by Barry Siegel
CHAPTER 27
There Came a Day
After the second clemency hearing, Bill Macumber and the Arizona Justice Project had just one hope left, one last chance. The petition for post-conviction relief, filed by the Perkins Coie legal team headed by Jordan Green in February 2012, a month before the clemency hearing, was still winding its way through the legal pipeline. After requesting three extensions of the deadline to respond, the county attorney’s office finally submitted a fifty-eight-page document in early July. Weeks later, Jordan Green countered with a last written reply. All the briefs then went to Maricopa County Superior Court judge Bruce R. Cohen, who would decide whether to grant an evidentiary hearing. The waiting began. If Macumber’s lawyers somehow managed to get to a hearing—a longshot—they’d have the burden of proof, and the standard they’d face would be a “preponderance of the evidence,” not just “reasonable doubt.” Which is why Larry Hammond had turned with such hope to the clemency board, explaining that for the many defendants “who don’t have the benefit of DNA, there’s no place else to even be heard.”
Many defendants indeed: Although the Macumber case is highly unusual, aspects of it reflect much of what transpires in courtrooms across the country. To learn the truth by means of a trial is surprisingly and uncomfortably difficult. Invariably, courtroom transcripts are full of complex and conflicting evidence. Certitude rarely seems justified, especially in light of what DNA testing now suggests about the legal system. It’s impossible to say how many innocent people sit behind bars, only that the 300 DNA exonerations to date represent a small slice of the whole.
As with Macumber, in many of these DNA exonerations the case against the defendant seemed strong. As with Macumber, in many the defense could not find reliable forensics experts, could not locate crime scene evidence, could not sway reluctant appellate judges. Three reversals involved trial judges who suppressed evidence of third-party guilt.
Most attorneys, like Larry Hammond and Bob Bartels, acknowledge that criminal trials aren’t searches for truth. In constructing stories, lawyers recognize only the evidence consistent with their theory of the case. So do the police, the forensic experts, the judges and—finally—the jurors. Everyone sees what they want, sees what fits their particular take.
I was reminded of this when, after Bill Macumber’s second clemency hearing, I spent a day in Olympia, Washington, with Carol, Scott and Steve Kempfert. For hours, they eagerly served up their version of the Macumber tale, reprising all they’d said at the clemency hearing, sounding as convincing as they had on speakerphone. They pointed out that no one has ever offered hard proof that Carol tampered with the evidence or even explained how she might have done so. They denied the stories of Carol’s affairs—“blatantly false” said Steve—but asked, “Where in the scheme of things does it matter anyway?” They challenged as well Rich Robertson’s account of his visit to their home in March 2003—it was sunny and Carol didn’t say, “Get the fuck off my porch.”
In fact, weather records show light precipitation on the first day of Rich’s wait for Carol and none the second, though there was “rain and / or melted snow” reported at times. Other differences are harder to pin down. Carol told me she’d “heard” she was the subject of an internal MCSO investigation but “never knew it back then, and if I didn’t know, then I had no motive.” Yes, Sheriff Blubaum called her in once and banned her from the academy and ride-alongs, but she understood this to be “because of my Macumber name association.… No one ever told me it was because of relationships.” Yes, she brought her lawyer to Blubaum’s office, and yes, she threatened to sue, but still she “never heard this was about relationships.” No, she never had a sexual relationship with Gerald Hayes, and she had one with Dennis Gilbertson only after leaving Bill. No, she’d had no relationship with Ed Calles; in fact, she couldn’t clearly recall taking classes with him or getting a job reference from him. Yes, there’d been talk in the department about her having tapes that gave her leverage over various deputies—“a lieutenant called me in once and said, ‘Carol, you know there’s a rumor around that you’ve had relationships and have lots of tapes.’ Whew, I didn’t know they took that seriously.” No, she didn’t recall Dave Brewer. No, she never told Frieda Kennedy that she “went by the house and shot.”
