Manifest Injustice

by Barry Siegel

  * * *

  One morning back in the fall of 1999, Hammond had appeared at Professor Robert Bartels’s door on the ASU campus in Tempe. Bartels, a Stanford Law graduate who held a distinguished post as the Charles M. Brewer Professor of Trial Advocacy, had spent ten years teaching at the University of Iowa—for two of those also serving as a special assistant attorney general, prosecuting bribery cases—before coming to ASU. In Arizona, he’d sat on the boards of various community legal services groups, the Homeless Legal Assistance Project, the Arizona Capital Representation Project and the Arizona Center for Law in the Public Interest. He’d also served a two-year tour of duty as deputy chief U.S. attorney for civil rights matters in the District of Arizona. He’d briefed and argued five cases before the U.S. Supreme Court and some fifty cases before other appellate courts. He’d handled eighty federal habeas corpus and state post-conviction cases, some two hundred civil cases, some one hundred criminal cases. Larry Hammond, for good reason, thought he’d make a superb partner. That’s what brought him to Bartels’s door. Donna Toland and I just took over the Justice Project, he told Bartels. We’re having trouble finding help. Can we get law student volunteers and team them with volunteer lawyers?

  Bartels didn’t hesitate—the Justice Project fit well with his interests. He quickly started recruiting law students as volunteers, former students and ASU faculty as supervisors. That first school year, 1999–2000, sixteen students and ten faculty members from the ASU College of Law reviewed seventeen cases for the Justice Project. Bartels soon stepped in and started supervising a number of cases himself. So began Bob Bartels’s and Larry Hammond’s enduring partnership in guiding the Justice Project.

  Hammond was fifty-five in 2000, Bartels fifty-six, both tall, lean and craggy. If not an unlikely pair—they shared deep-seated values, having come out of law school in the heady, activist 1969–70 era—they were certainly a study in contrasts. Where Bartels was careful and cautious, Hammond was impetuous and emotional. Bob spoke in a low, soft voice, almost inaudible at times, a tone that matched his considered manner. Larry spoke forcefully, and sometimes with irreverence. Bob focused firmly on the facts in evaluating a case; Larry relied more on his feelings. Bob thought Larry “unjustifiably optimistic” about the world in general, though he meant that as a compliment. Larry thought the Justice Project might go up in flames but for Bob restraining him.

  Before leaving on his sabbatical, Hammond wrote a note to Bartels on August 17, 2000: “I hope to have spoken to you before I leave town, and I wanted to put into your hands a couple of documents about the William Wayne Macumber case. This is a case in which the Project has already invested a very substantial amount of time and volunteer energy (as you will be able to see from looking at the couple of documents I have attached). We have reached a point, however, at which it would be very valuable to have the help of a couple of students and a supervising faculty member to work with Earl Terman and Rich Robertson. If you think there are students who could be enticed, I would suggest that you be in touch directly … with Earl Terman.”

  In his office at the ASU law school—a cramped, crowded warren with two desks, both entirely covered with tottering piles of documents—Bartels looked through the attached documents, mainly reports by Terman. He appreciated how much work Terman had done, fashioning not legal analysis but a complex narrative. That complexity, of course, presented problems, as did all the elapsed years. Bartels had deep qualms. How could they investigate this? More challenging still, how could they ever convince a judge to reopen the case? Judges and the legal system wanted finality, after all. It was incredibly hard to win actual innocence cases, especially without DNA evidence.

  Bartels did not see how they could prevail. Still, he recognized Larry’s excitement, and he knew that Larry thought this worth pursuing. Okay, he told Hammond, if you want to do this, I’ll help. And I’ll get you a couple of students.

