Manifest Injustice

by Barry Siegel

  After more than an hour together, Bartels thanked Jacka, loaded the chrome strip back into his truck, and drove off. Winding his way through the ponderosa pines, Bartels weighed what he now understood about the palm print evidence. Looking at Latent Lift 1 today, Bartels saw an obvious and distinct palm print, yet back in 1962, Jacka hadn’t. To Bartels, it seemed logical to conclude that the current Latent Lift 1 wasn’t what Jacka handled in 1962. But maybe Jacka hadn’t paid close attention back then. You could say much the same about why Jacka hadn’t sent Latent Lift 1 to the FBI, especially given the limited classification system at the time. Still, everything but the palm print pointed to Macumber’s innocence. Bill’s background and lack of motives, Valenzuela’s confession, Carol’s role—these elements combined seemed to increase the likelihood that someone had fabricated LL-1.

  But how? That question remained unanswered after Bartels’s visit to Jacka’s ranch. Steve Anderson’s opinion that Latent Lift 1 couldn’t have come off the chrome strip was obviously quite favorable to Macumber. So, too, was Jacka’s surmise that he’d used plastic-like material for his LL-1 lift card. All the same, Bartels saw potential problems. Though he had confidence in Anderson, the primary basis for his opinion—that no explanation for the diagonal line existed consistent with LL-1 being lifted from the chrome strip—might just mean that Steve couldn’t think of any explanation. They also had to address that blowup photo of what appeared to be Latent Lift 1 on the chrome strip, before Jacka lifted it. If that’s what it was—possible but not certain—then they needed to develop evidence, or at least a theory, about how it, too, could have been falsified. They had to figure out how someone could make not just a switch but a double switch. Such a switch was doable, but it wouldn’t suffice to simply raise disturbing suspicions, to show how the print metamorphosed between 1962 and 1974. They had the burden of proof: They had to demonstrate exactly how Macumber’s print ended up on the Impala’s door.

  Steve Anderson’s analysis provided a powerful defense, for it suggested that something was not right about the trial version of Latent Lift 1. Now, though, in the summer of 2003, Bartels decided they needed to get a second fingerprint expert’s opinion. He wanted confirmation of Anderson’s judgment.

  The public defender’s office in Mesa suggested John Jolly, then a fingerprint examiner with the Arizona Department of Public Safety. Larry Hammond knew Jolly, too—Jolly had come forward in 1991 to provide important testimony on behalf of John Knapp. Hammond called him on September 5, asking for help, explaining they wanted a second look as a “sanity check.” It would not only have to be unpaid but also more or less low profile; though in transition to a private practice, Jolly still did some work for the state police, and his supervisor there bristled at Hammond for his frequent critiques of forensic lab work. Jolly nonetheless agreed, with enthusiasm—he had high respect for both the Justice Project and Steve Anderson. A month later, he picked up the Macumber fingerprint binders.

  What did the faint diagonal line on Latent Lift 1 represent? Was it possibly a reflection from Jacka’s camera flash? Was it a line on the Impala’s door itself, where the car window and frame met? Or was it an edge of some sort that might suggest a planted print? Steve Anderson had reached one conclusion. Now Jolly would study the matter as well, though at his unavoidably slow pace: He was an unpaid moonlighter, after all.

  * * *

  Weeks slipped by. Jackie Kelley grew impatient, nearly frantic. Winter, fierce as ever, had blown into the New Mexico highlands. She watched the snowstorms from her kitchen counter, smoking Marlboros and, when the chill set in, sipping Canadian Hunter whiskey. She’d always tried to balance being polite with getting what she wanted. She’d worked ten years for professors at Scripps Institution of Oceanography, two years for the CEO at a big computer-information company in Washington, D.C., and then—after moving to New Mexico—ten years as secretary to the principal at Durango High School, over the border in Colorado. She’d found it fascinating but frustrating to get an inside look at the public education system, where teachers couldn’t much discipline the kids, given all the rules. Where Jackie came from, men took their hats off when they entered a room, but these students sailed into the principal’s office with snugly covered heads. At least they did until Jackie went to work there: They learned soon enough to remove their cowboy hats. Jackie didn’t mind that she had a reputation at Durango High for being strict.

