by Barry Siegel
Hammond next invoked Thomas O’Toole, so respected by the board members: “We have gone back to Judge O’Toole and he has very thoughtfully given us an affidavit, which we attached to the memorandum you all received this morning. I think it is very clear—and you all know Judge O’Toole—he was on the Superior Court bench here for 24 years and was presiding criminal judge several times—but he continues to feel very strongly that his former now deceased client, Ernest Valenzuela, was telling him the truth.… He believed it then and he believes it now, and he so stated in his affidavit.”
Then Hammond sounded his most fundamental theme about this proceeding and Macumber’s case: “I want to observe the challenge that Bill has and that we have in these cases. DNA has changed the face of the way people look at criminal justice in America, and we understand that and we are deeply invested in cases where there is biological evidence.” But unlike Barry Scheck’s nationally famous Innocence Project, the Arizona Justice Project also took on cases that lacked DNA evidence—such as Macumber’s. “Because of the age of this case, and because of the loss of evidence over the years … whatever biological evidence [there] might have been … is long gone. And so we don’t have the ability to look to biological evidence, and it has made our job over the last nine years a much more difficult one.” This constituted one reason why they were so sincerely “grateful to have an opportunity to be heard by you.” For the many people “who don’t have the benefit of DNA, there’s no place else to even be heard.”
* * *
Bob Bartels followed, laying out the facts of the case and the Justice Project’s investigation, underscoring and expanding on the first six pages of the memorandum. The prints, the ejector markings, Carol’s statement—but now he added a claim not explicitly stated in the memo: That Carol “had been under investigation at that point for impropriety … that she had been involved in inappropriate relationships with a number of people in the Maricopa County Sheriff’s Office … and this is something that we actually were able to confirm.” He also added that “at least two family members, including her son Ronald, believe that she was capable of falsely accusing Bill of murder.” And “one of the details in Carol’s story”—that Bill said “he was acting under orders from the Army CID”—is “very similar to some information in a report in the Sheriff’s file about another person.”
The board members had to lean forward, straining to hear, since Bartels, as usual, was speaking in a near whisper. They asked him to talk more directly into the mike. He did, and continued. He thought the palm print doubtful because of Carol’s classroom training in how to lift and transfer prints. Also because Jerry Jacka had taken Latent Lift 1 on photographic stock paper—particularly easy to manipulate—and had not, in 1962, sent that lift to the FBI “because he did not think it was a good enough print for comparison purposes.” Another oddity, “which Larry and I just learned about yesterday”: Bill’s brother, Robert, allowed in 1974 to examine the latent prints in the sheriff’s department, had noticed that the Latent Lift 1 paper backing looked much newer than the others. If only they had that print card now—but they didn’t, making it “much more difficult for us to conclusively demonstrate that the palm print was planted.” Bartels finished with a summary of the Primrose and Valenzuela statements, not dwelling long there because the board had heard much about them at the Phase I hearing. “Do you have any questions?” he asked the board members before sitting down.
They did. “Is Carol still alive?” Olivia Meza wondered. “I’m interested in knowing what she says now.”
Rich Robertson rose to tell the story of his trip to Olympia, Washington, when, as he recalled it, Carol’s only comment was “He’s as guilty as Saddam Hussein and get the fuck off my porch.” They had the board members’ full attention now. Marian Yim would later say she put great weight on this testimony—the accuser revealed as a crude and hostile person.
Olivia Meza had another question: “I believe her son is here. Is that correct?” She wondered whether he’d grown up with Carol, and what had happened to him in their home.
Ron approached the microphone. He had no prepared remarks. He just began talking: “We were told that our father had committed murder and was guilty. It was constant.” We were told “not to leave the house, not to go anywhere,” that “our grandparents were going to come and take us away. That at the beginning of the second trial they came to find us in Colorado.” It wasn’t “until years later that I started looking into the case, when I was in high school.” He discovered then “there were things obviously wrong.” He decided “things did not make sense.… I mean, we heard all sorts of things from my mother.”
Meza again: “Is that when you contacted your father in prison?”
“No. Um—I was afraid, you know, and it wasn’t because I was afraid of my father. It was because I was afraid of what he thought of me. I was worried that he was going to be mad because he felt like we abandoned him.” Only much later did Ron contact his father, after his mother reported that Larry Hammond’s investigators had been up to see her. “And I took it upon myself to call Mr. Hammond and when I talked with Mr. Hammond things fell into place for me about what happened.” Ron drew a breath, looked hard at the board members. “I have no doubts of what my father had done.”
Hammond treasured Ron’s testimony. To think he’d discouraged Ron from coming! Larry interjected now, wanting to explain how “serendipitous” this reassociation of father and son had been: “We were looking to see if we could find anyone in the family to talk to us. We had no expectations that there would be an opportunity for a father and son to reunite. But it happened. It happened without us urging it.” Whatever else transpires in this case, he pointed out, whatever the outcome, they would always have that. “And the fact that he was able to get on a plane last night and get down here is for us in the room a definitely important gesture on his part. We’re very grateful.”
