On June 10, 1998, in the Arizona State Prison at Douglas, an isolated border town in the far southeast corner of Arizona, a fellow inmate handed Bill Macumber an article from that day's newspaper. Macumber carried it back to what he called his "home" — a small cubicle in the prison's flat, single- story Mohave Unit. He wasn't feeling well, as he'd been having trouble getting his heart medication from the prison's medical staff. He knew one nice lady on the prison staff who treated him like a human being. That helped. But the temperature in Douglas had suddenly dropped by twenty degrees, the nights falling into the low forties, and there'd be
no heat for at least another week. Two light blankets and his sluggish circulation made for chilly nights. He stood a lanky and angular six foot seven, so he needed a special bed. It filled most of his ten-by-seven-foot stall, set in a large dorm room with twenty- eight other such cubes, each
divided by low partitions. Even in such a crowd, he remained alone, being decades older than the other prisoners.
In his cubicle, he read the article, written by an Arizona Republic columnist, Steve Wilson. Its subject, a case just then before the U.S. Supreme Court, involved the suicide of deputy White House counsel Vince Foster. The justices had heard oral argument two days before. Wilson's local interest: "A controversial decision by the Arizona Supreme Court two decades ago might figure in the outcome."
Macumber kept reading. Yes, he could see what the reporter meant. At the Supreme Court hearing, an old Arizona murder case indeed had haunted the conversation: his murder case. Arizona v. Macumber.
He recalled Vince Foster's suicide. Facing possible scandal, Foster had shot himself in the head. A legal battle had ensued, the independent prosecutor Kenneth Starr trying to get access to notes taken by Foster's lawyer at their last meeting. Did attorney-client privilege survive the death of a client? That's what they were arguing at the Supreme Court. The very same issue they'd argued at Macumber's murder trial.
He read on. How interesting — Justice Sandra Day O'Connor, being from Arizona, knew his case well. At the oral hearing, she'd posed a question to Vince Foster's lawyer: "Mr. Hamilton, you take the position that there can be no compelled testimony by someone in your circumstance, even if the information would be essential to show that a third person was not guilty of a crime, such as in the Macumber case in Arizona?" Faced with Macumber, Hamilton conceded that disclosure of a dead client's confession might have been appropriate there — but that such a "singular situation" didn't warrant wholesale overriding of the attorney- client privilege.
Steve Wilson agreed with Hamilton. Macumber's case, he told his readers, involved a lovers' lane double homicide. Bill Macumber had been "an unlikely suspect" with "no known motive and no prior record." What's more, "someone else admitted to the killings." Ernest Valenzuela, on trial for another rape and murder, had confessed to his attorney, Thomas O'Toole, now a prominent Maricopa County Superior Court judge. So both the Foster and the Macumber cases involved attorney-client privilege. Yet the two differed. "For the privilege to be breached," Wilson concluded, "the circumstances should be extremely compelling. They were in 1974 when an Arizona man stood trial for murder. They aren't in 1998 when Starr is fishing for evidence."
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 defendre ... 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?
Excerpted from Manifest Injustice by Barry Siegel, published January 22 by Henry Holt, an imprint of Henry Holt and Company, LLC. Copyright 2013 by Barry Siegel. All rights reserved.