Manifest Injustice

by Barry Siegel

  That, in essence, was what Judge O’Toole told Hammond on the phone in September 1998. I am aware of this case, he said. I represented the man who confessed to the murders. They had a hearing, Corcoran wouldn’t admit my testimony. Look at Corcoran’s ruling in light of the Vince Foster case. I’m concerned. I think this man Bill Macumber is innocent.

  * * *

  On the same day he talked to Hammond, Judge O’Toole wrote to Jackie Kelley: “I am belatedly responding to your June 27 letter concerning your cousin, William Wayne Macumber.… I am not able to directly assist you regarding your cousin. However, I have contacted the following attorney, who has vast experience and is highly qualified in representing people who are in situations very similar to your cousin.… Larry Hammond has graciously agreed to review the matter and offer what direction and assistance he finds appropriate. I suggest that you contact Mr. Hammond to discuss your concerns. By copy of this letter, I am sending him a copy of your letter and the column written by Steve Wilson. I wish you the best of luck.”

  When Jackie received this letter, she wept and praised the Lord. Sitting at her kitchen counter, looking out a window at her rambling New Mexico property, she believed her prayers had finally been answered. Ever since her cousin’s arrest, she’d been fighting for Bill. He had no fiercer champion—she could knock back whiskies with the rowdiest of the good old boys in her region and didn’t mind passing them on the curving country roads, even on days full of sleet and snow. Though a devout Christian who played the organ every Sunday morning at the First Baptist Church of Ignacio, a twenty-two-mile drive into Colorado, she’d resisted advice to “trust the Lord” and “leave it in the Lord’s hands”—she thought the Lord might need some help from a good appellate lawyer.

  She and Bill had grown up together in Iowa, both born in Davenport. Her family moved eighty miles north to Cedar Rapids when she was three, but being an only child, she often visited relatives during the summers. Jackie’s mom and Bill’s mom were sisters, and Jackie just adored her Aunt Mimi and Uncle Harold. She’d spend weeks on end at the Macumber house, playing games with Bill and his brother. They grew up in a time and place when young children could be out on the streets during the evening, on their own, with no one worrying. Halfway between Bill’s house and Jackie’s grandparents’ was Castles Ice Cream, with its crenellated roof; when the cousins could talk a grown-up out of a nickel, they’d buy two dips of ice cream on a cone. For five cents, they could also see movies every Saturday night during the summer, on the giant outdoor screen set up at the redbrick school across from her grandparents’ home. Either Aunt Mimi or Jackie’s grandmother would serve a big bowl of popcorn. They’d sit on folding chairs, watching comedies and horror films. They’d never miss that. Bill was lots of fun. Jackie never once had a fight with him.

  They stayed close as teenagers and young adults, even after Jackie married and had her first child. When her husband, Lee, a navy medic, got sent to Korea in 1952, she moved into the Macumber home and lived there for a year and a half. Bill, in high school then, would take her to the movies and ice skating. He’d also pick her up from where she worked, at International Milling on the Mississippi River, to go hunting in the late afternoon. They hunted for squirrels, mainly. Back then in Iowa, everyone had guns, everyone hunted. They’d grown up with guns. Jackie’s dad had taught her to shoot when she was eight. In her time, she’d owned some dozen or so guns, and on her New Mexico spread, she still had four or five. By itself, Jackie liked to say, a gun has never killed.

  Once during her sojourn with the Macumbers, late on a night in 1953, Bill came home quite tipsy. He and Harold worked then as plane spotters for the Ground Observer Corps, part of the national civil defense system. Bill had earned a couple of prestigious awards, and two air force officers had traveled from Chicago to present them. They’d taken him out for a nice dinner, then ended up at the VFW hall, where the beer began to flow. At home in bed well past midnight, Jackie heard pebbles being tossed against her upstairs window. Seeing her wobbly cousin tottering on the driveway, she scrambled down the stairs. If his parents caught him, she feared, they’d skin him. Sakes alive, it was hard to drag that drunk six-foot-seven teenager up a flight of stairs, he giggling and she shushing him, but Jackie managed.