Steve and Scott portrayed their father—Scott constantly called him “Mr. Macumber”—as an angry, frustrated man who wanted to chase cops and be an authority figure; who always made it about himself; who took credit for Scott’s accomplishments on the baseball field, though he himself was “nondescript with no exceptional skills”; who “lived vicariously” through his sons even while finding their efforts “never good enough.” When I pointed out the striking differences between their description and all other profiles of Bill Macumber—reading from Ron’s statements, Frieda’s affidavit and Pat Ferguson’s Conciliation Court report—they allowed there’d been many good times with their father. What Ron remembered was true and real, Carol added. They never claimed Bill was a bad father. Yes, he loved his sons. Yes, they all spent many happy hours together. Yes, the boys told Pat Ferguson they had a great desire to see their father.
Their attitude toward him changed after that Ferguson visit, Scott explained. Things happened after that interview. Most particularly, Bill carted off everything of value from their house—the tent trailer, the van, a gun collection, even their motocross bike. “He told us we’re most important to him,” Scott recalled. “Then he took everything. Once I realized I was less important than pieces of property, I lost love and respect.” Steve didn’t want to visit him at the prison in Florence—Judge Hughes made him, saying “your mother has brainwashed you.” The boys, at ages twelve and ten, rejected their father’s letters on their own; Carol left it up to them. The Scottsdale Road murders, Steve suggested, weren’t necessarily a strange one-time event; Bill “very possibly killed several others.” Scott and Steve didn’t care to see their father’s book of poetry, dedicated to them, or his journal, full of references to them. They didn’t care that their father nearly died in April 2011. Get it done, Scott said, get it over. Scott hated him “with all my soul.” Steve declared, “He’s not my father.”
Something in all this seemed out of kilter to me. Carol’s denials came without her ever asking to see the underlying affidavits, except for Gerald Hayes’s about their alleged affair. The sons’ lambasting of Bill Macumber, so full of animated venom, lacked even a hint of conflict, longing or wistful curiosity. Their memories about rejecting Bill’s letters conflicted with what Carol told a reporter in January 1976: “At first they answered his letters but I wouldn’t mail back what they wrote. It was a message that in effect said, ‘drop dead.’” Most important, the sequence of their recollections didn’t fit: It was in fact Harold Macumber who carted items from their house soon after Bill’s arrest in August 1974; their father didn’t buy them the motocross bike until he was out on bail in late October 1974; their visit with Pat Ferguson didn’t occur until March 1975, after the first trial, with Bill back in jail and the family about to move to Colorado. Affected by their intense feelings, I did not point all this out. They seemed to hate Bill Macumber too insistently for any such details to matter. Once again, as always, it finally amounted to what narrative you wanted—or needed—to believe.
* * *
Still—out of all the conflicting Macumber narratives, there came a day when one story prevailed, when one rose above all the others. Larry Hammond had not so much seen it coming as he had insisted on it coming. Don’t we owe it to Bill to file a PCR petition win or lose, he’d implored his colleagues. You can never tell. Who knows what might happen?
What happened first was a courthouse conference—Judge Bruce Cohen, after reviewing all the pleadings attached to Bill Macumber’s PCR petition, summoned the lawyers for informal oral argument in his courtroom at 2:30 P.M. on September 24, 2012. Judge Cohen, on the bench since 2005, wasn’t well known to the Justice Project; he’d come out o
f a family law and mediation practice and had served as a volunteer coordinator for mentoring programs at the ASU Law School. He’d read all the submissions, he told those gathered before him, but had not made any decisions. He just wanted to get everyone together to clarify some details.
Three Perkins Coie lawyers sat at the defense table, led by the senior partner Jordan Green, whose practice focused largely on white-collar criminal defense. Gerald Grant, a deputy county attorney, represented the state. Present for the Justice Project, observing, were Katie Puzauskas and Andrew Hacker. There, too, were Bill Macumber’s cousin Harleen and her husband, Jay, who’d driven into Phoenix from Apache Junction. Katie didn’t expect much from this session, given the late afternoon scheduling. But then Judge Cohen started showering the lawyers with questions, all focused on the same matter: What’s the new evidence? What was different if the trial were held today? What facts weren’t before the jury in 1976?
