Manifest Injustice

by Barry Siegel

  Now Bill let himself see this as a possibility, though it still felt more than unreal. Late that afternoon, from a desk in the Douglas warden’s office, he began making calls to his family.

  Ron Macumber’s cell phone rang as he was standing in the aisle of a Target store in Grand Junction, Colorado, where a work assignment had taken him. “Are you sitting down?” Bill began.

  “Dad, I’m standing in the middle of a Target. What’s going on?”

  “Well, they’re transporting me to Phoenix next week and it looks like I’m going to be released.”

  Bill continued, explaining about the no-contest plea deal, but Ron couldn’t process anything. Waking up the next morning, he tried to recall whether his dad’s call had been real or a dream. Days later, he would still be trying to wrap his mind around the news. His father had sounded good on the phone but hesitant. Until Bill walked out of a courthouse a free man, Ron imagined, he’d be that way. Excited, but holding a lot back.

  Jackie’s phone rang next. By then it was early Tuesday evening. She knew something was up because Bill always called on Saturdays, following prison rules.

  “Are you sitting down?” Bill asked again.

  Jackie yelled so loud her dog, Spec, started barking at her. She stuttered, she gasped for air. Life stopped for her; the news took her breath away. Still, she could see Bill’s big grin over the telephone. Bill, she managed to say, “This is one of God’s miracles.” Yes, she knew that much. Over and over, she murmured, Praise the Lord.

  Next, Bill called his brother Bob. More yelling—Bob couldn’t believe what he was hearing. Bob called his son, Mark, who told his wife. She sank to the floor, screaming.

  Bill’s final call that evening went to Jay and Harleen. Once more he asked, “Are you sitting down?” Jay said, “No, but I can be.” He settled into a chair. Bill began by apologizing for calling them last. “That’s fine,” Jay said, “as long as it’s good news.” “Oh, it is,” Bill replied. Yet again he offered his report. Jay and Harleen could barely respond. At the end, Bill said, “Kind of a shock, isn’t it?”

  * * *

  Shortly after 4 A.M. on the morning of Tuesday, November 6, under still dark skies, Bill Macumber walked through the gates of the Mohave Unit, accompanied by two guards. He’d been visited all week by hundreds of well-wishers, a constant wave of inmates, staffers and wardens—the news had spread instantly at the state prison. Now everyone was asleep, farewells already exchanged. Or so Bill thought. Behind him, he began to hear loud yelling and screaming. All the prisoners were at their windows, shouting out their good-byes to him. He climbed into a prison van. The two guards, men he’d known for a long time, only lightly shackled him. They drove off, beginning their journey to Phoenix.

  Macumber spent the next twenty-four hours housed at the Alhambra state prison complex in downtown Phoenix, the same facility he’d attended for his first clemency hearing. Jordan Green and Lee Stein, visiting him Tuesday afternoon, found him shaken up. To protect him from other inmates, the Department of Corrections had put him in the psycho ward, an environment he found unpleasant. Again, he wanted to talk to his lawyers about process—his medications and such. Bill’s manner revealed both anxiety and joy.

  After his lawyers left, Macumber spent the next hours as best he could, sleeping and waiting. Mostly waiting. The guards finally came for him late on Wednesday morning, to transport him to the Maricopa County Superior Court building on West Jefferson. Shortly after 1 P.M., a half hour before the hearing was to begin, they brought him into Courtroom 6B in the South Tower. He wore, as usual, the inmate’s bright orange jumpsuit, with his hands and feet shackled and tied into a belly cinch. He had tears in his eyes as he fought to hide his emotions. Still, he perched almost jauntily on the defense table, his back to the judge’s bench, looking toward the entry door. He wanted to see who was there, who was arriving. Already the courtroom was packed, with standing room only at the rear and side walls. Everyone, it seemed, had come: Larry Hammond and Bob Bartels. Katie, Lindsay, Andrew. Rich Robertson. Karen Killion from Washington, Sharon Sargent-Flack from Prescott. Pete Rodriquez. Sigmund Popko and several former students from his ASU law school post-conviction relief clinic. Bill’s family, of course: Jackie and Robyn. Ron. Bob and Mark. Harleen and Jay. Bill spotted, standing against the side wall, a man he’d not seen for thirty-eight years: Paul Bridgewater, the neighbor who’d put up his home for bond collateral. And he counted, sitting in the jury box, half a dozen reporters at least, from Phoenix newspapers and TV stations.