  As the years passed and they all went off into their lives—the Macumbers moved to Arizona, Jackie had two more children—the cousins saw each other less often, but they still wrote, and visited whenever she got to Phoenix. Jackie was living in Ramona, California, working as a secretary for professors at the Scripps Institution of Oceanography, when she learned Bill had been arrested on a murder charge. Her father informed her as she arrived home from work one day—he’d heard from Harold. “I tell you,” Jackie would say many years later, sitting in the kitchen of her New Mexico home, “if Saint Peter were looking at me through this dirty window, I would not be any more nonplussed.” She didn’t believe it, not for a second. Absolutely no way. They’ll discover their mistake, they’ll see he’s innocent. Jackie could imagine no other outcome.

  Yet there had been quite a different outcome. She didn’t know what to do after the trials but pray and go visit Bill. The first time, she went to Florence with Aunt Mimi and Uncle Harold. She walked in bug-eyed, never having been in a prison. They sat at a long table with Bill across from them, behind a midlevel glass partition. To see her cousin there left her nearly speechless. Then and at her later visits, Bill always put on a cheerful face. She knew he didn’t want others worrying about him. Still, she worried all the time. On the morning she received Judge O’Toole’s letter, she’d been worrying and weeping and raging for more than twenty-two years.

  “I received your most welcomed letter yesterday,” she wrote back on September 27. “I cannot begin to thank you enough, not only for your letter, but for your time in reviewing my cousin’s case, and for contacting Mr. Lawrence Hammond on our behalf.”

  That same day, she wrote to Hammond: “Yesterday I received a most welcomed letter from Judge Thomas W. O’Toole.… In the judge’s letter, he suggested that I contact you, which I am now doing.” She wanted Hammond to have her address and cell phone number—both out of Colorado, she explained, because there were no landlines or post offices in her remote corner of New Mexico. “We are short on money, but long on time and persistence. If you would like to have me come to Phoenix, Arizona, to visit with you, I think I can arrange, somehow, to do that. Both my husband and I are retired, so time is our forte. If there is anything you can do to help me obtain my cousin’s release from prison, I would be eternally grateful.”

  An Osborn Maledon paralegal handling Justice Project matters responded in early October, advising Jackie that “Larry and I” had taken “a look” at her letters and the attachments sent to Judge O’Toole in June. As part of the Justice Project, he explained, “we donate our time to conduct post-conviction research in cases where there is a suspicion that a significant injustice has occurred.” The first was an “initial review.” For that, he’d appreciate getting from Jackie copies of “any and all documents” related to Macumber’s case, particularly transcripts, investigative reports and appellate briefs. “We will contact you after our initial review is complete. At that time we will let you know as to whether or not Mr. Macumber’s case is a matter that the Justice Project would be interested in handling.”

  Jackie had no such documents, but she felt sure that Bill and his brother, Bob, would. She quickly contacted them, asking that they provide everything they had. In mid-October, Bill Macumber shipped off what little he possessed. Bob, it turned out, had much of the second trial’s transcript and various other documents. His wife, Clara—known to the family as Toots—was then working less than a mile from the Osborn Maledon law offices in Phoenix. One late October morning, she drove there, the boxes piled in the trunk of her car. She rode the elevator to Hammond’s floor, where she found someone to follow her back down and load the boxes onto a cart.

  The Justice Project began
to look through the documents. Hammond, at first glance, just did not see how the Vince Foster case provided a way to reopen Macumber. One issue in Foster had concerned the waiving of attorney-client privilege in extraordinary circumstances, such as when a dying client confesses to a crime for which another person faces charges. That’s why the Macumber rulings had colored the debate in the Foster case during oral argument and in written decisions at the Supreme Court. The discussions about attorney-client privilege there and in other legal forums all addressed the same question: Should the constitutional rights of the accused outweigh the expectations of a dead client? A compelling question, but in the end, Hammond concluded that the Foster opinion didn’t answer it—the justices merely raised it as a consideration before ruling in favor of Vince Foster’s lawyer. (Only in a powerful dissenting opinion by Justice Sandra Day O’Connor, citing Macumber, did the defendant’s interests trump the dead client’s: “In my view, a criminal defendant’s right to exculpatory evidence … may, where the testimony is not available from other sources, override a client’s posthumous interest in confidentiality.… Extreme injustice may occur … where a criminal defendant seeks disclosure of a deceased client’s confession to the offense. See State v. Macumber.”)

