by Barry Siegel
CHAPTER 21
Attention Is Paid
DECEMBER 2009–JULY 2010
On the same day Larry Hammond delivered his commencement speech at the ASU College of Law, Katie Puzauskas sent a four-page memo to the Macumber team, outlining the battle plan for Bill’s PCR. The petition, she advised, would include an argument of actual innocence—“which we must show by clear and convincing evidence”—and an argument “based on newly discovered material facts.” Addressing how to make those arguments, Katie listed the issues they’d discussed on December 7 and the “things that still need to be investigated.”
They would hang the actual innocence claim on Valenzuela’s confessions and the affidavits from Tom O’Toole and Ron Petica; Linda Primrose’s statements and the judgment of her truthfulness by Dr. Erickson and a polygrapher; Carol Macumber’s conduct, access and ability to lift prints; Ron’s testimony before the clemency board; and—above all—the clemency board’s “entertaining Bill’s innocence claim.”
They would base the newly discovered material facts primarily on a new National Academy of Sciences report that discredited the type of ballistics and fingerprint evidence used in Macumber’s case. They would try, as well, to cite the palm print backing paper—if they could ever prove it; Linda Primrose’s scrapbook—if they could ever retrieve it; the sheriff’s list of .45-caliber guns tested in 1962—if they could ever find it; and testimony from Primrose’s friend Terry—if they could ever locate her.
Larry Hammond also wanted the team to consider questions about third-party confessions. He saw this as a growing issue in the legal system; recent cases had lowered the “reliability” threshold governing when the defense could offer testimony about such confessions. In 1987, the Arizona Supreme Court in State v. LaGrand had significantly altered the standard. After LaGrand, if a trial court believed that “a reasonable person could conclude from evidence in the record that the declarant’s statement could be true, then [it] must admit the statement into evidence.” And in 2010, the Arizona Supreme Court had applied the LaGrand standard to another case, State v. Machado, ruling that the trial court had erred in excluding an anonymous telephone call from someone who’d confessed to the murder. Attorney-client privilege remained in place, but if the Valenzuela confession came along now, Hammond believed it would be allowed under these new rulings. Hammond again pointed the team members to Chambers, writing a memo about its issues. He asked them to consider when and how third-party confessions were used. What most bothered him about Bill’s case: If the State had charged Valenzuela with the murders, rather than Macumber, the courts would have relied completely on Primrose’s statement and Valenzuela’s confessions. But because they’d charged Macumber instead, the jurors could not hear this evidence.
Switch it around some more, Hammond suggested. If they’d charged Valenzuela with the murders, if he’d been on trial, Carol’s statement about Bill would be absolutely inadmissible. Even if Valenzuela’s lawyer sank to his knees and begged, no judge would allow it. Shame on you, the judge would tell him, for trying to blame a third party. Since lawyers employed this type of evidence all the time to convict, why not also to show innocence? Hammond proposed that the team research other cases where the prosecutor had depended on statements like Primrose’s and confessions like Valenzuela’s.
* * *
By April 2010, the Justice Project team had fully launched a renewed, expanded Macumber campaign. Associates had held several phone conferences with Bill; they’d created a Free Bill website; and they’d started screening a twenty-one-minute documentary, Life: The Bill Macumber Story, produced by Lesley Hoyt-Croft. They had also established a new ASU law school post-conviction relief clinic and had pointed that class at the Macumber case; Katie and Lindsay, its guiding spirits, attended every clinic session, working with the six enrolled students and recruiting others.
On April 30, the clinic left the ASU law school at 5:30 A.M., boarding a van for the four-hour drive down to Douglas. Katie and Lindsay joined the students and their instructor, Sigmund Popko, a former lawyer at Hammond’s old law firm. They had assigned each student a particular aspect of Macumber’s case, so they wanted the students to meet Bill and have a chance to ask him questions.
At the prison, they all gathered in the large visitation room. Katie greeted Macumber with a hug, then introduced the students and Lindsay. Macumber answered their queries for ninety minutes. Katie apologized as they went on, knowing he’d heard these questions many times in the past. Bill didn’t care, though—he welcomed the company.