  Hammond and Bartels edged their way to Bill, wrapping their arms around him. Waiting for the judge to appear, the three sat at the defense table, Bill telling them about his last hours at Douglas, all three smiling, though Bill still had tears in his eyes. Then Jordan Green and Gerald Grant emerged from the judge’s chambers, where they’d been conferring. Larry and Bob moved a row back, sitting with Katie, Lindsay and Andrew. Bill asked Jordan, “Any surprises back there?” No, Green said. None.

  Everyone stood as Judge Bruce Cohen entered the courtroom. Green’s first request to him: Could they remove Macumber’s shackles? The judge agreed. A deputy sheriff bent down to unlock the restraints around Bill’s ankles, thinking that’s all the judge meant. Jordan Green told the deputy, “Take the handcuffs off too.” The deputy looked up at the judge: “Everything off, sir?” Cohen said, “Yes, if you would.” The packed courtroom waited as the deputy fumbled with the padlocks. Seconds passed, seeming more like minutes. Then, at last, the chains and cuffs fell to the floor. Macumber sat down, unshackled. “Thank you,” he said to the deputy.

  Judge Cohen began the hearing. Before entering and receiving the agreement, he announced, he would allow members of the victims’ families to address the court. John McCluskey rose to speak for his cousin Tim and for Tim’s mother, as he had at the second clemency hearing, making clear that he “advocated that Mr. Macumber be incarcerated for the rest of his life.” Judy Michael rose next, to speak once again on behalf of her sister, Joyce. “It’s hard to be here, to sit through this,” she said. “I loved my sister. I’m here to be her voice today. I want justice served for her. Mr. Macumber has had two trials, two clemency hearings, and now here he is today to get more justice for himself. Where is the justice for us?”

  Judge Cohen responded gently: “I could never understand your loss. It would be disingenuous if I said I know how you feel. I appreciate you being here. I appreciate that you are here speaking on behalf of the victims.” Cohen looked next to the defense table. “I am sure there are people here on your behalf, too, Mr. Macumber.”

  Then he turned to the matter at hand: a two-page stipulation between the state and defense, providing for granting of Rule 32 post-conviction relief for Macumber in exchange for him pleading no contest to two counts of second degree murder. “I will accept the stipulation,” Judge Cohen said, “and will enter on the record my findings.” He began.

  It must be said that this matter relates to the tragic deaths of Joyce Sterrenberg and Tim McKillop.… They were both brutally and senselessly murdered.…

  This matter also relates to the life of William Wayne Macumber.… Mr. Macumber has maintained his innocence at all times. Despite that, he was twice convicted of first degree murder … and has been incarcerated for the last thirty-eight years.

  Lastly, this matter relates to the criminal justice system. Some will undoubtedly contend that justice was served almost four decades ago when Mr. Macumber was convicted for these crimes. Others will argue that these decades have served as a constant reminder of the injustice that at times occurs. While that debate would be as legitimate as the varying views of the participants, there is no opportunity to turn back time in a fashion that would ensure true justice, no matter which side of the divide one finds himself.… Therefore, the best that can be done at this point in time is what justice would now require.

  There is evidence to suggest that the verdicts from the 1970s were correct. There is also evidence to
suggest that the evidence of alleged guilt is very much offset and perhaps exceeded by evidence that suggests otherwise. Despite the justice system being symbolically represented by the balancing of the scales, guilt and punishment are built on a foundation that requires not a mere tipping of the scales, but the elimination of all reasonable doubt.

  This judicial officer was not present at any of the original or second trial proceedings. It is therefore impossible to know what conclusion would have been reached had those trials been conducted under the law, rules and analysis that now exists. Rather, this matter must be viewed in hindsight, and in so doing, there are significant questions as to whether justice was done when Mr. Macumber was convicted.

  This leads this Court to the basis for the ruling entered this date. It is the view of this Court that this moment in time stands as a beacon for what is just in our justice system, even if it cannot remedy the past.… As Martin Luther King Jr. once said, “Never be afraid to do what’s right. Society’s punishments are small compared to the wounds we inflict on our soul when we look the other way.” What we do here today under this very unique set of facts is consistent with the applicable law and does justice.

  We will never know with certainty what happened on that May 1962 night in the desert in what is now North Scottsdale. And for that reason, justice requires that we do what is right. We do this not out of disrespect for the memories of Joyce Sterrenberg and Tim McKillop, but in honor of the principles under which our laws were created and developed.

