Manifest Injustice (39 page)

In seeing a “strong possibility” of Bill Macumber’s innocence, the board members had responded, above all, to Valenzuela’s confession and Primrose’s corroboration—by far the most compelling elements to them, real attention grabbers. They’d also compared Bill’s pristine thirty-five-year record in prison with Valenzuela’s violent death in a prison brawl; they’d matched Bill’s stolid cowboy personality to claims he’d braggingly fantasized about being an army assassin; they’d weighed Carol’s account of an estranged husband’s bedroom confession against the very boundaries of logic. This case just stood out—never had the board members seen one with so many dubious elements.

Still, they weren’t insisting on Macumber’s innocence. How could anyone really know for sure? That question always haunted them: Most cases involved ambiguous records, yet players in the courtroom were full of passionate certitude—on both sides. Belcher and the other board members knew how high the stakes could be, how murky the record. They also knew of the landmark 1993 U.S. Supreme Court opinion in
Herrera v. Collins
. “Clemency is deeply rooted in our Anglo-American tradition of law,” Chief Justice William Rehnquist wrote in that decision, “and is the historic remedy for preventing miscarriages of justice where the judicial system has been exhausted.… Our judicial system, like the human beings who administer it, is fallible.… The traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency.” The board members took their
Herrera
role seriously. They felt they provided a kind of fail-safe protection, a way to catch errors in the legal system.

*   *   *

Just as a judge often asks the prevailing attorney to compose a working draft of the order he will issue, Duane Belcher now asked the Justice Project associates to prepare a rough version of the letter the board would send to the governor. He wanted something to work with. He’d provide them with comments from all the board members, and samples of previous such letters to the governor. Then he’d sit down with them to go over what he wished to see in the letter.

The team dove into the preparation of a draft. By early July, Duane Belcher was circulating it to board members for comments and revisions. It turned out the board members wanted changes; they felt the Justice Project’s draft had not gone far enough in expressing doubts about Macumber’s guilt. This surprised Hammond—he hadn’t thought they could emphasize this in a letter to the governor. He’d pussyfooted around in the draft, thinking they needed to focus on Bill’s age, medical conditions, and extraordinary prison record. But no—the board members made it clear now, they wanted to express their substantial doubts, they wanted to talk about a miscarriage of justice. They’d never done this before, and Hammond hadn’t thought they’d do it now. Fine with him, though. A project team met again with Belcher, and once also with Marian Yim, the one lawyer on the board, with a law degree from Cornell. Then the project team happily revised, now underscoring the board’s concerns. By mid-August, the board members had a version to their liking. Belcher signed the letter on August 25 and delivered it to Governor Brewer’s office on September 2, along with a copy of Judge O’Toole’s affidavit.

From any and all angles, this was an extraordinary document to issue from the governor-appointed Arizona Board of Executive Clemency. The unanimous board wasted little time before conveying its members’ doubts, getting to them directly in the first paragraph. “We consider William Macumber’s case truly unique,” the board’s letter began. “His record and accomplishments are extraordinary for any person, but especially for a man who has spent the last 35 years of his life in prison. That record is especially remarkable given that there is substantial doubt that Mr. Macumber is guilty of the crime for which he was convicted. Because we believe an injustice has been done in Mr. Macumber’s case, the traditional remedy of executive clemency is appropriate and is Mr. Macumber’s only avenue left for relief.”

“Substantial doubt” and “injustice” were not terms usually seen in clemency board recommendations. But here they were. The board repeated “substantial doubt” three paragraphs later, then upped the ante, late in the letter calling Macumber’s case a “miscarriage of justice.” In five single-spaced pages, the board members explained why they thought so: Valenzuela’s multiple confessions, Judge O’Toole’s affidavit, Linda Primrose’s eyewitness account, Carol’s “motive, means and opportunity to falsely pin the murders on Mr. Macumber,” Ron’s “very moving testimony,” and the “not reliable” ballistics evidence.

