Manifest Injustice (47 page)

There also was a curious handwritten letter from Linda Primrose to Bedford Douglass from July 1976, begging him not to call her to the stand at the second trial, threatening to recant if he did. From the trial transcript, the Justice Project team knew of the threat, but they had never seen this letter before. In her seat, Katie studied it along with the board members.
I am guilty of making false statements in 1962 in an attempt to strike back at my mother. For all of this I am more than sorry. I am not guilty of being present at a murder. I was not there. All those lies I told at that time was just to hurt my mother who had hurt me. Since that time I have slowly put my life in order. I have married, I have two children.… I will not be used to cast doubt. I will make very certain the jury knows I lied in 1962. I am not a good person and I know it but God is with me. I would urge you to reconsider using me to cast doubt. If your man is not guilty, you should not need me. I’ve done enough wrong in my life—that I couldn’t live with myself if a lie got a guilty man off on a murder charge. Enclosed is a little book for your man. Pass it on to him. No need to say where it came from.

Interesting, Katie thought. She knew that Primrose had first claimed the Fifth at a pretrial hearing, refusing ten times to answer questions about the murders on the grounds that it might incriminate her. Only when that tactic failed did she write this letter. Katie wondered: What was that little book she wanted to pass on? Maybe a Bible?

*   *   *

Larry Hammond went first, invited by Belcher to open the hearing for the Justice Project. He was seriously ill at the time, frighteningly fatigued without knowing why. Later he’d learn he’d been suffering from hypotension—severe low blood pressure. His doctors had by necessity taken him off the steroid prednisone, used to combat his chronic pneumonia, and his own adrenal system had not kicked in. Belcher knew Hammond was ailing. “You can sit if you like,” Belcher told him. “I mean, you don’t have to—”

“I’m going to be brief,” Hammond said, pushing himself out of his chair, stepping toward the podium and microphone. “So I’ll stand up. Thank you. If I had to stand up for more than a few minutes, I would take you up on it.”

This time, so different from 2009, Hammond merely set the stage for his colleagues. Because three of the current board members had not been on the board in 2009, he explained, “we will want to briefly, this morning, summarize” the case. Andrew Hacker will provide an overview. Lindsay Herf will talk about Macumber’s prison record. Katie Puzauskas will address Macumber’s old-code lifer status. But first, “we will ask Mr. Macumber to speak to you.”

Hammond leaned into the microphone, linked to the speakerphone. “Bill,” he said, “this is your opportunity to address the Board directly and we’d like you to say whatever you think is appropriate for the Board’s consideration this morning.”

Address the board, yes. But Macumber knew that Carol, Scott and Steve could hear him, too. He sat alone at a table in the Mojave Unit at Douglas, a prison guard down the hall. He felt all of his seventy-six years. He understood he could better his chances for clemency by expressing remorse and repentance. Yet now, as always, he would not: “I told everyone that I was innocent on the day I was arrested, on the day I went to trial, on the day I was sentenced, and I’m stating my innocence here before all of you today because it is the truth. It was the truth back then, it is the truth now, and it will remain the truth forever.”

Something else he wanted to say, now that he could, now that she was listening. “Accept this for what it is,” he began. “My ex-wife, who I guess is on the line, has told a great many lies over the years, and she’s hurt a great many people. But the worst lies she ever told, the most unforgivable lies she ever told, were those she told our three sons. She told them that I didn’t love them, but she knew I— Those boys were my whole world and I loved them with all my heart then, and I do today. She told them that I didn’t try to contact them, and all the letters that I wrote to my sons were returned to me as refused. My boys never knew I tried to get in touch with them to tell them I loved them. As a result, I have not heard from my two oldest sons in 37 years, but I’m very proud and extremely grateful to say that my youngest son, Ronnie, who is there with you today, didn’t accept what he was told and went looking for answers. And he found those answers at the Justice Project with Larry Hammond.… I thank you, Mr. Belcher and members of the Board, for allowing me to say these words, and I assure you they come from my heart.”

*   *   *

The Justice Project’s presentation continued with Andrew Hacker, who walked once again through the chronology of the case and Carol’s testimony, marshaling “some of the most important points supporting Bill’s innocence.” He’d been on the Macumber team for two years now, joining it just as he was graduating from the ASU law school. A fifth-generation volunteer turned Justice Project staff attorney, he filled the role Hammond had played at the 2009 hearing.

