Manifest Injustice

by Barry Siegel

  To “staff your case” would represent a significant commitment by the Justice Project. They were not a general-purpose criminal defense firm, ready to represent anyone who hired them. With limited volunteer resources, and a focus only on cases involving actual innocence or manifest injustice, the Justice Project had to be highly selective. Innocence and manifest injustice by themselves weren’t enough; the project staffers had to pick cases where they believed they could accomplish something, where they could prevail. They had no time for tilting at windmills. So they had to assess legal issues, not just read compelling narratives. Did they have new evidence that would sway a jury? Did they have denial of due process rights? Most important: Could they persuade a judge to reopen this case? Could they win?

  First Sharon Sargent-Flack and Karen Killion, then Jen Roach as well, set out to answer those questions, filling the Macumber file with their own reports. Sharon focused initially on the firearms evidence trail, while Karen addressed the fingerprints. Jen added a second memo about the ballistics and the ejector marks. The match of Macumber’s gun to the murders looked dubious to them. They saw a broken chain of custody right from the start, with no report documenting how the shells moved from the homicide scene to the sheriff’s property room. They saw as well that the shells eventually ended up in Sergeant Roger Hart’s unlocked lower right-hand desk drawer. They saw that the barrel, extractor and firing pin marks on these shells didn’t match Macumber’s gun. Bill, they knew, had changed the barrel on his automatic several times—but he’d kept all the worn-out barrels and had given them to the deputies when they took his gun.

  After their initial survey of the evidence, Jen assembled a comprehensive, chronological seventy-five-page “Macumber Outline.” Sharon compiled a fifty-page spreadsheet inventory of all the case files. In a “Top 10 Action Plan” memo, Karen mapped out their overall strategy. She considered two courses of action: immediately speak to people who might know and talk about a possible frame of Macumber or do everything but talk to those people. Because “MCSO [Maricopa County Sheriff’s Office] stands to lose a lot on this case, and William Macumber is basically at the mercy of the state right now,” she chose to emphasize “a course of action that does not immediately announce the Justice Project’s interest in Macumber’s case.” Instead, she proposed that they first dig for physical, tangible evidence: missing police reports, FBI files, fingerprint latents, photos and negatives. What about locating the victims’ Chevy Impala, or at least getting a picture of it? What about locating Macumber’s .45 automatic, which the county had auctioned during its 1982 court-authorized housecleaning? Seeking hospital emergency room records for the juveniles Macumber fought with one night around May 1962? Accessing telephone records to verify the reported calls between the Macumbers’ service station and Mildred Lunsford, the woman who insisted she spoke to Bill all through the evening of May 23, 1962?

  Following in Terman’s footsteps, Karen Killion compiled her own Macumber narrative, at sixteen pages even more detailed and comprehensive than his. She readily acknowledged weak spots in their story: She recognized Linda Primrose’s erratic conduct and two conflicting accounts; she saw that Primrose’s sister didn’t believe her statements; she allowed that “obviously the jury did not buy” the defense argument about Bill’s palm print being planted. Yet the many failures and irregularities in the case file shocked and educated her. This was Karen’s first exposure to a murder prosecution, her first X-ray look at the insides of such a high-stakes case. She found the initial investigation by the sheriff’s department fascinating—how they chased down leads or didn’t, how they handled Macumber’s sixteen-hour interrogation, how everyone had open access to the evidence. How contradictory testimony existed as to whether the Impala driver’s door was open. How no one could “recall” whether the driver’s window was up or down. How so much of the record had gone missing: On October 26, 1965, Karen saw, the local newspaper printed a photo of Sergeant Jerry Hill standing by the case file and a cabinet containing 325 supplemental reports, inventoried by an indexing system the deputies had created to handle the overwhelming number. But by 1974, the indexing system and many of the reports had “disappeared.”