Bill Macumber, the board pointed out, had “no legal recourse other than commutation.” There was no evidence left to examine, no DNA to test. His attorneys couldn’t, in other words, satisfy the high threshold for post-conviction relief. In such situations, clemency was the “appropriate avenue for relief.” Here Duane Belcher cited the U.S. Supreme Court opinion he so admired,
Herrera v. Collins
: “As Chief Justice Rehnquist noted in
Herrera
, ‘our judicial system, like the human beings who administer it, is fallible.’ And although a petitioner claiming innocence may not have a right to re-enter the judicial system to correct an injustice, ‘the traditional remedy for claims of innocence … has been executive clemency.’” Macumber’s case, Belcher argued, “is one in which the power of executive clemency should be used to correct a miscarriage of justice.”

Only after laying down that argument did Belcher turn to the more traditional reasons to grant clemency: Macumber’s stellar prison record and staggering list of accomplishments. Macumber, Belcher pointed out, “would have been eligible for parole almost ten years ago had he been convicted under the criminal code in effect at the time of his trial.” Macumber “has already served more than fifteen years longer than the average person convicted of murder in Arizona.” Prior to his arrest and conviction, Macumber had no criminal record, and he has been “a law-abiding citizen” in prison. Testimony from his family indicates he will, once released, have “the resources and support to live as a law-abiding, productive citizen.”

Belcher’s conclusion: “The evidence that now exists certainly casts serious doubt upon Mr. Macumber’s conviction. The evidence presented to this Board leads us to believe that a jury presented with the same evidence would have reasonable doubt about Mr. Macumber’s guilt. Based on this new evidence, his lack of legal remedy, and this Board’s role under
Herrera v. Collins
, the Board concludes that Mr. Macumber’s sentence of life is, today, no longer warranted.” Therefore, the Board recommends his sentence be commuted to “time served” or in the alternative, “to a sentence of 35 years to life.”

Never before had the Board of Executive Clemency done this. Never before had a unanimous board called for a prisoner’s release based on a miscarriage of justice.

*   *   *

On September 25, seven members of the Justice Project team, including Hammond, Bartels and Katie Puzauskas, met with the legal counsel for Governor Brewer, Joe Kanefield. They came to present and advocate. Hammond had known Kanefield for a long time; he found him this day pleasant but not responsive, other than to assure them that the governor’s office would look at the file and take the matter seriously. But the decision, he reminded them, rested with the governor—it was not theirs to make. As Hammond put it to a colleague, he “heard nothing from Kanefield that indicated the governor had a pulse.”

A month later, on October 23, Governor Brewer’s office contacted Duane Belcher. Her people were still deliberating, and they had a question: Had the victims’ families taken a position on Macumber’s commutation? Did the victims’ families wish to comment? This was, of course, a familiar issue in clemency proceedings, one often considered by politicians wary of potential backlash. That the Scottsdale murders had occurred almost half a century ago made the query more difficult than normal to address.

Belcher did some digging. No one in the McKillop family seemed to be around anymore—Tim had been an only child. But Joyce Sterrenberg’s mother, sister and brother were still alive. At age ninety, the mother, Joan, lived in Chandler, Arizona. Belcher called the number he had for her. Joan’s daughter Judy Michael happened to pick up the phone. With the mother listening in the background, Belcher asked if the family would object to the governor releasing Bill Macumber, following a board recommendation made after a commutation hearing in May 2009. The daughter—Joyce’s sister—relayed the question to her mother, who, as Belcher days later reported to the governor’office, “stated that she understood and was alright with this information and was not objecting to any future release of Mr. Macumber. [The daughter] stated that she would ‘prefer’ that he not be released, however respected her mother’s position of not opposing a Commutation of Sentence.… [The daughter] did not want to receive future notices of hearings on Mr. Macumber and only, respectfully requested, that I inform her by telephone if he was ultimately released on parole.” (Later, to a local Arizona reporter, Joan Sterrenberg added that she wasn’t consumed with the mystery of who’d killed Joyce, that she had “no way of knowing.”) Belcher, after conveying this response to the governor’s office, informed Larry Hammond as well.

