Manifest Injustice (34 page)

We think he’s innocent, Hammond said. And of course we’ll get in. But did Belcher realize that Macumber had never admitted guilt, had never expressed remorse? Yes, Belcher understood that. He didn’t care, it didn’t matter. Inmates can say they’re not guilty, he explained. The board recognized that there were some cases where nothing more could be done inside a courtroom. Especially when you didn’t have DNA evidence. The board members believed it part of their role to look at such cases—to correct errors when all remedies in the courts had been exhausted. Hammond, still skeptical, started to emphasize Macumber’s exemplary record in prison. Belcher’s focus remained on the innocence question. The board, he told Hammond, will consider Macumber’s application.

*   *   *

Hammond felt anguished now over the Justice Project’s failure to file anything on behalf of Macumber. He feared that Bill would die in prison before they resolved his case, and that prospect began to haunt him. He regretted again his competing tug of impulses with Bob Bartels, the facts versus feelings, the investigating versus filing. That was part of why they’d never concluded the case, he believed. Maybe now, though, they could cross some kind of finish line.

To Bartels, this development was bittersweet. The news that Bill had filed made him happy. Even better, the board had expressed interest—and in the actual innocence issue. At the same time, Bartels didn’t exactly feel euphoric—he still doubted their chance of getting a commutation—but he thought they should help out with the petition and hearing.

On February 19, Hammond wrote to Macumber: “I recently learned that you have filed a commutation packet with the Arizona Board of Executive Clemency. I was contacted by the Executive Director, Duane Belcher, to see if the Justice Project would like to submit anything on your behalf to be considered at your Phase I Hearing. Would you like us to submit anything on your behalf? We are more than happy to, but wanted to get your approval first.” Hammond added a request: “Would it be possible for you to send us a copy of your commutation packet?”

At the state prison in Douglas, Macumber read these words on the evening of February 21. So he had not been abandoned. At least not entirely, at least not irrevocably. Sitting in his Mohave Unit cubicle, he reached once more for pen and paper. “Thank you for your letter of the 19th,” he began, “and of course you have my permission to speak in my behalf at the commute hearing.” He would have let Hammond know he was filing, but having not heard from the Justice Project, “I assumed we had reached the end of the road.” He didn’t think anything would come from this petition, but “I felt I owed my family one last effort.” Medical issues also drove him, he allowed: “Frankly I have slipped a long way down hill this past year or so. I am sick much of the time and require a lot of medical attention. Growing old in here is a tough way to go and to face ending one’s life here is tougher still.”

*   *   *

In advance of Macumber’s Phase I hearing, the clemency board invited both the Justice Project and the Maricopa County attorney to submit letters. The one-page letter submitted by Robert Shutts, a deputy county attorney in the Homicide Bureau, infuriated Hammond. That the county attorney objected “to the hearing and possible early release of this defendant” didn’t bother him. But Shutts’s curt summary of the case did: The palm print matched, the shell casings matched—and “during a subsequent interview, defendant admitted he had killed the two victims.”
The defendant admitted?
That was despicable, Hammond thought. Hammond tried to call Shutts but couldn’t reach him. Later, he heard word of Shutts’s explanation:
I was just reporting what I had been told
.

On March 9, Hammond submitted his own letter to the board. This is, he wrote, “one of those very troubling cases in which the
absence
of DNA has left a defendant without a clear basis for setting aside his conviction.” This case “is a sobering reminder of the very high burden of proof placed upon the convicted defendant to prove ‘actual innocence’ as a ground for post-conviction relief.” As the board knew, the “presumption of innocence” was gone now, the burden on the convict being to prove innocence by “clear and convincing evidence.” While they had failed to find the evidence to meet that standard, “there is a great deal to suggest that this is an innocent man.” He and Bob Bartels “have always been disturbed by our inability to find a basis that would clearly prove his innocence.” This case, “possibly more than any other we have evaluated, is a daily reminder of the heavy burden that rests on a convicted defendant.”

