Manifest Injustice (38 page)

“Thank you,” Meza said. “I appreciate that. Is it possible to submit alternative recommendations … or do we have to choose one to submit?”

Belcher explained, “There’s nothing in the statute that ever mandates what the Board can recommend to the Governor.” There was nothing, for example, that mandates commutation “is just mercy and grace.” So “I think the Board can recommend whatever it chooses.”

Katie could see Belcher trying to guide them, trying to show the board members how they might proceed.
Do the right thing, do the right thing.

Ron wondered, Are they really deliberating right here, in front of us? He looked over at Sharon, whispering,
Are they making a decision now
? She just raised her eyebrows. He turned back to listen to the board.

Belcher kept going: “Now, I’ll just add my little piece.… Now, if the belief of the Board is that Mr. Macumber is in fact innocent of this … then it would seem the logical thing would be to simply let him out of prison.” But since he’s been “down 35 years,” parole might in fact “help with a period of transition.” Or “the board could recommend both alternatives if it was inclined to do that.”

Oh my God
, Katie thought. She sensed now what was happening, what was coming. She couldn’t yell out though, couldn’t cheer, couldn’t show anything.
Do the right thing.

At the board’s table, Marian Yim spoke next: “My feeling is that the facts that have been developed since the last trial cast significant doubt on his guilt in this case. I don’t know that it firmly establishes his innocence, but you know, there’s certainly more than reasonable doubt in my mind that he’s in fact guilty.”

Tad Roberts agreed: “Right … I’m sort of on the same line.” To him, the only question was whether to recommend outright release or supervised parole.

Ellen Stenson, as it turned out, favored outright release. “Personally, I’m leaning toward the recommendation of time served based on his records. And there is evidence now to suggest that maybe he is innocent—I’m not willing to make that statement that he is innocent but there is reasonable doubt at this point.… So I am leaning toward a recommendation of time served.”

Tad Roberts said he wasn’t leaning at all: “I’m in favor of giving absolute discharge from this sentence.”

Katie and Ron and Jackie tried to contain themselves. Ellen Stenson favored outright release! Tad Roberts, too! At least three of the board members were talking about actual innocence. Not mercy and grace but a miscarriage of justice. Incredible—unprecedented for the Board of Executive Clemency.

Indeed, Tad Roberts believed Macumber to be innocent. He’d worked in corrections for more than twenty years, and he’d also spent ten years as a coordinator for the Casa Grande Elementary School District, the first African-American in that role. He had a bachelor’s degree in psychology and minority relations, a master’s in education. He’d been around, he’d witnessed plenty. He only rarely saw reason to recommend a release, but he tried to be open-minded on this board. Over time, reading thirty files a week, he’d come to know which ones didn’t hold up. He’d first reviewed the Macumber file for the Phase I hearing. Right away, he’d spotted inappropriate things. This wasn’t at all a typical case. Bill Macumber, living in society, a neighborhood leader, then he wakes up one day and goes out to kill two young people? Then never again? In particular, he didn’t trust the fingerprints, that one partial palm print—hell, once when he was a college student, he’d helped a friend push his stalled VW and got his prints all over it, then found himself accused by the cops when someone else stole the car. More than anything, Tad Roberts just had a sense about Bill Macumber; over the years, in the trenches, he’d learned what to look for, what to ask. Macumber, with all the freedom they gave him, there at the Arizona border, could have been long gone. El Salvador, Ecuador, Mexico—sitting on the beach, drinking piña coladas. Instead, every night he came back to the prison. Roberts felt inclined to recommend Macumber’s release solely because of his prison record, though he in fact believed him innocent. Very seldom did he think this of a prisoner up for clemency. But he did now.

“I just strongly believe that there’s been an injustice done here…” Roberts told the other board members. “If I was a judge he would be gone. He would be a free man.”

Donna Toland had thoughtfully brought a box of Kleenex. Those listening, both team and family members, were passing it around now. Still they couldn’t react, couldn’t yell out. They had three board members for sure, Ron calculated. But they needed a unanimous vote.

Two hours into the hearing, Tad Roberts made the motion: “To recommend commutation for William Macumber to time served.”