All during the summer of 2009, Hammond had been uncharacteristically pessimistic about how the governor would respond. Despite their celebration on the day of the hearing, he and others at the Justice Project had recognized that governors didn’t as a matter of course grant clemency to convicted double murderers. He’d talked to Macumber twice, in fact, warning him not to get his hopes up too much, with Bill always saying,
Sure, I know, I won’t
. But this news of Governor Brewer inquiring about the victims’ families raised Hammond’s hopes. The question alone meant the governor was thinking about accepting the board’s recommendation.

*   *   *

At the time of Bill Macumber’s Phase II hearing in May 2009, Jan Brewer had been governor of Arizona for less than four months, and she had come to the job indirectly, not having been elected by the voters. That January, at age sixty-four, she was serving as Arizona’s secretary of state, managing thirty-eight employees, when Democratic governor Janet Napolitano resigned to become secretary of Homeland Security in the Obama administration. In accordance with the state constitution, Brewer automatically stepped in as governor. A longtime state legislator and Maricopa County supervisor before becoming secretary of state in 2003, with a community college education in radiological technology, she’d forged a reputation as a fiscal conservative. But in her early months as governor, nothing was clear about her—not even whether she’d choose to run for election in her own right in 2010. Some in the Justice Project, at the time of Bill’s hearing, thought she might not. That would be a good thing for them; it meant politics wouldn’t affect her response to Macumber’s clemency petition. The project team and the Macumber family had talked about this possibility at Macayo’s on May 8, clinging to it as a reason for hope. Governors facing voters had strong reason to shy from releasing convicted murderers—there was little political upside to granting clemency but substantial risk, as more than one governor had learned when freed convicts attacked again. If Brewer didn’t have an election to worry about, she just might be more willing to accept her board’s unanimous recommendation.

Or, as an alternative, she could do nothing: State law specified that if the governor did not act on a unanimous recommendation for commutation within ninety days after its submission, the recommendation automatically took effect. Hammond had raised that possibility with the governor’s legal counsel. No, not likely, Joe Kanefield had told him. She won’t do that.

The waiting continued. On October 21, Katie made the eight-hour round-trip drive to visit Macumber at Douglas, along with Lesley Hoyt-Croft, a community college film student interested in producing a documentary about Macumber. This was Katie’s first trip to the state prison. She and Lesley met Bill in his counselor’s office and talked for ninety minutes. The aspiring filmmaker, feeling hopeful, asked what he’d do when he got out. Well, Bill said, my cousin Jay wants to take me fishing. And I’d sure like to eat some Dairy Queen.

More waiting. Word finally reached the project of certain internal differences among Brewer’s advisers, the legal team at odds with the political team. This fanned some hope. But that hope lost most of its footing on Thursday, November 5: At an event in the Phoenix suburb of Glendale, where she lived, Brewer announced that she would indeed run for reelection. Bob Bartels thought that sharply reduced their chances. In the absence of actual hard DNA proof, they were now asking a conservative Republican governor, up for reelection, to go in the face of her base, her main constituency. Bartels proved prescient. Eight days later, on Friday, November 13, Governor Brewer conveyed her decision to Duane Belcher in a spare one-sentence letter: “The application for clemency for William Macumber, ADC #33867, is denied.”

*   *   *

Belcher called Hammond with the news. Larry tried to shrug, to be stoic. As a lawyer, he needed to be the stable anchor; he needed to avoid making it about how he felt. After his many legal battles over the years, after seeing two clients executed, he just wouldn’t let anything devastate him. Privately, though, he fumed. Katie, by contrast, didn’t try to hide her tears. This hurt too much.

She consulted Hammond and Bartels, and Carrie Sperling. They all agreed Macumber had to be notified right away, that afternoon—they had to tell him before he heard the news elsewhere. Katie and Carrie would make the call.

Which one would lead, though? Katie shied from the task. “Carrie, why don’t you tell him,” she suggested as they put through their call. She knew, though, that she had to do it. She’d been the main contact with Bill and his family; she’d been the one talking regularly to him.

On the phone, she heard Macumber’s usual cowboy baritone. Despite herself, she began to cry. We just got word, she said through her tears. The governor denied the petition, rejected the board’s recommendation.