Manifest Injustice (8 page)

That’s how O’Toole came to represent him, appointed by a magistrate. Valenzuela wrote O’Toole a note the very next day: “Dear Sir, I want to know how the case looks. I also would like to talk to you.… Please let me know how the case looks.” The case, in truth, looked awful to O’Toole. Late on the evening of August 9 and on into the early morning of August 10, Valenzuela had been drinking at a bar in Phoenix with Lamson and Salina Nelson, both Apache Indians. At his request, the couple started to drive Valenzuela to the reservation. Once there, Valenzuela pulled a gun, shot the husband, ordered him into the trunk of the car, drove a ways, then stopped to shoot the man several more times, killing him. Then he held his gun on Salina Nelson while raping her in the front seat of the car. She eventually snuck away and sought help at the Gila Crossing Presbyterian Church. Police found Valenzuela nearby, asleep in the Nelsons’ car.

The state had an easy case, O’Toole had to admit. His client was toast. He started visiting with him regularly. Valenzuela, a fit and wiry twenty-three-year-old Pima Indian, looked like an Apache or Hispanic. Sharp features, piercing eyes. Early on, Valenzuela started talking about the double murder north of Scottsdale. He flat out said he killed those two. He identified the victims by name, Joyce Sterrenberg and Timothy McKillop. He said he came upon them in the desert while high on booze and grass. In a matter-of-fact way, he said, “One was running. I shot ’em like a rabbit.” As Valenzuela recalled the killings, his eyes lit up. He appeared possessed—O’Toole thought him bloodcurdling. Valenzuela was clearly a homicidal person who enjoyed killing people. He told O’Toole that he liked to get into fights, liked to get hit. He also told O’Toole that he liked to fantasize about women, that he would go to Arizona State University to watch the girls on campus. He would follow them around and imagine having relations with them. O’Toole had never met anyone like Valenzuela. A shocking man, really—evil personified. O’Toole and his supervisor, Tom Karas, decided to never meet with him alone. They’d only visit Valenzuela together.

All told, they saw him eight or nine times, an hour at a time, in the U.S. marshal’s office on the eighth floor of the Federal Building in Phoenix. The Scottsdale murder confession came up more than once, and O’Toole took fairly detailed notes, though this was not the focus of their conversation; they had their own murder-rape charge to defend. O’Toole didn’t need or want to know all the details on how Valenzuela killed the young couple. Even so, he couldn’t help but notice that this murder on the Indian reservation looked rather similar to the Scottsdale lovers’ lane murders. Booze and marijuana, a couple in a car, a gun, random violence.

O’Toole’s job had made him fairly skeptical. Dealing with all sorts of people, he’d learned to smell out the bullshit, but he sensed truth here. He had no reason to doubt—Valenzuela had the persona of a cold-blooded killer.

O’Toole wasn’t the only lawyer to reach this conclusion. Because of a scheduling conflict, the federal public defender’s office had to withdraw from Valenzuela’s case in December 1967. The court appointed a private attorney, Ron Petica, to replace O’Toole. Over the next six months, preparing for trial, Petica visited with Valenzuela at least once a week, accumulating a number of clear impressions. Valenzuela appeared physically strong, cold, and unsmiling. Petica did not think he had the capacity to be friendly, or to like or dislike other people. One day, sitting at a table together discussing the murder and rape on the Indian reservation, Valenzuela said, “This is not the first person I have killed.” He started talking about the couple he’d shot north of Scottsdale. As he spoke, he looked directly at Petica, holding his gaze, his eyes suggesting cold steel. Like O’Toole, Petica felt scared. Again, Valenzuela was just talking, not boasting, discussing the murders as if killing were part of living to him, his modus operandi. He had no reason to lie. Petica believed him.

So did a psychiatrist, Dr. Leo Rubinow, brought in by Petica to administer Sodium Pentothal—at the time considered a kind of truth serum. After testing and interviewing Valenzuela twice in March 1968, Rubinow wrote a letter to the judge presiding over Valenzuela’s case, conveying his assessment: “He is extremely dangerous with severe homicidal tendencies. He has a tremendous amount of uncontrollable hostility and resentment. He demonstrates marked disturbance of thought processes with delusional thinking and paranoid ideations plus tremendous amount of fantasy.… In my opinion he is insane. I strongly recommend that he be committed immediately to an appropriate facility. His prognosis is very poor.” Rubinow’s diagnosis: “Schizophrenic reaction, paranoid type, severe with strong homicidal tendencies.”

