Manifest Injustice

by Barry Siegel

  That same day, September 24, his lawyer from the public defender’s office came by with a release for him to sign. He was withdrawing from the case. In his place the Macumber family had hired a private attorney, James Kemper. Bill’s uncle—Jackie Kelley’s father—had paid Kemper’s $5,000 fee. They couldn’t afford a $25,000 lawyer, but they hoped Kemper would improve Bill’s chances. “I haven’t talked with my new attorney enough to have formed any opinion,” Macumber wrote two days later. “Everyone says he is very competent and that the change will benefit me.… I realize I am not in the correct frame of mind at present to be making those kinds of decisions for myself.” In fact, just then the prisoner in an adjacent cell was “doing his very best to drive me out of my mind. Starting about 10:30 at night he bangs on the wall about every three to four seconds. After an hour or so of this I get in such a state that I pray he will stop. When he does finally stop I lay there holding my breath waiting for him to start up again. These are the kinds of things that are pushing me to the breaking point.”

  Sitting in jail for twenty-four hours a day, Bill found that he could easily slip into a state of depression. He began to wonder about his own soundness of mind. He thought about the fine line between sanity and insanity and feared sliding over the edge. He could not let that happen. He knew that the human mind, such a wonderful machine, could also be a person’s worst enemy. Rational could suddenly become irrational, logical become illogical. He had to pay attention to his internal environment, to control and direct his thinking as well as his emotions. He had to exercise extreme positive control over his actions. That was hard to do, Macumber thought. That was difficult.

  One day, a correctional officer named Parks stopped by to visit. He told Macumber they had a 20 percent chance of rain that night. Bill thought of how he’d like to see rain. But even more, how he’d like to feel it on his face. Parks, one of the younger guards, was a nice man, rare in that place. He always treated Bill with respect and courtesy, never trying to undermine his dignity. Now Macumber, just in conversation, asked him, Will you have dinner with me when this is all over? Yes, Parks said. He would.

  When this is all over. Macumber’s mind kept drifting to that prospect. Perhaps he’d go back to Honeywell, if they wanted him. He’d try his best to make up with his brother, mother and father for whatever wrongs he might have done them. Maybe he could resume leadership of the search-and-rescue unit, though that would be up to the sheriff’s department; if nothing else, he could serve as an adviser. Maybe, heeding his father’s advice, he’d even reestablish communication with his God—he’d distanced himself from Him for too long.

  He was not so foolish as to believe that this matter would be over soon. Things might very well go badly for him. Still, he lay awake at night, thinking about walking out of the jail, of going home. At least it provided some light at the end of the tunnel. Light, and a diversion from the sounds around him, the constant clanging of steel against steel—doors being opened, people being brought in or taken out. There were the fights over in 42 Block, and a big fire one night in 43 Block, and that one prisoner who tried to poke out another man’s eyes. On the night of his thirty-second day in jail, Saturday, September 28, a near riot had erupted—prisoners trying to break down the 44 Block restraining door, burning rags thrown into cells, fire alarms, smoke and fire, firemen and police, the whole fourth floor evacuated. Macumber stayed in his cell, feeling safest there.

  His cell. Compared to others, it was deluxe, he had to admit: twelve feet by six feet, with a bunk bed, a small table, a chair and a very small shower. The solid steel door had a feeding port and a viewing port. In one corner, Macumber had squirreled away a treasure: the three candy bars and three oranges he planned to give his boys when he next saw them. So very little, he knew, but all he had. Perhaps if his case didn’t go to trial—some visitors had raised that prospect—he could take the boys squirrel hunting. He imagined Scott watching football on TV, Steve and Ronnie right there with him, probably hassling over one thing or another. When this was over and done, he’d move from their home on Wethersfield and raise the boys in a larger house, what they deserved and needed. These plans took a great deal for granted, he realized—they assumed he’d walk free and be given custody of the boys. He had to believe all this, though. How else to think of the future?

