Manifest Injustice (43 page)

Sometime in 1973, Carol told me that she was divorced. She never talked about her husband and she never mentioned anything about having children. On a few occasions, our study group gathered at Carol’s house around 35th Avenue and I never noticed any sign of a husband or children. In 1974, I separated from my wife and we were getting a divorce. During this time, I dated Carol Macumber. Carol and I had intimate relations on a couple of occasions, usually at my apartment. We were never intimate at her house.

In 1974, around the time I was dating Carol, I was contacted by the Phoenix Police Department Internal Investigations Bureau. The investigators told me that someone had fired a shot into Carol Macumber’s house from the alley behind the house and I was a suspect. I was shocked by the allegation for a number of reasons. The first was that Carol and I got along very well at that time. The second was that I had been working the night the shot had been fired. The investigators verified that I had been working that night and I was never contacted about the matter again.

In 1975, Carol informed me she was moving to Colorado. It seemed to me that she just wanted to get out of Phoenix. In 1975, my divorce was finalized and Carol said she would help me find a job in Colorado. I went to Colorado in the fall of 1975 for a visit … but ultimately decided to stay in Phoenix. I have not been in touch with Carol Macumber since 1975.

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Katie and Sarah also talked twice to a former Maricopa County sheriff’s deputy named Gerald Hayes, believing he’d also had an affair with Carol in 1974. Again Bill De La Torre made the initial call. Hayes had retired in 2003, after thirty-one years in law enforcement. He, like Gilbertson, agreed to sign a notarized affidavit. “The environment at the MCSO was best described as ‘friendly,’” Hayes recalled. He met Carol Macumber in 1974 through a mutual friend, Mike Moreno, whose girlfriend, Frieda Kennedy, shared an apartment with Carol. One night, Mike and Frieda brought Carol on a patrol ride-along and introduced her. Being separated at the time, “I began dating Carol. Carol and I dated five or six times.… I stayed the night at the apartment with Carol a number of times.… She liked to party and she talked a lot.” He had “absolutely no idea that Carol was married until our fourth or fifth date.” As best he could recall, “Carol mentioned that she had one child,” but “I did not think of Carol as a mother.” He came to feel displeased about their relationship, suspecting she was dating other men; a guy came to the door looking for her during one of his visits. When he ended their relationship, before Bill’s arrest, she had no reaction. He never talked to her again. “I was glad I had nothing to do with Carol when the allegations against Bill came about.”

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On the Macumber team’s behalf, Bill De La Torre made yet another call: to Carol’s old mentor Ed Calles. The sheriff’s detective who’d interrogated Macumber and signed the murder complaint sounded wary. What’s this about? he asked De La Torre. What’s the evidence? By way of explanation, Katie sent him the clemency board’s letter of recommendation. A week later, De La Torre tried again. No, Calles said, he did not want to talk. He now told De La Torre he had a serious illness, suggesting that such a discussion would cause him undue stress. De La Torre wondered about Calles’s hesitancy. Why so uncooperative? In De La Torre’s experience, the lead investigator always talked about a case.

Katie, Sarah, and Lindsay waited a month, then called Calles anyway. With the others listening on speakerphone, Lindsay took the lead—she was good at keeping conversations aloft, keeping people on the line. “We’re looking back at the Macumber case,” she began. “We’re just trying to learn what happened. You can help us.” Calles made it plain he didn’t want to help and didn’t know why they were reopening the case. He’d just say his piece and no more: He believed Macumber 100 percent guilty because of the prints and the ballistics. Also because Bill had lied about where he’d been the night he came home with a bloody shirt. If he lied to them about that, what else had he lied about? Lindsay tried to guide the conversation to Carol, but Calles resisted. Every time she mentioned Carol, he barked,
Are you recording this? Are you recording? I’ll know if you are
. His words sounded like a threat, quite gruff and intimidating—Katie thought she would definitely not want to be interrogated by him. Lindsay didn’t back off, though. She kept bringing up Carol, and he kept asking whether they were recording him. He also started suggesting he only vaguely remembered Carol. Then he indicated he wanted to get off the phone. Only later did Katie think of what they might have told him: No, we’re not recording, but you should have when you interrogated Bill Macumber.

