Manifest Injustice (32 page)

Early that April, with a third generation of law students now on the case, he again prodded the three fingerprint experts: “Gentlemen, I met with our students last night who are working on the Macumber team. The end of the semester is rapidly approaching and our goal had been to see if it was at all possible to get our petition in order so that it might be filed sometime this spring. I know you are all working on this. Could you please give me an update and, if you think it would be useful, help us schedule a time to get together to talk about your findings.” Jolly responded in mid-April, saying they hoped to finish their work by the end of the month. “I am not sure they will,” Hammond advised Macumber, “but we are working very hard now with the team of students on drafting the petition and trying to finalize the work on the fingerprints and ballistics.”

Hammond was right—the experts didn’t finish. The semester ended and yet another round of law students graduated. Even Hammond now had trouble sounding optimistic. “Well you must have just about given up on us,” he wrote to Macumber on July 31. “I sometimes wonder if we will ever get to the bottom of this.… It appears to me that we have now gotten to where we have exhausted just about everything there is to exhaust on the 1959 Impala. I can understand why the fingerprint people are being so incredibly cautious, but at some point this all becomes just too much.” Still, the fall semester would be starting in two weeks, with a new crop of students available to help. “I know I have said this before, but I really believe that we are now finally getting close.”

Larry Hammond surely meant that, surely believed they’d get there. He and the entire Justice Project team retained their faith in Bill Macumber’s cause. If only they could stand and tell their story in a court of law. But the appellate legal system wanted concrete new evidence, not compelling narrative. The Justice Project didn’t have that yet. Hammond couldn’t stop, but he also couldn’t move forward.

At the turn of the year into 2007, Jackie Kelley resurfaced. A cold wind howled outside her window on January 5. Nature’s fury matched hers now as she began to type her latest note to Hammond: “It has been quite some time since I last wrote to you. As always, I want to thank you and the ‘team’ for all your efforts.… I fully realize that all your work has been done free, gratis. But I am also painfully aware that it has been over six years since we first contacted the Justice Project. What I am really trying, graciously, to ask is—WHEN? My cousin is not guilty of the crime for which he has been paying for over 27 years. His only crime is that he is poor and in prison. Unfortunately, my crime is that I’m just poor. Is there nothing that can be done, in the name of justice, when one isn’t rich?”

Jackie’s question stabbed at Hammond. He’d made justice for the disenfranchised his highest priority. He derived great pride and satisfaction from his law firm’s involvement with the Justice Project and death penalty cases. His relentless zeal on behalf of indigent prisoners—his belief that they merited the same high level of representation corporate clients received—had tried the patience of adversaries and colleagues alike over the years. Yet Hammond had to admit it: In this country’s legal system, the wealthy could afford more justice than the poor.
Is there nothing that can be done, in the name of justice …
Hammond reread Jackie’s words. Okay, he decided. Let’s try to answer that question.

On February 9, he convened a master meeting of the entire Macumber team. At this stage, it included Hammond, Bartels, Robertson, the fingerprint experts and the third round of law students. They gathered in a conference room at the ASU College of Law, Room 109, in the rotunda—where Hammond and Bartels had once taught a Factual Investigation class together. They talked about the case’s status and whether they had reasons to go forward. Did they have enough to file? Or should they close the Macumber file? John Jolly and Bob Tavernaro spread out their reports and put the Impala chrome strip on the conference room table. The experts went on at some length, explaining about the print cards, about the way Jacka had taken his photos in 1962. But in the end, they had to admit defeat: They were unable to say Latent Lift 1 definitely had not come from the Impala door. Nor could they explain exactly how someone might have planted the print.

The experts’ report disheartened the Macumber team. Waves of energy drained from the room. Rich Robertson felt deflated. Bob Bartels saw no reason to continue. Yet they all kept talking, still exchanging ideas, considering issues they should explore. They weren’t ready to stop—at least, Hammond wasn’t ready. Robertson reviewed what he’d been doing, what he might still do. Hammond proposed drawing up another to-do list, a battle plan of additional tasks. They didn’t reach a conclusion that day—not one they articulated, at any rate. Instead, they ran out of time. Their scheduled two hours elapsed.