After they finished, Katie and Lindsay set up video equipment and prepared to show the Life documentary. Lesley Hoyt-Croft, whose good friend worked at Larry Hammond’s law firm, had jumped at the chance to make the film after Lindsay and Jen Swisher presented the Macumber case to her Scottsdale Community College class. Macumber knew that Ron and Megan, who’d attended a screening in Phoenix, believed it might sway Governor Brewer. Bill doubted that, but he sat now in the darkened visitation room, watching. Near the end, he saw Ron on the screen, paying him homage: He’s an incredible man.… To endure, to keep his beliefs. He never backed down. He could have been out long ago if he admitted guilt, expressed remorse. He saw also Ron’s wife, Deb, imagining their future together: I know him well. He’ll look around our house, say this and this needs to be done. How much fun we are going to have. I’ve been telling him for seven years, you will get out of prison. This is not how you will finish your days.… Whatever power is out there will right this wrong.
By the end of the screening, Katie and Lindsay were crying. Two guards standing against the far wall looked choked up as well. Macumber blinked hard, his eyes watering, his face reddening. When the documentary ended, he offered a big sigh, then said to Katie, “Please tell Lesley thank you.”
The next day, Macumber wrote to Katie, thanking her first “for the nice hug when I arrived and again when you left. Old men really appreciate hugs from lovely young women and especially those they think a great deal of.” He hoped the meeting with the students had gone well—he’d tried his best to “reach back in time,” but “thirty-five years is just a very long time.” He thought the documentary “an astounding piece of work” and “an emotional trip back through time for me.” He’d found it “terribly difficult to hold back the tears.” And “speaking of tears, yours and Lindsay’s bothered me so much.” He regretted that “so many people have shed tears because of me.”
Over the next few days, several of the clinic students wrote him letters expressing their admiration and support. So did Lindsay Herf, who, like Katie, now held the title of case and programs coordinator for the Justice Project. “I want to tell you,” she began, “how wonderful it was to meet you in person. All the students enjoyed meeting you as well and were so impressed by you.” In her three years of doing innocence work, “I have never seen a case like yours—in that I have never been so convinced of a wrongful conviction as I am when I read your file.” He should not consider the tears she and Katie shed as being a burden; “they are tears of frustration at the system.” In prisons, “very few are innocent and it is those few who keep us going and give us strength to keep working.” Lindsay urged Bill to “stay strong, as you have all these years.” She offered her pledge: “The quest for justice is not over.”
* * *
Next came a wave of news media attention. The narrative that journalists offered in the mid-1970s had largely reflected the story told by cops and prosecutors. The pendulum often swings in the press, though. Reporters embraced a new narrative that May, fueled by Governor Brewer’s denial of the clemency board’s recommendation—and also by the Justice Project’s active prodding.
Besides preparing to draft a PCR petition, the Macumber team had started wondering whether they could ask Governor Brewer to reconsider her denial. As far as they knew, no formal mechanism existed for such a request—Katie had not been able to find any relevant case law. So she and Lindsay instead turned to the news me
dia, thinking that perhaps public opinion would be the best way to persuade the governor.
A May 18 report on CBS’s Phoenix affiliate, KPHO, effectively got the ball rolling. When reporter Sarah Buduson asked the governor on camera about her decision to deny clemency, Brewer said, “It’s a very personal issue.… At this particular time, I’d prefer not to comment,” then turned and walked away as Buduson continued to ask questions. Others filled the airtime instead. “I think one of the things that bothered us most is we don’t know why it was turned down,” Bill Macumber said during an interview at the state prison. “We strongly believe he did not commit the crime he was convicted of,” added Katie Puzauskas. She and Lindsay pointed to Carol’s access, knowledge, and motives—including the fact that she was “being investigated by the Maricopa sheriff’s office for sexual misconduct at work.” The most powerful comments of all came from Judge Thomas O’Toole, now retired and ever more willing to speak without qualification about Valenzuela. “There is no doubt in my mind when he told me about these murders he was telling the truth,” O’Toole informed Buduson on camera. “He relished the murders, and that was his persona when he talked about it.” Of Macumber’s case, the judge said, “There is reasonable doubt. More than a reasonable doubt as to his guilt.” O’Toole hoped the governor would reconsider her ruling. “I would think that the governor, even though she initially denied, would really be doing justice by granting clemency to this man who has been in prison for thirty-five years, who very likely is innocent.”
