Manifest Injustice (2 page)

To Macumber, this column told a familiar story. He knew of his case’s notoriety, that it had been the subject of multiple law review articles, symposium panels, textbook chapters. He knew that to certain critics, his case had become a symbol of just how seriously the legal system places attorney-client privilege over the search for truth. What did it matter? He didn’t see how any of it had done any good. Still, maybe this time. Macumber could only try. The next morning, he mailed the column to his closest friend and ally, his cousin Jackie Kelley.

*   *   *

Jackie and Bill had grown up together back in Iowa, more like brother and sister than cousins. Ever since his conviction, she’d been endlessly battling for his release. Sixty-seven years old, five years Bill’s senior, she and her husband lived on a remote 160-acre spread in northwest New Mexico. Sitting at her kitchen counter in late June, she read and reread the newspaper piece. Her eyes kept traveling back to the name Thomas O’Toole. “If Valenzuela was lying, he was very convincing,” Judge O’Toole had told Wilson. “He had details about the crime that were only known to police.”

On June 27, Jackie turned to her typewriter. “I am writing to you concerning the attached article from the Arizona Republic,” she began a letter addressed to Judge O’Toole. “This article was sent to me by my cousin, William Wayne Macumber.…”

Bill has always been like a brother to me. Bill did not, at the time of his arrest, have a great deal of money, nor did his family. For this reason he could rely only on the services of a public defender.… I have the same problem as does Bill—no access to a great deal of money. I am also quite ignorant in the ins and outs of our legal system. Actually, about all I have is determination! Is it possible for either you, or someone in your office, to give me any suggestions, any assistance in gaining my dear cousin’s freedom? For the life of me I cannot understand how the rights of a dead, confessed killer can supersede those of a living, innocent man! We are God-fearing people, as is my cousin. If there is any assistance or suggestions you could give to me, I would be eternally grateful.

Judge O’Toole, who preferred the cool air of Flagstaff during the blazing hot Phoenix summers, did not immediately attend to Jackie’s letter. When he did pick it up, he stiffened:
Ernest Valenzuela
. Back in 1967, O’Toole had been a young federal public defender. He’d represented thousands of clients since then. Most were a blur now. But he’d never forgotten Ernie Valenzuela. Valenzuela had scared the wits out of him. As the years went by, even after he became a judge in 1984, and then the Maricopa County presiding criminal department judge, O’Toole would regularly reflect about Valenzuela and how he’d confessed to the lovers’ lane killings—not bragging, not running his mouth, not huffing and puffing, just talking, his eyes flat and cold. So eerie, like a wild animal. The way he recalled the murders with obvious relish, savoring and cherishing the memory. O’Toole had never stopped thinking about this case, had never managed to shake it. He
knew
Ernie was a hardened killer, he knew Ernie liked to prey on couples in lovers’ lanes. He’d absolutely believed Valenzuela’s confession. So he’d tried to testify at Macumber’s trial. The judge wouldn’t let him. That had been hard, watching Bill Macumber get convicted.

Finally, though, it had not been his case, his concern. Life went on. Until now—until he opened Jackie Kelley’s letter.
If there is any assistance or suggestions you could give to me, I would be eternally grateful
. He couldn’t again let it go, Judge O’Toole decided. This time he had to push harder.

He could think of only one person to call: Larry Hammond. O’Toole knew him mainly by reputation. Hammond was a legend, having battled zealously for years on behalf of the wrongly accused. He’d collected all sorts of lustrous awards—and a fair amount of resentment—for fighting to correct systemic injustice in the legal system. He sat on indigent-defense task forces, human rights committees, capital representation agencies. Most important, he’d recently launched the Arizona Justice Project. Hammond had no funding, no office, no staff, no structure—just volunteer lawyers and law students. Yet if anyone could help Macumber, O’Toole reasoned, it would be Hammond.

O’Toole reached him in the early afternoon on September 18, 1998. Hammond didn’t field many such calls from judges. Though he’d served as law clerk for two U.S. Supreme Court justices (Hugo Black and Lewis Powell), his dealings with judges in more recent years had usually involved arguing before them in courtrooms or fuming at their authority behind their backs. Now here was O’Toole, urging the Justice Project to look at Macumber. If there’s any case you should take, O’Toole told Hammond, it’s this one. O’Toole pointed to the Vince Foster litigation. Reassess
Macumber
in light of Foster, O’Toole advised. Foster might apply. The judge openly pled:
I am aware of this case. I have known of it for years. I represented a man who confessed to the murders. Larry, I represented the killer.