Hammond, as promised, composed a “10 Items” memo—which became 11 items—summarizing what they’d discussed about possible tasks. They would seek a court order instructing the Maricopa County Records and Identification Bureau to run all identifiable but unmatched prints. They would seek a court order instructing Linda Primrose’s daughter to turn over her mother’s scrapbook. They would review Dave Brewer’s taped statement from 1983 and reinterview him. They would review Sharon Sargent-Flack’s summaries of the trial transcripts. They would review the divorce and custody file. They would review again Judge Corcoran’s decision to ban Valenzuela’s confession, in light of
Chambers
and the Vince Foster case. They would review again the ballistics evidence and the newly evolving science in this field. They would review again the public defenders’ file, searching for sheriff’s reports they still didn’t have. Finally, they would write to Bill Macumber, updating him and scheduling a conference call.

This last item proved a hard task for Hammond. Despite his usual attempt at optimism, Larry’s letter to Macumber on February 21, copied to Jackie Kelley, could not obscure the bad news, so contrary to all his earlier reports and predictions. “Over the last few months, we have had a large number of meetings with the fingerprint experts who had donated their time to your case, but in the end they could not reach the conclusion we had anticipated. The belief that we have had for the last couple of years that the palm print could not have come from the handle and chrome strip area of the driver’s side door just does not pan out. It does not mean that the palm print was not planted, it just means that if it was planted, it was planted so well that we could not prove that it had been fabricated.” Hammond wanted to make one thing clear: “This does not end the case for us.” They had reassembled their student team, adding Ty Jacobson and Pete Rodriguez from the undergraduate ASU Justice Project Practicum. They had held a team meeting. With the help of Rich Robertson and his colleagues, “we are trying to make sure that we have looked at every issue.” They would like to “set up a telephone call with you as soon as we reasonably can to talk about these open issues.”

In his Mohave Unit cubicle on the evening of February 25, Macumber reread this letter a number of times. He found the news hard to fathom, considering that just a year before, the fingerprint experts were sure the print had been planted. Now they had changed their tune. Whatever the reason, Macumber believed he knew well what this meant. He would have to notify Ron right way. He reached for paper and a pen. “This is the hardest letter I have ever had to write,” he began, “because I know you are already overburdened with problems up there. Still, I have no choice because you most certainly have a right to know what is happening or has happened. By the enclosed letter from Larry Hammond, you can see that effectively the work on my case has come to an end and with negative results.… This does end any hopes for me proving that I am innocent. There is nothing else that we could take before a judge that would carry any real weight.… The question is, what now?” The answer seemed obvious to Macumber: “Life goes on. We put this behind us.… We have no real choice.” He was just sorry “to have to bring more problems and more sadness into your lives.”

The Justice Project’s conference call with Macumber and Jackie Kelley took place on March 14. Hammond led the conversation, with the student volunteers also talking to Bill, explaining the inability to eliminate the palm print. They couldn’t avoid conveying their sense of frustration and disappointment. Macumber, as always, tried to cheer them up.

That evening, Macumber did much the same when he talked on the phone to Ron and his family. Following up, he wrote to them the next day: “I heard the hurt, sadness and dejection in your voices last night and frankly, it all but tore my heart out.” He wanted to tell them something to ease the pain. “That something is the fact that regardless of all else I am innocent and that will remain so until the end of time. No court, no jury, no judge can change that. We can hold that truth in our hearts.… This is what I want you all to remember.”

Hammond, as he promised, did not stop. On March 20, he sent the Macumber team a fingerprint guide from the
Criminal Practice Reporter
, “in light of our effort to make sure we have thought about everything.” Weeks later, at the end of the semester, he stopped by the ASU Justice Project Practicum with a question for the students: Did anyone want to continue on their Justice Project cases after the course ended? Pete Rodriguez raised his hand. So did Ty Jacobson. They would stay with Macumber, they said. They’d do whatever they could.