*   *   *

One day, Lindsay happened to be up in Prescott, Arizona, researching another case. She knew Joe Rieger lived there now—Rieger, the Phoenix police officer who in August 1974 investigated the kitchen-window shooting, then attended the session where Carol gave her statement. Lindsay had found an address for him, so as usual, without calling ahead, she drove to his home and knocked on the door. No answer. She did not leave a card. The next morning, she tried again: still no answer. Later that day she called him, using a phone number that an Internet database listed as being associated with his address. Rieger’s wife answered, sounding wary. They were on the road, it turned out—so Lindsay had either called a cell phone or their home line had been forwarded. Rieger finally took the phone. After Lindsay introduced herself, explaining she had a few questions about “an old case,” he peppered her for five minutes about how she’d gotten his unlisted phone number. She explained that she got it off a simple people-search database, but he didn’t believe her. No, his number couldn’t have just popped up on an online search. She promised him it had indeed. He asked for the database she’d used, and she offered to send him the search report, something he definitely wanted.

Finally, they moved on, Lindsay asking if she could meet with him for twenty or thirty minutes to talk about an old case—the Macumber case. No, he said. He’d talked to an investigator twelve years before—Hayden Williams, Rich Robertson’s associate. He would not meet her, didn’t want to talk. He’d discussed this case once and had nothing more to say. With that, Rieger hung up. The conversation had lasted some ten minutes. Lindsay followed with a letter, but he never answered.

First Nancy Halas, now Joe Rieger. People who’d been in that room when Carol gave her August 23 statement didn’t want to talk. Why? And for that matter, why was Rieger—a Phoenix police officer—even there in a Maricopa County sheriff’s interrogation room? That session with Carol, Lindsay noted, began at 6:45, but they didn’t call in Nancy Halas until 7:45, an hour later. Then came that gap between August 23 and August 28. Very odd, Lindsay thought. Very odd.

*   *   *

If only they could find the jurors from Macumber’s trials. Katie, Lindsay and Sarah had been searching for them ever since they’d gone to the ground. Rule 32 said they needed evidence “sufficient to establish that no reasonable fact-finder would have found defendant guilty … beyond a reasonable doubt.” What better way to establish this than ask the original jurors how they would have responded to Valenzuela’s confessions? They were reaching back thirty-four years, though. Were any jurors still around?

Katie tasked an undergraduate volunteer, Logan Mussman, with locating the jurors. Logan tapped the databases, working off the original voir dire lists from the second trial, in 1976. He started to get some hits. He narrowed those down by age, by location, by previous employment. He and Bill De La Torre began making cold calls.
Were you a juror…?
They kept striking out. More calls, more misses. Finally they found one. Then another. In total, they reached four jurors still alive. One had Alzheimer’s, and one—a very elderly woman—just didn’t see any reason to reconsider this matter. That left two jurors to interview at length.

The first, Sarah Elliot, welcomed the call from Katie and Sarah, for she had thought about Bill Macumber’s trial often over the years. Two lives lost, another life at stake … it had been an emotional and draining experience for her. She’d always thought the jury reached the right verdict, but she would willingly discuss this—if she could first refresh her memory and be brought up-to-date. She asked that they send her the trial transcripts and other documents, including the clemency board recommendation, the Primrose and Valenzuela statements, and a transcript of the hearing before Judge Corcoran where O’Toole and Petica testified.

What she read in these pages greatly disturbed her. Sarah Elliot had been a forty-year-old real estate agent at the time of Macumber’s trial, hoping not to be picked for the jury, since such a serious case involved a lot of responsibility. Now seventy-four and retired, she found the revelations about Valenzuela and Primrose startling and enraging. During her several phone conversations with Katie and Sarah, she kept asking, “Can you imagine how I feel?” Readily, she agreed to sign a notarized affidavit.

The palm print and shell casings, she stated, “were the most significant items of evidence to me because they placed Bill Macumber at the crime scene.” In her opinion, “the palm print was the primary piece of evidence that convicted Bill Macumber.… I would ask myself, if he wasn’t at the crime scene, how did his print get on to the car?” She recalled the state’s expert testifying that the shell casings found at the crime scene matched Bill Macumber’s gun. “Again, this was critical because it placed Bill Macumber at the crime scene. I would ask myself, if he wasn’t at the crime scene, how did shell casings from his gun get there?” During the jury’s deliberations, “we, as a group, could not get away from the palm print and shell casings.” Whenever she thought about Macumber’s case over the years, whenever she questioned whether they got the verdict right, “I always come back to the science. All we had was scientific evidence and I believe that’s what convicted him.”