In his chair, speaking softly, Bill Macumber said, “Thank you.”

For strategic purposes, to provide the governor with a secondary option of release on parole, Roberts added: “To time served and then as an alternative, to a sentence of 35 to life.”

Marian Yim seconded the motion. One by one the others voted: “I agree.” “Agree.” “And I also agree.” Unanimous.

They were all crying now, nearly everyone in the room—Jackie in tears, Katie, Sharon, Bob Macumber with his head in his hands, everyone still in their chairs but reaching out to hug their neighbors. In the corner, off to the side, the unknown bystander sitting alone near the guards sobbed as well—they learned only later she was there to attend the next hearing. This is like Santa Claus and the coming of the Lord combined, Jackie thought. Ron, though joyous, tried to be sure of what he’d just heard; his father had downplayed their prospects so much. In the first row of seats, Larry Hammond and Bob Bartels were patting Macumber on the back, their arms around him. The others still couldn’t see Bill’s face. Then he turned around, showing both tears and a grin. He looked lit up and buoyant—as if it were over.

The guards’ mandate had been that family members could not touch him, could not embrace him. But the guards, too, were grinning broadly now and giving Bill the thumbs-up sign. They relented: You have ten minutes, they announced. “Better hug quick,” Tad Roberts told the crowd.

Everyone jumped from their chairs and pushed toward Bill. Ron wrapped his arms around his dad.
You did it
, he whispered. Katie hugged him while introducing herself, this being their first meeting in person. Sharon Sargent-Flack embraced him, then Rich Robertson and Donna Toland. Jackie, coming from the back row, reached him last.
Bill, where are the words
, she said. He smiled:
I know what you mean, Jackie
.

*   *   *

As the guards led Bill away, the others poured out into the parking lot, everyone talking and hugging, Ron shouting,
He’s going to get out
, Robert Macumber yelling,
No way they’re keeping him in prison
. Party on, Ron suggested. What bar are we going to?

Family members and the Justice Project team ended up at Macayo’s Depot Cantina in Tempe, ordering lunch and pitchers of margaritas, making plans for the day when Bill walked free. If only Bill could be here, they kept saying. Cell phones came out, everyone relaying the news to family and friends. Ron called home, asking Deb to get Megan on the line, too. “Unanimous,” he told them. “Unanimous.” Katie called her family as well, personally affected now, way past her role as Bill’s lawyer. Jackie grew ever jollier, sipping margaritas and imagining the future. It’s finally over, she thought. Bill will be out in a matter of weeks. He’s coming home. What an amazing day—the most beautiful day in her life.

Some there understood they still needed Governor Jan Brewer to accept the board’s recommendation. But how could she not accept? How could anyone say no? They had a unanimous vote, after all—and on the basis of injustice, not just mercy. The board got it, the board believed. Incredible and wonderful, everyone declared—and unprecedented.

As soon as Jackie arrived home late the next day, after a seven-hour drive from Phoenix to New Mexico, she and Robyn began cleaning out a closet for Bill. When she bought a new Ford Explorer the next month, she chose not to trade in her old car. Bill would want his own vehicle once he got there. Jackie thanked the Lord. All her prayers had been answered.

*   *   *

Bill Macumber’s prayers, too. He’d started this clemency process without the slightest hope of success and now thought he stood a very good chance of seeing his days in prison come to an end. He believed, in fact, that his ordeal was all but over. The trip back to Douglas after the Phase II hearing was a blur to him. He recalled a final handshake with Larry Hammond, then being led out of the room by his two escorts, the Douglas guards who’d driven him to Phoenix. Before shackling him for the return trip, they shook his hand, wished him luck and talked of this “uplifting experience”—they no longer thought of him as a convicted murderer. Somewhere along the way to Douglas, they stopped and bought him a hamburger dinner. Though not quite the same as margaritas at Macayo’s, Macumber savored the meal. Back at the prison, inmates and staff alike greeted him with joy and congratulations.