  The roundup and test-firing of .45 pistols in 1962 also drew Karen’s attention. At his second trial, Macumber recalled that Sergeant Roger Hart had picked up his gun at the service station, something Hart denied, testifying that he worked in ID, so wouldn’t have physically retrieved any guns. (Sergeant Robert Kimm, in a curious two-sentence sheriff’s report drafted just before the first trial but never introduced as evidence, also denied picking up Macumber’s pistol.) Yet by January 1963, Karen saw from news accounts, Sergeants Jack Watson and Roger Hart had test-fired over 350 guns, and none had delivered a slug that “even comes close” to those fired by the death weapon. Had Hart lied? And what did it mean that Hart and Watson made breech-face and firing-pin comparisons only, while in the 1970s, Robert Sibert relied solely on microscopic ejector marks, smaller than a human hair? The Macumber trial, Karen noted, was the first time Sibert had done this, even though he allowed that you could fake ejector markings without actually firing the weapon—you simply inserted a fired casing into the weapon, then ejected it.

  More than anything, Karen focused on the fingerprints. The Maricopa County Sheriff’s Office didn’t even reveal the existence of fingerprints to the media until October 24, 1963, almost a year and a half after the murders. Then they released just four latents, the newspaper quoting Sergeant Hill as saying, “We’ve checked everyone and eliminated every print but these.” Yet Jerry Jacka, Karen knew, had lifted a total of fifteen. She considered his methodology, which included dusting and photographing each print in situ before lifting it with Scotch fingerprint tape and placing it on a latent card. Four of these prints he submitted to the FBI for comparison (Nos. 2, 9, 13, 14), the same four the department released to the news media. Latent Lift 1, Macumber’s palm print, wasn’t among them. Karen could find no documentation regarding it until the day of Bill’s arrest in August 1974. Jacka, she saw in the transcripts, testified that he’d lifted it from the chrome strip on the driver’s door, below the window and above the handle. When asked during the trial if he could tell what the print was, a fingerprint or a palm print, he replied, “Well … it is difficult to tell.… It is difficult to ascertain.” He did not send Latent Lift 1 to the FBI because “lift number one being a partial print in my opinion was such that you could not determine or establish the type of pattern.” He made similar statements to the Arizona Republic after the trial: “We had no way of knowing whether it was a palm print, part of a digit, part of a finger.” By contrast, Sergeant Charles Ford testified that he, in 1974, charted twenty clear points of identification between Latent Lift 1 and Macumber’s right palm print. In fact, Ford claimed he could have found at least three times that amount or more on what he considered a “good print” and a “large area with … lots of points of comparison.” Were Jacka and Ford looking at different prints?

  Karen noticed something else, as well: At trial, Ford produced two negatives that showed the print on a chrome strip with an identification card below it. But according to testimony, it appeared that the photos didn’t reveal anything identifiable as the Impala. If only they had those lift photos, Karen thought. Instead, they had an empty evidence locker.

  Looking at the evidence, she couldn’t see Macumber being guilty. So who else might have committed the murders? Ernest Valenzuela, of course. But Karen saw other possibilities, lots of crazy folks in the Macumber file. One guy in Illinois had collected photos of Joyce. Someone else had followed her around, wanting to date her. In Joyce’s purse at the murder scene, the detectives had found a slip of paper with only a license plate number written on it. The car’s owner, it turned out, was a fellow worker at Mountain States Telephone—a woman who’d left by bus for California on the night of the murders. What was that about? People wrote down license plate numbers only when they sensed something suspicious, r
ight? Karen spotted other odd things all through the reports, most unnoticed by the investigators. The deputies had written each report from an isolated perspective—just that particular officer at that specific moment, with no overview, no one to make connections and identify patterns.

  Going into the Macumber case, Karen had wanted to be a prosecutor. Now she changed her mind. Prosecutions, she came to realize, could be full of political pressure, particularly in high-profile cases like this one. She wouldn’t like working under those constraints. She decided she’d always be oriented to the defense.

  * * *

  On December 18, 2000, Rich Robertson received a phone call from Jerry Jacka. Here was fruit, falling from a shaken tree: Hey there, Jacka said. Guess what I found.

  Six months after Robertson first contacted him, the fingerprint technician turned photographer had come upon a file. Among other documents—notes, reports, letters—the manila folder contained photos of the fingerprints from the Macumber case. The prosecution had given him this file to study as he’d prepared to testify at the first trial, in 1975. After testifying, he’d just walked out with it.