  Near the end of September, Macumber learned from his brother that they appeared close to raising the $55,000 bail. Someone in the community had stepped forward, offering to provide a major portion. Bill’s neighbors, including Paul and Shirley Bridgewater, had done the rest, agreeing to put up their homes as collateral. On Tuesday, October 1, in anticipation, Macumber packed up his belongings. Waiting, he listened for the elevator, the sound of someone coming for him. No one appeared that day, though, or the next. Bill worried that he’d be out of writing paper by the end of the week—he hadn’t ordered more tablets because he’d assumed he’d be released by then.

  But on Friday, October 4, Bill’s father came to see him, bearing bad news: They had failed to raise the full bail. One of those involved had backed out. Bill could not hide his dismay. Harold promised that he would keep trying. Again he urged his son to hang in there.

  That same day, later in the afternoon, Macumber received another visitor: John Thomas, the civil attorney representing him in his divorce proceedings. Thomas, too, had disturbing news for Bill, of an entirely different sort: He’d just heard that years before, someone else had confessed to the Scottsdale murders. But neither the county attorney nor the sheriff’s department, Thomas told Macumber, will allow the use of this information in your case. In fact, they will fight to keep it out of the courtroom.

  This was how Macumber first learned of Ernest Valenzuela. In his journal, he vented: “If I knew I was going to die tomorrow I doubt I could or would feel any worse. I’ve been charged with the crime of murder. A crime I did not commit. I have sat here for the last 39 days and been questioned, lied to and who knows what else.… Men from this department have taken the stand and outright lied in an effort to make a better case. The media has done their very best to put me in the worst possible light.… I’ve lost my children, my home, my possessions, my income and my freedom.… I’ve been subjected to every possible indignity and have faced letdown after letdown. After all of this I find that someone else confessed to the crime and that the powers that be choose to ignore that confession. If there is anything more that can possibly happen it lies beyond my imagination.”

  CHAPTER 5

  Valenzuela’s Confession

  SEPTEMBER–OCTOBER 1974

  Word of Ernest Valenzuela’s confession had not emerged just then by accident. In September, Thomas O’Toole—still a federal public defender, not yet a judge—had followed the news about Bill Macumber’s arrest with mounting unease. O’Toole felt certain that he’d represented the true killer. But what could he do? The question haunted him. He couldn’t shake the memory of Ernest Valenzuela, couldn’t shake the image of that man’s eyes. Valenzuela, he knew, had not remained free for long in 1964, following his confessions to the cops and Dr. Tuchler. Soon after being released that August, he’d been arrested again on a second-degree burglary charge, drawing a four-to-five-year prison sentence. Released once more in the summer of 1967—despite a “very poor conduct record” in the state prison at Florence—he’d waited just ten days before kidnapping a couple, killing the husband and raping the wife. Because the murder and rape occurred on the Gila River Indian Reservation, Valenzuela needed a federal public defender.

  That’s how O’Toole came to represent him, appointed by a magistrate. Valenzuela wrote O’Toole a note the very next day: “Dear Sir, I want to know how the case looks. I also would like to talk to you.… Please let me know how the case looks.” The case, in truth, looked awful to O’Toole. Late on the evening of August 9 and on into the early morning of August 10, Valenzuela had been drinking at a bar in Phoenix with Lamson and Salina Nelson, both Apache Indians. At his request, the coupl
e started to drive Valenzuela to the reservation. Once there, Valenzuela pulled a gun, shot the husband, ordered him into the trunk of the car, drove a ways, then stopped to shoot the man several more times, killing him. Then he held his gun on Salina Nelson while raping her in the front seat of the car. She eventually snuck away and sought help at the Gila Crossing Presbyterian Church. Police found Valenzuela nearby, asleep in the Nelsons’ car.

