by Barry Siegel
Both Larry Hammond and Bob Bartels attended the Phase I hearing on March 12, along with Larry’s assistant Donna Toland—unusual representation for any convict at this stage. In a small, bare room at the Department of Corrections’ Alhambra facility in downtown Phoenix, they sat facing the five board members. Besides Duane Belcher, the board included: Marian Yim, an attorney with more than twenty years of public law experience, including thirteen years as an assistant attorney general and a stint as staff attorney for the Arizona Supreme Court; Olivia Meza, with thirty years of experience in the criminal justice system as a senior federal court executive, a pretrial services officer and a probation officer; Tad Roberts, with more than twenty years of experience in the criminal justice system as a probation counselor, probation officer and prerelease officer; and Ellen Stenson, with ten years of experience as a member of the Legislature’s Ombudsman–Citizens’ Aide office. By state mandate, only two members of the board could come from the same background, the goal being to have a diversity of personalities and professional histories. The only requirement: an expressed and demonstrated interest in the state judicial system. The board, in this way, enfranchised the outlook of the citizenry, outside of and apart from the lawyers and the legal system.
As a courtesy to Hammond and Bartels, Duane Belcher had made Macumber’s hearing the first of thirty they’d handle this day. Hammond’s very presence had an impact on the board—that such a highly respected attorney would show up got their attention. So did the Justice Project’s sustained involvement, the decade-long commitment by dozens of students and volunteers. The board members knew it was quite unusual for a case to claim the consuming, extended attention of these people. The board trusted Larry Hammond and the Justice Project. Hammond’s impetuous, undying obsession provided its own kind of testimony on behalf of Bill Macumber.
By contrast, no one from the prosecutor’s office had appeared. So before they started, Belcher read into the record the county attorney’s letter, written by Robert Shutts. Then Hammond rose to present the Justice Project’s perspective on what he believed “is probably the case we have had the longest in the Project”—one that “more than 30 people now have worked on in the last decade.” He again walked through his narrative: Judge O’Toole’s phone call, Valenzuela’s confessions, Judge Corcoran’s ruling, the ballistics and fingerprint evidence, Bill’s personality and achievements. The ejector-markings shell-casing evidence, he said, “is highly doubtful” and “I think wouldn’t even be admitted at a trial today.” The palm print, he allowed, “is a mystery to us.… We have spent a lot of time looking at it.” So with the burden of proof on the Justice Project lawyers and no DNA evidence available, they just couldn’t prove innocence “to a reasonable degree of certainty.” We “have been stuck with a case in which we have not been able to proceed. We have been convinced for a long time that it is one of the most worthy cases ever to come before the Project, but is not one in which we believe, if we went to court, based upon what we know now, that we would be able to establish a case of actual innocence.”
For this reason, Hammond looked to the board for relief. “As you all know, historically, it’s been a problem for any inmate who won’t admit guilt … to come before the Board. I think your Board in the last few years has suggested that maybe somebody who has protested his innocence but doesn’t have DNA might be able to have his case heard.… I think that this would be the case to do it in.”
The board members responded with an extended run of questions—about the prints and shell casings, about Carol, about Valenzuela and Primrose, about O’Toole and Corcoran and attorney-client privilege, about the hair found at the murder site, about Carol’s claim that Bill had told “wild stories” of working as an army executioner. The hearing continued for more than one hour, Hammond and Bartels serving up answer after answer—highly unusual at this preliminary stage. The board members weren’t after a final judgment this morning, only an assessment. That they reached: After listening to the two Justice Project lawyers, they believed they had more than needed to move forward to a Phase II hearing.
“Actual innocence is something that is very important,” Duane Belcher said at the hearing’s end, “and people can apply for commutation because of claims of innocence.” He looked around at his fellow board members. “I would like to talk to Mr. Macumber,” he announced. Ellen Stenson said, “I’ll second that.” The others called out, “Agreed.” Bill Macumber had never made it to a Phase II hearing before. Now he had.
