Manifest Injustice (25 page)

To Bartels, the forensic evidence, particularly the fingerprints, offered the best chance to reopen Macumber’s case. He and Larry Hammond both had a good deal of experience in the ever-evolving forensic sciences; besides the flashover arson tests that had played such a huge role in the Knapp and Girdler cases, Bartels had considerable familiarity with fingerprints and ballistics. You could, he reasoned, attack the state’s case through the prints and shell casings, rather than emotion or intuition or feelings for Bill. The shell casings evidence appeared basically worthless to him. The palm print also seemed suspect to Bartels—Karen Killion’s narrative memo convincingly documented how a small, obscure, unclassifiable partial print in 1962 had evolved by 1974 to a clearly readable palm print. On the other hand, they had no direct proof of tampering, and no explanation for how someone could do it. They had doubts but no smoking gun—at least not yet.

Typing out his response to Macumber, Bartels followed the order of Bill’s questions, his answers reflecting his caution. The points Macumber raised about the ballistics evidence “are interesting and we will review the materials we have regarding them.” The Justice Project had also “noted the coincidence between Linda Primrose’s story and the tufts of hair,” and though “this point probably is not sufficient by itself, it is significant.” Yes, Tom O’Toole and Ron Petica should have been permitted to testify, but “that issue may be precluded as a legal matter by prior proceedings.” Carol’s access to evidence in the case “is a point that may have some significance, although we will need additional evidence that she actually took advantage of that access.” For now, Bartels concluded, “we are focusing our efforts on obtaining comparisons between (a) existing photographs of … the latent prints and (b) your prints and Valenzuela’s. When those comparisons have been completed, hopefully in the near future, we will be in a position to decide what direction to take next.”

*   *   *

“Hopefully in the near future” would prove difficult for the Justice Project, working as always with limited resources and unpaid volunteers. Weeks turned into months. Not until October were they able to conclude that Valenzuela’s prints didn’t match the latents lifted off the Impala. At a meeting on December 21, the Macumber team members discussed whether they should widen their focus and “pursue” Carol. That would involve approaching her directly after first learning as much about her as possible from friends, relatives, Frieda Kennedy and the various police officers she’d known back in the 1970s. “If we do this right,” Earl Terman wrote in a memo, “we might still get leads to those who could add much more to the probability that the fingerprints were switched. That’s the key evidence which must be surmounted. If the fingerprint evidence is neutered by the expert [Steve Anderson] and we show the ‘doability’ of the switch, then we just need to pile on the motives for doing the switch.”

The palm print still remained their chief focus. Two months later, in February 2002, the Justice Project finally obtained a court order—signed by Thomas O’Toole, presiding criminal judge—instructing Jerry Jacka to turn over all records and photos of prints he possessed related to the Macumber case. As soon as Steve Anderson received Jacka’s file, he began a close study of the critical Latent Lift 1 photo. Something soon caught his eye: a relatively faint diagonal line near the top of the photo. The portion of the lift tape above this line looked quite different from the portion below it, as if the part above was not on the same kind of surface. What did this suggest? Did this line exist on the Chevy Impala itself? Or did the line provide proof of a switch?

The Macumber team decided they needed to compare this photo to an actual 1959 Impala driver’s door chrome strip. Which meant they needed to find one. Rich Robertson undertook the search.

*   *   *

In the spring of 2002, Larry Hammond stepped more directly into the Macumber case. Once again, the catalyst was Jackie Kelley. During a driving trip that included stays in Las Vegas, for a family reunion, and then Douglas, for a visit with Bill, Jackie and her husband spent one night in Phoenix, where they’d arranged to meet Earl Terman on the morning of Friday, May 10. But when they checked into their Motel 6 late Thursday night, the desk clerk handed them a message from Hammond, asking Jackie to call him. Terman had suffered a heart attack. So instead of meeting with Earl, Jackie talked to Larry on the phone for two hours that Friday morning—their first direct contact, and the first of many conversations.