  CHAPTER 13

  Stroke of Luck

  AUGUST 2000–JANUARY 2003

  A stroke of luck—looking back, that’s how Bob Bartels would describe finding the pair of law students who first took up the Macumber file under his supervision. One week after receiving Larry Hammond’s request, Bartels wrote a memo to all second- and third-year law students at ASU. The subject: “Pro Bono Credits (and Possibly Academic Credit) for Work with the Justice Project.” Bartels described the project’s purpose—“to investigate selected criminal cases to determine whether there is credible evidence that establishes the defendant’s actual innocence or indicates that a fundamental injustice has occurred.” And he invited applications from “student volunteers who are willing and able to work on Justice Project cases during the Fall 2000 semester.” Except during final exam periods, he noted, “student volunteers will spend a few hours each week on their cases,” supervised by a faculty member.

  Bartels’s memo intrigued Sharon Sargent-Flack, then a second-year law student. Professor Bartels, after all, was legendary at the law school and had a national reputation. If you wanted to learn the rules of evidence, you studied Bartels; even practicing attorneys still consulted Bartels’s famous evidence outline. She slipped her résumé into Bartels’s mailbox. So did Karen Killion. Though only a first-year law student, so seemingly not eligible, she wanted badly to join this endeavor.

  Bartels chose both of them as Justice Project volunteers—his stroke of luck apparently involving some judgment. Then, on September 21, he sent them a memo, assigning a case: William Wayne Macumber’s. “I will be your faculty supervisor,” he wrote. “Attached are copies of the few documents that we have in hand. The two of you should read the attached material, get together, and then call me or stop by my office.” (Lest they get confused, he advised them that his office had the name “Yossarian” on the door, rather than Bartels.)

  Sharon and Karen read through Terman’s memos, focusing particularly on his ten-page Macumber Narrative, which they thought full of detail and passion. Then, at 10:00 A.M. on October 11, they met with Terman and Bartels. Sharon scribbled notes as Terman walked them through the story: No motive for Macumber to kill. He denied what wife told sheriff. Macumber’s interview not recorded or transcribed. Terman talked on, telling Karen and Sharon about Primrose and Valenzuela, about Tom O’Toole, about Judge Corcoran, about Dave Brewer. He spelled out two potential tracks—“conspiracy” and “evidence to prove real killer.” He mentioned a possible long-shot third track—a clemency hearing. He raised the idea that the Vince Foster case might support allowing the Valenzuela confession. Yet here, as in his written narrative, he had to allow: “Not enough conspiracy evidence to infer that wife framed husband.”

  After this meeting, Karen and Sharon kept communicating with Terman as they started to look through the files. They recognized his great investment in the Macumber case and soon began to share that feeling. Karen Killion, then thirty-six, had an especially personal reason: As a child, she’d lived on the same street as the Macumbers—West Wethersfield. She would have been in the same grade at Sahuaro Elementary School as Bill’s oldest son, Scotty. In fact, she thought she spotted Scotty in one class picture. And Karen’s father worked at Honeywell, just like Bill. She asked her dad—yes, he thought he remembered Macumber. But Karen’s family had moved from the neighborhood in 1972, two years before Bill’s arrest.

  Besides reading files, Karen and Sharon went in search of missing reports and trial exhibits. They contacted a range of agencies; they visited the sheriff’s department; they filed Freedom of Information Act requests; they sat one long day in a hot, un-air-conditioned basement at the federal public defender’s office, going through boxes. They encountered obstacles wherever they went—so much was missing. So much, as well, was murky, the evidence conflicting and ambiguous. Initially, their take on the case vacillated. The sheriff’s investigation seemed so inadequate—the leads the officers had disregarded, the issues they’d ignored, their failure to follow up with Valenzuela. Yet Macumber reporting shots through hi
s kitchen window—that struck Sharon as odd, that left some discomfort in the back of her mind. Sharon also paused over Bill’s puzzling “I suppose to keep her from leaving us” response, in the end concluding that “Macumber gave a speculation, not necessarily admitting that he did make a statement like that.” Karen wavered over Linda Primrose’s reliability. All the drugs and alcohol she used might have affected her memories. That she’d “cooperated” with Thomas Hakes after resisting Hill and Jones seemed peculiar. That she’d offered two versions of her story also tended to cast doubt. Still, there were plenty of elements common to both versions, and Primrose’s account included details not in the newspaper reports. Two facts not in any of the news stories—the thatch of hair, the girl running—fit exactly with Primrose’s statement.