*   *   *

That’s how it began. That’s how Bill Macumber played a card he didn’t think he had, and that’s how Larry Hammond heard the siren call of an impossible obsession. At his urging, the Arizona Justice Project would embark on the tenacious pursuit of questions that offered no clear answers: What happened all those years ago on a remote lovers’ lane north of Scottsdale? And what happened at Bill Macumber’s home on West Wethersfield Road in the workaday corner of Phoenix known as Deer Valley?

PART ONE

CRIME AND CONSEQUENCES

CHAPTER 1

Why Oh Why

MAY 1962–MAY 1969

In the spring of 1962, the greater Phoenix area had not yet sprawled haphazardly across the high desert floor. To the northeast, where luxury resorts would later rise in Scottsdale, open reaches of barren sandy land rolled on for miles and miles. Yet the Scottsdale desert had its inhabitants, at least at night, when young people from all over Maricopa County would arrive to party, drink and build bonfires—or park in isolated lovers’ lanes. There might have been one thousand teenagers in the vicinity on any night. Sometimes one party would be romping just two hundred feet away from another. Little trails crisscrossed the desert, created by cars driving off-road, which they did for good reason. If you circled your cars and started drinking right on the edge of the desert, twenty-five feet from Scottsdale Road, the cops would catch you. So everyone drove deeper in, at least two hundred feet. Despite that act of caution, most of the kids would then go ahead and build a bonfire, only to wonder later how the cops managed to find them. By dawn, everyone would be gone, the desert abandoned to the heat of the day.

Out there, where the pavement gave way to sand, a school bus full of students drove by at 7:30
A.M.
on May 24, 1962, a Thursday. The students, from the small town of Cave Creek, were on their way to Paradise Valley High, two miles north of Phoenix. They were laughing and talking until, looking east out at the desert, they saw a car parked some three hundred feet off Scottsdale Road, just north of Bell Road. Near the car, they saw two people—bodies?—lying on their backs. The students rushed to tell the bus driver, who at a stop sign called out to a state highway crew foreman, Joe Armos, asking him to notify the sheriff’s department. Armos instead flagged down two deputies on their way to target practice at the sheriff’s range. It had been their day off, but now Joe Duwel and Don Spezzano turned and drove into the desert. They reached the car—a 1959 Chevy Impala, white with a red stripe—at 7:54
A.M.
It sat under a palo verde tree, some thirty-eight feet up one of the many desert trails. Beside it lay the body of a young man, his head facing the car, and, six feet south, the body of a young woman, on her back with her legs pointed toward his. Both were fully and neatly dressed, he in Levi’s and a short-sleeved striped shirt, she in yellow capri pants and a checked yellow blouse. Both still had their wallets, money and jewelry, with her purse untouched in the car, a man’s class ring on her left index finger. Both also had holes in their heads—her right temple, his left. They had each been shot twice. Deputy Duwel called his supervisor. Within twenty minutes, Sergeants Jerry Hill and Lester Jones arrived at the scene, summoned from their breakfast at Helsing’s Coffee Shop.

It did not take the sheriff’s detectives long to identify the victims. Tim McKillop and Joyce Sterrenberg, both twenty—he six foot four, 180 pounds, blond hair and blue eyes, she five foot nine, 125 pounds, brown hair, blue eyes—had been employed by Mountain States Telephone. They’d been engaged, with plans to marry. They had left Joyce’s home near 8:00
P.M.
the previous evening, after celebrating her dad’s birthday over ice cream and cake, saying they were going to look at model homes in a new development. Their parents had wakened in the early morning to find Tim and Joyce’s beds made up and empty—they’d never come home. Tim’s father, Jim McKillop, had called the Sterrenberg home at 5:30
A.M.
Cliff Sterrenberg had filed a missing person report and cruised the neighborhood. Back home, near 9:30
A.M.
, both he and McKillop heard the same news report on their kitchen radios: two bodies, a young couple, found shot to death in the desert north of Scottsdale. McKillop just knew it was Tim and Joyce. Sterrenberg braced himself and called the sheriff’s department.