She poured out her memories about growing up with Bill. She testified to his steadfast character. She spelled out her understanding of the case. Hammond, who’d been overseeing the Justice Project’s investigation from one step back, listened raptly, gaining a new, focused perspective. He thought Jackie a fascinating woman, living out there in the New Mexico wilderness, clearly so devoted to Bill, convinced of his innocence. He admired her tenacity and already, during their first conversation, felt the pressure she would come to apply constantly on behalf of her cousin. She pushed Hammond on, she compelled him forward.

So much about the Macumber case bothered him. Judge Corcoran, as much as anything. Hammond
knew
Corcoran. He thought it unforgivable judicial conduct to essentially tell a defense attorney he should have taken a police report. He didn’t believe Corcoran could sit up there on the bench after barring Valenzuela’s confession and think he’d done the right thing.

Carol’s August 23 statement also left Hammond shaking his head. Even Carol later allowed that her account, though true, “sounds … ridiculous,” and he had to agree. What an incredible notion: that Bill would portray himself as an Army CID assassin; that Carol would forget and “let it drop” between 1962 and 1974, a stretch of twelve years during which she bore and raised three sons with him; that Bill would confess a twelve-year-old double murder to his estranged wife, who worked for the sheriff’s department; that Carol would then move out of their house, leaving her three sons with Bill, and for months not mention his confession to her sheriff’s department colleagues; that Bill would shoot into his own house, endangering his kids; that Carol would suddenly come forward to report his confession hours after being interrogated as a suspect in the kitchen-window shooting. She did not, Hammond noticed, even have her details right: Bill shooting through an open car door conflicted with the victims’ contact wounds; Bill rifling the girl’s purse conflicted with reports of it sitting untouched on the car seat. Carol initially said that Bill had come home one night with blood on his clothes “approximately ten years ago,” the month unknown; then, at Bill’s second trial, she testified unequivocally that this occurred on the night of the murders—and at 10:00
P.M.
, precisely the time when a model homes guard testified he’d talked to a very much alive Tim, letting him and a girl look around the John F. Long Homes while he locked up for the night. Carol also testified that “the purse had been gone through so I assume from that the door would have to be touched in some way.” Hammond had to laugh.

Then there was that marathon interrogation of Macumber on the day of his arrest. Diehl and Calles had him from 8:30
A.M.
to midnight and never once turned on a tape recorder, never once called in a stenographer. Larry Hammond had seen this kind of game all too often in criminal cases. He’d represented innocent people who’d falsely confessed, innocent people who’d failed polygraph tests, innocent people who’d ended up on death row. Sixteen hours they had Macumber, and no record made of the interrogation. Even as the deputies reported it, Macumber’s statements didn’t constitute a confession. Nor did Bill’s testimony at the trial, despite those few ambiguous moments. The Justice Project had dealt with false confessions, but this wasn’t one. Rather, you had Macumber being cooperative, trying to help, saying, Let’s sort this out. The way Hammond saw it, August 28 just was not a damning day.

The bottom line for him: The cops had no recording, no transcriber. They knew how to record and transcribe; they did that with Carol. They made a deliberate decision not to record Bill. They shouldn’t even have been allowed to testify, to put that day into evidence. It was all crap. The idea that Calles talked to Macumber from 7:00
P.M.
to midnight in the sheriff’s office, with tape recorders available, and never tried to record or take notes? Crap. Just crap. They had to go out of their way to avoid making a recording. Or maybe they did record. There may very well have been a recording. Hammond had seen that game played as well. You had a room already wired. You put a tape recorder on the table, lay a cassette tape down on it.
Do you mind being recorded? But let’s talk first.…
The conversation begins. Who knows what they were doing?

Once you find something wrong, Hammond liked to say, keep looking. Almost always you’ll find more things wrong than you can see initially. There’s always more. He didn’t think the Maricopa County Sheriff’s Office warranted a presumption of regularity. Either they didn’t record their hours with Macumber for reasons that didn’t serve the interests of justice, or they did record and didn’t like what they got. If they want to claim that the defense attorney made these charges unfairly—well, fuck them and feed them cheese. If they don’t want to be accused, then record. Make a record.

