Manifest Injustice

by Barry Siegel

  The documents—thousands of pages—provided the book’s critical foundation. Using these records, I was often able to compare, clarify, question or confirm people’s recollections. I could see whether events remembered now, years later, were also reported or described back when they actually happened, either in writing or conversations. Most important, by looking at the dates on the documents, I could build an accurate, unified chronology—an essential task in writing narrative and a difficult one, for people often blur and jumble time sequences.

  The documents also allowed me to write from the interior point of view of various characters, including Bill Macumber. When I describe what they thought or felt at a particular moment, it often comes from what they told me, but it derives as well from what they wrote—at the time—in letters, journals and e-mail messages. By comparing different accounts and matching memories to dated documents, I was often able to corroborate a person’s story. (For example, when Bill Macumber’s journal says that his lawyer James Kemper informed him in early October 1974 about Ernest Valenzuela’s confession, I can see that, indeed, Thomas O’Toole first wrote to Judge Hardy that very week.) Where memories diverged in critical ways that couldn’t be resolved by documents or interviews—Bill’s accounts versus Carol’s, for example—I chose to identify the “competing narratives” rather than declare one to be the “truth.”

  Much of this chronicle relies on reconstruction. Again, the wealth of documents provided the foundation. Wherever possible, I supplemented the documents by interviewing those present at the scene of an event, seeking to weave multiple points of view into a unified, coherent account. That is how I chronicled Bill Macumber’s first Phase II clemency board hearing in 2009, which I didn’t attend (I hadn’t yet started this project). Working with a transcript of the hearing, I talked to virtually everyone present that day, walking each person page by page through the two-hour session. I also persuaded Marian Yim, one of the board members, to scroll through the transcript, annotating and clarifying. Katie Puzauskas then drew me a detailed diagram of the hearing room, complete with a seating chart. I needed less help with the second clemency board hearing, which I attended, but afterward, again working with a transcript, I interviewed many present that day, seeking their perspective and memories.

  Beyond the full court record and supplementary documents from both 1962 and 1974–77, I was able to draw from a range of internal memos and reports prepared by the Justice Project after its lawyers took up the case. Chief among them: Earl Terman’s “Macumber Narrative” (February 3, 2000) and assorted e-mail summaries (January–August 2000); Sharon Sargent-Flack’s spreadsheet summary (February 10, 2003); Karen Killion’s “Top 10 Action Plan” (January 30, 2001) and “Macumber Part I” narrative (January 31, 2001); Sharon Sargent-Flack’s “Firearms Evidence Trail” memo (February 7, 2001); Karen Killion’s “Summary of Fingerprint Efforts” memo (September 8, 2001); Jen Roach’s seventy-five-page “Macumber Outline” (June 2004); Sarah Cooper’s draft of the initial PCR petition (October 2010); and the Justice Project’s memorandums in support of both clemency applications (2009 and 2011).

  The affidavits collected by Katie Puzauskas, Lindsay Herf and Sarah Cooper in 2010 also added to my chronicle. So did Pat Ferguson’s Custody/Visitation Report for the Conciliation Court (No. A-2956, March 26, 1975), Basil Wiederkehr’s Presentencing Report (Case No. 83402, February 11, 1975), and the letters provided to the Board of Executive Clemency by Carol, Steve and Scott Kempfert in early 2012. I drew as well from the Arizona Supreme Court’s two decisions in Macumber’s case: State of Arizona v. William Wayne Macumber, 112 Ariz. 569, January 13, 1976, following the first trial; State of Arizona v. William Wayne Macumber, 119 Ariz. 516, June 9, 1978, following the second trial.

  In recounting Larry Hammond’s personal background and the genesis of the Justice Project, I found my interviews with Hammond helpfully supplemented by Roger Parloff’s Triple Jeopardy (Little, Brown, 1996), an account of the John Knapp case that also informed me about Judge Charles Hardy. Because Hammond told Parloff and me the same stories, using much the same language, there is overlap between certain of our passages. I asked Hammond to review and confirm all biographical information in Parloff’s book.

  For my understanding of the DNA exonerations that provide one context for Macumber’s case, I found helpful Brandon L. Garrett’s Convicting the Innocent (Harvard University Press, 2011), which lucidly analyzes just what went wrong in the cases of the first 250 wrongfully convicted people to be exonerated by DNA testing.

  Janet Malcolm’s Iphigenia in Forest Hills: Anatomy of a Murder Trial (Yale University Press, 2011) provided me with yet another reminder—if I needed one—that lawyers are storytellers and courtrooms are venues for competing narratives.