CHAPTER 18
A Lot of Work to Do
MARCH–MAY 2009
The Justice Project staffers had a lot of work to do. They needed a new, expanded affidavit from Tom O’Toole. They needed to write a detailed, comprehensive memo summarizing the entire Macumber case. They needed to meet with Bill and prepare him for the hearing. They needed to round up his family. This is our game to lose, Hammond believed. This could really happen—why else would the board be moving to Phase II? He didn’t want to raise everyone’s expectations, though. The board might balk in the end, and even if it didn’t, Governor Jan Brewer would have to accept its recommendation. Who knew about the governor?
Upon returning to his office after the Phase I hearing, he e-mailed the Justice Project team: “You all probably have already heard that the Board this morning voted unanimously to pass Bill Macumber on to a Phase 2 Hearing.… The Board was very interested in his story and not disturbed by his unwillingness to ‘acknowledge guilt.’ Bob, Donna and I came away feeling very optimistic about our chances before the Board.” Now they had to prepare, and “we all think this would be a great project for a group of students.” They might assemble a new group, “but it occurred to us that Katie might enjoy working on this case and we have a lot of people who have worked on the case over the years who might also be interested.”
Hammond—finally—could send positive reports to Jackie and Bill, as well. “We have been terribly disappointed that we have not been able to help Bill after spending almost 10 years on this evaluation,” he wrote to Jackie, “but maybe now we can be at least of some help.… I would be happy to visit with you on the telephone.… At a time convenient to you, would you give us a call?” To Bill, he wrote, “Congratulations!… Bob and I on behalf of the Justice Project would like to help you in any way that you will authorize us to do.” They had a number of ideas and questions, so he wanted to talk on the phone with Bill, too. “Donna will be in touch to set up a time.… Congratulations again.”
In writing these two letters, Hammond assumed that Jackie and Bill had already heard the news. In fact, they had not. At the state prison in Douglas, Macumber felt shocked—“totally astounded”—as he read Hammond’s words. After his three prior experiences with the board, he hadn’t thought he had a chance of prevailing. He also had not realized that Hammond and Bartels would be attending the Phase I hearing. He rushed to call Ron and other members of his family. Then he sat down to write to Hammond: “First and foremost, let me express my deepest appreciation.… You all have my deepest thanks for attending the hearing and speaking for me.” The Justice Project “most certainly has my authorization to act in my behalf in any way you see fit.”
On her ranch in New Mexico, Jackie Kelley heard the news in two phone calls from Bill. He had written to her recently, dreaming of what they might do if he were freed. What do you think, he’d asked, of us running pack-train horseback tours through the Superstition Mountains? That had sounded great to Jackie—she did know horses. Another time recently, she’d sent him a photo of a big old coyote she’d spotted outside her kitchen window—way bigger than the norm. “Dear one,” he wrote back, “your wily coyote is really Willy the Wolf—a gray wolf. The snoot is not nearly as peaked as a coyote’s, and the chest is too broad.” Damn—he did like to give her trouble.
She hadn’t corresponded with Larry Hammond since August 2007. Since then—later that year—her husband had passed away. At age seventy-seven, she was alone now on her 160 acre
s, though her daughter, Robyn, lived two miles up the road, her middle child, Mike, another half mile past that. She also had a handyman and a housekeeper, as well as Spec, her thirteen-year-old red heeler Australian cattle dog. So she didn’t feel isolated. At any rate, she liked solitude. Solitude was fine with her, just sitting up on the mesa with the coyotes and deer and elk and only $300 in annual property taxes. She had a big library of taped movies and a nice collection of CDs; she liked classical music and everything that came out of World War II, swing and big band, especially Glenn Miller. She preferred instrumentals over singers, though Spec—short for Spectacular—often sang along with whatever she played. Just one old woman and one old dog. If she woke and got up in the morning, she was doing well, she was happy.