So: They allow a dubious statement by a divorcing wife but not Valenzuela’s confession. That was crazy. As was the investigators’ sheer incompetence, or worse. The criminal justice system failed here, Hammond believed, just as it had in other cases. When innocent people get convicted, then exonerated by DNA, you can look back at what convicted them—and often it involved flawed or inadequate forensics. These DNA cases pointed to a far larger pool of unrecognized false convictions, for in very few cases did you even have DNA. The Macumber case, for example. The lack of DNA made this one nearly impossible. Yet Hammond did not want to let it go.

*   *   *

On June 24, six weeks after Larry talked to Jackie, the Justice Project’s Macumber team met again to consider the fingerprint evidence and discuss other angles to pursue. With Terman now sidelined and scaling back his involvement, the team included two lawyers (Hammond, Bartels), two investigators (Rich Robertson, Hayden Williams), a fingerprint expert (Steven Anderson), and two law students. Or, rather, two former law students: Karen Killion and Sharon Sargent-Flack had recently graduated, but neither wanted to let go; the case by now consumed them.

Bartels brought to this meeting their fingerprint expert’s report, which contained pivotal news. Rich Robertson had managed to find, up in Washington, a chrome strip from the driver’s door of a 1959 Impala. Studying it and Jacka’s photos, Steve Anderson had concluded that the critical Latent Lift 1—Macumber’s palm print—could not have come from such a strip.

Anderson’s analysis confirmed that the Latent Lift 1 impression indeed contained the right palm print of Bill Macumber—the print had well over one hundred points of identity. However, Anderson didn’t think it came off the chrome strip. “Latent #1,” he concluded, “contains a distinctive size, and distinctive shapes, that clearly reflect the surface of its origin—and it is possible to eliminate the chrome strip, and all other similar strips, as the source of Latent Lift #1.”

This news ignited the Macumber team. They began laying plans. Rich Robertson and Hayden Williams would now try to talk to Carol, revisit Frieda Kennedy and find Dennis Gilbertson. Bartels and Robertson would seek to reinterview Jerry Jacka. Rich would track down an entire 1959 Impala driver’s door for further examination—Anderson had discovered that their chrome strip covered only part of the door. Larry would seek another expert to review the ballistics evidence. They were rolling. “I think,” Bartels e-mailed Karen and Sharon, “we are headed toward filing a PCR petition for Macumber.”

Two days after their meeting, Hammond called Jackie Kelley to report about their fingerprint expert’s “gold mine” of a report. Jackie scribbled notes as she listened. The next day, Bartels sent Bill Macumber a similar report—uncommonly upbeat for him. “It has been a long time since I last wrote you,” he began, “for which I apologize.… The main reason has been that there have been a number of developments in the investigation of your case, and I have postponed writing to you several times to see where the latest developments would take us.” They had pursued a lot of angles, he explained, but had refocused most recently on the fingerprint evidence—and their expert had told them that Latent Lift 1 “could not have come from the chrome strip” on the victims’ Impala. “At this point we are hopeful that we will be able to wrap up our investigation in the reasonably near future.… Please let me know if you have questions. I hope you are doing well.”

At the state prison in Douglas, Bill Macumber read this letter with growing hope. Maybe he still had a chance. Maybe they were heading somewhere. At the least, he sensed a change in the Justice Project’s outlook: Now there were others besides his family and friends who believed in his innocence.

It took the Justice Project team members—then juggling dozens of cases, with twenty more arriving for review each month—the balance of 2002 to run down all the leads they wanted to pursue. In late November they held a meeting to discuss what still needed to be done. By January, they were ready for the final step before committing to file a petition. The time had come to meet Bill Macumber, to make the four-hour drive from Phoenix down to the state prison in Douglas.

On January 14, 2003, Hammond wrote to Macumber: “Well, we are at long last making some real progress on your case. We have a great many things to talk to you about.… We would like to come see you in two weeks. We have made arrangements through your counselor to come to the prison to meet with you at 10 a.m. on Thursday, January 30. We look forward to meeting with you and talking with you about the case.… We expect that it will be a fine day for us all.”

CHAPTER 14

Journey to Douglas