Manifest Injustice

by Barry Siegel

  Katie, Sarah, and Lindsay waited a month, then called Calles anyway. With the others listening on speakerphone, Lindsay took the lead—she was good at keeping conversations aloft, keeping people on the line. “We’re looking back at the Macumber case,” she began. “We’re just trying to learn what happened. You can help us.” Calles made it plain he didn’t want to help and didn’t know why they were reopening the case. He’d just say his piece and no more: He believed Macumber 100 percent guilty because of the prints and the ballistics. Also because Bill had lied about where he’d been the night he came home with a bloody shirt. If he lied to them about that, what else had he lied about? Lindsay tried to guide the conversation to Carol, but Calles resisted. Every time she mentioned Carol, he barked, Are you recording this? Are you recording? I’ll know if you are. His words sounded like a threat, quite gruff and intimidating—Katie thought she would definitely not want to be interrogated by him. Lindsay didn’t back off, though. She kept bringing up Carol, and he kept asking whether they were recording him. He also started suggesting he only vaguely remembered Carol. Then he indicated he wanted to get off the phone. Only later did Katie think of what they might have told him: No, we’re not recording, but you should have when you interrogated Bill Macumber.

  * * *

  One day, Lindsay happened to be up in Prescott, Arizona, researching another case. She knew Joe Rieger lived there now—Rieger, the Phoenix police officer who in August 1974 investigated the kitchen-window shooting, then attended the session where Carol gave her statement. Lindsay had found an address for him, so as usual, without calling ahead, she drove to his home and knocked on the door. No answer. She did not leave a card. The next morning, she tried again: still no answer. Later that day she called him, using a phone number that an Internet database listed as being associated with his address. Rieger’s wife answered, sounding wary. They were on the road, it turned out—so Lindsay had either called a cell phone or their home line had been forwarded. Rieger finally took the phone. After Lindsay introduced herself, explaining she had a few questions about “an old case,” he peppered her for five minutes about how she’d gotten his unlisted phone number. She explained that she got it off a simple people-search database, but he didn’t believe her. No, his number couldn’t have just popped up on an online search. She promised him it had indeed. He asked for the database she’d used, and she offered to send him the search report, something he definitely wanted.

  Finally, they moved on, Lindsay asking if she could meet with him for twenty or thirty minutes to talk about an old case—the Macumber case. No, he said. He’d talked to an investigator twelve years before—Hayden Williams, Rich Robertson’s associate. He would not meet her, didn’t want to talk. He’d discussed this case once and had nothing more to say. With that, Rieger hung up. The conversation had lasted some ten minutes. Lindsay followed with a letter, but he never answered.

  First Nancy Halas, now Joe Rieger. People who’d been in that room when Carol gave her August 23 statement didn’t want to talk. Why? And for that matter, why was Rieger—a Phoenix police officer—even there in a Maricopa County sheriff’s interrogation room? That session with Carol, Lindsay noted, began at 6:45, but they didn’t call in Nancy Halas until 7:45, an hour later. Then came that gap between August 23 and August 28. Very odd, Lindsay thought. Very odd.

  * * *

  If only they could find the jurors from Macumber’s trials. Katie, Lindsay and Sarah had been searching for them ever since they’d gone to the ground. Rule 32 said they needed evidence “sufficient to establish that no reasonable fact-finder would have found defendant guilty … beyond a reasonable doubt.” What better way to establish this than ask the original jurors how they would have responded to Valenzuela’s confessions? They were reaching back thirty-four years, though. Were any jurors still around?

  Katie tasked an undergraduate volunteer, Logan Mussman, with locating the jurors. Logan tapped the databases, working off the original voir dire lists from the second trial, in 1976. He started to get some hits. He narrowed those down by age, by location, by previous employment. He and Bill De La Torre began making cold calls. Were you a juror…? They kept striking out. More calls, more misses. Finally they found one. Then another. In total, they reached four jurors still alive. One had Alzheimer’s, and one—a very elderly woman—just didn’t see any reason to reconsider this matter. That left two jurors to interview at length.