  A good number of law journal articles—some citing or focusing specifically on the Macumber case—educated me about the attorney-client privilege and its role in the Macumber trials. Among them:

  Tyson A. Ciepluch, “Overriding the Posthumous Application of Attorney-Client Privilege: Due Process for a Criminal Defendant,” Marquette Law Review 83 (1999–2000): 785–806.

  Geoffrey C. Hazard Jr., “An Historical Perspective on the Attorney-Client Privilege,” California Law Review 66 (1978): 1061–91.

  W. William Hodes, “Executing the Wrong Person,” Loyola of Los Angeles Law Review 29 (June 1996): 1547.

  Brian R. Hood, “The Attorney-Client Privilege and a Revised Rule 1.6: Permitting Limited Disclosure After the Death of a Client,” Georgetown Journal of Legal Ethics 7 (1993–94): 741–81.

  Peter A. Joy and Kevin C. McMunigal, “Confidentiality and Wrongful Incarceration,” Criminal Justice 23, no. 2 (Summer 2008).

  Deborah L. Rhode and David Luban, “Confidentiality and Attorney-Client Privilege,” in Legal Ethics, 3rd ed., University Casebook Series. New York: Foundation Press, 2001.

  Paul Rosenzweig, “Federal Prosecution Policy and the Attorney-Client Privilege,” testimony in February 2005 before the American Bar Association Task Force on the Attorney-Client Privilege, derived from Rosenzweig’s “Truth, Privileges, Perjury and the Criminal Law,” Texas Review of Law and Politics 7 (2002): 513.

  66th American Law Institute Proceedings, “Illustration 4 [Macumber Case],” 66th ALI Proceedings (1989): 332.

  A number of pivotal appellate court decisions regarding the attorney-client privilege also helped me better understand the privilege’s role in the Macumber case. Among them:

  Swidler & Berlin and James Hamilton v. United States [the Vince Foster Case], U.S. Supreme Court, 524 U.S. 399, 141 L. Ed. 2d 379, 118 S. Ct. 2081 [No. 97-1192], argued June 8, 1998, decided June 25, 1998. Dissenting opinion by Justice O’Connor, joined by Justice Scalia and Justice Thomas. Transcript of Oral Hearing, June 8, 1998, 1998 U.S. Trans. LEXIS 48.

  In Re: Sealed Case, U.S. Court of Appeals for the District of Columbia Circuit, 124 F3d 230; 326 U.S. App. D.C. 317; 1997 U.S. App. LEXIS 22814; 47 Fed. R. Evid. Serv. (Callaghan) 327; argued June 20, 1997, decided August 29, 1997.

  Chambers v. Mississippi, U.S. Supreme Court, 410 U.S. 284; 93 S. Ct. 1038; 35 L. Ed. 2d 297; 1973 U.S. LEXIS 107; argued November 15, 1972, decided February 21, 1973.

  In the Matter of a John Doe, Supreme Judicial Court of Massachusetts, Suffolk; 408 Mass. 480; 562 N.E. 2d 69; 1990 Mass. LEXIS 461; argued September 7, 1990, decided November 5, 1990.

  Jose Morales v. Portuondo, U.S. District Court for the Southern District of New York; 154 F. Supp. 2d 706; 2001 U.S. Dist. LEXIS 10377; filed July 24, 2001, decided July 24, 2001.

  State v. Doster, Supreme Court of South Carolina, 276 S.C. 647; 284 S.E. 2d 218; 1981 S.C. LEXIS 318, March 4, 1981.

  State v. Valdez, Supreme Court of New Mexico, 95 N.M. 70; 618 P. 2d 1234; 1980 N.M. LEXIS 2725; September 15, 1980.

  People v. Ernest Edwards, Supreme Court of Michigan, 396 Mich. 551; 242 N.W. 2d 739; 1976 Mich. LEXIS 270; 92 A.L.R. 3d 1149; argued September 12, 1974, decided June 3, 1976.

  Arizona v. P
ina, Court of Appeals of Arizona, 469 P. 2d 481; 1770 Ariz. App. LEXIS 623; 12 Ariz. App. 247; May 18, 1970.

  U.S. v. Pena, U.S. Court of Appeals for the Fifth Circuit, 527 F. 2d 1356; 1976 U.S. App. LEXIS 12583; March 3, 1976.

  The Swidler (Vince Foster) case before the U.S. Supreme Court in June 1998 drew widespread news media attention. Among the articles I consulted:

  Walter Pincus, “Ken Starr Says Dead Men Should Tell Tales,” Washington Post, May 24, 1998.