  Most important, the records documented no follow-up or evidence that investigators had ever connected Primrose with Valenzuela.

  Linda Primrose had talked of being at the murder site with “Ernie.” Ernest Valenzuela had talked of being at the murder site with “an unknown girl.” No one had noticed this; no one had put the two reports together.

  Both Primrose and Valenzuela had identified the killings as being in the desert north of Scottsdale. Both had described Joyce as running away. Both had said everyone in their group was drinking and smoking pot.

  Primrose had described Ernie as being about five foot seven, twenty to twenty-two years old, with brown eyes and black hair. Valenzuela was five-nine, eighteen, with brown eyes and black hair.

  Primrose said Ernie had “pulled time” for burglary. Valenzuela had five burglary convictions between 1963 and 1964.

  Primrose’s description of the killings showed Ernie to be a violent, homicidal and dangerous person. Valenzuela had all of those characteristics.

  Most striking: Primrose said “Terry” pulled her hair “as if in a fit,” and the deputies had found a thatch of hair at the murder scene.

  In the end, the cumulative record, layer upon layer—the deputies disregarding the Valenzuela and Primrose leads, the evidence kept in an unlocked desk drawer, the Latent Lift 1 print never being sent to the FBI, Bill’s very character—convinced Karen and Sharon beyond a reasonable doubt. Once they realized that Carol had access, had affairs, had taken fingerprint classes and was divorcing Bill, they felt certain about this case. Those fingerprint classes especially: Carol had earned an A and a B, getting practical training in taking prints, developing latents, interpreting patterns, preserving and photographing, considering chain of custody, and preparing evidence for court testimony. Then there was Valenzuela repeating his confession six times, something the jurors never had before them. Knowing what they knew—more than what any jury heard—Karen and Sharon saw plenty of reasonable doubt.

  So did Jen Roach, when she joined them on the Macumber team. After her first year of law school, Bob Bartels hired Jen as a summer research assistant, giving her the Macumber case as one assignment. The next school year, she signed up for Bartels’s criminal justice seminar, where again he assigned the Macumber case. She considered it a remarkable opportunity for a second-year law student: to work for Bartels and Hammond, two great lawyers with towering reputations. She thought Bartels a flat-out genius, and she liked being around geniuses. She also liked helping people, especially underdogs. She shared Karen and Sharon’s dismay at what they all considered a gross injustice.

  That judgment only deepened as they kept discovering more troubling elements. The shoddy police investigation—the deputies failing to secure the murder site, losing the hair and handkerchief, never typing the blood. Richard Diehl’s and Ed Calles’s memory lapses on the witness stand. Judge Corcoran mocking Bedford Douglass, accusing him of manufacturing reasonable doubt—what did that mean? The parallels between news media speculation back in 1962 and Carol’s 1974 story to the cops: An LAPD officer’s conjecture in one article had the victims caught in Bill’s headlights, the boy reaching for his billfold, Bill thinking it a gun—exactly what Carol claimed Bill told her.

  Carol’s statement, they noticed, also seemed to parrot details in the Sterrenberg-McKillop murder file—one 1966 sheriff’s report in there concerned a young man (Lester McFord II) who posed as a military CID agent looking for AWOL soldiers. They saw also an obvious coziness between Carol and the investigating deputies. Richard Diehl, for example, saying to Carol during her August 23 interview, “In talking to you about other situations, Bill is subject to dreaming…” Why would Diehl have occasion to speak to Carol regarding her husband’s dreaming in “other situations”?

  Diehl. Diehl and Ed Calles. Sharon, Karen and Jen kept going back to these deputies’ memory lapses on the witness stand, their lapses and their failure to record Macumber’s sixteen-hour interrogation. That kind of police work, they saw, had not gone unnoticed by Macumber’s defense attorney. In the courtroom, Bedford Douglass had challenged both Diehl and Calles about the August 28 interrogation. Diehl first:

  Q: It was on the 28th that you talked to Bill?

  A: Yes.