  The first, Sarah Elliot, welcomed the call from Katie and Sarah, for she had thought about Bill Macumber’s trial often over the years. Two lives lost, another life at stake … it had been an emotional and draining experience for her. She’d always thought the jury reached the right verdict, but she would willingly discuss this—if she could first refresh her memory and be brought up-to-date. She asked that they send her the trial transcripts and other documents, including the clemency board recommendation, the Primrose and Valenzuela statements, and a transcript of the hearing before Judge Corcoran where O’Toole and Petica testified.

  What she read in these pages greatly disturbed her. Sarah Elliot had been a forty-year-old real estate agent at the time of Macumber’s trial, hoping not to be picked for the jury, since such a serious case involved a lot of responsibility. Now seventy-four and retired, she found the revelations about Valenzuela and Primrose startling and enraging. During her several phone conversations with Katie and Sarah, she kept asking, “Can you imagine how I feel?” Readily, she agreed to sign a notarized affidavit.

  The palm print and shell casings, she stated, “were the most significant items of evidence to me because they placed Bill Macumber at the crime scene.” In her opinion, “the palm print was the primary piece of evidence that convicted Bill Macumber.… I would ask myself, if he wasn’t at the crime scene, how did his print get on to the car?” She recalled the state’s expert testifying that the shell casings found at the crime scene matched Bill Macumber’s gun. “Again, this was critical because it placed Bill Macumber at the crime scene. I would ask myself, if he wasn’t at the crime scene, how did shell casings from his gun get there?” During the jury’s deliberations, “we, as a group, could not get away from the palm print and shell casings.” Whenever she thought about Macumber’s case over the years, whenever she questioned whether they got the verdict right, “I always come back to the science. All we had was scientific evidence and I believe that’s what convicted him.”

  Sarah Elliot did not have much of a take on Bill Macumber himself when she first saw him—she recalled only that “he had a mild demeanor.” She also did not recall Carol Macumber’s involvement being emphasized at the trial. But after reviewing the trial transcripts, “I strongly believe that Bill and Carol Macumber’s pending divorce, Carol’s alleged affairs with law enforcement co-workers and Carol’s fingerprinting class at Glendale Community College raise serious doubt about the credibility of Carol’s statement to the Maricopa County Sheriff’s Office that Bill had confessed to her.”

  Most important, Sarah Elliot thought that knowledge of Ernest Valenzuela’s confessions might have affected the jury’s verdict. She thought it “terrible that the jury did not hear about Ernest Valenzuela’s confessions because they are extremely significant.” She had “no doubt that evidence about this man and his confessions would have impacted the jury’s deliberations.”

  Sarah Elliot also saw great import in Linda Primrose’s statement—and how it related to Valenzuela’s. She only “vaguely recalled” Primrose at Macumber’s trial, but after comparing Primrose’s courtroom recantation with her original 1962 statements, “I strongly believe Linda Primrose was telling the truth about witnessing the murders. Her statement is legitimate. She told the same story and did not waver. Her statement accounts for the chunk of hair found at the crime scene.” Sarah Elliot felt “very troubled by the fact that the jury did not hear Linda Primrose’s story in detail” and wasn’t “told about the hair found at the scene and who it did or did not belong to.” Linda Primrose’s state
ment, she believed, “is extremely significant.”

  Elliot directed some of her angriest comments at Judge Corcoran’s decision to keep evidence from the jury. “I strongly believe that if a jury is tasked, by the state, to judge another person’s actions and to have that person’s life in their hands, that they should hear the whole story. All sides of the case should be presented.” The great responsibility she now felt for Macumber’s fate tormented her. “To think I may have played a role in convicting an innocent man is a terrible burden for me to carry. To not know the whole story is an injustice to everyone. It’s an injustice to the criminal justice system. If a juror is to judge another’s actions and to have a life in their hands, it is not fair for the juror to not be told the entire truth. To withhold such important evidence and statements from the trial is troubling.”

  There they had it: If one of the original jurors didn’t qualify as a “reasonable fact-finder,” who did? And for this reasonable fact-finder, the new evidence—or new to her, at least—indeed was “verdict changing.”