  Tony Mauro, “Starr to Argue Privilege Stops at Death,” USA Today, June 8, 1998.

  Stephen Labaton, “Supreme Court Hears Case on Ex–White House Counsel’s Notes,” New York Times, June 9, 1998.

  Simon Frankel, “A Confidence Better Kept,” New York Times, June 9, 1998.

  Ruth Marcus and Susan Schmidt, “Attorney Client Privilege After Death Is Upheld,” Washington Post, June 26, 1998.

  Stephen Labaton, “Justices Deal Starr a Defeat, Holding That the Attorney-Client Privilege Survives Death,” New York Times, June 26, 1998.

  The Arizona press extensively covered the Scottsdale Road murders in 1962. The news clips from those days, collected by the Justice Project, exist only as torn, yellowing sheets that often lack a date or even the name of the newspaper. The byline of Gene McLain at the Arizona Republic appears often in this file. Other stories come from the Daily Progress and the Evening American.

  The arrest and trials of Bill Macumber in 1974–77 also drew much press attention in Arizona. Again the clips in the Justice Project file exist only as torn sheets that often lack identifying dates or names of newspapers. The bylines of Pat Sabo and Mel Foor of the Phoenix Gazette appear more than once. Two full-length magazine pieces stand out: Eddie Krell, “Death Hunted the Lovers in the Desert,” Front Page Detective, September 15, 1974, and Robert Barrett, “How Do You Prosecute a 12-Year-Old Murder Case?,” Arizona, October 12, 1975.

  Governor Jan Brewer’s November 2009 rejection of the recommendation from the Arizona Board of Executive Clemency triggered an extensive amount of press attention in Arizona and nationwide, starting in the spring of 2010. I cite and quote from these reports in Chapter 21, Attention Is Paid. Among the key stories and broadcasts were: Sarah Buduson, “Arizona Governor Refuses to Explain Clemency Ruling,” KPHO TV, May 18, 2010; P. S. Ruckman Jr., “Arizona: Clemency Mystery,” Pardon Power blog, May 19, 2010; Adam Liptak, “Governor Rebuffs Clemency Board in Murder Case,” New York Times, June 14, 2010; Joe Dana, “Clemency Denial Frustrates Many,” azcentral.com/12 News, July 12, 2010; Margaret E. Beardsley, “Group Fighting to Free Man They Believe Was Wrongly Accused of Murder,” azfamily.com, July 26, 2010; Dave Biscobing, “A Life of Injustice? Governor Blocks One Man’s Quest for Freedom,” ABC 15 TV, September 7, 2010; Mary K. Reinhart, “Brewer Refuses to Reconsider What Clemency Board Calls ‘Miscarriage of Justice,’” Arizona Guardian, October 21, 2010; Dan Harris, Steven Baker and Lauren Effron, “Did Wife Frame Husband for Arizona Cold Case Murders?,” Nightline, ABC News, October 27, 2010.

  Several months later, on June 5, 2011, a comprehensive three-part series about the Macumber case appeared in the Arizona Republic: “Arizona Murder Mystery: Guilt of Man in 1962 Killings Thrown into Question,” by John Faherty.

  My book, chapter by chapter, derives from a weave of the multiple sources listed above and below. For the most part, those sources are apparent in the narrative. Bill Macumber’s thoughts and history, for example, clearly come from his letters, his journal and my interviews with him. Accounts of the Scottsdale Road murders draw from the sheriff’s investigative reports, trial transcripts and local Arizona newspaper stories. I pieced together the Justice Project’s efforts over the years through interviews with Macumber team members and from their many letters, memos and e-mail exchanges. My reconstruction of the trials came from transcripts, news stories and interviews with, among others, Tom Henze, Bedford Douglass, Paul Prato, Thomas O’Toole and Bill Macumber.

  At the start of Chapter 1, I drew from Tom Henze’s memories of partying on the Scottsdale desert as a youth. Bill Macumber’s “memories of days now gone” in Chapter 2 came largely from his journal, as did the summary in Chapter 4 of his thoughts while in the Maricopa County Jail. The account of the jury’s reasoning and vote in Chapter 9 derived from juror Sarah Elliot’s September 8, 2010, affidavit and jury foreman Dick Adams’s letter to Carol Kempfert, dated January 13, 1977. In Chapter 10, my report of Bill Macumber’s life in prison drew in part from Arizona Department of Corrections logs and the supporting letters and award certificates in his clemency petitions; my own visit with Macumber in the state prison at Douglas allowed me to confirm directly the high regard inmates and guards have for him there. An interview with Gary Phelps, former deputy to Arizona Department of Corrections director Sam Lewis, provided confirmation of the account, in Chapter 12, of how life changed for Macumber under Lewis.