  Q: And it was on the 23rd that Carol had made the allegations?

  A: Yes, sir.

  Q: Did you take notes on what Carol said?

  A: No, sir.

  Q: Did you tape record it?

  A: No, sir.

  Q: Did you get it down word for word somehow?

  A: The secretary first took it down and then transcribed it.

  Q: So your secretary knew shorthand?

  A: Yes, sir.…

  Q: She serves the same function that the court reporter is serving here, correct?

  A: That is correct.…

  Q: Now, when Bill gave his statement on the 28th … who was the stenographer then?

  A: We did not have one.

  Q: Nancy Hallis [Halas] wasn’t there?

  A: No, sir.

  Q: Then I presume you taped the conversation?

  A: No, sir.

  Q: Then I guess you took voluminous notes?

  A: I didn’t, no, sir.

  Then Ed Calles:

  Q: Did you videotape this conversation with Bill?

  A: No, sir.

  Q: Now, getting a statement down accurately, of course, is very important, is it not?

  A: Yes, sir.

  Q: And as a matter of fact, Detective Diehl, who took Carol’s statement, took pains to get it done accurately by bringing in a stenographer, correct?

  A: He took a statement, yes, sir.

  Q: Did you then bring in a stenographer to take down what Bill was telling you?

  A: No, sir.

  Q: Now, the Sheriff’s Department does have tape recorders, does it not?

  A: I would assume they have, yes.

  Q: Well, you have used them on occasion, have you not?

  A: On occasion I have used my own personal tape recorder, yes, sir.

  Q: But in addition to the one that you have, the Sheriff’s Department has a tape recorder?

  A: I believe so; yes, sir.

  Q: They are fairly easy to use, correct?

  A: That is also correct, sir.

  Q: Why then didn’t you tape record the statements you took from Bill Macumber during that five-hour interrogation on August the 28th, 1974?

  A: Simply because I didn’t have a tape recorder.

  Q: Well, let’s see. This interrogation, it took place at the Maricopa County Sheriff’s Office, did it not?

  A: That is correct, sir.

  Q: It took place in room 10, correct?

  A: That is also correct.

  Q: And is there at the Maricopa County Sheriff’s Office [a place] that they store who knows how many tape recorders?

  A: Well, I assume there are tape recorders there, yes.

  Q: You did not record it on tape, you did not record it by a stenographer, correct?

  A: That is also correct.

  Q: Then could I see the notes that you took during the process of the interrogation?

  A: When my departmental report was transcribed I destroyed
the notes.

  Q: How many notes did you take during the interrogation?

  A: I can’t recall, sir

  Q: As a matter of fact, you made no notes at all, did you?

  A: I can’t recall, sir.

  Q: Referring to the preliminary hearing transcript … do you recall the following questions and the following answers being given by you: Question—Did you make any notes for yourself during that five-hour period? Answer—There was no notes made.

  Do you recall that?

  A: If that is what the answer is, it is a true answer.

  If not an overt conspiracy—a long reach—this at least seemed to Jen Roach a failure of critical thinking. Carol had training and motive, Bill had an exemplary history but just went out and killed. Jen—who would later become a Maricopa County public defender—found it interesting to sit alone and go through the entire file, spotting all the discrepancies. No motives, no reason for the murders—it just didn’t make sense to her. It looked like collective cowardice by the investigators and prosecutors: expediency over accuracy. Exchange your failure to solve these murders for this—for Bill Macumber. Instead of proper, rigorous thought, just assume. Even with all Jen’s later experience, her exposure to the vagaries of the criminal justice system, this case remained particularly troubling to her. The raw injustice of it stood out. A case where the system had failed.

  Earl Terman remained involved, but a meaningful handoff had now been made to Bob Bartels and the ASU law students. Terman advised Macumber of this in mid-December 2000: “I wanted you to know that I am still with your case but that since October the file is being studied by a small team of volunteer law students and their law professor, to see what they could add. In January 2001 the head of the Arizona Justice Project, Larry Hammond, will return from a sabbatical and we are expected to staff your case.”