Manifest Injustice (13 page)

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Douglass called Thomas O’Toole next. Though not before a jury, O’Toole could finally tell his story in a courtroom. O’Toole vividly described how Valenzuela first brought up the Scottsdale Road murders, saying he “shot ’em like a rabbit” out in the desert north of Scottsdale. To O’Toole, Valenzuela hadn’t been anything like the “dreamy” person Dr. Tuchler described; rather, he’d been hard and cold-eyed. Tuchler had seen Valenzuela for one hour, O’Toole for eight or nine hours. O’Toole had “no doubt” that Valenzuela told him the absolute truth.

Yet O’Toole had been representing Valenuzela on an entirely different murder charge, so he had not focused on the Scottsdale Road murders; professionally, he could not. He had a defense to prepare, and attorney-client privilege to honor. On cross-examination, Larry Turoff hammered at this. “Your report then of what he told you reflects no facts whatsoever of how he killed these people?… You don’t recall him telling you how he got to this area?” Turoff kept pounding on this:
Do you recall … do you have anything in your notes?
Judge Corcoran jumped in too, sounding much the same theme: “Now I take it your position was that you had other fish to fry in that you were representing him on a different charge and you were not primarily or even substantially concerned with getting an accurate and complete statement from him relating to the Sterrenberg-McKillop murders?… You weren’t interested in getting a complete, in effect, police report relating to his statement?”

O’Toole was taken aback. He thought it startling for Corcoran to expect a defense lawyer to construct and document a “complete police report” on a client’s confession to an unrelated double murder. It would have been unethical—preposterous—for O’Toole to do so. Surely Corcoran knew this, surely Corcoran had not really imagined he’d get such a police report at this hearing. How possibly to respond?

“That is correct,” O’Toole said. “What the client tells you about another crime he has committed you don’t spend much time with.… We weren’t concerned about it.”

The prosecutor went at Ron Petica in much the same way when he took the stand. Valenzuela confessed the Scottsdale Road murders to him twice, Petica testified. Sitting in a conference room, Valenzuela had been lucid, cold, matter-of-fact, looking Petica straight in the eye—not at all in the dreamlike state Dr. Tuchler described. Petica “absolutely” believed him. “The way he said it I had no doubt but that he was telling me the truth.”

Yet Petica, like O’Toole, had been representing Valenzuela on an entirely different murder case. So no, he did not question his client in detail about the Scottsdale Road homicides. First, because “Ernie was very distrustful … and I didn’t want him to get the impression that I was trying to secure information on an unrelated case to do damage to him.” And second, because he worried about being “subpoenaed to testify against him, even though I recognized the attorney-client privilege did exist.” For that reason Petica took no notes: “I was afraid that it could have got out of my hands by some form or means, and could have been used against him in prosecution of those two crimes.” Again Judge Corcoran jumped in, pressing that theme: “So I take it your primary interest was in frying the fish you had to fry and not getting a complete statement or report relating to what he was saying about the Sterrenberg-McKillop homicides?”

Petica couldn’t disagree: “That is correct, Your Honor.”

*   *   *

The next morning, Dr. Leo Rubinow took the stand as the final witness at this hearing. He’d interviewed Valenzuela twice in March 1968, he testified. He’d provided reports to two judges. He did not think Valenzuela had faked or fooled them while confessing. Yet like the lawyers, he could not recount a wealth of precise details about Valenzuela’s confession. Rubinow had taken copious notes, but he no longer had them. Facing cardiovascular surgery in 1971, which he thought he would not survive, “I destroyed all psychiatric records so as not to divulge to someone whose hands they may fall, details of personal patient-physician relationships and so forth.”

To O’Toole, Petica and Rubinow, Ernest Valenzuela had been a client and a patient, not a suspect subject to police interrogation. This circumstance now appeared to shape Judge Corcoran’s evaluation of their testimony. By late that morning, he was referring to the “so-called” Valenzuela confession. He asked Bedford Douglass, in the first sign of the tension brewing between them, “You presented all of your evidence on the so-called Valenzuela confession?” Yes he had, Douglass allowed.