  Early that December, she called Larry Hammond, urging him on, expressing concern about the delay, warning about Bill’s declining health. Larry and Jackie had never met—all their communication had been by letter or phone—yet they’d acquired the complicated dimensions of a relationship. Though he thought her more apologetic than pushy, he by now very much felt her pressure. Apparently, it got to him during that phone conversation. Two weeks later, Jackie wrote to him: “I want to thank you for talking with me when I last called,” she began. “I think I got your message, however, which is not to call you again. That’s why I am writing this letter to you.” She felt concerned now “about what I perceive as a loss of interest in this case.” She appreciated the pro bono nature of their work, she understood all the difficulties, she remained eternally grateful. However, she was also “confused over what I am sensing as a change of heart on the part of the Justice Project.” She suspected that “this change took place about the time Professor Bartels went north to visit with the retired deputy [Jacka] about the fingerprints.” She was “at a loss to understand just why.” She remained grateful to everyone, all the same, and wanted “to wish you and the team a very Merry Christmas and a Happy New Year.”

  Hammond, regretful and chastened, wrote back within days: “You are such a sweet and thoughtful person and I now feel guilty about discouraging you from calling me. To whatever extent my remarks imposed an embargo on communication with you, I wish to lift it.” He assured her that he remained “very concerned” about Bill’s case. He had, in fact, just e-mailed Professor Bartels, expressing his worry that “nothing—or at least very little—appeared on the surface to be happening.” He had not heard back from Bartels directly, but he had some assurance to offer Jackie. The delay came not from waning interest but because “we are extremely concerned about making sure that we do the right thing and it was with that in mind that we took the extra steps of seeking a second opinion on the fingerprints.” The delay stemmed, as well, from “the sheer volume of work that the Project has under way.” (At the time, they had some twenty cases in court, thirty to forty more in an intense level-two evaluation, and twenty new files arriving each month for review.) Most cases, Hammond explained, had a private volunteer lawyer as supervisor, but with Earl Terman falling ill, the Macumber case didn’t, leaving Bartels and Hammond directly in charge, a situation they tried to avoid because of their many commitments. Yet their roles, if limiting, also reflected their abiding interest: “The Macumber case has been different because we care so much about it. I can only make you this promise. This case is one of my highest Justice Project priorities. We will see it through.”

  In truth, the Justice Project was finding it difficult to push Jolly’s progress along. Late that December, Jolly told Bartels he had reviewed all the material once but wanted to go back over it more carefully. Months then passed as they waited to hear from him again. At the start of June 2004, Hammond felt obliged to provide Macumber with a candid update. As Bill knew, they had obtained “a very favorable opinion” from Steven Anderson, “a fingerprint expert who knows all the players and is quite impressive in his insights. He believes the palm print must have been planted and he makes a pretty good case for it.” However—this pained Hammond to write—“honestly, his analysis is not perfectly airtight. Professor Bartels believes, correctly I think, that we should get a second opinion, and to that end we have given all the materials to another respected fingerprint person, whose name is John Jolly. Jolly offered to do the work for us on a pro bono basis but it has taken him a great long time to get back to
us with his opinions and reactions. Professor Bartels is following up with him and we hope to have a final answer very soon.” Meanwhile, Jackie Kelley—Hammond must have grinned and grimaced here—“has been very good about continuing to encourage us and to keep us focused.” As usual, Hammond ended on a note of optimism: “Our hope is to finish our work and get on to the filing of the petition this summer.”

  At the state prison in Douglas, with the summer heat closing in and no hint of rain—only wildfires off in the distance—Macumber struggled to see the positive in this letter. That they were going to try to submit a petition this summer surely represented the most significant news. Yet this Justice Project process had been under way now for more than five years. One way or the other, Macumber wanted to see the end of it. “I have tried to not let it wear on me,” he wrote to Ron that month, “but to tell you the truth that has been impossible. I can never totally get it out of my mind and that has not been a good thing either mentally or physically. It takes a toll. Hopefully it will turn out as we would like it to. If not, then we shall have to abide with that and deal with it as best we can.”