Marian Yim, changing course, had a quite different type of question: “We have in our packet a letter from Robert Shutts, Deputy County Attorney, Homicide Bureau.… In the last paragraph, there’s a statement that during a subsequent interview, defendant admitted he had killed the two victims. I’m confused. What’s this confession?”
Bartels answered, in a barely audible whisper: “The short answer is, the statement by Mr. Shutts is simply not accurate.” He added, “Mr. Shutts had no prior involvement with this case.”
Marian Yim studied her packet again. “Is this the testimony of Carol? Her statement that he confessed? Is that the so-called confession?… Because that’s the only one I can figure … I don’t remember reading that there was a specific admission…”
Bartels, again softly: “No, there wasn’t.”
Marian Yim had another question: Is this a mother capable of framing the father of her children? She looked at Ron, who returned to the mike. Listening to everyone else, he’d been preparing, thinking of what he wanted to say. He’d decided to reintroduce himself and explain his last name. “My name is Ronald Macumber,” he began, speaking firmly, yet trembling, his eyes fixed on the board members. “I am Bill’s youngest son. Growing up I was called Ron Kempfert. That was the name my mother decided to give us when my mom and dad divorced.… Now I am in the process of changing everything I have back to Macumber. But I would like to add about my mother. This really did not surprise me when Mr. Hammond told me what happened.… This does not surprise me. I have never—you would never think your mother would be capable of something like this, but when I was told by Mr. Hammond what they had found, all the evidence they had put together, it did not surprise me at all. She’s capable of this. I have no doubt in my mind she’s capable of this. She is one of the most controlling people I have ever met.… And what she has done to my father is inexcusable. And I just wanted to make you aware of that. She is my mother, yes, but I have no doubt in my mind she is capable, totally capable to do what you’ve been told.”
A silence fell. Some in the room were
blinking, wiping their eyes. Even the guards looked affected. None of them could see Bill’s face, Bill’s reaction. With his back to them, he held his head down, not looking around, as if he felt responsible for causing them all such pain. He’d not once made eye contact with his family members, or with anyone talking. “Okay,” Marian Yim finally said to Ron. “Thank you.”
Bill’s brother, at Hammond’s invitation, rose next. Larry invited Bob Macumber to “tell us and the Board what you told us yesterday about the ballistics back at the time of the trial.”
Bob, at age seventy-one, struggled to gain control of himself, his voice shaky, tears in his eyes. “My name is Robert Macumber,” he began. Then he stopped. “Excuse me, but we get emotional…” He drew a breath, started again. He recounted how sheriff’s deputies had allowed him and his father to handle evidence and take the shell casings to the Motorola lab for testing. There, he explained, the lab director examined the cartridges for any discernible identifying marks—ejector marks, extractor marks, breech marks, firing-pin marks—but “couldn’t find anything, and that’s about as microscopic as you can get.” What stood out even more for Bob was the strange difference between the backing paper for the fingerprints and the palm print. “The fingerprints that they lifted from the car were all—and again, this is 13 years after—they were all a little bit on the aged side, so the paper was a little bit brown from age. But that palm print was clear, crisp.… That’s about all I can add on that.”
Marian Yim thought Bob’s testimony astounding. Apart from the differences in print backings, she considered it remarkable that deputies had let them handle and even cart off the evidence. Yim couldn’t believe that the deputies would allow anybody, let alone the defendant’s brother, to just mess around with the evidence. No chain of custody, no security—nothing. Yim, the only lawyer on the board, knew such evidence would be thrown out of court today. This, she thought, was a legal train wreck.
Larry Hammond guided the balance of their presentation to considerations more within what he considered the clemency board’s realm. Ty Jacobson and Pete Rodriguez walked through Bill’s stellar prison record and extended lineup of accomplishments. Most extraordinary to the board members, given their familiarity with inmates’ histories, was Bill’s single “minor” infraction in thirty years (for being “out of place” during a tense moment in the yard). Beyond even the Jaycees and the rodeos and his many novels, that stood out; the board members had never before seen such a pristine disciplinary history.
Duane Belcher, with years of experience in the state prisons, here fell into a casual conversation with Bill Macumber, prompted by the report that Warden Charles Flanagan had taken to calling Bill “Pops” and relying on him as a mediator. Since then, Flanagan had risen to be the deputy director of the Arizona Department of Corrections. “Did you have a C level clearance at some point in time?” Belcher asked Macumber—that being the highest level of trust clearance in the state prison system.
“It would have been called a C override,” Bill explained. “It was an override given by the Director to inmates who couldn’t normally get the override to minimum, okay?”
“And you couldn’t get the override because of your sentencing structure?”
“Right. So Ellis MacDougall overrode and gave me a C override, which put me in OT [the Outside Trustee Unit], as well. First it put me in the North Unit Annex, then OT.”
Belcher was leading Bill to memories of days long past, the years before Sam Lewis took over the prison system, the years when Ellis MacDougall favored rehabilitation over punishment.
Belcher asked, “North Unit OT?”
“Yeah.”
“Right. And this—were you able to participate in the furlough program, the 72-hour furlough program…?”