On Tuesday, March 17, before she’d received Hammond’s letter—she had to drive five miles into Colorado to collect her mail—she sat down to write him. “My dear cousin has talked to me twice recently concerning his and your contact with the Commute Board.… Needless to say, I am overjoyed, and ever hopeful for success.… While it has been some time since you and I last corresponded, I most certainly do want to thank you for all your efforts. Perhaps the Good Lord will finally look favorably on all endeavors.” Could Larry please, she asked, provide her some information about this “Commute Board”?
At the end of the week, after mailing this, she received Hammond’s letter of March 12, with its invitation to give him a call. She did so on Friday evening. They still had never met, though their relationship had endured and evolved for ten and a half sometimes contentious years. They talked at length, sharing more than usual. Since their last contact, she told him, her husband had passed away, so she was alone now. She explained the living situation on her ranch, reminding him of her Colorado mailing address and lack of a landline. At least she had perfect cell phone coverage, she explained—an Alltel tower stood a mile from her house. She kept her cell phone with her at all times, so they could always reach her. And there might come a day when she’d be closer to them; she was trying to sell her land, though like many out there, she had received no serious offers. If she found a buyer, she’d move to Tucson. Wherever she lived, she would do anything within her power to help in the commutation process. After some discussion, Jackie and Larry agreed that she would try her best to attend the Phase II hearing, and there, before the board, she would offer to have Bill come live with her. “I would love nothing more,” she told Hammond, “than to end my days sharing my home with my cousin Bill.”
* * *
Three weeks later, in mid-April, Hammond and Bartels talked by phone to Macumber, with Katie on the line as well. This was Katie’s first contact with Bill—“I had never had the pleasure of meeting this young lady,” he would say later, “but she was to become a very important figure in my life.” Hammond had thought Katie “might enjoy” working on this case, and she did indeed. Larry’s letter to the board ahead of the Phase I hearing had galvanized her. She was twenty-six then, ready to tackle a worthy challenge. Ever since the Phase I hearing, she’d been recruiting law students, making assignments, and calling in the past generations of volunteers—Karen Killion and Sharon Sargent-Flack chief among them—to help prepare the Phase II memo. My God, she kept saying to everyone, we need to do something.
During the phone conference, she took copious notes. Hammond began by confirming to Bill that the Board of Executive Clemency had indeed passed him to a Phase II hearing—for some reason, Macumber had still not received official notice. The hearing, Larry explained, would be in Phoenix. They’d have Bill arrive a day before to talk to the Justice Project team. Or the team might instead travel to Douglas before he came to Phoenix. Hammond next recounted his conversation with Jackie, how she’d volunteered to assist throughout the proceedings and attend the hearing. They all talked, as well, about Bill’s living arrangements upon his release, how Jackie had offered her home, how Jackie might move to Tucson. Macumber’s preference, he let them know, would be to live at the ranch because he’d feel “free” there.
Macumber had another matter to discuss: his deep concern that the board might grant parole rather than release for time served. He worried mostly about how parole would affect his family. They had been dealing with his conviction and incarceration for thirty-five years, and he believed they had suffered too much already; he did not want to open the lives of his family to a parole officer, he did not want to sacrifice his relatives’ privacy to gain his freedom. Bartels tried to ease his concern: Parole supervision might not be overly invasive, he pointed out. No, Bill said, he didn’t want to risk even one visit to his family from a parole officer. Bartels suggested that Bill talk to his family members about this—they had stood by him for thirty-five years and might very well not mind the visits. Hammond added that the board might consider straight release for time served rather than parole; they could raise this with Duane Belcher. Okay, Bill said. He was willing to wait until the problem arose.
They were way ahead of themselves, of course, as Hammond pointed out. First they had to prevail at the Phase II hearing, where only a fraction of prisoners won a favorable ruling. That would require lots of preparation, both for the oral presentation and for the written letter to the board.