  What was more, given how shrewdly Corcoran had handled the matter in 1976, it didn’t initially appear to Hammond that attorney-client privilege represented the key issue in Macumber’s case. Corcoran had allowed a full hearing, essentially waiving the attorney-client privilege to do so. He’d heard from various witnesses, then decided that their testimony lacked “sufficient circumstantial probability of trustworthiness.”

  This was a hectic time for Hammond. Most weeks, without the expected help from volunteer attorneys, he found himself alone, reviewing dozens of letters from desperate inmates. Cases piled up at his law firm. Life became a blur. Years later, he would not even remember the letter he wrote to Bill Macumber on November 16, 1998.

  The Justice Project could offer him no help, Hammond reported. “Under the circumstances we do not believe that a petition for Post-Conviction Relief can be filed, as the [Foster] decision does not constitute a change in law applicable to your case. There is much to suggest that the trial court erred in excluding Valenzuela’s statements, but the issue has been litigated and we see no way to re-open that topic. Please advise as to the arrangements you would like to have made so that we can return your trial transcripts. I am sorry that we are unable to offer any kind of assistance.”

  Hammond would look back at this letter with regret and puzzlement. The Justice Project staffers knew of Judge O’Toole’s concerns, they knew Macumber had always protested his innocence, but apparently they didn’t, at the start, grasp the importance of this case. In hindsight, it appeared to Hammond that they hadn’t been paying attention. “Not very flattering,” he groaned.

  And yet, Hammond did not return the transcripts. Why? Something about the Macumber case still gnawed at him, he realized only later: an enduring echo from his past. Chambers v. Mississippi, the most important case he’d ever worked on. Reading through the trial record, he couldn’t help but notice that the judges’ rulings in Macumber all cited Chambers, over and over. The judges’ rulings, in other words, kept quoting language he’d helped Justice Powell craft back in 1973.

  No, Hammond didn’t want to let go of Macumber, at least not yet. In 1999, rather than return the transcripts, he asked a Phoenix attorney to give the file a “final review.” That attorney, however, turned out to be another of the volunteer lawyers who promised but did not deliver. He held on to the Macumber file for much of 1999, only to return it in December with a note saying his schedule simply did not allow him “sufficient time to look at the matter in depth.”

  Then came Jackie Kelley. In December 1999, polite but impatient, unaware of Larry’s letter to Bill, she lobbied Hammond from her New Mexico ranch:

  I first wrote you on September 27, 1998. On October 5, 1998, I received a letter from you, requesting copies of all information available on my cousin’s case. On October 24, I sent you all I had. I also told you Robert Macumber, brother to William Macumber, had a great deal of material that he would bring down to you personally. Now, of course, I do not know just when he got all this material down to you, nor do I know just how much material there was to go through.… I was wondering if it would be at all possible for you to give us an idea of your thinking on this case. I realize that you undoubtedly have a lot of material to go through. I can also well imagine that this is not the only case on which you are working. And I know this is a service you are graciously donating. But, if you could give us any idea of your thinking, it would be greatly appreciated by all of us.

  Jackie’s letter caught—commanded—Hammond’s attention. This would not be the last time she pushed him; they were only beginning their complicated relationship. Hammond wrote back quickly, apologizing for the delay, assuring her that they were looking for a qualified volunteer to review the file. They had also recently forged “very positive relationships” with law schools in Arizona, and “law students in conjunction with faculty members have agreed to review a number of our cases.” They might very well assign this file to such a team. Hammond had Chambers on his mind now, and more. “The Macumber case remains high on our list,” he advised Jackie. Macumber’s case was “a disturbing one, to be sure.”

  How to tackle it, though? With limited resources, Hammond considered his options. On his desk sat a phone message from the Phoenix lawyer Earl Terman. Do you have anything? Terman had inquired. He wanted to volunteer; he wanted to help the Justice Project. Okay, Hammond decided. On January 4, 2000, he wrote again to Jackie: “After my last letter to you, a happy coincidence occurred that will allow us to take a closer look at Mr. Macumber’s case. We have been contacted by a senior member of the Arizona Bar, Earl Terman, who has expressed an interest in volunteering time with our Project. He not only has considerable criminal defense experience, but has taught in the criminal law field at the law school. We have asked him to take a first look at Mr. Macumber’s file.”