  Based in large part on the stipulations of the parties, it is the finding of this court that there is a legal basis for relief under Rule 32.… It is therefore ordered granting the Petition for Post-Conviction Relief and setting aside the first degree murder convictions entered against Mr. Macumber, conditioned upon the remaining terms of the stipulations of the parties.

  With that, Judge Cohen invited Bill Macumber to rise and approach the podium. After an exchange aimed at establishing that Macumber understood the consequences, Cohen asked, “How do you plead, Mr. Macumber?”

  “No contest,” Macumber said, fighting tears.

  Judge Cohen turned to the prosecutor, asking why he believed this no-contest plea was in the interest of justice. Jerry Grant ticked off his reasons: the loss of evidence, the risk of post-conviction relief being granted, the probable inability of the state to go forward with a new trial.

  Cohen looked at Jordan Green, who said, “I agree the no-contest plea is in the interests of justice.”

  Cohen again addressed Macumber: “Sir, you understand that despite pleading no contest, you are sentenced as if you pled guilty. Do you believe this plea is in your interest?”

  “Yes,” Bill said.

  The Court, Cohen concluded, finds the no-contest plea “knowingly made” and with “a factual basis.” So “I accept the no-contest plea and find the defendant guilty of murder…” He paused for a moment. “I do want to say this notion of justice is one I have always wrestled with.… I wish we had a magical way to say just what is justice.” Then he issued Macumber’s sentence: “Not less than thirty-seven years, not more than thirty-seven years and eight months.” Bill Macumber, in other words, would walk free for time served. Judge Cohen looked at Bill. “Mr. Macumber, good luck to you.”

  Two hours later, after final processing by the Department of Corrections, a metal mesh door at the Alhambra complex slid open and Bill Macumber, at age seventy-seven, stepped into the prison’s lobby, free after thirty-eight years. Jackie hugged him, Ron hugged him, his brother Bob hugged him. Together, they walked through the prison’s main entrance, Bill wearing a brown-checked flannel shirt, jeans and a bolo tie—clothes bought by Jay, who had in mind burning Bill’s orange inmate jumpsuit in a backyard bonfire. Only Bill’s white prison tennis shoes offered a reminder of his past wardrobe. He felt numb but waved and offered a thumbs-up to a crowd of well-wishers, including many from the Justice Project and Perkins Coie legal teams. Katie rushed to hug him, as did Lindsay. “It’s a big day,” he told a group of reporters and TV cameramen, “but it’s a family day.”

  With that, his relatives hurried him to Jay and Harleen’s car. On the drive to his cousin’s home, Bill looked out the car window, wondering at how much Phoenix had changed. In Jay and Harleen’s guest bedroom, he wondered also at a bedside lamp that turned on with a tap, rather than a switch. That first night there, he watched rabbits and quail scamper in the backyard, ate pizza with his family, and allowed himself one beer. “After thirty-eight years, I was a little bit hesitant to go beyond that point,” he reported.

  The next morning, he visited his parents’ gravesite at a cemetery in north Phoenix, which he’d never seen before. Jackie gave him four hundred dollars in cash—and a billfold. He made plans to get his military and ASU records, to activate his Social Secruity and medical coverage, to buy more civilian clothes at a nearby Walmart, to go on a fishing trip with Jay. Then, at 3 P.M. that Thursday, he appeared at a press conference in the Perkins Coie law offices, sitting beside Jordan Green and Larry Hammond in a twentieth-floor meeting room that overlooked all of Phoenix. “The world has passed me by in four decades,” he said tearfully, “but I will catch up to the degree I have to.” Which included advocating “for elderly inmates and for the Arizona Justice Project.” As always, he maintained his innocence: “I made that statement of innocence, I don’t know, ten thousand times … and I’ll take that statement to the grave.” Before he left the state prison at Douglas, he reported, he’d left a quote posted on an inmate bulletin board: “Justice, however late, is still justice.”

  That evening, he, his family and the Justice Project team retreated to a Macayo’s Depot Cantina for dinner in a private back room. This time, Bill allowed himself a scotch and soda with his combination plate, then another back at Jay and Harleen’s home. Still, he remained on his feet.