Judge Corcoran didn’t need to ponder for long. At 3:00 that afternoon, out of the presence of the jury, he delivered his ruling: “I find that the testimony of the witnesses relating to the statements made by Valenzuela lack sufficient circumstantial probability of trustworthiness to justify their admission into evidence.… I find that statements made to Misters O’Toole and Petica lack any reasonable degree of specificity as to any involvement Mr. Valenzuela would have had in the homicides.… They did not interrogate him or ask him any questions.” Also: “The statements made to Misters O’Toole and Petica … were made after Mr. Valenzuela was expressly advised that whatever he told them was subject to an attorney-client privilege,” which “cannot be waived under these circumstances.” Mindful of the hugely pivotal impact of his ruling, Corcoran later underscored his reasoning, in chambers: “I want to make clear as to Valenzuela, my ruling and finding of fact is that none of the testimony … bore persuasive assurances of trustworthiness. I also ruled that the testimony of Messieurs O’Toole and Petica should be barred by the attorney-client privilege.”

Corcoran’s comments showed just how much he had his eye on both the U.S. Supreme Court’s
Chambers
decision and Justice Holohan’s minority opinion in the reversal of Macumber’s first conviction. In fact, Corcoran had adopted the very wording of Holohan’s opinion—“playing to the dissenters,” Bedford Douglass called it. There and in
Chambers,
the judges had recognized a due process right for defendants to have confessions such as Valenzuela’s admitted—if the confessions bore “considerable assurance of their reliability” and “persuasive assurances of trustworthiness.” Those were Corcoran’s words now, exactly. Listening to him, Bedford Douglass concluded that Corcoran—though seemingly amenable at the start
—
had never intended to admit Valenzuela’s confession. He’d allowed the hearing to avoid the chance of reversal, but he had already decided to bar the testimony. Douglass had to hand it to Corcoran—the judge was clever and cunning and knew precisely what he wanted on the record.

The public defender recognized what this meant to their case. The trial, he’d later say, was decided at this hearing. To not let the jury hear Valenzuela’s confession, he believed, constituted a major injustice for Bill Macumber. He thought it incredible that the judge blocked evidence central to the defense, evidence that might have had a profound impact on the verdict. Certainly the jurors might doubt the veracity of the confession—but let them decide, let them determine what’s “trustworthy.” The jurors, after all, define the “facts.” The lawyers just tell their stories.

At a conference in chambers days later, Douglass attempted a last assault on the judge’s ruling, but Corcoran held firm: “My feeling was … Mr. Valenzuela might just have wanted to see Mr. O’Toole’s eyes pop … knowing that it had no consequence and couldn’t be used in any way against him.”

Yet that, Douglass pointed out, was only Corcoran’s personal feeling. Appellate courts have found it “altogether atypical, extraordinary and improper” for a judge to exclude evidence because he does not believe it. Why not let this evidence come in, let the lawyers argue over it, and let the jury decide?

No, Corcoran said. He had heard of numerous cases where people confessed to crimes that they obviously didn’t commit, and he thought he had one here. “It’s just a naked statement of ‘I did it,’ and that’s why I think the showing has not been made.”

With that, the battle over Valenzuela ended. The jury would never know he had confessed to the Scottsdale murders.

*   *   *

At the trial’s start, Douglass had waived giving an opening statement, and now he did so again when it came time for the defense to put on its case. Many years later, he would consider that a mistake. In the moment, though, he simply didn’t know what story to tell the jurors. He still—this late in the trial—remained uncertain about what evidence of a frame-up he could get in, how far he could go.

For that matter, he didn’t know what he could tell the jury about Linda Primrose. While digging through boxes of documents in preparation for this second trial, prosecutor Larry Turoff had finally discovered the sheriff’s reports about Primrose and revealed them to Douglass, who’d promptly subpoenaed her. At first, she’d tried to quash the subpoena, invoking her Fifth Amendment right against self-incrimination; “I will take the Fifth on questions besides my name,” she declared at a pretrial hearing, “and I don’t belong in the case.” After a judge ruled she couldn’t invoke the Fifth in this situation—and the state refused to grant her immunity—she wrote directly to Bedford Douglass, pleading with him “to please reconsider and not use me in the trial.” Otherwise, she warned him, she would recant rather than again try to invoke the Fifth. She would say she lied to the deputies in 1962.