At the murder scene, Sergeants Hill and Jones took notes, shot photos and collected evidence. They found four spent .45 reloaded gun casings (new bullets in old cartridges), one live shell, one mutilated slug, tire tracks, Joyce’s purse, Tim’s wallet, a handkerchief and a thatch of hair—the last recovered some sixty feet from the car. They noted that the front passenger door was locked, suggesting that both victims had gotten out on the driver’s side. Tire marks told them that another car had backed up and sped out to Scottsdale Road, the tires digging into the desert floor as a car does when it accelerates rapidly from a dead stop. According to Hill and Jones’s initial report, they marked, tagged and placed all items of evidence in envelopes labeled
MARICOPA COUNTY SHERIFF’S OFFICE PROPERTY
.

Yet it can’t be said that the deputies ran a sophisticated operation. They didn’t identify the type of blood at the murder scene. They didn’t make casts of the tire tracks. They didn’t secure the site—on the morning of May 24, journalists and TV crews joined investigators in tromping around the area. Stranger still, the deputies didn’t lift fingerprints off the car out in the desert. Instead, they had the Chevy Impala towed to a sheriff’s department lot in downtown Phoenix, without monitoring the route taken or the departure and arrival times. Once there, the car sat in an open, unsecured area before being moved into a garage.

Shortly after noon, a sheriff’s fingerprint technician, Sergeant Jerry Jacka, arrived at the garage to start his process of photographing, dusting and lifting latent prints off the Impala. In all, he came up with fifteen latents, but most were either the victims’ or unintelligible. Two weeks later, he sent just one latent lift to the FBI’s fingerprint section; he’d taken it from the bottom of the left front door handle, thinking it the best possible for a match. When that yielded nothing, Jacka sent the FBI three more lifts, apparently the remaining intelligible ones, noting that “these latent impressions are the only physical evidence that we have at this time.” Again, nothing.

*   *   *

By then, the Maricopa County Sheriff’s Office was in a frenzy. The pressure had been on from the first day, when news of the murders claimed front-page banner headlines (“Authorities Sift Slender Clues in Savage Slaying of Young Pair”), supplanting news that astronaut Scott Carpenter had landed after three orbits of the earth in the
Mercury-Atlas 7
rocket. On the second day, a renowned Arizona State University psychologist told reporters that the killer either knew and had been rejected by Joyce or was a sadist who would strike again. In an interview at his home, Jim McKillop sobbed and pounded his thigh with a fist. “What is there to say,” he asked, “when you learn your only son and the girl he was going to marry have been shot to death by a madman? Why oh why? Is there anyone in the world who had anything against either one of those kids? They were good kids who wanted to get married. Neither had ever hurt anyone.” McKillop seemed to be in a state of semishock as he rose to show the reporter bowling trophies he and Tim had won together in a church league. “My pal, my hunting and fishing partner, that fine boy gave me a lot of proud moments, the little fella I watched grow into a real man. We fished, we camped, we’d go everywhere together. It made me glad when I learned my boy had met a girl he wanted to marry. He had planned a big wedding for next April.”

Cliff Sterrenberg also spoke to a reporter: “You read about these things in the newspapers. You think it can’t happen to you.… They’d been going steady since they were introduced last October. They were buying things as they planned their wedding.” He recalled the last time he’d seen his daughter: She at the door, leaving to get gas in her car, saying, “We won’t be long.”

*   *   *

Sheriff L. C. Boies soon had seventeen investigators assigned full-time to the Scottsdale lovers’ lane murders, working twelve-hour days in five separate teams, helped by 110 other deputies ordered to funnel information to a coordinating captain. Officers spread through the Phoenix area, canvassing citizens and gun dealers, collecting and test-firing many dozens of .45-caliber pistols, focusing on people known to use hand-reloaded .45 shells. They questioned informers, visited pawnshops, talked with parolees and crackpots—anyone with an idea or a theory. Hundreds of telephone tips began flooding the department, the numbers rising along with the growing total of reward money contributed by businesses and community groups—$1,000 became $5,000, then $7,000, finally $10,000.

Theories abounded. The investigators variously thought the murders the work of a jealous suitor, a robber, a madman or an enraged driver. Some in the sheriff’s office believed the killer had certainly known his victims. But Sergeant Lester Jones suspected a gang of roving thrill seekers. “This was a spur of the moment slaying,” he told reporters. “It is the type committed by a bunch of punks driving around looking for trouble.” Sergeant Jones said he had a number of reasons to believe there was more than one person in the killer’s car, “but I’m not ready to release this evidence for publication. It could hurt our case.” Also: “There’s a possibility there are two or three teen-agers that witnessed the crime and are now reluctant to come forward with their accounts because they fear the gunman who fired the fatal shots.”