  This was huge—until then the Justice Project had no physical evidence of any sort to look at. Now they at least had photos of the latents and lifts. Or, at least, Jacka had photos. On February 5, 2001, Robertson drove to Jacka’s home in north Phoenix to see them. Jacka allowed him to look through everything piece by piece, twenty documents in all, Rich taking notes and constructing an inventory chart over the course of two and a half hours. Jacka wouldn’t let Rich take the file, though—he thought the Justice Project should get a court order for that.

  The next month, Bob Bartels made his own visit to Jacka’s home, bringing Karen and Sharon with him. He thought Jacka’s house was very Arizona Southwest, the walls full of beautiful Indian artifacts, Jacka’s evocative photographs of landscapes and Native Americans displayed everywhere. Jacka, friendly and cooperative, showed them the photos, which included Polaroids both of lifts on cards and of latents taken directly off the Impala. He had a photo of Latent Lift 1, and he also had an eight-by-ten blowup of what Jacka believed to be Latent 1 from the dusted surface of the Impala chrome strip, before he lifted the print. But at the end of the visit, Jacka again hesitated to hand the photos over; he still thought the Justice Project should get a court order.

  By then, Larry Hammond had returned from his sabbatical. Still reviewing, still assessing whether they’d commit to a formal appeal, the Macumber team—Hammond, Bartels, Robertson, Terman, Sargent-Flack, and Killion—held meetings, organized conference calls, wrote reports, combed through more boxes, and vainly made FOIA requests, seeking any extant FBI records about Macumber. Most important, they lined up what Bartels, in a letter to Macumber, called “an excellent fingerprint expert.”

  Steven Anderson worked then for the Scottsdale Police Department but was transitioning to a private practice. “We are making arrangements,” Bartels advised Macumber, “for him to compare Valenzuela’s prints (and yours) to the images of the lifts.”

  * * *

  In his cubicle at the state prison in Douglas, Macumber followed the Justice Project efforts with cautious optimism, comforted by Professor Bartels’s recent involvement. He also took comfort from visits paid by dear friends and relatives—a close Honeywell colleague drove all the way from Denver, his cousin Harleen and her husband, Jay, from Apache Junction, outside Phoenix. The visits distracted him from the deadening routine of life at Douglas.

  No longer engaged by the Jaycees and rodeos, Macumber measured life now as best he could. There’d been a hard-pounding thirty-minute rain the other day, a welcome burst with everything so dry, and the ground thirstily sucked up the water. Welcome also: The prison dentist had finally filled the last of his cavities and would soon take impressions for the partial dentures he badly needed. The dentist had told him he’d get the sets four to six months after the impressions—a long time, but at least his teeth loomed on the horizon. Maybe he’d have them by Christmas—a nice gift.

  In mid-May, Macumber felt compelled to write Bob Bartels a lengthy letter, raising familiar questions about some of the central issues in his case. How could they possibly connect his gun to the shell casings by the ejector marks when nothing else, not the firing pin or the breech or the extractor, matched? How could they not connect the black human hair found at the murder scene with Linda Primrose’s account of a girl pulling out her hair? How could they not let Tom O’Toole and Ron Petica testify about Valenzuela? How could they not have a record of his .45 pistol being test-fired back in 1962? How could they keep all the evidence unsecured in an unlocked desk drawer?

  Macumber apologized to Bartels for going on like this. “I have lived with these questions, Mr. Bartels, for 27 years now and I still have never received any satisfactory answers.… At any rate, sir, I didn’t mean to bend your ear, so to speak, to this extent. I’ve had no one over the years except for family that has wanted to listen.”

  In his crowded, disheveled office at the ASU law school, Bob Bartels studied Macumber’s letter, moving line by line through his questions. How to respond? Bartels certainly found it disturbing that the jury had never heard about Valenzuela or connected him with Primrose, but the Justice Project attorneys couldn’t relitigate that now. Yes, they could bring it up in a petition, but they’d face a much higher burden of proof than at trial—they’d have to establish that no jury would find Macumber guilty beyond a reasonable doubt if they knew of Valenzuela and Primrose. That seemed pretty hard to Bartels. The prosecutor would say, Yeah, what about the shell casings and palm print and Carol’s statement? So the Justice Project had to reinvestigate those three elements.

