by Barry Siegel
Macumber received no response to his inquiry. Larry Hammond had just departed on a six-month sabbatical, this time to teach a college course in North Carolina. The Macumber case, at any rate, was off the Justice Project table. The quest appeared to be over, the Macumber file closed, left to yellow and gather dust in the basement of the ASU law school library.
PART THREE
LAST CHANCE
CHAPTER 17
A Futile Affair
DECEMBER 2008–MARCH 2009
On its face, the spare, three-page document that arrived at the Arizona Board of Executive Clemency in late December 2008 looked to be an entirely futile affair. Here was yet another prisoner’s petition for a commutation of sentence. Only 5 percent of these even made it to a Phase II hearing, and only a fraction of the Phase II cases earned a favorable ruling from the board. That this particular petition came from a convicted murderer serving a life sentence made success all the less likely. Yet Bill Macumber, at the end of 2008—“with nothing better to do and nothing happening in my case”—decided he might just as well file this application.
He’d done so on his own, no longer in contact with the Justice Project. He had no hope whatsoever that his request would go anywhere. He’d filed three such petitions in past years, after all, and had never moved beyond a Phase I hearing. He’d been told he had to admit guilt and express remorse before he’d get any consideration. He had no intention of doing that but figured he’d give it a shot anyway. At age seventy-three, he was in declining health—arthritis in his left hip, emphysema, prostate problems, chronic allergies, a heart murmur—and Jackie, as always, had been urging him on, asking if he could file yet another appeal.
He did, at least, finally have a real job again after years of little activity. In 2007, prison authorities had assigned him a position at the local Cochise College annex in the prison’s Mohave Unit. There he worked as a computer technology clerk, creating and running a student enrollment and management program. He handled most of the student data collection, including attendance, assignments, and progress and term reports. This gave him a purpose and a routine, as well as a chance to work with good people in the college system. He rose now at 4:30 every morning—his aching arthritic hip kept him from sleeping later. He ate breakfast at 6:00, worked at Cochise from 6:30 A.M. to 3:00 P.M., then had dinner and spent most evenings watching TV, mainly sports. Just weeks before mailing in his latest commutation petition, he’d received an admiring letter of commendation from Charles Flanagan, then the director of the Correctional Education Division at Cochise, thanking him for his “personal investment in and commitment to the success of the Cochise College students and program.” His efforts, Flanagan wrote, were “noticeable and valuable, as well as appreciated.… You can take pride in the positive impact you are having through your work.”
Even without that letter, Macumber had no trouble filling up the section of the clemency application that asked for “positive accomplishments” he’d achieved in prison: chairman for two years of the ADOC Outlaw Rodeo, six-time president of the ASPOT and Roadrunner Jaycees, four-time president of the Lifers’ Club, Jaycee President of the Year. He typed those lines, then handwrote a couple of additions: “Received a commendation from Director Ellis MacDougall for the realign of the Florence CCTV system. Appointed as Arizona Jaycee Delegate to the Jaycees Natl Convention held in Phoenix.”
The next section asked why he believed he was entitled to a change of sentence. Macumber typed a two-sentence response: “I stated my innocence at the time of my arrest, throughout my trial and each and every day for the past 34 years. I am innocent of the crime for which I was found guilty and I shall always remain innocent because innocence as well as guilt is infinite.”
A third section asked him to describe his involvement in the crimes that landed him in prison. Again he typed a two-sentence response: “I had no involvement in the crimes whatsoever. To my knowledge I never knew or met either of the victims.”
A fourth section asked about his plans upon returning to society. “I would probably go to live on my cousin’s ranch in northwestern New Mexico,” he wrote. “I would also visit my son and his family in Aurora, Colorado, and my brother in Rockford, Illinois.”
A final section extended what would prove to be a fateful invitation: “Give any other information you believe the Board of Executive Clemency should consider.” Macumber thought this over. It had been many months since he’d heard from the Justice Project, but he didn’t feel entirely abandoned. “The Arizona Justice Project and the ASU Law School have been working on my case for the past seven years [eight years, in fact]. If you need any information as to their findings you can contact Larry Hammond at the Justice Project or Dr. Bartels at the law school. They would be more than willing to talk to you.”