  * * *

  The other juror Katie and Sarah interviewed did not even need such new evidence. When they called Lisa Piercefield, she readily agreed to talk. She’d been twenty at the time of the trial, the “baby” of the juror group, a college student and insurance secretary. She’d thought about Bill Macumber many times over the years, and in fact had researched his case in the newspapers and on the Internet. She had from early on thought Bill Macumber innocent. She’d sat in the jury box throughout the trial, giving the proceedings every ounce of her attention, only to be designated an alternate juror at the trial’s end. So she didn’t participate in the jury’s deliberations, didn’t get a chance to vote or share her views. The guilty verdict had stunned her.

  This and much more she told Katie and Sarah when they visited her home one morning in the late summer of 2010. Lisa Piercefield was fifty-four then, with a husband of thirty-five years, children, and grandchildren. She was by no means a rebel or an iconoclast; she and her husband, Arizona natives, took being American citizens quite seriously. They strongly believed in abiding by all the government’s rules and laws and had passed those values on to their children. She wanted to talk to Katie and Sarah—to give them a notarized affidavit—precisely because of her strong values, precisely because she believed in rules and laws. She did not believe they had followed the rules of justice at Bill Macumber’s trial.

  She didn’t begin the trial thinking Macumber innocent. In fact, she thought him “really creepy” at first—so tall and thin, with his Coke-bottle glasses. Early on in the trial, he opened the courtroom door for her one morning and it “freaked me out.” In her mind then, Macumber was a murderer, despite the innocent-until-proven-guilty rule. Then came the days of testimony. She never reached a “definitive conclusion” whether Carol “did or did not tamper with the evidence,” but to her “it was always a real possibility,” and for that reason, “I did not afford any weight to the fingerprint and ballistics evidence.”

  On the other hand, she thought the evidence about Valenzuela’s statements—only now provided to her by the Justice Project—had great import. She felt “disgusted that the jury was not told about Ernest Valenzuela and his confessions.” To her mind, “this information would have had a huge impact on the jury’s decision.” At the least, she was “sure that it would have caused the jury to have reasonable doubt about Bill Macumber’s guilt.”

  As the trial went along, her opinion about Bill Macumber quickly changed. Rather than “really creepy,” she came to think him “just a regular guy who was caught up in a set of very surreal circumstances.” To her, “he came across as a gentleman.” He “sat straight up in court,” with no demeanor of a prisoner, no criminal history. She could not fathom why such an upstanding member of the community would “go out and shoot two young kids randomly without any reason whatsoever.” In her view, “people just don’t do things like that on a ‘whim.’” She had assumed the other jurors shared her outlook, so she “was stunned with shock” when she heard the verdict. She could not then or now understand how the other jurors found him guilty—“I strongly believe there was reasonable doubt about his guilt.”

  Leaving Lisa Piercefield’s house with a signed and notarized affidavit in hand, Katie thought, “Too bad she wasn’t on the voting jury.” A simple twist of fate.

  * * *

  Above all others, the person Katie, Lindsay, and Sarah most wanted to interview was Carol’s former roommate, Frieda Kennedy. Frieda had given depositions before each trial and had testified at the second one. She’d also talked once to Rich Robertson, a decade ago. But she’d always been reluctant and vague, never forthcoming. Maybe now she’d talk openly. Maybe she’d feel more comfortable talking to “two young girls”—as Katie and Lindsay called themselves—rather than lawyers and private investigators in suits. Frieda had been the person closest to Carol back then. Frieda, they sensed, could be the key.