  * * *

  At the start of July, Larry Hammond e-mailed the team with a promising update: “I spoke to Steve Anderson this week.… He told me that he and Jolly both believe that Steve’s opinions with respect to the fingerprint evidence in the Macumber case are airtight and cannot seriously be questioned.… Steve went to some extent to tell me that he was as confident of his opinions on this matter as he could possibly be. He thinks that both he and Jolly would be good witnesses in any hearing.”

  Days later, however, Jolly weighed in with a quite different report, reaching Hammond at his mountain cabin. “I spoke at length this afternoon with John Jolly,” Larry advised the team on July 5. “He is dubious about our claims and wants to look at the [Impala] door and go over the whole thing one more time. He is coming to my office to discuss his findings a week from tomorrow—July 13—at 8 A.M. His negative reaction was exactly opposite to Anderson’s, so this is likely to be an important meeting. Are any of you able or interested in attending?”

  Rich Robertson joined Hammond and Jolly at this meeting. Rich had called all over the country, haunting auctions and the Internet, before finding a 1959 Impala door on sale, for $300, in a Washington State salvage yard. They’d had it shipped down to Larry’s office at Osborn Maledon. It had arrived in a huge box, the window shattered, something of a rusting mess. They now pulled it from the box and laid it out in one of the law firm’s tony twentieth-floor conference rooms, where large picture windows gave sweeping views of Phoenix and the Superstition Mountains to the east, Camelback and Mummy Mountains to the northeast. A few of Hammond’s partners, walking by and glancing in, appeared puzzled, if not perturbed. Larry, Rich, and John Jolly had their reasons, though. Among them: They wanted to see if it was physically possible for the palm print to have come from the chrome strip, given the strip’s size and shape. “I think it was a very productive meeting…” Hammond reported to Macumber on July 21. “We inspected the Impala door and Jolly went through a long series of issues that have been on his mind. We are hoping that we will be able to give you a final report on where we stand very soon.”

  By early August, though, the Justice Project had enlisted a third pro bono fingerprint expert, Bob Tavernaro, a former colleague of Jolly’s at the Department of Public Safety, now doing private work. They wanted yet another opinion because Jolly had come up with an “innocent” explanation for the diagonal line on Jacka’s photo: Someone, while making a comparison, might have folded the original card to place the fingerprint image next to a known print. On August 9, everyone once again gathered around the Impala door. They had the core team there—Hammond, Bartels, Robertson, Karen, Sharon and the three fingerprint experts. They spread out the photos of the prints. They took their own photos, using the same kind of old box camera employed back in 1962. They studied and pondered and brainstormed. “The beat goes on,” Hammond reported to Bill on August 12. “We had another ‘Macumber meeting’ this week to bring together the now enlarged group of three fingerprint experts.… They have made some great progress.” They would be convening again later in the week to finalize their recommendation, “but I believe they will say that they are now all convinced that the palm print did not come from the driver’s side door.”

  Hammond’s expectations weren’t realized. Rather than “finalize” their recommendation at this second Macumber meeting, the experts eventually came to see they couldn’t reach a provable conclusion. Instead, they would have to keep studying this matter—they would have to reassess the whole fingerprint issue. Hammond decided that one of these experts needed to own it, rather than all three participating in a one-day think tank. Bob Tavernaro volunteered. It would be a huge undertaking, but he was game.

  * * *

  All through the fall and winter of 2004, the Justice Project associates labored to get their hands on additional fingerprint evidence they’d located in the sheriff’s department. They exchanged constant e-mails with the experts. Hammond and Bartels met to talk “about the long-range future of the case.” “Professor Bartels said he would really like to take some time over the next month to draft his basic core thoughts for the petition,” Hammond reported to Jackie. Once Bartels had done this, “our hope is … we will be able to turn it into a petition that could be filed sometime early in the next calendar year.”