He called the confession story itself, Bill as army CID assassin, “preposterous.” He pointed out factual errors—for instance, Joyce’s purse was never rifled through. He noted that Carol supposedly heard this confession in April, then moved out in June, leaving her boys “with a double murderer.” But beyond that, he held back. The Justice Project, Hammond had advised, should take “the high ground” at the hearing. So Andrew said only that at the time Carol reported this confession to sheriff’s deputies, “both her personal and professional lives were in turmoil.” Carol “was the center of a sensitive internal investigation at MCSO, was a suspect in a suspicious shooting at Bill’s home, and she and Bill were in the midst of a contentious divorce.”

Rather than identify the nature of the internal investigation, he asked the board members to turn to the documents sitting before them: “One last point on the alleged confession, and I do mean to be delicate here, but I would direct the Board to the affidavits from Dennis Gilbertson and Jerry Hayes describing the environment at the MCSO at the time of those arrests, and their particular relationships with Carol at the time.”

The primary focus, Hammond had decided, should be on Valenzuela and Primrose. So that’s what Andrew addressed in his concluding remarks, after first reviewing the forensic evidence and his three ballistic experts’ affidavits. “It cannot be overstated how critical it was that Valenzuela’s confessions were never heard by a jury,” he told the board. “It is true that Judge Corcoran … ruled that the confessions lacked sufficient indicia of trustworthiness. What should be immediately apparent, however, is that Linda Primrose, the single most important person in this case, was not part of that hearing. The critical details she had provided to MCSO in 1962 corroborating Valenzuela’s confessions were not considered.” Andrew kept underscoring this theme: “The fact that in 1962, Primrose related non-public information about the murders, named Ernie as the killer,… and described a man who, two years later, repeatedly confessed to the exact same crime all strongly suggest that Ernie Valenzuela was the true killer, that Bill is innocent and he has spent more than half his life in prison for a crime he did not commit. Thank you.”

The board members had questions for Andrew, some more pointed than those asked in 2009. Just what did Bill say to Carol at their home in the spring of 1974? Did the sheriff’s department ever try to track down those juveniles who jumped Macumber on the night he came home with a bloody shirt? How much time passed between Bill’s alleged confession and Carol’s statement to the deputies? Hadn’t Macumber used reloaded cartridges, like those found at the murder site?

Board member Ellen Kirschbaum finally zeroed in on the heart of the matter: What did Macumber tell deputies during the extended interrogation on the day of his arrest? “I heard Mr. Macumber say that he had never admitted to the killing.… Now I just wanted to clarify something, because I’m a little confused. In the report from MCSO, Sergeant [Barnby], part of it reads, ‘Upon completion of the reading … Sergeant Barnby placed his hand on Macumber’s shoulder and asked Macumber, Bill, did you tell Carol that you killed those people. Macumber hung his head for a moment and, looking at the door, said, quote, Yes, unquote.’” Kirschbaum eyed Andrew. “Can you explain that?”

Andrew did the best he could with a murky matter. “There is—I—there is disagreement in the departmental report. You know, Carl Pace, who testified at trial, said that he was present during the interrogation and Bill never confessed. There are sheriff’s reports that say that Bill did. Bill himself has said he never did, and unfortunately the actual interrogation was not tape-recorded or video-recorded in any way so all we have are some of these after-the-fact recitations, which, as you point out, are conflicting.”

*   *   *

By now, it was apparent to all how much this proceeding differed from the 2009 hearing. The mood and energy level, the sense of potential, were not the same. By necessity, the Justice Project presentations, though crisply efficient, suggested a distilled replay of the past. The board members’ attention, so riveted on Macumber and the Justice Project two years before, turned this morning in multiple directions: to the piles of documents before them, to the victims’ families sitting just inches away, to the county attorney’s team. There was also the feeling that Governor Brewer would most certainly veto any recommendation to commute. All of this seemed to affect not just the board but Macumber’s relatives. When their turn came to speak, their words were heartfelt but rushed, lacking the 2009 hearing’s feel of dramatic revelation.