The same day he wrote this letter to the judge, Rubinow, deeply concerned, called the U.S. marshal’s office in Phoenix. Valenzuela, he wanted personnel there to know, is “in an extremely dangerous condition and could kill at any time.”

*   *   *

After eventually pleading guilty to second-degree murder, Valenzuela ended up bouncing from one federal penitentiary to another, no one wanting him, everyone finding him “highly rebellious” with “poor institutional adjustment” and “homicidal thoughts.” He refused to work, got caught with contraband knives, threatened guards and broadcast his intention to kill fellow inmates. He spent most of his time in administrative segregation, prison officials unable to justify releasing him into the general population. By early 1973, he was in segregation at Leavenworth, where authorities vainly tried to transfer him elsewhere because of his “violent background” and “threatening, hostile behavior.” Despite a special plea from the Leavenworth warden, who expressed concern both about “safety” issues and the “general morale” of his institution, no other penitentiary would take Valenzuela. Leavenworth finally returned him to the general population in June 1973. There—as they’d all feared—Valenzuela engaged in one last fight. On November 8, 1973, he arrived at the prison hospital with multiple stab wounds. The duty medical officer declared him dead at 8:40
P.M.

Bill Macumber’s arrest for the Scottsdale murders came ten months later. Thomas O’Toole, hearing the news and learning of Valenzuela’s death, went to talk to his supervisor, Tom Karas. Tom, he said, Macumber’s defense team needs to know.
They need to know
.

They both understood the obstacle: Despite Valenzuela’s death, what he’d told O’Toole remained protected by attorney-client privilege, part of the even broader ethical duty of confidentiality, among the most fundamental tenets of the legal system. Lawyers, as advocates, have to keep confidential what they hear from clients. Clients have to be able to disclose everything, good or bad, without fear of retribution, even if that means a lawyer will sometimes obscure the truth; the privilege by its nature at times protects wrongdoing. Trade-offs abound, of course. O’Toole knew that lawyers and judges regularly carved out exceptions to confidentiality—such as when an attorney believes his client is going to kill someone. (Also when the attorney’s own interests are at stake: Lawyers are allowed to reveal confidences to defend their reputation or collect a fee.) Yet no such exception existed when it came to helping a potentially innocent defendant in a murder case, not even if the client has died. The dead client’s interest in keeping his disclosures private trumps the defendant’s constitutional right to present his defense.

Still—the law has always allowed multiple interpretations. O’Toole felt compelled to explore his options. In late September 1974, he and Tom Karas presented a hypothetical question to the State Bar of Arizona’s standing ethics committee: In a situation where an attorney has heard a murder confession from a client who later died, and has since learned that another person has been charged with that murder, may the attorney disclose the information to the prosecutor and defense attorney?

In a written opinion (“Arizona Ethics Opinion No. 74-30”) delivered on October 2, the state bar’s ethics committee ruled that the attorney not only “may” disclose but is obliged to. “We hold that it is the ethical obligation to disclose the confidential information of the past commission of crime by his now deceased client,” the committee wrote. “The prosecution of the third party in the fact situation presented may constitute a fraud upon the courts and a gross denial of due process upon one who may be unjustly accused. As such, the failure to disclose the information by the inquiring attorney would constitute the continuing of the client’s wrong by the bond of silence.… The attorney as an officer of the Court has an obligation to assist in maintaining the integrity of the Courts and of the legal profession.… A lawyer is bound to disclose such confidential information under those circumstances.”

With that opinion in hand, O’Toole on October 8 wrote to Judge Charles Hardy, who would preside at Macumber’s trial, copying the letter to the county attorney and Bill’s lawyer, James Kemper. “Pursuant to Arizona Ethics Opinion No. 74-30, dated October 2, a copy of which is attached, please be advised that I am in possession of certain information which I am ethically required to disclose to your court or the defendant, or both.… I would greatly appreciate notification by your court regarding what, if any, procedure you desire me to follow in revealing this information to the appropriate parties.”