But what more could they do? The Macumber file stayed open at the Justice Project, yet the weeks passed without any progress. On August 8, Jackie wrote Hammond once again, begging in all caps: “IS THERE ANY WAY HUMANLY POSSIBLE TO FREE MY COUSIN FROM PRISON?” Hammond replied on August 29, almost out of words now: “You know that this case plagues us almost more than any case we have ever had. We are still looking at a few of the open issues. I wish I could give you more comfort but I will stay in touch.”

Months later, on March 18, 2008, Hammond sent an e-mail to the Macumber team, asking for “thoughts to go forward or to come to a final decision.” He attached the “11-part” task memo developed at their meeting a year earlier. The team gathered once again.

This session felt depressing to Hammond—all long silences and lack of energy. No one had anything to say or do that could make a difference. Yet Hammond asked, Don’t we owe it to Bill to file, whether we win or lose? Maybe filing can bring attention and publicity, can draw people out of the woodwork? Bob Bartels was skeptical: What do you think you’re going to find? Hammond countered: Who knows. We don’t know who might be reading about it, who’s alive from back then. You can never tell.

Then Rich Robertson joined in. He usually deferred to the lawyers, but not now. We have nothing more to do, he said. We can’t go further. Lost evidence, missing witnesses, years elapsed, the palm print unexplained. Yes, maybe filing a petition would draw Carol out, or maybe one of the sheriff’s deputies. But how do we make a decision based on something as ephemeral as that?

Bartels willingly played the bad cop, offering the voice of doom. He realized that he had an easier time doing difficult things than Larry did. Yet his attitude just now reflected more a lack of faith in the judicial system than in the Macumber case. The palm print represented only the second-biggest obstacle to him—number one was the courts’ reluctance to grant relief in these kinds of cases. The team had to be realistic. They had put in an enormous amount of time. To keep going, to assemble a petition, would be a huge undertaking. And to what end? What were the odds of getting a superior court judge to agree with them? Extremely low, Bartels believed. The Justice Project had too many other cases and deadlines. He had some twenty on his own plate, with twenty to thirty new files coming into the office every month for review—at least three hundred a year. He felt guilty, really, devoting so much time and so many resources to this one case. They had to go where they could prevail, they had to be selective. Bartels believed Macumber innocent, but he didn’t believe he could convince a judge.

Survival of the fittest, in other words—a Darwinian outlook on the judicial process. In the end, Hammond had to agree. We just can’t keep telling Jackie and Bill we’re progressing, he realized. All his positive letters to them bothered him now, and he didn’t feel comfortable continuing that way. They weren’t closing the case, but they needed to acknowledge they were at a standstill. They weren’t abandoning Bill, but they weren’t going forward.

*   *   *

The Justice Project might have stopped, but not Jackie Kelley. In the spring of 2008, after not hearing from the Justice Project for months, she persuaded her cousin to write to another legal-aid agency, Centurion Ministries in Princeton, New Jersey. On April 27, he did so. “My name is William Wayne Macumber and I am seventy-three years of age,” he began, “and I have, for the past thirty-four years been an inmate within the Arizona Department of Corrections.… I pleaded my innocence at the time of my arrest, at the time of my trial and every day since.… I am innocent of this crime and innocence like truth never changes.” Over five single-spaced typed pages, he laid out the facts of his case and the history of the Justice Project’s representation since 2000. He believed the Justice Project’s investigations “continue even to the present,” but “I have heard nothing for over a year now.” He had but two wishes: to “spend some time with my son and granddaughter as a free man” and “to end this life proved innocent.” Perhaps that was asking too much, “yet I am hopeful that you might be able to do something on my behalf.” If so, “I shall be eternally grateful.” If not, “then I shall continue on as I have over these past 34 years as best I possibly can.”

A Centurion Ministries director responded on June 17, politely declining. “It appears that your case is in good hands with the Arizona Justice Project.… You noted that you have not heard anything from them in a year. I would suggest you contact the Arizona Justice Project unit and see what the status of your case is. Our own experience is that these investigations do take a long time.”