  Working off Rich Robertson’s old notes, Katie and Lindsay came up with what seemed to be her last known address, still out in Buckeye. Before driving there, they met at the Justice Project offices to pore through Frieda’s depositions. Then they climbed into Katie’s Honda Civic. Buckeye sat some forty miles to the west of Phoenix, well beyond the urban sprawl. Katie and Lindsay took I-10 west, passing the prison for women in Goodyear, then headed south on State Highway 85. Pulling into Buckeye, they drove past vacant lots interrupted only occasionally by a housing development or shopping center, rising in isolation. The address they had for Frieda took them to a dirt road amid farmland, then a moderate-sized home surrounded by a fence. They climbed out of their car into a howling wind, strange for Arizona. They both were dressed down, as usual—just jeans and casual tops. A guard dog started barking ferociously. That and the fence kept them from knocking on the front door, so they yelled out their hellos, hoping someone would emerge. A woman appeared. We’re looking for Frieda Turner, they explained, using Frieda’s married name. No, the woman said, she doesn’t live here. The Turners lived down the road, last she knew, but she couldn’t say if they still did.

  Katie and Lindsay faced into the wind, fighting their way back to the Honda Civic. They drove to where the woman had pointed. There they found two well-sized homes on the same lot, one in front of the other, newly built. They went to the back house first and knocked. No answer. At the front house, the doormat featured a capital T, so they figured they might be in the right place. When they knocked, a woman opened the door. No, she said, Frieda Turner used to live here, in the rear house, but she moved. Last she’d heard, Frieda was living somewhere in Buckeye with a man named Boyd Pierce.

  Back inside their car, they did an Internet search on Katie’s BlackBerry for “Boyd Pierce + Buckeye.” Bingo—a hit. They had an address. Lindsay guided as Katie drove slowly through an unfamiliar region. They missed a couple of turns and circled around for a while. This was an older neighborhood, not on a par with their first stops. The few small, worn homes out here looked to them as if they might be abandoned or harbor a meth lab. Pulling up to Frieda’s home at the end of a cul-de-sac, Katie and Lindsay saw a ragtag lot with trash and toys scattered about. Neither of them wanted to get out of the car. Katie said, No, let’s not. Lindsay said, Yes, let’s. Even as they walked up to the house, they still debated. Maybe, Katie suggested, we should let Rich do this? With trepidation, they knocked. Frieda opened the door. Katie thought her kind of cute-looking—a fifty-six-year-old woman now, short and plump, with frosted hair—but a bit worn, with food on her shirt and a messy house behind her. She warmly welcomed them into her home.

  During that first visit, they talked for one hour. Frieda wasn’t always clear about things—she tended to say, “Maybe” and “Yeah, hmmm” and “I think I remember, but I don’t know.” But when they pressed her for specifics, she grew more precise. Frieda wasn’t reluctant or guarded with them, as she had been with the men in suits. The passage of time possibly helped as well. Sl
owly at first, then more easily, she began to talk about her time with Carol. She told of working with Carol at the sheriff’s department, together on the night shift in the identification department. She told of Carol, on several nights around the time of Bill’s arrest, showing her the Sterrenberg-McKillop case file, which included the fingerprint cards. She told of becoming very good friends with Carol—Carol, in fact, had been Frieda’s closest girlfriend at the time. Frieda was twenty then. Coming from a sheltered upbringing, living away from her parents for the first time, she looked up to Carol, thirty-one, “because she liked to have a good time and she had more life experience than me.” In the summer of 1974, they became roommates, renting an apartment on Fifty-eighth Avenue, Frieda since she hated commuting from Buckeye, Carol given that she was “unhappy at home because her marriage to Bill had gone sour.”

  Katie wanted to go slow with Frieda, but had to ask: Did Carol have affairs during this time? Oh yes, Frieda said, with no hesitation, no searching of her memory. She named two men right off: Dennis Gilbertson and Gerald Hayes. They talked on from there, Katie taking notes, but once they had the outlines of Frieda’s account, they began making plans for a return visit. They’d just been breaking the ice on this trip. They would bring Sarah Cooper with them next time.

  * * *

  When they arrived for their second visit, the vacant lots and tumbleweeds made Sarah feel way out on an edge, stranded in a wilderness. Yet when they stepped inside Frieda’s home, they again were warmly welcomed. Frieda treated Katie and Lindsay as if she’d known them all her life. She poured them iced tea as they settled at the dining room table. She had cleaned up the house now and put herself together.