  * * *

  Larry Hammond did not join them at this dinner. Instead, he started driving late that afternoon to Tucson, to attend an evening speech by Morris Dees, the celebrated cofounder of the Southern Poverty Law Center—who, as it happened, would be talking about the Macumber case. In his GMC Sierra pick-up truck, heading southeast on I-10, Hammond tried to sort out his thoughts. The Justice Project indeed had written a new ending to the Macumber story, a stunning and amazing end. Yet Hammond didn’t quite know how to feel. It had been absolutely right to negotiate, to settle for a no-contest plea and time served, to have Bill walk out a free man. But, as a result, people would always be able to say he’s guilty, not innocent. Which is what the county attorney Bill Montgomery had done at a press conference and in a press release after the hearing: “He’s not innocent,” Montgomery had declared. “He’s guilty.… Had the evidence not been destroyed or lost, I have no doubt the State would have prevailed for a third time in convicting him.”

  Hammond understood that other people, including some who’d put enormous energy into this case, were less certain than he about Bill’s innocence. This plea deal didn’t resolve their differences, didn’t answer all the questions. Still—almost everyone he’d talked to saw the Macumber case as a striking example of manifest injustice. Hammond focused on that. He thought also of the response from his long-time assistant, Donna Toland, when he shared the news about Bill. “Well of course,” she’d said. “Why would you have invested so much time if this were not the way it was going to end?”

  That was an idea he had not grasped. Hammond wondered, had he really thought success was inevitable? No, he couldn’t say that. No, he hadn’t known how it would end. Rather, he’d always thought this case just had to be pursued, win or lose. He’d always thought it the right thing to do. Hammond gripped the steering wheel of his silver blue pickup as he peered into the dimming sky. Yes. That is why he’d heeded the siren call of an impossible obsession. That is why he’d urged the Justice Project’s ceaseless, quixotic campaign to free Bill Macumber.

  A Note on Sources

  This book is a work of nonficti
on. It is based on a wide range of interviews conducted from June 2010 through November 2012. It also draws from a great wealth of documents: complete transcripts from both of Bill Macumber’s trials and from a number of pretrial hearings; Maricopa County Sheriff’s Office investigative reports from both the original 1962 murder investigation and the 1974 arrest of Bill Macumber; county probation and social workers’ reports; Arizona Supreme Court opinions and decrees; complete records of both Arizona Board of Executive Clemency hearings; Arizona Department of Corrections files; legal petitions and appeals; depositions and affidavits; Justice Project memos and reports; internal Justice Project e-mail messages among Macumber team members; Justice Project correspondence with Bill Macumber and Jackie Kelley; correspondence between Jackie Kelley and Bill Macumber; correspondence between Ron and Bill Macumber; and Bill Macumber’s four-hundred-page personal journal.

  Over a span of two years, I traveled regularly to Arizona to visit with many of the characters who populate this narrative. I spent dozens of hours in the Justice Project’s offices, then located in the basement of the library at the Sandra Day O’Connor College of Law at Arizona State University, poring over documents and talking at length with Katie Puzauskas, Lindsay Herf and Sarah Cooper. In person, via e-mail and on the phone, I spent many additional hours interviewing Larry Hammond and Bob Bartels. I spent an extended weekend with Bill Macumber at the Arizona State Prison in Douglas and another day with him at the Arizona State Prison’s medical complex in Tucson; we also exchanged some twenty letters over the course of sixteen months. I spent a day with Ron Macumber at his home in Colorado, two days with Jackie Kelley on her ranch in New Mexico, and a day with Carol, Steve and Scott Kempfert in Olympia, Washington. In Phoenix I met Rich Robertson three times for comprehensive conversations. Twice I visited Bedford Douglass at his home in Mesa, Arizona, where we turned through the pages of the second trial transcript, reconstructing various scenes. One late afternoon, I met Robert and Toots Macumber at the home of Jay and Harleen Brandon in Apache Junction, where we all talked well into the evening. On another morning, Judge Thomas O’Toole welcomed me to his home for a wide-ranging discussion about Ernest Valenzuela and the Macumber case. By phone and e-mail I talked several times with Karen Killion, Sharon Sargent-Flack and Jen Roach. In the Justice Project offices I met with Andrew Hacker, Jenifer Swisher and Pete Rodriguez. At the Maricopa County Public Defender’s Office, I talked to Paul Prato, Bedford Douglass’s junior colleague at the second trial. In his downtown Phoenix law offices, I spoke with Tom Henze, the prosecutor at the first trial. Bill Macumber’s neighbor Paul Bridgewater, who still lived in his Deer Valley house, drove me by the Macumbers’ old home on West Wethersfield and showed me the Little League field—now a barren vacant lot—that Bill tended. In September 2010 I talked at length with four of the five Board of Executive Clemency members who in May 2009 voted for Macumber’s release: Duane Belcher, Ellen Stenson, Tad Roberts and Marian Yim.