Sarah Elliot did not have much of a take on Bill Macumber himself when she first saw him—she recalled only that “he had a mild demeanor.” She also did not recall Carol Macumber’s involvement being emphasized at the trial. But after reviewing the trial transcripts, “I strongly believe that Bill and Carol Macumber’s pending divorce, Carol’s alleged affairs with law enforcement co-workers and Carol’s fingerprinting class at Glendale Community College raise serious doubt about the credibility of Carol’s statement to the Maricopa County Sheriff’s Office that Bill had confessed to her.”

Most important, Sarah Elliot thought that knowledge of Ernest Valenzuela’s confessions might have affected the jury’s verdict. She thought it “terrible that the jury did not hear about Ernest Valenzuela’s confessions because they are extremely significant.” She had “no doubt that evidence about this man and his confessions would have impacted the jury’s deliberations.”

Sarah Elliot also saw great import in Linda Primrose’s statement—and how it related to Valenzuela’s. She only “vaguely recalled” Primrose at Macumber’s trial, but after comparing Primrose’s courtroom recantation with her original 1962 statements, “I strongly believe Linda Primrose was telling the truth about witnessing the murders. Her statement is legitimate. She told the same story and did not waver. Her statement accounts for the chunk of hair found at the crime scene.” Sarah Elliot felt “very troubled by the fact that the jury did not hear Linda Primrose’s story in detail” and wasn’t “told about the hair found at the scene and who it did or did not belong to.” Linda Primrose’s statement, she believed, “is extremely significant.”

Elliot directed some of her angriest comments at Judge Corcoran’s decision to keep evidence from the jury. “I strongly believe that if a jury is tasked, by the state, to judge another person’s actions and to have that person’s life in their hands, that they should hear the whole story. All sides of the case should be presented.” The great responsibility she now felt for Macumber’s fate tormented her. “To think I may have played a role in convicting an innocent man is a terrible burden for me to carry. To not know the whole story is an injustice to everyone. It’s an injustice to the criminal justice system. If a juror is to judge another’s actions and to have a life in their hands, it is not fair for the juror to not be told the entire truth. To withhold such important evidence and statements from the trial is troubling.”

There they had it: If one of the original jurors didn’t qualify as a “reasonable fact-finder,” who did? And for this reasonable fact-finder, the new evidence—or new to her, at least—indeed was “verdict changing.”

*   *   *

The other juror Katie and Sarah interviewed did not even need such new evidence. When they called Lisa Piercefield, she readily agreed to talk. She’d been twenty at the time of the trial, the “baby” of the juror group, a college student and insurance secretary. She’d thought about Bill Macumber many times over the years, and in fact had researched his case in the newspapers and on the Internet. She had from early on thought Bill Macumber innocent. She’d sat in the jury box throughout the trial, giving the proceedings every ounce of her attention, only to be designated an alternate juror at the trial’s end. So she didn’t participate in the jury’s deliberations, didn’t get a chance to vote or share her views. The guilty verdict had stunned her.

This and much more she told Katie and Sarah when they visited her home one morning in the late summer of 2010. Lisa Piercefield was fifty-four then, with a husband of thirty-five years, children, and grandchildren. She was by no means a rebel or an iconoclast; she and her husband, Arizona natives, took being American citizens quite seriously. They strongly believed in abiding by all the government’s rules and laws and had passed those values on to their children. She wanted to talk to Katie and Sarah—to give them a notarized affidavit—precisely because of her strong values, precisely because she believed in rules and laws. She did not believe they had followed the rules of justice at Bill Macumber’s trial.

She didn’t begin the trial thinking Macumber innocent. In fact, she thought him “really creepy” at first—so tall and thin, with his Coke-bottle glasses. Early on in the trial, he opened the courtroom door for her one morning and it “freaked me out.” In her mind then, Macumber was a murderer, despite the innocent-until-proven-guilty rule. Then came the days of testimony. She never reached a “definitive conclusion” whether Carol “did or did not tamper with the evidence,” but to her “it was always a real possibility,” and for that reason, “I did not afford any weight to the fingerprint and ballistics evidence.”