* * *
At the Board of Executive Clemency offices on West Jefferson in downtown Phoenix, Macumber’s application received routine processing in early January 2009. The five-member board, appointed by the governor, considered all parole, pardon and commutation requests in a two-step process. On January 13, the board sent Macumber notice that his first step, a Phase I hearing, had been scheduled for February 12. As these were in absentia sessions, Macumber would not be present, but his friends and family could attend, as could legal counsel “provided at your own expense.”
Duane Belcher, the board’s chairman and executive director, signed this notice. Belcher, fifty-nine then, brought to the board more than thirty-two years of experience in the criminal justice field. He’d worked for years as a correctional service officer in Arizona, getting promoted through the ranks to his last Department of Corrections position as supervisor of the home-arrest program. Governor Fife Symington III had initially appointed him to the board in 1992, and he’d served there ever since but for a two-year break, sitting as chairman from 1993 to 1997, then resuming that position in 2004. An outgoing African-American with graying hair and a passion for riding motorcycles—he didn’t mind weaving through congested freeway traffic on his Honda 1800, what he called an “old man’s luxury motorcycle”—Belcher spoke frequently to community groups about his experiences in the criminal justice field. He was a member of the National Association of Blacks in Criminal Justice and, by most definitions, an advocate of law and order. Yet he’d worked in both probation and parole, sometimes with juveniles, so he’d worn two hats, both policing and supporting convicts.
Macumber’s petition caught his attention for a particular reason: the reference to Larry Hammond and the Justice Project’s years-long involvement. Belcher knew Hammond and deeply respected him. Hammond, as it happened, had been piling up the honors recently, adding to an already distinguished résumé. In 2008 alone, he’d been named to the Maricopa County Bar Hall of Fame, won the John J. Flynn Lifetime Achievement Award from the Arizona Attorneys for Criminal Justice, and—most lustrous of all—received the 2008 Justice Award from the American Judicature Society, the AJS’s highest honor. The AJS had presented this award to him at a special ceremony in his honor, held on the evening of April 24 on the baseball diamond at Scottsdale Stadium, with more than 325 people in attendance, including his wife and three children and his former client Ray Girdler, whose release he’d secured after nearly a decade in prison, wrongly convicted of arson and murder. Family, baseball and the fair administration of justice being Hammond’s chief passions, he could not have had a better night.
Following the dinner, a series of distinguished speakers had risen to praise him. Judge John R. Tunheim, the AJS president, described Hammond as “a man of great intellect with a strong passion for justice” who has “contributed to a much better America” and is “one of the foremost criminal lawyers of our time and one of the finest gentlemen I have ever known.” H. Thomas Wells Jr., then the president-elect of the American Bar Association, thought Hammond “richly deserves to be recognized for his contributions to improving our justice system—particularly for his work in representing indigent defendants in
capital and other criminal cases.” Janet Reno, the former attorney general of the United States, recalled the frigid day in January 2003 when she first met Hammond, they joining to plan the 2003 National Conference on Preventing the Conviction of Innocent Persons: “It was exciting. He was after progress and reform. He wanted it, but he wanted it with an intensity that was low-key and compelling, and it made a difference.” Then Tom Henze, who’d been the prosecutor in the first Macumber trial, and later Hammond’s co-counsel in the Knapp case, rose to present the Justice Award to Hammond. “Tom Henze brought the house down with a remarkable adaptation of the classic baseball poem ‘Casey at the Bat,’” an AJS Bulletin later reported, “delivered with great gusto and without notes, in which Larry Hammond comes to the plate in the bottom of the ninth for the hometown team—but does not strike out.” Henze also announced the establishment of the endowed Larry A. Hammond scholarship at the University of Arizona College of Law and presented Hammond with both the crystal Justice Award and a customized number 08 Arizona Diamondbacks jersey bearing his name.