The next day, P. S. Ruckman Jr., an associate professor of political science at Rock Valley College in Illinois, posted a report about the Macumber case—and Governor Brewer’s refusal to discuss it—on his Pardon Power blog. Ruckman raised alarms and expressed hope that “the media will hammer this … on a daily basis until the topic is addressed appropriately.” A Justice Project law student volunteer, Andrew Hacker, spotted Ruckman’s post and relayed a link to Katie in an e-mail carrying the subject line “It’s spreading…”
Indeed it was. Two weeks later, Adam Liptak, a legal affairs reporter at the New York Times, e-mailed the Justice Project, seeking information—he’d seen Ruckman’s blog. Liptak’s story ran in the Times on June 14, under the headline “Governor Rebuffs Clemency Board in Murder Case.” Liptak quoted Tom O’Toole, Katie Puzauskas and P. S. Ruckman, who said, “I have been following state clemency for 30 years, and this is easily, easily, the most disturbing. It’s borderline despicable.” Liptak also quoted Carol Kempfert—one of her first public comments since the Justice Project reopened the case. She denied tampering with the evidence, and she called her former husband a dangerous sociopath and pathological liar. “I was in law enforcement for almost 20 years,” she told Liptak, “and no one came close to being able to manipulate like Bill. This man could sell water to a drowning person.”
After the New York Times story, Katie began fielding call after call from the news media: Phoenix TV stations ABC15, KPNX Channel 12 and News Channel 3; CBC Radio in Toronto; Citadel Broadcasting in Tucson; an NBC affiliate in Illinois; the Arizona Guardian. On and on. For a time that summer, Katie seemed to be working as Macumber’s full-time press agent. One day, he sat for no less than four interviews. Then came a call from ABC’s Nightline, in New York—its producers wanted to film a segment as well.
The competing narratives were now playing out in the media rather than in the courtrooms. As always, those following such accounts had to choose which story to favor, which to believe.
“This case has a stink about it,” Judge O’Toole told one journalist.
To another, he said, “I represented the guy who committed the murders, and I’m convinced that he did. He told me in great detail how the murders were committed. Anybody who’s been involved in looking at this case comes away saying this guy got screwed. I’m one of them. The legal system obviously got it wrong.”
“Miraculously,” Hammond explained to a third reporter, “out of the file jumped a palm print.”
Ron had “no doubt my mother set my father up for the murders.… I firmly believe she lied. I firmly believe she planted the evidence. I firmly believe she framed my father for this.”
Again, some of the reporters went to Carol as well. She had Googled Bill from time to time over the years and so knew of his connection to the Vince Foster case. But she knew nothing of the clemency board hearing and recommendation until these queries from journalists. To them, she kept denying the charges against her: “He did tell me he committed the murders. He did come home with blood on his shirt.… I never lied.” Most of the clemency board claims about her were false: “I had no access to evidence lockers. I did not manufacture or tamper in any way with evidence. There’s a whole lot more to this story that has never come out.”
Governor Brewer’s spokesman now issued an expanded statement: “This decision was made … after very careful consideration and contemplation by Governor Brewer. This case involves the decision by not one, but two trials by jury. The Governor does not generally elaborate on issues related to her executive clemency power for multiple reasons.… Her thorough deliberation process takes into account all facts presented to her, including a thorough review of the application and testimony before the Board of Executive Clemency. In Mr. Macumber’s case, this review included statements from Mr. Macumber, attorneys, witnesses, law enforcement officers, victims and trial transcripts from both jury trials that convicted him of murder. Every case is carefully scrutinized as the Governor balances the very real and important concepts of public safety, justice and mercy.”