Both Larry Hammond and Bob Bartels attended the Phase I hearing on March 12, along with Larry’s assistant Donna Toland—unusual representation for any convict at this stage. In a small, bare room at the Department of Corrections’ Alhambra facility in downtown Phoenix, they sat facing the five board members. Besides Duane Belcher, the board included: Marian Yim, an attorney with more than twenty years of public law experience, including thirteen years as an assistant attorney general and a stint as staff attorney for the Arizona Supreme Court; Olivia Meza, with thirty years of experience in the criminal justice system as a senior federal court executive, a pretrial services officer and a probation officer; Tad Roberts, with more than twenty years of experience in the criminal justice system as a probation counselor, probation officer and prerelease officer; and Ellen Stenson, with ten years of experience as a member of the Legislature’s Ombudsman–Citizens’ Aide office. By state mandate, only two members of the board could come from the same background, the goal being to have a diversity of personalities and professional histories. The only requirement: an expressed and demonstrated interest in the state judicial system. The board, in this way, enfranchised the outlook of the citizenry, outside of and apart from the lawyers and the legal system.

As a courtesy to Hammond and Bartels, Duane Belcher had made Macumber’s hearing the first of thirty they’d handle this day. Hammond’s very presence had an impact on the board—that such a highly respected attorney would show up got their attention. So did the Justice Project’s sustained involvement, the decade-long commitment by dozens of students and volunteers. The board members knew it was quite unusual for a case to claim the consuming, extended attention of these people. The board trusted Larry Hammond and the Justice Project. Hammond’s impetuous, undying obsession provided its own kind of testimony on behalf of Bill Macumber.

By contrast, no one from the prosecutor’s office had appeared. So before they started, Belcher read into the record the county attorney’s letter, written by Robert Shutts. Then Hammond rose to present the Justice Project’s perspective on what he believed “is probably the case we have had the longest in the Project”—one that “more than 30 people now have worked on in the last decade.” He again walked through his narrative: Judge O’Toole’s phone call, Valenzuela’s confessions, Judge Corcoran’s ruling, the ballistics and fingerprint evidence, Bill’s personality and achievements. The ejector-markings shell-casing evidence, he said, “is highly doubtful” and “I think wouldn’t even be admitted at a trial today.” The palm print, he allowed, “is a mystery to us.… We have spent a lot of time looking at it.” So with the burden of proof on the Justice Project lawyers and no DNA evidence available, they just couldn’t prove innocence “to a reasonable degree of certainty.” We “have been stuck with a case in which we have not been able to proceed. We have been convinced for a long time that it is one of the most worthy cases ever to come before the Project, but is not one in which we believe, if we went to court, based upon what we know now, that we would be able to establish a case of actual innocence.”

For this reason, Hammond looked to the board for relief. “As you all know, historically, it’s been a problem for any inmate who won’t admit guilt … to come before the Board. I think your Board in the last few years has suggested that maybe somebody who has protested his innocence but doesn’t have DNA might be able to have his case heard.… I think that this would be the case to do it in.”

The board members responded with an extended run of questions—about the prints and shell casings, about Carol, about Valenzuela and Primrose, about O’Toole and Corcoran and attorney-client privilege, about the hair found at the murder site, about Carol’s claim that Bill had told “wild stories” of working as an army executioner. The hearing continued for more than one hour, Hammond and Bartels serving up answer after answer—highly unusual at this preliminary stage. The board members weren’t after a final judgment this morning, only an assessment. That they reached: After listening to the two Justice Project lawyers, they believed they had more than needed to move forward to a Phase II hearing.

“Actual innocence is something that is very important,” Duane Belcher said at the hearing’s end, “and people can apply for commutation because of claims of innocence.” He looked around at his fellow board members. “I would like to talk to Mr. Macumber,” he announced. Ellen Stenson said, “I’ll second that.” The others called out, “Agreed.” Bill Macumber had never made it to a Phase II hearing before. Now he had.