  My reconstruction in Chapter 14 of the Justice Project team’s journey to meet Macumber at the state prison in Douglas derived from interviews with Larry Hammond, Bob Bartels, Rich Robertson, Sharon Sargent-Flack and Bill Macumber. Sharon also shared with me the handwritten notes she took during the visit, and Bill Macumber reconstructed the day in a series of letters. My description of the team’s drive from Phoenix to Douglas drew as well from my own journey to Douglas, following the same route the team took. The passage about the history of Douglas and the Gadsden Hotel derived in part from a Wikipedia posting and local newspaper accounts. My description of the team’s entry into the prison drew from my own experience going through that security process.

  My account, also in Chapter 14, of Rich Robertson’s visit to Carol Kempfert’s home in Olympia drew from interviews with Robertson, his testimony at two clemency hearings, and his written report to the Justice Project team dated March 9, 2003. I also talked to Carol, Scott and Steve Kempfert about this visit. Their memories differed from Rich’s. In their version, Carol did not say, “Now get the fuck off my porch,” though they allowed that Steve might have. And in their version, it was sunny. In checking the National Climatic Data Center Global Surface Summary of Day weather reports for Olympia, Washington, during the two days of Robertson’s visit (March 1–2, 2003), I saw .17 precipitation, “rain and/or melted snow reported during the day” for March 1, and 0.00 precipitation, “rain and/or melted snow reported during the day” for March 2. Given the conflicting accounts, I chose to allow both parties to share their memories, Carol offering hers in Chapter 27.

  In Chapter 15, the summary of Larry Hammond’s first phone conversation with Ron drew in part from Hammond’s written report to the team about that event. In Chapter 16, the story of Bob Bartels’s visit with Jerry Jacka derived in part from Bartels’s written report to the Justice Project team about that day. In Chapter 18, Mark Macumber’s memories of his visits with Bill in prison drew from an account he wrote, “Bill’s Story,” and from his letter to the clemency board.

  I attended Sigmund Popko’s Post-Conviction Clinic on September 8, 2010, where Katie, Lindsay and Sarah recruited for the Justice Project, so I described this session from direct observation at the start of Chapter 22. Katie provided me with written timelines that helped in my reconstruction of their “going to the ground campaign” in the summer and fall of 2010. My discussion in Chapter 23 about the evolving world of forensic science drew in part from the NAS report mentioned there: Committee on Identifying the Needs of the Forensic Sciences Community, National Research Council, Strengthening Forensic Science in the United States: A Path Forward (National Academies Press, 2009).

  I attended the second Phase II clemency board hearing described in Chapter 25, witnessing the six-hour session firsthand and taking extensive notes. I subsequently obtained a transcript of the hearing and, using it as a road map, interviewed Larry Hammond, Bob Bartels, Jackie Kelley, Ron Macumber, Rich Robertson and Katie Puzauskas. Bill Macumber and I exchanged letters. I spoke to Bedford Douglass by phone, confirming his contact before the second Macumber trial wit
h the ballistics expert Lucien Haag.

  In writing that chapter, I also drew on a number of key documents: Macumber’s Petition for Post-Conviction Relief, filed February 9, 2012; the Justice Project’s Memorandum in Support of William Wayne Macumber’s Application for Executive Clemency, June 2011; State of Arizona’s Memorandum in Opposition to the Application for Executive Clemency of William Wayne Macumber, March 2012; letter to the Arizona Board of Executive Clemency from Carol Kempfert, January 30, 2012; letter to the Arizona Board of Executive Clemency from Scott Kempfert, March 9, 2012; letter to the Arizona Board of Executive Clemency from Steve Kempfert, March 12, 2012; Linda Primrose’s letter to Bedford Douglass, July 1976; jury foreman Dick Adams’s letter to Carol Kempfert, January 13, 1977.

  In Chapter 26, the reference to Governor Brewer’s ouster of three clemency board members drew from several Arizona newspaper accounts: Gary Grado, “Dust-up Leads to Clemency Director’s Firing,” Arizona Capitol Times, April 24, 2012; Bob Ortega, “Clemency Board Faces Legal Hurdles: Brewer-Appointed Members’ Training Called into Question,” Arizona Republic, May 6, 2012; and Bob Ortega, “Arizona Prisoners Rarely Granted Clemency: Governor Seldom Uses Sentencing ‘Safety Valve,’” by Arizona Republic, May 12, 2012.