  To Bartels, the forensic evidence, particularly the fingerprints, offered the best chance to reopen Macumber’s case. He and Larry Hammond both had a good deal of experience in the ever-evolving forensic sciences; besides the flashover arson tests that had played such a huge role in the Knapp and Girdler cases, Bartels had considerable familiarity with fingerprints and ballistics. You could, he reasoned, attack the state’s case through the prints and shell casings, rather than emotion or intuition or feelings for Bill. The shell casings evidence appeared basically worthless to him. The palm print also seemed suspect to Bartels—Karen Killion’s narrative memo convincingly documented how a small, obscure, unclassifiable partial print in 1962 had evolved by 1974 to a clearly readable palm print. On the other hand, they had no direct proof of tampering, and no explanation for how someone could do it. They had doubts but no smoking gun—at least not yet.

  Typing out his response to Macumber, Bartels followed the order of Bill’s questions, his answers reflecting his caution. The points Macumber raised about the ballistics evidence “are interesting and we will review the materials we have regarding them.” The Justice Project had also “noted the coincidence between Linda Primrose’s story and the tufts of hair,” and though “this point probably is not sufficient by itself, it is significant.” Yes, Tom O’Toole and Ron Petica should have been permitted to testify, but “that issue may be precluded as a legal matter by prior proceedings.” Carol’s access to evidence in the case “is a point that may have some significance, although we will need additional evidence that she actually took advantage of that access.” For now, Bartels concluded, “we are focusing our efforts on obtaining comparisons between (a) existing photographs of … the latent prints and (b) your prints and Valenzuela’s. When those comparisons have been completed, hopefully in the near future, we will be in a position to decide what direction to take next.”

  * * *

  “Hopefully in the near future” would prove difficult for the Justice Project, working as always with limited resources and unpaid volunteers. Weeks turned into months. Not until October were they able to conclude that Valenzuela’s prints didn’t match the latents lifted off the Impala. At a meeting on December 21, the Macumber team members discussed whether they should widen their focus and “pursue” Carol. That wo
uld involve approaching her directly after first learning as much about her as possible from friends, relatives, Frieda Kennedy and the various police officers she’d known back in the 1970s. “If we do this right,” Earl Terman wrote in a memo, “we might still get leads to those who could add much more to the probability that the fingerprints were switched. That’s the key evidence which must be surmounted. If the fingerprint evidence is neutered by the expert [Steve Anderson] and we show the ‘doability’ of the switch, then we just need to pile on the motives for doing the switch.”

  The palm print still remained their chief focus. Two months later, in February 2002, the Justice Project finally obtained a court order—signed by Thomas O’Toole, presiding criminal judge—instructing Jerry Jacka to turn over all records and photos of prints he possessed related to the Macumber case. As soon as Steve Anderson received Jacka’s file, he began a close study of the critical Latent Lift 1 photo. Something soon caught his eye: a relatively faint diagonal line near the top of the photo. The portion of the lift tape above this line looked quite different from the portion below it, as if the part above was not on the same kind of surface. What did this suggest? Did this line exist on the Chevy Impala itself? Or did the line provide proof of a switch?

  The Macumber team decided they needed to compare this photo to an actual 1959 Impala driver’s door chrome strip. Which meant they needed to find one. Rich Robertson undertook the search.

  * * *

  In the spring of 2002, Larry Hammond stepped more directly into the Macumber case. Once again, the catalyst was Jackie Kelley. During a driving trip that included stays in Las Vegas, for a family reunion, and then Douglas, for a visit with Bill, Jackie and her husband spent one night in Phoenix, where they’d arranged to meet Earl Terman on the morning of Friday, May 10. But when they checked into their Motel 6 late Thursday night, the desk clerk handed them a message from Hammond, asking Jackie to call him. Terman had suffered a heart attack. So instead of meeting with Earl, Jackie talked to Larry on the phone for two hours that Friday morning—their first direct contact, and the first of many conversations.