  The state had an easy case, O’Toole had to admit. His client was toast. He started visiting with him regularly. Valenzuela, a fit and wiry twenty-three-year-old Pima Indian, looked like an Apache or Hispanic. Sharp features, piercing eyes. Early on, Valenzuela started talking about the double murder north of Scottsdale. He flat out said he killed those two. He identified the victims by name, Joyce Sterrenberg and Timothy McKillop. He said he came upon them in the desert while high on booze and grass. In a matter-of-fact way, he said, “One was running. I shot ’em like a rabbit.” As Valenzuela recalled the killings, his eyes lit up. He appeared possessed—O’Toole thought him bloodcurdling. Valenzuela was clearly a homicidal person who enjoyed killing people. He told O’Toole that he liked to get into fights, liked to get hit. He also told O’Toole that he liked to fantasize about women, that he would go to Arizona State University to watch the girls on campus. He would follow them around and imagine having relations with them. O’Toole had never met anyone like Valenzuela. A shocking man, really—evil personified. O’Toole and his supervisor, Tom Karas, decided to never meet with him alone. They’d only visit Valenzuela together.

  All told, they saw him eight or nine times, an hour at a time, in the U.S. marshal’s office on the eighth floor of the Federal Building in Phoenix. The Scottsdale murder confession came up more than once, and O’Toole took fairly detailed notes, though this was not the focus of their conversation; they had their own murder-rape charge to defend. O’Toole didn’t need or want to know all the details on how Valenzuela killed the young couple. Even so, he couldn’t help but notice that this murder on the Indian reservation looked rather similar to the Scottsdale lovers’ lane murders. Booze and marijuana, a couple in a car, a gun, random violence.

  O’Toole’s job had made him fairly skeptical. Dealing with all sorts of people, he’d learned to smell out the bullshit, but he sensed truth here. He had no reason to doubt—Valenzuela had the persona of a cold-blooded killer.

  O’Toole wasn’t the only lawyer to reach this conclusion. Because of a scheduling conflict, the federal public defender’s office had to withdraw from Valenzuela’s case in December 1967. The court appointed a private attorney, Ron Petica, to replace O’Toole. Over the next six months, preparing for trial, Petica visited with Valenzuela at least once a week, accumulating a number of clear impressions. Valenzuela appeared physically strong, cold, and unsmiling. Petica did not think he had the capacity to be friendly, or to like or dislike other people. One day, sitting at a table together discussing the murder and rape on the Indian reservation, Valenzuela said, “This is not the first person I have killed.” He started talking about the couple he’d shot north of Scottsdale. As he spoke, he looked directly at Petica, holding his gaze, his eyes suggesting cold steel. Like O’Toole, Petica felt scared. Again, Valenzuela was just talking, not boasting, discussing the murders as if killing were part of living to him, his modus operandi. He had no reason to lie. Petica believed him.

  So did a psychiatrist, Dr. Leo Rubinow, brought in by Petica to administer Sodium Pentothal—at the time considered a kind of truth serum. After testing and interviewing Valenzuela twice in March 1968, Rubinow wrote a letter to the judge presiding over Valenzuela’s case, conveying his assessment: “He is extremely dangerous with severe homicidal tendencies. He has a tremendous amount of uncontrollable hostility and resentment. He demonstrates marked disturbance of thought processes with delusional thinking and paranoid ideations plus tremendous amount of fantasy.… In my opinion he is insane. I strongly recommend that he be committed immediately to an appropriate facility. His prognosis is very poor.” Rubinow’s diagnosis: “Schizophrenic reaction, paranoid type, severe with strong homicidal tendencies.”

  The same day he wrote this letter to the judge, Rubinow, deeply concerned, called the U.S. marshal’s office in Phoenix. Valenzuela, he wanted personnel there to know, is “in an extremely dangerous condition and could kill at any time.”

  * * *

  After eventually pleading guilty to second-degree murder, Valenzuela ended up bouncing from one federal penitentiary to another, no one wanting him, everyone finding him “highly rebellious” with “poor institutional adjustment” and “homicidal thoughts.” He refused to work, got caught with contraband knives, threatened guards and broadcast his intention to kill fellow inmates. He spent most of his time in administrative segregation, prison officials unable to justify releasing him into the general population. By early 1973, he was in segregation at Leavenworth, where authorities vainly tried to transfer him elsewhere because of his “violent background” and “threatening, hostile behavior.” Despite a special plea from the Leavenworth warden, who expressed concern both about “safety” issues and the “general morale” of his institution, no other penitentiary would take Valenzuela. Leavenworth finally returned him to the general population in June 1973. There—as they’d all feared—Valenzuela engaged in one last fight. On November 8, 1973, he arrived at the prison hospital with multiple stab wounds. The duty medical officer declared him dead at 8:40 P.M.