Duane Belcher knew of this honor, and also of the Justice Project’s many achievements. In the eleven years since Hammond founded it, the project had grown and gained increasing recognition as one of the first and most effective innocence projects in the country. Belcher was familiar with the work of Justice Project volunteers on dozens of cases and thought it notable that the project had been working on Macumber’s case for so many years. Yet something puzzled him: The project didn’t have a hand in this petition for clemency.
On February 12, when the Macumber petition came before the board at a Phase I hearing, Belcher brought to his colleagues’ attention the Justice Project connection—and its lack of involvement with this application. He recommended that they postpone action, as he wanted to talk to Larry Hammond first. The board agreed to continue the hearing for a month “for sentence clarifications.” On the recommendations line of the action report, a board member wrote, “DB to contact Justice Project.”
* * *
The Justice Project that Duane Belcher planned to contact no longer operated out of Donna Toland’s hip pocket in a corner of the Osborn Maledon law offices. By then, the project had gained not just increased recognition but also two good-sized federal grants, expanded resources, its own office, and—for the first time—a pair of invaluable full-time staffers. Katherine Puzauskas had joined the project in early September 2008, after graduating from the Howard University School of Law. Lindsay Herf had arrived in November, after graduating from California Western School of Law. Both had backgrounds that drew them to the Justice Project: Katie had been involved in the Federal Capital Litigation Clinic at Howard, Lindsay with the California Innocence Project, where she’d witnessed one client’s exoneration after nineteen years in prison for a wrongful murder conviction. Both had decided they’d found their calling in innocence projects and post-conviction relief efforts. They wanted to help the wrongly and unjustly convicted.
Katie began as an administrative assistant to Hammond, operating out of the Osborn Maledon law office, opening and screening mail from inmates. In early January 2009, the Justice Project—using grant money for the build-out—moved into its own quarters in the basement of the library at the ASU College of Law. There, besides reviewing inmate mail, seeking grants and recruiting law student volunteers, Katie also began an inventory of all Justice Project cases, aiming to assemble the information in a detailed spreadsheet. In late January, during the course of this inventory, she came across a case file she had not seen or heard of before, a file whose status seemed unclear. On the morning of January 27, she typed an e-mail to Larry Hammond and Bob Bartels: “I’m writing to get the status of William Macumber’s case.”
What to say, what to tell her? In his office at Osborn Maledon, Hammond considered Katie’s troubling inquiry. They’d had no real contact with Macumber for almost two years, yet Hammond, in his mind at least, had never let go. Should he now? He just didn’t know. On February 3, he wrote back to Katie: “I am very sorry to say that we really have no answer to the status of the case that is in any way satisfying. The Macumber case is one of the very first looked at by the Justice Project.… We have had a very large number of attorney supervisors, as well as a very long string of student participants. Bob Bartels and I have remained ‘involved’ in the case since its inception as a Justice Project matter a decade ago. We had come reluctantly to the conclusion that there was little, if anything, that we could do for Bill Macumber because of our lack of success on the fingerprint front, but Bob and I have both been reluctant to close the file.” There was, he explained, “a great deal of conflicting evidence” and “lots of reasons to think that this man may not be guilty.” But “honestly, Katie, I do not know what we can do about this case. I suspect that we should close it, but for all of the reasons that have prevented us from closing it so far, I hate to do it now.” He would copy this letter to Bartels “to see if he has any other reactions.”
Two weeks later came Duane Belcher’s unexpected phone call to Larry Hammond. We have a petition here, Belcher began, from your old client. The news that Macumber had filed a clemency application startled Hammond. He did not think that a prisoner insisting upon his innocence could even seek commutation, so it had not occurred to Hammond ever to file such a petition on Macumber’s behalf. In truth, he had little faith in clemency boards. He’d gone before them with last-minute entreaties and seen his clients and their families treated like dirt. He’d had two clients executed after such pleas. Still, here was Duane Belcher, calling about Macumber. On the phone, Belcher asked, Do you think this guy is innocent? And do you want to get involved, do you want to represent him?