CHAPTER 18

A Lot of Work to Do

MARCH–MAY 2009

The Justice Project staffers had a lot of work to do. They needed a new, expanded affidavit from Tom O’Toole. They needed to write a detailed, comprehensive memo summarizing the entire Macumber case. They needed to meet with Bill and prepare him for the hearing. They needed to round up his family. This is our game to lose, Hammond believed. This could really happen—why else would the board be moving to Phase II? He didn’t want to raise everyone’s expectations, though. The board might balk in the end, and even if it didn’t, Governor Jan Brewer would have to accept its recommendation. Who knew about the governor?

Upon returning to his office after the Phase I hearing, he e-mailed the Justice Project team: “You all probably have already heard that the Board this morning voted unanimously to pass Bill Macumber on to a Phase 2 Hearing.… The Board was very interested in his story and not disturbed by his unwillingness to ‘acknowledge guilt.’ Bob, Donna and I came away feeling very optimistic about our chances before the Board.” Now they had to prepare, and “we all think this would be a great project for a group of students.” They might assemble a new group, “but it occurred to us that Katie might enjoy working on this case and we have a lot of people who have worked on the case over the years who might also be interested.”

Hammond—finally—could send positive reports to Jackie and Bill, as well. “We have been terribly disappointed that we have not been able to help Bill after spending almost 10 years on this evaluation,” he wrote to Jackie, “but maybe now we can be at least of some help.… I would be happy to visit with you on the telephone.… At a time convenient to you, would you give us a call?” To Bill, he wrote, “Congratulations!… Bob and I on behalf of the Justice Project would like to help you in any way that you will authorize us to do.” They had a number of ideas and questions, so he wanted to talk on the phone with Bill, too. “Donna will be in touch to set up a time.… Congratulations again.”

In writing these two letters, Hammond assumed that Jackie and Bill had already heard the news. In fact, they had not. At the state prison in Douglas, Macumber felt shocked—“totally astounded”—as he read Hammond’s words. After his three prior experiences with the board, he hadn’t thought he had a chance of prevailing. He also had not realized that Hammond and Bartels would be attending the Phase I hearing. He rushed to call Ron and other members of his family. Then he sat down to write to Hammond: “First and foremost, let me express my deepest appreciation.… You all have my deepest thanks for attending the hearing and speaking for me.” The Justice Project “most certainly has my authorization to act in my behalf in any way you see fit.”

On her ranch in New Mexico, Jackie Kelley heard the news in two phone calls from Bill. He had written to her recently, dreaming of what they might do if he were freed. What do you think, he’d asked, of us running pack-train horseback tours through the Superstition Mountains? That had sounded great to Jackie—she did know horses. Another time recently, she’d sent him a photo of a big old coyote she’d spotted outside her kitchen window—way bigger than the norm. “Dear one,” he wrote back, “your wily coyote is really Willy the Wolf—a gray wolf. The snoot is not nearly as peaked as a coyote’s, and the chest is too broad.” Damn—he did like to give her trouble.

She hadn’t corresponded with Larry Hammond since August 2007. Since then—later that year—her husband had passed away. At age seventy-seven, she was alone now on her 160 acres, though her daughter, Robyn, lived two miles up the road, her middle child, Mike, another half mile past that. She also had a handyman and a housekeeper, as well as Spec, her thirteen-year-old red heeler Australian cattle dog. So she didn’t feel isolated. At any rate, she liked solitude. Solitude was fine with her, just sitting up on the mesa with the coyotes and deer and elk and only $300 in annual property taxes. She had a big library of taped movies and a nice collection of CDs; she liked classical music and everything that came out of World War II, swing and big band, especially Glenn Miller. She preferred instrumentals over singers, though Spec—short for Spectacular—often sang along with whatever she played. Just one old woman and one old dog. If she woke and got up in the morning, she was doing well, she was happy.

On Tuesday, March 17, before she’d received Hammond’s letter—she had to drive five miles into Colorado to collect her mail—she sat down to write him. “My dear cousin has talked to me twice recently concerning his and your contact with the Commute Board.… Needless to say, I am overjoyed, and ever hopeful for success.… While it has been some time since you and I last corresponded, I most certainly do want to thank you for all your efforts. Perhaps the Good Lord will finally look favorably on all endeavors.” Could Larry please, she asked, provide her some information about this “Commute Board”?