Four days later, on May 12, he wrote a letter to the Board of Executive Clemency, sending copies to each member. “Ladies and gentlemen,” he began, “I fear that because of the emotions present at my hearing on May 8th I may have failed to properly express my deepest gratitude to each of you. If so, please forgive me. Know that my family and I are truly grateful beyond mere words.” He had “hated to see the sadness” in his relatives’ eyes, but on Friday “that sadness disappeared, to be replaced by joy” because of the board’s action—which also “validated the extreme effort and dedication put forth by the Justice Project over the past nine years.” He had “no crystal ball,” no way of foreseeing the future, but “regardless of what happens now,” they had all “witnessed the love, the faith and the dedication” demonstrated at his hearing. “That alone,” Macumber concluded, “makes me unquestionably the most fortunate of all men.”

That same day, Macumber wrote to the Justice Project—to “Mr. Hammond, Professor Bartels, Donna, Katie, Sharon, Rich and all other members.” The past nine years “have taken us beyond that attorney/client relationship. In truth it has bound us together in a common cause. We have become friends and I do not use that term lightly.” They had shared “frustration, a sense of helplessness and disappointment.” Friday had given them “reason to set that all behind us.” He recognized the limit: “True, what took place at that hearing does not prove my innocence.… We have been unable to prove my innocence to the world and perhaps never will.” Still, “I saw the faces of the Board members and I listened to their words. Had they been polled as a jury, I know beyond all doubt their verdict would have been not guilty.” He “later found that same thing to be true” of the Douglas prison guards present. “That fact alone lifts my heart beyond all possible words.”

For thirty-five years, in the world where he dwelled, Macumber had been regarded as a convicted murderer. Now he wasn’t, and this he treasured above all. He did not know what the future held, but “whatever happens cannot change what has taken place.”

CHAPTER 20

A Corrective Role

MAY–DECEMBER 2009

Twice in his May 12 letter of thanks to the Justice Project, Bill Macumber recognized what hadn’t happened at the clemency hearing: “What took place at that hearing does not prove my innocence.… We have been unable to prove my innocence to the world and perhaps never will.” This was true, of course. The Department of Corrections’ bare, cramped Alhambra chamber was not a courtroom, and the board members were not jurors. They had not heard from prosecutors, but for a one-page letter. They had not read through the full, thick court record. They were not agents of or operatives in the legal system.

That was just the point, however. They provided—consciously and intentionally—a perspective apart from the legal system. They provided, as well, an arena where the Justice Project could operate unshackled by the rules of evidence and the post-conviction appellate process. In this arena, Larry Hammond and Bob Bartels could transcend the role of lawyers in a courtroom, their words carrying more weight, more import. They could serve as substitute witnesses, in essence. They could select and order, distilling the complexities. They could stand before the board as narrators.

Bartels and Hammond valued this opportunity. Over the years, they’d grown ever more disenchanted with the nature and constraints of the legal system. Hammond saw a great disparity between lawyers’ adversarial battles and the supposed search for truth—he didn’t think the adversary system worked. Nor did Bob Bartels, for that matter. He had grown increasingly pessimistic about the willingness of courts to consider the project’s appeals. In his experience, judges started with the absolute presumption that the Justice Project’s petitions had no merit. Judges and the entire legal system were overwhelmingly concerned with clearing dockets, with getting cases processed. In his forty years of practicing law, Bartels had watched the system become progressively more resistant to looking at claims of actual innocence. The judges just weren’t interested. So they made it almost impossible to get relief on appeal, throwing down burdensome obstacles and slavishly placing adherence to procedural rules above the possibility of manifest injustice. That wouldn’t be such a problem if trial-level courts worked, but Bartels didn’t think they did. All the DNA exonerations proved that and pointed to so many more miscarriages of justice.

Against that backdrop, Duane Belcher and his fellow clemency board members thought they could—should—play a corrective role. They could consider human nature, human behavior, the human dimension—elements not weighed in the legal system, where prosecutors didn’t have to identify or prove a motive. (
You need motive in novels
, Marian Yim liked to say
, but not for conviction.
) Those operating in the system rarely admitted a mistake. Instead, they tried to block evidence of error. They tried, more generally, to keep such evidence from jurors. Come election time, the question was, How many convictions, how many got off? The legal system, Belcher knew, was not infallible—those DNA exonerations had affected him too, reminding him that innocent people do get locked up.