We think he’s innocent, Hammond said. And of course we’ll get in. But did Belcher realize that Macumber had never admitted guilt, had never expressed remorse? Yes, Belcher understood that. He didn’t care, it didn’t matter. Inmates can say they’re not guilty, he explained. The board recognized that there were some cases where nothing more could be done inside a courtroom. Especially when you didn’t have DNA evidence. The board members believed it part of their role to look at such cases—to correct errors when all remedies in the courts had been exhausted. Hammond, still skeptical, started to emphasize Macumber’s exemplary record in prison. Belcher’s focus remained on the innocence question. The board, he told Hammond, will consider Macumber’s application.
* * *
Hammond felt anguished now over the Justice Project’s failure to file anything on behalf of Macumber. He feared that Bill would die in prison before they resolved his case, and that prospect began to haunt him. He regretted again his competing tug of impulses with Bob Bartels, the facts versus feelings, the investigating versus filing. That was part of why they’d never concluded the case, he believed. Maybe now, though, they could cross some kind of finish line.
To Bartels, this development was bittersweet. The news that Bill had filed made him happy. Even better, the board had expressed interest—and in the actual innocence issue. At the same time, Bartels didn’t exactly feel euphoric—he still doubted their chance of getting a commutation—but he thought they should help out with the petition and hearing.
On February 19, Hammond wrote to Macumber: “I recently learned that you have filed a commutation packet with the Arizona Board of Executive Clemency. I was contacted by the Executive Director, Duane Belcher, to see if the Justice Project would like to submit anything on your behalf to be considered at your Phase I Hearing. Would you like us to submit anything on your behalf? We are more than happy to, but wanted to get your approval first.” Hammond added a request: “Would it be possible for you to send us a copy of your commutation packet?”
At the state prison in Douglas, Macumber read these words on the evening of February 21. So he had not been abandoned. At least not entirely, at least not irrevocably. Sitting in his Mohave Unit cubicle, he reached once more for pen and paper. “Thank you for your letter of the 19th,” he began, �
��and of course you have my permission to speak in my behalf at the commute hearing.” He would have let Hammond know he was filing, but having not heard from the Justice Project, “I assumed we had reached the end of the road.” He didn’t think anything would come from this petition, but “I felt I owed my family one last effort.” Medical issues also drove him, he allowed: “Frankly I have slipped a long way down hill this past year or so. I am sick much of the time and require a lot of medical attention. Growing old in here is a tough way to go and to face ending one’s life here is tougher still.”
* * *
In advance of Macumber’s Phase I hearing, the clemency board invited both the Justice Project and the Maricopa County attorney to submit letters. The one-page letter submitted by Robert Shutts, a deputy county attorney in the Homicide Bureau, infuriated Hammond. That the county attorney objected “to the hearing and possible early release of this defendant” didn’t bother him. But Shutts’s curt summary of the case did: The palm print matched, the shell casings matched—and “during a subsequent interview, defendant admitted he had killed the two victims.” The defendant admitted? That was despicable, Hammond thought. Hammond tried to call Shutts but couldn’t reach him. Later, he heard word of Shutts’s explanation: I was just reporting what I had been told.
On March 9, Hammond submitted his own letter to the board. This is, he wrote, “one of those very troubling cases in which the absence of DNA has left a defendant without a clear basis for setting aside his conviction.” This case “is a sobering reminder of the very high burden of proof placed upon the convicted defendant to prove ‘actual innocence’ as a ground for post-conviction relief.” As the board knew, the “presumption of innocence” was gone now, the burden on the convict being to prove innocence by “clear and convincing evidence.” While they had failed to find the evidence to meet that standard, “there is a great deal to suggest that this is an innocent man.” He and Bob Bartels “have always been disturbed by our inability to find a basis that would clearly prove his innocence.” This case, “possibly more than any other we have evaluated, is a daily reminder of the heavy burden that rests on a convicted defendant.”
