as an investigator and had no staff, no income. Working the Macumber case pro bono for the Justice Project took him away from paying jobs. He regretted this limit. He felt he could have done more, found more, helped Bill Macumber more. He didn’t do all he could. But at least he shook the tree. When you shake trees, he reminded himself, you get fruit eventually. So much of investigating was serendipity.

*   *   *

In the summer of 2000, Earl Terman’s efforts on behalf of Macumber also began to stall, as the Justice Project’s dependence on unpaid volunteers took its toll. He’d grown increasingly convinced of Macumber’s innocence. Yet on August 16, in a status memo to the Macumber file, Terman reported that “there has been little activity over the past three months.” He’d learned nothing to rule out Valenzuela as the prime suspect, but he hadn’t received all the records he wanted from the Federal Bureau of Prisons and the federal public defender’s office. He and Rich Robertson intended to revisit Linda Primrose’s relatives and try to see her scrapbook, but they hadn’t yet done so. Although he’d discovered Carol Macumber’s whereabouts, he wasn’t “ready to confront her.” His search for Primrose’s companion Terry continued; following a lead from Dave Brewer, he now awaited a call back from an Indian reservation law enforcement official who might know her. He was also on the trail of a former deputy, Major Love, who’d apparently conducted the internal affairs investigation of Carol. He still needed to contact Ron Petica. Ditto for Ernie’s old cellmate, Richard Green; Deputy Charles Ford, who’d made the palm print match; Officer Joe Rieger, who’d investigated the kitchen-window shooting; Sergeant Jerry Hill, the lead investigator; and Pat Ferguson, the Conciliation Court counselor. Terman also listed four men “alleged to have had an affair with Carol.” He hoped to talk with all of them.

On the day he wrote this memo, August 16, Terman met for two hours with Larry Hammond and Rich Robertson. Hammond was about to leave on his sabbatical from Osborn Maledon; he and his wife would spend the rest of the year traveling through Europe and the Middle East. He thought the Macumber case warranted more support now, particularly since he’d be away for five months. He wanted to hand the Macumber file to a team at the Arizona State University College of Law—a team that by then had become a critical part of the Justice Project arsenal.

*   *   *

One morning back in the fall of 1999, Hammond had appeared at Professor Robert Bartels’s door on the ASU campus in Tempe. Bartels, a Stanford Law graduate who held a distinguished post as the Charles M. Brewer Professor of Trial Advocacy, had spent ten years teaching at the University of Iowa—for two of those also serving as a special assistant attorney general, prosecuting bribery cases—before coming to ASU. In Arizona, he’d sat on the boards of various community legal services groups, the Homeless Legal Assistance Project, the Arizona Capital Representation Project and the Arizona Center for Law in the Public Interest. He’d also served a two-year tour of duty as deputy chief U.S. attorney for civil rights matters in the District of Arizona. He’d briefed and argued five cases before the U.S. Supreme Court and some fifty cases before other appellate courts. He’d handled eighty federal habeas corpus and state post-conviction cases, some two hundred civil cases, some one hundred criminal cases. Larry Hammond, for good reason, thought he’d make a superb partner. That’s what brought him to Bartels’s door. Donna Toland and I just took over the Justice Project, he told Bartels. We’re having trouble finding help. Can we get law student volunteers and team them with volunteer lawyers?

Bartels didn’t hesitate—the Justice Project fit well with his interests. He quickly started recruiting law students as volunteers, former students and ASU faculty as supervisors. That first school year, 1999–2000, sixteen students and ten faculty members from the ASU College of Law reviewed seventeen cases for the Justice Project. Bartels soon stepped in and started supervising a number of cases himself. So began Bob Bartels’s and Larry Hammond’s enduring partnership in guiding the Justice Project.

Hammond was fifty-five in 2000, Bartels fifty-six, both tall, lean and craggy. If not an unlikely pair—they shared deep-seated values, having come out of law school in the heady, activist 1969–70 era—they were certainly a study in contrasts. Where Bartels was careful and cautious, Hammond was impetuous and emotional. Bob spoke in a low, soft voice, almost inaudible at times, a tone that matched his considered manner. Larry spoke forcefully, and sometimes with irreverence. Bob focused firmly on the facts in evaluating a case; Larry relied more on his feelings. Bob thought Larry “unjustifiably optimistic” about the world in general, though he meant that as a compliment. Larry thought the Justice Project might go up in flames but for Bob restraining him.

Before leaving on his sabbatical, Hammond wrote a note to Bartels on August 17, 2000: “I hope to have spoken to you before I leave town, and I wanted to put into your hands a couple of documents about the William Wayne Macumber case. This is a case in which the Project has already invested a very substantial amount of time and volunteer energy (as you will be able to see from looking at the couple of documents I have attached). We have reached a point, however, at which it would be very valuable to have the help of a couple of students and a supervising faculty member to work with Earl Terman and Rich Robertson. If you think there are students who could be enticed, I would suggest that you be in touch directly … with Earl Terman.”

In his office at the ASU law school—a cramped, crowded warren with two desks, both entirely covered with tottering piles of documents—Bartels looked through the attached documents, mainly reports by Terman. He appreciated how much work Terman had done, fashioning not legal analysis but a complex narrative. That complexity, of course, presented problems, as did all the elapsed years. Bartels had deep qualms. How could they investigate this? More challenging still, how could they ever convince a judge to reopen the case? Judges and the legal system wanted finality, after all. It was incredibly hard to win actual innocence cases, especially without DNA evidence.