At the end of the conversation, as the others hung up, Katie found herself alone on the phone with Bill. Good-bye, take care, she told him. Okay, he said in his gravelly cowboy voice. Okeydoke. This phone conference left Katie fired up. They’d identified a number of factors that the board might look at favorably, including Bill’s age, his stellar record, and the high regard other inmates and prison staffers held for him. But “the factor I see to be the most significant,” Katie opined to the team in a memo that day, “is his persistent claim of innocence and the fact that a man by the name of Ernest Valenzuela confessed to the crime.”
Valenzuela’s confession represented a familiar dimension of the case, of course, but Katie Puzauskas brought fresh eyes to a file others had been thumbing through for a decade. She also brought her particular flair—she was a vivacious young woman with an efficient management style, unbounded compassion and an infectious spirit. Raised in Phoenix, she’d majored in psychology at the University of Arizona before enrolling in law school. Her mom was Italian, her father half Italian and half Lithuanian, making her, as she put it, “three-quarters Italian,” with half of the three-quarters being Sicilian—“we like to think of Sicily as its own country.” Her parents and assorted relatives—aunts, uncles, cousins, a grandfather—all lived in Arizona and always had food on the table: “We’re Italian!”
She now threw herself into planning for Bill’s Phase II hearing, Hammond having made her the Macumber case coordinator (she would later be named an overall Justice Project cases and programs coordinator). She arranged meetings, she fielded calls, she counseled family members, she rounded up letters of support, she corralled relatives to attend the hearing. The Justice Project wanted to show the board members that Bill had a support network out there, that they wouldn’t just be sending a lifer out into the world cold.
Hammond heard from Jackie on Saturday, May 2, six days before the hearing. She’d be coming in from New Mexico with her daughter, she reported in a phone call. Robyn had insisted on driving—There’s snow on the ground and you might hit a cow, she’d told her mom. They would arrive in Phoenix on Wednesday. Bob Macumber and his son, Mark, would arrive that Wednesday as well, flying in from Illinois. Of the family, only Ron, it turned out, couldn’t be there—work obligations would keep him in Colorado.
The generations of law student volunteers were coming as well. Karen Killion from up near Seattle, Sharon Sargent-Flack from Prescott; Jen Roach, Jenifer Swisher, Pete Rodriguez, Ty Jacobson—they’d all be there. Rich Robertson, too, of course, and Bob Bartels and Donna Toland and Carrie Sperling, who was then serving as the project’s executive director. All the volunteers, from near and far. What the fuck, Larry thought. It had suddenly become, for him, just that: an amazing what-the-fuck
moment. He couldn’t believe it—hell, this case had been closed.
That week, calls from Macumber family members kept flooding the Justice Project and Hammond’s law office. Jackie had the most questions. What should she say at the hearing? What should she do? Where should she stay in Phoenix? Are there freeways in Phoenix? She hoped not, she didn’t like driving on freeways. She didn’t really want to drive at all in Phoenix. Could Larry come get them at their motel, take them to the hearing? These weren’t the sorts of tasks and issues high-priced senior lawyers usually handled, but Hammond found it all quite interesting. He decided everyone should meet at the Osborn Maledon law office at 1:30 P.M. on Thursday, May 7, the day before the hearing: the Justice Project team and the Macumber clan, together in person for the first time.
* * *
First, though, the project lawyers had to complete and deliver their all-important memo to the board, presenting an overview of the Macumber case. They’d blown past their Tuesday, May 5, deadline. The initial draft by Karen and Sharon, working off a core synopsis by Bartels, had come in at thirty pages, but Hammond thought it should be ten maximum—they wanted the board members to read it, after all. Katie, Karen, and Sharon went to work on paring it down, with everyone else contributing, Bartels and Hammond reviewing. They were still polishing it on Thursday morning, two days past the deadline. Not until late that morning did they hand their final version—ten pages, single-spaced, plus Tom O’Toole’s two-page affidavit—to IntelliServe for high-priority delivery to the board’s offices. The messenger gave it to the receptionist there at 12:46 P.M.—forty-four minutes before Jackie and her relatives were due to arrive at Osborn Maledon, she to meet Larry Hammond for the first time.