“Not the furlough program per se, but you know, I made the final years of the Jaycees, I think I made 196 trips out of prison total. I never missed a rodeo.…”
Belcher smiled. “So we’re talking a little bit better than North Unit OT, right?”
Macumber looked rueful. “Well, I hate to say this, but you know, back in those days, things were pretty wide open, Mr. Belcher. You know … inmates had it pretty decent back then.”
Belcher nodded. “I got hired by the Department under Director MacDougall ten years ago.”
“He was,” Macumber said, “a unique individual.”
* * *
The final strand in the Justice Project presentation involved testimony to Macumber’s character and his prospects if released. One by one, project team members rose to endorse Bill, their words now more personal than legal. Donna Toland, Katie Puzauskas, Karen Killion, Sharon Sargent-Flack—all testified to Macumber’s “positive” outlook and “extraordinary” accomplishments, and to their own steadfast commitment to his cause. So, too, did Bill’s relatives, all offering their homes to him. Mark Macumber, overwhelmed by his memories of Bill in prison, of Bill’s tender attention to him there, struggled when his turn to speak came. “Yes,” he began, fighting tears. “Sorry, I hope I don’t get choked up. I was five or six years old, I think, when all this transpired. I can only speak to knowing Bill as an inmate.… I’m very proud to tell people about this. It’s a privilege for me to be here to speak up for him.” Mark faltered. “I had written out a letter,” he said. “I didn’t think I’d get through it.”
Belcher assured him, “I believe we do have your letter and we’ve had a chance to review it.”
Mark tried once more: “You know, I owe my life to Bill. I hope that things work out well for Bill…” He retreated to his chair.
Ron again approached the mike, for a final tribute to his father. “I can’t imagine what he had to endure over the past 35 years,” he told the board. “I can only hope to be half the man he is. His positive attitude, you could never tell anything’s wrong by talking to him. He’s always the one propping me up when I’m upset about the way things have gone, what’s happening to him. I just thank you so much for hearing this case. I greatly, greatly, appreciate it.”
Then came Jackie Kelley. She spoke forcefully, so all could hear. “I am Bill’s first cousin on his mother’s side,” she began. “I’m a few years older than he. I first met him when he was two days old in the Davenport Hospital, where he was born. And Bill and I have been more like brothers and sisters than cousins, along with Bob. The three of us were three peas in a pod, so to speak. I’m not the only one, but ever since this happened, I have been working in my own little ineffectual way trying to help, because I have always known he was never guilty. It’s impossible. Anyway I do a lot of praying also and my whole church is behind Bill. If the good Lord sees fit to free him … I would love for Bill to come live with me.”
Larry Hammond concluded their narrative. In his hand he held Macumber’s book of poetry, History’s Trail, published in 1984. “I want to end,” he told the board, “with the mentioning of the book of poetry that Bill wrote.… It’s called History’s Trail by William Macumber. And I believe that Ron does not know that his father many years ago dedicated this book to him—to Scott, Steve and Ron.” It was “very meaningful,” Hammond felt, “that at a time when there had been no reconciliation between father and sons, Bill had done something like this.” He thought it “powerful evidence.” Not courtroom evidence, of course—but evidence all the same.
* * *
The board members now started to talk about the case among themselves. Jackie had been watching their faces all through the morning, trying to read them. So had Ron, so had Robert Macumber. In the back row, Katie had been holding her breath, thinking, Do the right thing, do the right thing. Jackie had worried most about Ellen Stenson, sitting to Belcher’s left—her facial expression had stayed hard, never relaxing or warming. Ron had worried about her, too; her comments had been vague and noncommittal. He’d also worried about Tad Roberts, sitting on the far end of the board’s table—nothing specific, just the way he came across. Katie, too, thought Tad Roberts might cause them prob
lems.
The board members weren’t just talking, though. It took a while for those watching to realize it, but the board members, following normal procedure, were deliberating—right then, right before them. Olivia Meza, being a relative newcomer to the board, began by asking Duane Belcher to go over the various choices between recommending release for time served versus making Macumber eligible for parole. Belcher reviewed the several possibilities: absolute discharge, general parole under supervision, home-arrest status, six-month reviews leading to eventual release, applications under Statute 414. “Those are all of the options,” he concluded.
“Thank you,” Meza said. “I appreciate that. Is it possible to submit alternative recommendations … or do we have to choose one to submit?”
Belcher explained, “There’s nothing in the statute that ever mandates what the Board can recommend to the Governor.” There was nothing, for example, that mandates commutation “is just mercy and grace.” So “I think the Board can recommend whatever it chooses.”
Katie could see Belcher trying to guide them, trying to show the board members how they might proceed. Do the right thing, do the right thing.
Ron wondered, Are they really deliberating right here, in front of us? He looked over at Sharon, whispering, Are they making a decision now? She just raised her eyebrows. He turned back to listen to the board.
Belcher kept going: “Now, I’ll just add my little piece.… Now, if the belief of the Board is that Mr. Macumber is in fact innocent of this … then it would seem the logical thing would be to simply let him out of prison.” But since he’s been “down 35 years,” parole might in fact “help with a period of transition.” Or “the board could recommend both alternatives if it was inclined to do that.”