  Rereading this letter at her kitchen counter in late December, Jackie Kelley found her eyes continually going back to “we talked about the long-range future of the case,” rather than Hammond’s “hope” to file a petition. Long-range? Really? She turned to her computer keyboard, newly acquired after a lifetime with her typewriter. “This has somewhat upset me,” she wrote to Hammond. “I keep hoping that it won’t be necessary for any LONG-RANGE efforts on Bill’s case, that things can come to a head without too much time elapsing.” She realized the great number of difficulties, she realized all their work on this case had been pro bono. “But oh me, next month it will be five years since Mr. Terman first started in on all this.” She didn’t want Larry to think her ungrateful, but “for both Bill and I the wait has been most excruciating. Both Bill and I are getting to be what some people call ‘ancient’—and Bill’s health is deteriorating.” All the same, she was just “venting a little of my frustration,” not meaning “to criticize any of the efforts you and the team have been making.” She wanted only to wish the whole team “a very MERRY CHRISTMAS AND A HAPPY NEW YEAR.” She would “keep praying that 2005 will see Bill’s release from prison.”

  That Christmas season, Bill Macumber prayed as well. He tried to imagine Ron’s home in Colorado, everyone busily involved in preparing for the holiday, the mood hectic yet buoyant. Quite a difference from the prison, where you’d never even know the season—they had not a single decoration or observance of any kind. “You probably don’t remember,” Bill wrote to Ron four days before Christmas, “but our last Christmas together, we all went up north in the snow and cut our own Christmas tree. You and your brothers went sledding and had a ball. We all managed to get wet and cold but we had a great time nonetheless and the tree we cut was just beautiful.”

  Ron had asked about his paternal grandparents—Bill’s mom and dad. “Words alone could never do them justice,” Macumber wrote. “Your grandfather was a very wonderful and unique man.… He was for me more than just my father. He was my teacher, my guide, my confessor and most important, best friend. He taught me so much. The importance of truth, the satisfaction of pride in oneself.… Dad taught me to love the land and every creature.” Harold met Bill’s mom on a blind date. She was “simply and wonderfully a woman of her time, wife, mother and homemaker.” He was writing this “with tears in my eyes, Ronnie, because I still miss my father so very much.” He hoped the day would come when “you and I can sit and talk of them in greater detail.”

  As for his case, Macumber had no report. “There has been nothing
at all from the attorneys and I don’t know where we stand or what the time frame might be. Jackie is writing Larry Hammond a letter so we’ll see what comes of that.”

  * * *

  Hammond, though in the midst of a trial, took the time to write Jackie back on January 10, 2005: “I have your letter of December 26, and I know it must have been difficult for you to write it. Obviously you wanted very carefully to balance your concern about the pace of the case with your genuine gratitude for the pro bono work.” He, too, was “concerned about the pace of this case.” And yet: “I do think some good things are happening.” On December 28, the team had been able to review and inventory the remaining evidence at the sheriff’s office. The fingerprint experts “have done some further research and they are very near providing to us their final opinion that the palm print could not have come from the 1959 Impala.” Professor Bartels, the chief “overseer” of the case, had now returned full-time to the law school and his supervision of Justice Project work, after a tour of duty at the U.S. attorney’s office. By “long-range,” he meant only that once they filed the petition for post-conviction relief, “some time” would inescapably pass before they got to a hearing. “I hope all of these things will happen in 2005.”

  Despite Hammond’s obvious desire for things to be going well, progress had slowed even further. The days and weeks kept slipping by, the fingerprint experts stopping and starting, stopping and starting. The Justice Project’s dependence on volunteers and rotating generations of students, however helpful they were, sometimes frustrated Hammond. So did Bob Bartels’s caution, though Bob remained his cherished, esteemed colleague. The tension between thoroughly investigating and running to court—the competing impulses—represented one reason they weren’t getting this concluded. Hammond, left to his own devices, would have filed a petition by now.