The next day, Judge Hardy wrote back, also copying his letter to Kemper and the prosecutor. “I wish to thank you for your letter of October 8.… In my judgment full disclosure of the information should be made to both the prosecutor and defense counsel. If such disclosure is made to both sides, I can see no reason to also make it to the court. I commend you for recognizing the ethical implications involved.”

A week later, O’Toole wrote directly to Kemper: “By letter of October 9 … Judge Hardy has instructed me to make available to you and the prosecution information in my possession concerning [
State v. Macumber
]. I suggest that you and the prosecutor contact me for the purpose of arranging a meeting to discuss this matter.” O’Toole’s concluding sentence conveyed his sense of urgency: “I am hopeful that we can meet as soon as possible.”

*   *   *

Jim Kemper, through informal channels, likely received advance notice of these letters before they arrived. While visiting Bill Macumber on October 7, he told him about Thomas O’Toole’s emergence and Valenzuela’s confessions. This officially confirmed what Macumber had heard from his divorce attorney. He did not know what it meant legally, but he believed it had to be beneficial.

That’s what his brother thought when he visited later in the evening. Bob Macumber came with his own good news: They’d raised $58,000 for bail, with more neighbors and relatives offering their houses and stock as collateral. They would be going before the judge in two days, on Wednesday morning. If all went well, Bill would be home by Friday, October 11. The guards let him stay out of his cell for almost half an hour as a way to celebrate. He couldn’t conceive of being able to sleep that night.

The week unfolded slowly, Macumber imagining when he would see his sons, thinking how great it would be to eat supper with his mom and dad. He battled his mood swings but kept recording them dutifully in his journal. By lunchtime on Thursday, he’d still heard nothing. He played solitaire that afternoon, trying to keep busy. He could see the doors to the elevator from the viewing port in his cell’s steel door. Every time they opened, he jumped a little, thinking it might be someone coming for him. Then, just before the swing-shift guards reported for duty, Macumber received a note from downstairs, written by a Lieutenant McKinney: “Bill, your Dad just called and said you will be out on bail tomorrow.”

The young guard Mr. Parks, part of the newly arrived shift, already knew. He’d heard it on the radio. Macumber wondered if Carol had also heard ahead of him, and if his sons had learned the news. His cell seemed a whole lot brighter that evening, almost like a room. He hoped his divorce attorney was making the necessary arrangements for him to be with his boys. Right at that moment, he believed himself the happiest and richest man in the entire world.

They came for him at 3:34 the next afternoon. After he signed his release papers, the guards led him outside through a final steel door. It felt like moving from nothing to everything. His dad and brother were waiting there for him. So, too, were a number of reporters and photographers. Bill had not been looking forward to them—he felt the journalists always seemed to put him in the poorest possible light. He’d seen shots of himself on TV the night before; he’d looked like a villain.

That morning’s
Arizona Republic
had featured a particularly upsetting article. Under the headline “Estranged Wife Fears Release of Suspect in 1962 Murders,” it began, “The estranged wife of a man accused of killing a young Phoenix couple 12 years ago said Thursday she is extremely afraid for her life if her husband is freed on bond today as scheduled.… ‘I’m living right out in the open. I haven’t got the money to run and hide or anything, so I’ll just have to keep my fingers crossed and hope.’” Bill thought that funny. In their thirteen years of marriage he had never once seen his wife in a situation that scared her.

From the county jail, Bill’s dad and brother drove him home to see his mother, then to his doctor for a thorough checkup. He called friends later that afternoon, and finally sat down with his family for a big steak dinner. He was tired but took comfort in knowing he’d go to bed that night a free man. When he thought about the coming days, his mind fixed on only one thing: Soon, he would see his sons. Soon he would be with his boys.

CHAPTER 6

Days of Freedom

OCTOBER 1974–JANUARY 1975

The countdown to Bill Macumber’s trial began. Living once again at his parents’ home, a small one-bedroom trailer in the Bethany Home Trailer Park, Macumber would have almost three months to think about what was to come. The first days there soothed his nerves. He ran errands with his dad and brother, among other things buying a tape recorder so they could record all phone calls—protection against anyone making claims about what he’d said. He also picked up flowers for his neighbor Shirley Bridgewater, it being her birthday. The young girl running the flower stand clearly recognized him—“Haven’t I seen you on TV?”—but smiled anyway, without judgment, and said, “I hope you have a very nice day.” Macumber hoped God would be especially kind to her.