  Bill Macumber’s arrest for the Scottsdale murders came ten months later. Thomas O’Toole, hearing the news and learning of Valenzuela’s death, went to talk to his supervisor, Tom Karas. Tom, he said, Macumber’s defense team needs to know. They need to know.

  They both understood the obstacle: Despite Valenzuela’s death, what he’d told O’Toole remained protected by attorney-client privilege, part of the even broader ethical duty of confidentiality, among the most fundamental tenets of the legal system. Lawyers, as advocates, have to keep confidential what they hear from clients. Clients have to be able to disclose everything, good or bad, without fear of retribution, even if that means a lawyer will sometimes obscure the truth; the privilege by its nature at times protects wrongdoing. Trade-offs abound, of course. O’Toole knew that lawyers and judges regularly carved out exceptions to confidentiality—such as when an attorney believes his client is going to kill someone. (Also when the attorney’s own interests are at stake: Lawyers are allowed to reveal confidences to defend their reputation or collect a fee.) Yet no such exception existed when it came to helping a potentially innocent defendant in a murder case, not even if the client has died. The dead client’s interest in keeping his disclosures private trumps the defendant’s constitutional right to present his defense.

  Still—the law has always allowed multiple interpretations. O’Toole felt compelled to explore his options. In late September 1974, he and Tom Karas presented a hypothetical question to the State Bar of Arizona’s standing ethics committee: In a situation where an attorney has heard a murder confession from a client who later died, and has since learned that another person has been charged with that murder, may the attorney disclose the information to the prosecutor and defense attorney?

  In a written opinion (“Arizona Ethics Opinion No. 74-30”) delivered on October 2, the state bar’s ethics committee ruled that the attorney not only “may” disclose but is obliged to. “We hold that it is the ethical obligation to disclose the confidential information of the past commission of crime by his now deceased client,” the committee wrote. “The prosecution of the third party in the fact situation presented may constitute a fraud upon the courts and a gross denial of due process upon one who may be unjustly accused. As such, the failure to disclose the information by the inquiring attorney would constitute the continuing of the client’s wrong by the bond of silence.… The attorney as an officer of the Court has an obligation to assist in maintaining the integrity of the Courts and of the legal profession.… A lawyer is bound to disclose
such confidential information under those circumstances.”

  With that opinion in hand, O’Toole on October 8 wrote to Judge Charles Hardy, who would preside at Macumber’s trial, copying the letter to the county attorney and Bill’s lawyer, James Kemper. “Pursuant to Arizona Ethics Opinion No. 74-30, dated October 2, a copy of which is attached, please be advised that I am in possession of certain information which I am ethically required to disclose to your court or the defendant, or both.… I would greatly appreciate notification by your court regarding what, if any, procedure you desire me to follow in revealing this information to the appropriate parties.”

  The next day, Judge Hardy wrote back, also copying his letter to Kemper and the prosecutor. “I wish to thank you for your letter of October 8.… In my judgment full disclosure of the information should be made to both the prosecutor and defense counsel. If such disclosure is made to both sides, I can see no reason to also make it to the court. I commend you for recognizing the ethical implications involved.”

  A week later, O’Toole wrote directly to Kemper: “By letter of October 9 … Judge Hardy has instructed me to make available to you and the prosecution information in my possession concerning [State v. Macumber]. I suggest that you and the prosecutor contact me for the purpose of arranging a meeting to discuss this matter.” O’Toole’s concluding sentence conveyed his sense of urgency: “I am hopeful that we can meet as soon as possible.”

  * * *

  Jim Kemper, through informal channels, likely received advance notice of these letters before they arrived. While visiting Bill Macumber on October 7, he told him about Thomas O’Toole’s emergence and Valenzuela’s confessions. This officially confirmed what Macumber had heard from his divorce attorney. He did not know what it meant legally, but he believed it had to be beneficial.