Ron spoke last, and only briefly. This time he delivered no ringing denunciation of Carol, no dramatic declaration that she was absolutely capable of framing Bill. “I will never leave my father’s side,” he said quietly. “My father is an innocent man convicted wrongly.… In the process of relearning who my father was, I have lost the rest of my family. It’s a hard thing to live with. I love my mother. I love my brothers. But this is the right thing to do. This is what needs to be done. My father deserves clemency and I pray that he will see that granted to him.… I just pray that you do the right, pray that you—”

As he’d done with the others, Belcher hurried the exchange: “Okay…”

“—release my father. Thank you very much.”

In 2009, the board had showered Ron and other Macumber family members with questions. This morning, they posed none.

*   *   *

Now came the state’s presentation. Vince Imbordino, a thirty-year veteran in the county attorney’s office, first called up his ballistics expert, Lucien Haag, for forty-six years a highly respected criminalist and forensic firearms examiner. Haag began plugging in his laptop, preparing for a PowerPoint presentation. Larry Hammond braced himself. He knew this would be difficult to counter, as the county attorney had provided him with an advance courtesy look at the material.

With the lights lowered, Haag began. Frame by frame, up on the screen, he pointed to various parts of a gun, moving his marker finally to the tiny ejector—“admittedly small, but that’s why we used microscopes in the crime laboratory.” He ran a high-speed video showing how the ejector in a semiautomatic pistol strikes and kicks out a cartridge. He offered a slide photo of a fired cartridge case, indented by “a plethora of marks … all of which could be used for identification purposes.” He focused in on a welter of ejector markings, then enlarged the image click by click “to finally here. This is what makes it unique.… So it becomes an individual.… Then we have a means of matching the cartridge back to the gun that fired it.… Can ejector marks be matched? Yes.”

Haag moved on to a second PowerPoint demonstration. He showed how by replacing the slide of a gun—“here’s how easy it is to disassemble”—you can change the breech and firing pin marks. He showed how easily “you can get new gun barrels, you can replace the barrel.” But the ejector was different: “It looks like a permanent part of the frame of the gun.… It’s not obvious it could be removed. In fact, in 46 years as a firearms examiner, I’ve never removed or replaced an ejector.” If you replace the slide and barrel, you can’t match a gun by firing pin or breech marks. “But if you forget this ejector…”

Imbordino then asked Haag if he had “some personal knowledge” of the Macumber case and FBI agent Robert Sibert’s match of Bill’s gun to the shell casings at the time of the trials. Yes, he did, Haag said. He remembered this case “almost like it was yesterday.” In between the two trials, “I was either at the FBI or for some reason saw Bob Sibert’s photo micrographs”—photos of the shell casings taken through a special comparison microscope, used to examine ballistics evidence. “I could see a very compelling identification” based on “things called ejector marks.” Sibert also “had his work reviewed by several examiners in the Bureau.”

Haag had another memory, as well. A little while before the first trial, “a man showed up in my laboratory named Charles Byers.” Haag “knew of him as a shooter, shooting enthusiast, and he wanted a tour.” He “asked to see the comparison microscope.” About a month later, “I got a call from the County Attorney’s office saying Byers would be the expert [for the defense] at the first trial of Mr. Macumber.” Later, in between trials, “I looked at what Mr. Byers had done and he deliberately, in my view, had taken cartridges … that didn’t match very well.… Mr. Byers, in my view, attempted to perpetrate a fraud on the first court.” For the second trial, “I was listed as a potential witness for the prosecution.” The defense attorney, Bedford Douglass, “called me … we were friends” and “interviewed me” about Byers. “I’d had an opportunity to see Mr. Sibert’s comparison, I could see this was a nice identification. I explained that to Bedford Douglass.” Douglass then “didn’t produce” Byers at the trial—or any other expert. Haag “had reason to believe” that Douglass went to a “suitably qualified expert,” but “I think you could conclude” that this expert “must have concurred with Mr. Sibert’s original findings.”

In his seat, Hammond fumed at this testimony. Nothing in the PowerPoint material he’d seen ahead of time had suggested that Haag would say anything like this. Hammond thought such a tangent was beneath Haag, whom he knew to be a decent guy. The state could never introduce this kind of unsupported personal memory—a polemic, really—in a formal court proceeding, only here at a clemency hearing, when the county attorney knew there were no limits and no consequences. Hammond couldn’t say that any of Haag’s presentation was untruthful, but he believed it conflated issues and studies. Yet the board had no meaningful way to understand this.