  * * *

  Terman was sixty-six, a veteran attorney on the road to retirement, still handling cases but eager for new challenges. He had moved to Phoenix from Virginia in August 1974—the very month of Bill Macumber’s arrest. Terman remembered the case hitting the newspapers just days after he’d arrived in town. Now he tore into the Macumber file. He had only partial transcripts and a scattering of other documents. Where were the trial exhibits, where the sheriff’s reports, where all the evidence? So much seemed to be missing. Reading through what he had, searching for what he didn’t have, Terman began burrowing into the past, laboring to reconstruct a thirty-eight-year-old murder, a twenty-six-year-old trial. On January 5, just one day after getting the file, he fired off an e-mail to Hammond, asking questions, making requests, mapping strategies. Was there procedural due process?… Where’s the police report? I didn’t see it.… Did you get cooperation from the public defender or prosecutor?… How much help can I get re investigation? On his checklist: Get newspapers articles of the event … Speak to the attorneys and to Tom O’Toole … Speak to the defendant, wherever he is … Talk to the jurors … Talk to the original witnesses … Check to see if there is any DNA evidence … Get info on the deceased Valenzuela … Research the Vince Foster case … Look at Arizona dicta about how to reopen a case.

  “This really does require investigatory staff,” Terman concluded. “As you might tell, I am excited and hope to be able to get something done.”

  Hammond weighed Terman’s enthusiasm against his need for staff support. At the start of the Justice Project, with a reputation still to cultivate, Hammond wanted to be careful with their first few cases, choosing genuinely righteous ones. “I think we should talk by telephone before you invest more serious time in the case,” he e-mailed Terman. “This is a good outline and we can work from it in thinking what tasks can be performed productively. Thanks for jumping on this so quickly.”
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  A week later, Terman again reported to Hammond. By then, he’d spoken to Judge O’Toole and from him had learned there existed substantive “corroborating evidence” for the Ernest Valenzuela confession: the statement of an eyewitness at the murders. “In reading more of the trial transcripts,” he wrote, “it’s hard not to get excited about this case.… I believe you have a winner here.”

  Hammond liked winners. “This does sound promising,” he replied. “Keep up the good work.”

  * * *

  They were under way. By mid-January 2000, Terman had constructed an ambitious “working status checklist,” listing thoughts, people to interview, things to do. He wanted to speak with Paul Prato and Bedford Douglass. He wanted to talk to James Kemper. He wanted the police file, the court file, the Valenzuela file, old newspaper clippings and all of the physical evidence (“where are the exhibits?”). He wanted to find Linda Primrose (“this is definitely something I need help on”). He wanted to find Dave Brewer. He wanted to find Frieda Kennedy. He wanted to visit with Bill Macumber. He wanted to speak to Tom O’Toole, Ron Petica, Dr. Erickson, Dr. Rubinow. What about the tire-track evidence? What about Valenzuela’s fingerprints? What about all the missing police reports? What about that probation officer’s presentencing report—how could he conclude “no possibility of a frame-up exists,” how could he refer to Bill’s “violent temper” and bizarre Army CID stories when the only evidence came from Carol? What about Corcoran finding Valenzuela’s confession untrustworthy? “Let’s make it trustworthy with more evidence,” Terman declared.

  That last item drew his particular focus. Reading through the Macumber file, Terman believed he saw much evidence supporting the legitimacy of Valenzuela’s confessions: everything from Linda Primrose’s corroborating statements to the psychiatrists’ evaluations and Valenzuela’s fantasies. Valenzuela had a violent record and Valenzuela had a motive, his two victims in the way of a drug-stash retrieval. What they now needed, Terman suggested: more people from that night in the desert turning on Valenzuela and more details of his confessions to those not under attorney-client privilege—his cellmate, his girlfriend, the sheriff’s deputy. And what of all this, he asked, could they frame as “new evidence”—the threshold to reopen the case? What about the discovery that the sheriff’s department had failed to connect Primrose and Valenzuela in 1964?