Jordan Green rose to respond. He’d first agreed to take this case because Larry Hammond—“an amazing person, a buddy of mine for millions of years”—was ill and needed him. He also thought it would be a good experience for the younger associates in his firm who’d never been inside a prison. Then he’d met Bill Macumber and felt the same visceral reaction to him that so many others had. In his earlier years, Green had practiced criminal law, serving as defense lawyer in some twenty murder cases, but he’d never dealt before with a PCR petition. Only by mistake, he’d say later—a bit tongue-in-cheek—was he prepared when Judge Cohen started asking questions. He happened to have an outline with him titled “New Evidence,” an outline written by the Perkins Coie team that focused less on Carol’s alleged tampering and more on Valenzuela. He glanced at it and started talking. Harleen and Jay thought him organized and eloquent. Once again a lawyer for Macumber walked through the list, but with his own take: Ernest Valenzuela’s multiple confessions, including some, Green pointed out, that the defense attorney didn’t know about at the time of the trials—those to a cellmate and police officers. Linda Primrose’s statement. The thatch of hair. Carol’s denial of having affairs and of being under investigation, now refuted by several affidavits. The initial FBI ballistics report, which indicated the ejector marks matched only one of the four cartridges, not the three later identified by Robert Sibert—something else the original defense attorney didn’t know about. Sibert’s claim that the murder scene cartridges came from Macumber’s gun “to the exclusion of all others in the world.”
Judge Cohen appeared particularly interested in Valenzuela’s multiple confessions and the ballistics evidence. Do you agree, he asked the prosecutor, that Sibert’s “to the exclusion of all others” testimony wouldn’t be admissible today? Yes, Gerald Grant said. He agreed.
Judge Cohen never indicated which way he was leaning, but Jay and Harleen thought he seemed impressed with the Perkins Coie lawyers. Cohen was surprised to learn they’d been involved with the case for only six months—he told them he would have thought they’d been on it for at least two years. Cohen also showed an interest in those sitting in the courtroom. He asked if there was anyone present from the victims’ families (no). What about the defendant’s family? Jay and Harleen raised their hands, Harleen explaining she was Bill’s cousin. Judge Cohen thanked them for attending, then said he expected to make his decision within a week.
* * *
The waiting resumed, one week sliding into a second. Finally, on October 5, Judge Cohen issued his decision. At the Justice Project offices, team members blinked hard as they read it. Here was what they’d sought for a dozen long years: an order setting an evidentiary hearing into Bill Macumber’s claims for post-conviction relief—specifically, his claims about “third party guilt” and the ballistics. The hearing would go for three full days, from November 7 through November 9. “This Court,” Judge Cohen wrote, “is not yet in a position to determine whether relief is ultimately due to Defendant,” but “this Court finds that on the identified issues of third party guilt and ballistics, Defendant is entitled to an evidentiary hearing.”
Cohen’s order represented a ringing validation of the Justice Project’s extended effort but did not by itself promise Macumber’s release. The burden of proof still rested with his lawyers, and even if they prevailed at the evidentiary hearing the State could retry Macumber or appeal the hearing decision all the way to the Arizona Supreme Court, drawing the matter out for many more years.
For that reason, Jordan Green began to push the state toward a deal. He didn’t want to drag this out, especially not with a seventy-seven-year-old client with health problems. All along, he had suspected the state might fold its hand if the defense could force an evidentiary hearing. That’s why he’d disclosed every witness and piece of paper he had. That’s why he’d made clear how much he’d relish putting Judge Thomas O’Toole on the stand. He had wanted to overwhelm the state, to scare it into walking away.
Two days after Judge Cohen granted a hearing, Green called Gerald Grant, ostensibly to talk about witness lists. Grant didn’t yet have a list together. Green took that as an opening. Jerry, he said, are we just giving ourselves trouble? Why don’t we find a way to resolve this dispute?