Douglass called her as a witness anyway, wanting her existence and prior statements on the record. She took the stand at Bill Macumber’s trial on the afternoon of December 22. She was then a thirty-two-year-old married woman with two children—no longer a drug-addled teenager joyriding with strangers on the Scottsdale desert. She didn’t deny making statements years before about witnessing the murders, though she couldn’t remember what she’d said. She knew only that they were false. “I remember that I lied and I made false statements but I can’t tell you word for word,” she testified. She’d lied to the sheriff’s deputies, the polygraph examiner, and the psychiatrist. That’s all she recalled—that she had made false statements to everyone. Yes, she had earlier refused to answer questions on the grounds that her answers might tend to incriminate her. Yes, she had only started recanting after she’d failed to quash the defense’s subpoena. Yes, her husband and children knew nothing of her past. Yes, she didn’t want her husband and children to know about the statements she’d made to Detective Thomas Hakes in 1962. “That’s right,” Primrose said. “That’s right.”

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The defense had few others to call beyond character witnesses. Like Jim Kemper at the first trial, Douglass had found it nearly impossible to locate qualified forensics experts willing to testify for the defense. To Judge Corcoran’s bewilderment, Douglass chose not to call the ballistics expert Charles Byers. Despite the Arizona Supreme Court’s finding him qualified and despite his exclusion at the first trial being the sole basis for the reversal, Douglass still worried that he wouldn’t come across well as a witness. Byers was available and, in conversations with Douglass, emphatic that the shell casings couldn’t be matched to Macumber’s gun, but the public defender declined to use him. In the end, Douglass called no ballistics expert at all—he just could not find one, he explained later.

Douglass did put a fingerprint expert on the stand, but this witness—Jerome Steigmann, a former New York police detective and latent-fingerprint examiner—could testify only generally about the ways to forge prints. It’s quite possible, he explained, to remove a latent lift from a card and substitute another one, without any sign of tampering. He’d seen many cases where this had happened, and he’d transplanted prints himself, doing “numerous control experiments” to confirm the method. But no, he could not say that Bill Macumber’s print had been forged. On cross-examination, Larry Turoff asked him, “You weren’t telling the Court and jury, sir, that this fingerprint [Bill’s] has been forged, transplanted or transferred?”

“It could have been.”

“I’m asking were you telling us that.”

“I didn’t say it had been. I said it could have been.”

“You’re not saying it had been?”

“No.”

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Carol had not testified at the first trial, but now, on December 29, the state called her to the stand as a rebuttal witness. She was thirty-three, a deputy with the Pitkin County Sheriff’s Office in Aspen, Colorado. Yes, she said in response to the prosecutor’s questions, she had taken courses in fingerprinting at Glendale Community College, one in classification, another in detecting and lifting latent prints. But no, she had never tampered with the latent lifts in the Macumber case file. Here Turoff walked her through the frame-up charges:

Q:
Did you ever go to wherever they keep them in the Sheriff’s Office and remove that card with the latent liftback on it and replace it with another fingerprint or palm print?

A:
No, sir.

Q:
Did you ever go to wherever they keep the negatives and remove the negative and replace it with any other negative?

A:
No, sir.

Q:
Did you ever ask any other individuals at the Sheriff’s Department or anybody else to do these things for you?

A:
No, sir.

Q:
Carol, did you ever take a photograph of the defendant’s palm print and place it on a chrome strip of an automobile?

A:
No, sir.

Q:
Did you ask anybody else to do that?

A:
No, sir.

Q:
Did you ever go to the property room and remove the shells…?

A:
No, sir.

Q:
Did you ever ask anybody else to do that?

A:
No, sir.

On cross-examination, Bedford Douglass attacked. Yes, Carol allowed, while employed at the Maricopa County Sheriff’s Office she’d had access to all the case files. Yes, she’d likely read the Sterrenberg-McKillop file, along with all the others. Yes, she’d had access to all items of evidence kept in the sheriff’s department identification section. Yes, she’d taken Bill’s prints when he started the Desert Survival Unit. Yes, she’d met Ed Calles at Glendale Community College. Yes, he’d recommended her for employment at the sheriff’s department.