In the end, whatever else could be said, the news accounts undeniably stirred public opinion, just as the Justice Project had hoped. Katie felt the reports also vindicated their efforts, for despite offering competing narratives, the stories conveyed an underlying belief in Macumber and the Justice Project. Otherwise, why reprise this decades-old case?
The media attention culminated with the Nightline broadcast. The ABC program largely framed the story as a family conflict featuring Ron and Carol and Bill. Ron had his say—“I don’t have any doubt anymore that my mom framed my dad for the murders”—and so did Carol, Nightline landing an exclusive on-camera interview with her up in Olympia. She again flatly denied fabricating her husband’s confession. “Absolutely not.… I didn’t wake up one morning and say, ‘Oh gee, I think I’ll go frame my husband today.’ I did not and I will say this again, I did not manufacture nor did I ever tamper with evidence.” Bill came home covered in blood the night of the murders, she insisted, and later confessed to her as their marriage was falling apart. “It sounds … ridiculous. But that’s, in fact, what happened.” As for Ron’s charges, “Critical thinking is not one of Ron’s better skills. If anyone was ever made for Bill to mold and manipulate, it would be Ron.”
Nightline’s cameras here cut back to Ron: “Let’s say I’m gullible and my father is manipulating me, but please tell me how he’s manipulating the Arizona Justice Project.”
Nightline also pitted Ron against Governor Brewer, flying him to Arizona so he could confront her on camera at an unrelated news conference, asking why she’d denied his father’s freedom. By then, Brewer had gained widespread national attention for having signed, in April, Arizona SB 1070, the controversial law that required aliens in Arizona to carry registration documents and police to question people about their immigration status if there is reason. SB 1070 had brought Brewer notoriety—but also a passel of conservative Arizona voters. When Nightline turned its cameras on her, she was just days away from trouncing her Democratic opponent in the gubernatorial election, 55 percent to 42 percent. “It’s an unfortunate situation,” she told Ron at her news conference, “that governors have to make difficult decisions regardless of what recommendations are made to them.… I know it’s hard as a child that you’re faced with this in your lifetime. But he was found guilty by two different juries, and I feel very comfortable with my decision. I appreciate your concern, but I’ve made my decision
and it’s final.”
* * *
At the state prison in Douglas, Bill Macumber tried to make sense of all the attention being paid to him. The guards and other inmates approached him regularly now to say they’d seen him on TV. Never had he thought he’d be interviewed by so many TV stations. He hoped the exposure would help, and maybe even affect Governor Brewer. He particularly appreciated Professor Ruckman’s blog postings and Adam Liptak’s New York Times piece, since they’d kindled the media interest. “Perhaps I will remain in prison,” he wrote to Professor Ruckman, “yet should that prove to be the case there are now countless people out there that believe in me and in my innocence. I find considerable satisfaction in that.”
On July 23, Katie and Lindsay again made the four-hour, 230-mile journey to visit Macumber, this time with a young barrister from England, Sarah Cooper. Sarah, twenty-three, had first come to Arizona three years before to intern for Osborn Maledon and had returned now on a summer fellowship, eager to work with the Justice Project. They met Macumber in the big visitation room lined with vending machines. Bill was about to turn seventy-five. He found it astounding that he’d made it to that age, considering his situation. His hip hurt often now, and the emphysema had him coughing and clearing his lungs. But he’d survived. After the requisite hugs, they settled at one of the round tables in the otherwise empty room. Sarah led the conversation, reviewing their situation and plans. She expected to begin writing a draft PCR petition sometime in August—a task Hammond had assigned to her—but could not say when it might be ready to submit to the court. They’d also start assembling a new commutation package, as Macumber would be eligible to reapply for clemency next May, two years after his Phase II hearing. Bill’s chances, they knew, might still be better outside of the courtroom.