That led to a sequence of calls between the two. Both sides were checking their hole cards. Green worried how long Bill could survive. The state realized they’d likely lose everything if the judge ordered a new trial—with all the evidence destroyed, they couldn’t put on a case. Most important, the lawyers could sense that Cohen was leaning toward the defense. PCR petitions always depended on which judge you drew. This judge seemed inclined to grant post-conviction relief.
Jerry Grant made Green an offer: If Bill Macumber pled guilty to two counts of second-degree murder, he could walk free for time served. Jordan Green didn’t even take this to Bill—from the first time they’d met, Macumber had made clear he’d never plead guilty. That’s not going to happen, Green e-mailed Grant. We won’t talk to our client about a guilty plea. Green countered: If you offer a no-contest plea, for time served, we’ll go talk to our client. A no-contest plea would allow Bill to maintain his innocence while acknowledging the factual basis for the case against him. He’d be sentenced as if he’d pled guilty—in fact he’d formally be found guilty in a courtroom—but he’d walk free still claiming he did not commit the Scottsdale Road murders.
In the Maricopa County Attorney’s office, a committee of senior lawyers gathered, including Vince Imbordino, who’d so vigorously opposed Macumber’s bid for clemency at the second hearing. Days later, Grant called Jordan Green once again. Okay, he said. We are willing to accept a no-contest plea.
The news electrified the Justice Project team members, though they knew this wasn’t yet a done deal. Their joy mixed with their caution. Amazing, Katie thought, just incredible. “And quite a reversal,” Larry Hammond pointed out. “Even Imbordino agreed!” Legal tactics often reminded him of a chess game. You never know why someone moved to PK4. You just know something’s going on there.
On Thursday, October 25, Jordan Green and his law partner Lee Stein, accompanied by Katie Puzauskas and Lindsay Herf, made the four-hour drive to Douglas to inform Macumber. To arrange this meeting on short notice, Katie had told prison officials it was an “emergency,” and that seemed true enough—it all felt so urgent now. She tried to bank down her emotions. Once again, as so often before, the lawyers met Macumber in the Mohave Unit visitation area, empty but for them. Bill, as usual, hugged Katie and Lindsay and started chatting with them, unaware of why they’d come this day. Green cut him off. Hey, Bill, he said, we have serious issues to discuss. You want to get out of here?
Macumber listened without expression as they described the no-contest plea offer. He understood this to be big news, and it did raise his hopes. In fact, he was reeling. He clung especially to the thought that a no-contest plea was not an admission of guilt. That made it palatable. But he remained guarded, not allowing himself to feel or show emotion. Over the years, he’d bu
ilt up a self-defense mechanism for this type of news. No way was he going to get worked up again over something that might not happen, something that—as these lawyers made clear—wasn’t yet in writing. Instead, he asked process questions: What about my medications? What happens when they roll up all my stuff? How will I be transported? How will this happen? Jordan Green at first was puzzled, then believed he understood: Bill’s response represented a way for him not to break down. Bill was holding himself together by focusing on the practical particulars.
After two hours, the lawyers rose to leave. Green pulled aside the single guard assigned to the visitation room, a woman who knew Macumber quite well. We just gave Bill positive but shocking news that he’s getting out, Green told her. Would you watch over him and tell the night crew? The guard could summon no words. She started crying.
* * *
Justice Project team members kept quiet and held their breaths for days after that, fearful that the county attorney might get cold feet if word of the deal leaked and triggered a political backlash. Or if Governor Jan Brewer got hold of it. But by Tuesday, October 30, they appeared to have a done deal. In a conference call that day with his lawyers, Bill heard the news: The county attorney himself, Bill Montgomery, had signed off. They had a draft document. Discussions were under way for how to transport Macumber to Phoenix, where Judge Cohen would formally receive and accept the plea on November 7, at the start of the scheduled evidentiary hearing.
