The jury never heard the multiple confessions of a third party
Convicted of first degree murder
Update: February 2012
In February 2012, a team of lawyers at Perkins Coie assisted the Project and filed a Petition for Post-Conviction Relief, stressing evidence the jury never heard: Ernest Valenzuela’s multiple confessions to committing this crime, corroborated by information given by witness Linda Primrose, which was also supported by physical evidence found at the crime scene, which had gone unexplained for years. The Petition also illustrated how the “expert” testimony on forensic evidence was inaccurate and misleading, and the Petition pointed to changes in the law and new evidence supporting Macumber’s claim of actual innocence.
The Maricopa County Attorney’s Office offered Bill a “No Contest” plea where Bill would enter into the agreement and would be immediately released. As opposed to litigating the case for what could have been years, Bill – 77 years old and in poor health – opted for his freedom. After serving nearly 38 years, Bill was released November 7, 2012. We owe a great deal of this success to the extraordinary team at Perkins Coie lead by attorneys Jordan Green and Lee Stein.
Bill Macumber’s case has touched the lives of an almost uncountable number of Arizona Justice Project students and a host of volunteers from a wide array of professions – investigators, forensic experts, law faculty and others. We have all come to share the belief that Macumber has been wrongfully convicted. Macumber has always maintained his innocence and there is compelling evidence to support his claim; however he remains behind bars for one simple reason. There is no DNA in his case. The sad reality is that, without the overwhelming proof of indisputable innocence that comes with DNA, no amount of other evidence is likely to satisfy the very high barriers against post-conviction exoneration. Sadly, Macumber’s claim of innocence likely cannot be re-adjudicated in a courtroom, nearly 50 years after the crime occurred and 35 years after the trial. There is no evidence left to test and the man who confessed to the killing is dead. In situations like this, clemency is his only avenue for relief. The Justice Project recently represented Macumber in his clemency proceedings. Macumber had his Phase 2 Hearing in front of the Board of Executive Clemency on May 8, 2009, at Alhambra in Phoenix. The room was packed with Macumber supporters and the Board voted unanimously for clemency. The Board’s recommendation is now in the hands of the Governor’s Office, and we are waiting to hear if she will grant clemency. Below is the horrifying tale of the Macumber case.
I. The Story
In the early morning of May 24, 1962, the bodies of Tim McKillop and Joyce Sterrenberg were found in what was then open desert area near the intersection of Scottsdale and Bell Roads (now the grounds of the Fairmont Scottsdale Princess Resort). Both victims had been shot in the head and were lying near Ms. Sterrenberg’s 1959 Chevrolet Impala.
Investigating officers from the Maricopa County Sheriff’s Office (“MCSO”) recovered several .45 caliber shell casings and the remnants of one .45 caliber soft-nosed slug from the scene. Also recovered from the ground at the scene were a handkerchief and thatch of human hair. Tire tracks and various footprints thought to belong to the killer(s) were also found. In the afternoon of May 24, MCSO deputy Jerry Jacka lifted several latent fingerprints from the Impala after the vehicle had been towed downtown for processing.
Although the investigation of the murders was intensive, it did not yield any suspects until September 1962. At that time, a 17-year-old girl named Linda Primrose told MCSO investigators that she had witnessed the murders. According to Primrose, on May 23, 1962, she had ridden with a female named Terry and several men, including one known to Primrose as Ernie Salazar, to a desert area north of Bell Road to look for a stash of drugs. When they encountered another car near the drug stash, Ernie argued with the occupants of the car, a man and a woman, and eventually shot and killed both of them.
Details of Primrose’s story matched those of the McKillop/Sterrenberg murders, including details about whose thatch of hair was potentially at the scene (Terry’s). Primrose also successfully led MCSO officers to the scene of the crime and, according to an investigating officer, “knew where she was going.” Primrose “passed” a lie detector test and a psychiatrist who interviewed her opined that she was being truthful.
In 1964, an inmate in the Maricopa County jail, Ernie Valenzuela, told his cellmate that he had committed the McKillop/Sterrenberg murders. While in the Scottsdale city jail in August 1964, Valenzuela repeated his story to a psychiatrist (who reported that Valenzuela was extremely dangerous) and to the sheriff’s office. However, Valenzuela was not charged with or held on the McKillop/Sterrenberg murders, and he was released after serving three years in prison on other charges.
In 1967, Valenzuela committed and was charged with a murder on a federal reservation in Arizona (“1967 murder”). During an interview with his attorney, Thomas O’Toole, of the Federal Public Defender’s Office, Valenzuela again volunteered that he had committed the McKillop/Sterrenberg murders, this time providing more details. Valenzuela, as Mr. O’Toole recounted, “apparently came upon McKillop and Sterrenberg out in the desert, and he used the phrase, ‘I shot him like a rabbit’ describing apparently the male. . . . He [also] used the name McKillop and Sterrenberg, . . . .” Valenzuela subsequently repeated his confession to a defense psychiatrist (after being injected with sodium pentothal) and to his subsequent attorney in the 1967 murder, Ron Petica. Valenzuela eventually was convicted of the 1967 murder and sentenced to 15 years. Valenzuela died on November 8, 1973, after being stabbed during a prison confrontation at the federal penitentiary in Leavenworth, Kansas. None of his confessions about the McKillop/Sterrenberg muders were at the time publicly known.
More than twelve years after the homicides, in August 1974, Carol Macumber, an 18-month employee of the MCSO, reported to her employer that three months earlier, her husband Bill Macumber told her that he had killed McKillop and Sterrenberg. This alleged confession was made only to Carol and not repeated during any “subsequent interview.” In fact, Bill has never admitted to killing the victims and always maintained his innocence. As discussed in greater detail below, Carol certainly had motive to lie. Carol stated that one evening in May 1962, Bill had come home about 10:00 p.m. with blood on his shirt but that he had told her that he had been in a fight with some teenagers. Interestingly, throughout the media saturation immediately following the McKillop/Sterrenberg murders in 1962, Carol apparently suspected nothing because she made no report to MCSO regarding the purported bloody-shirt incident. The MCSO subsequently interviewed Bill, who denied committing the murders. The MCSO obtained a .45 caliber handgun and a set of fingerprints from Bill. The State’s experts concluded (a) that a partial latent lifted from Sterrenberg’s Impala (Latent Lift #1) matched Bill’s, and (b) that ejector markings on the shell casings that had been found at the scene matched ejector markings made by Bill’s .45 caliber handgun. On this evidence alone – a confession 12 years after the crime, a partial fingerprint, and ejector markings on a bullet casing, Bill was convicted of the first-degree murders of McKillop and Sterrenberg.
In 1975, Bill was sentenced to serve two concurrent terms of life imprisonment. However, the Arizona Supreme Court reversed the convictions on the ground that the trial court erroneously excluded testimony by a defense expert who would have challenged the testimony of the State’s expert that the ejector markings on the shell casings found at the scene showed the shells must have been fired by Bill’s handgun. State v. Macumber, 112 Ariz. 569, 570-71, 544 P.2d 1084, 1085-86 (1976).
Bill Macumber was re-tried in 1976-77. At that trial, the State’s case consisted primarily of the testimony of Carol Macumber about Bill’s alleged confession to her and the bloody-shirt incident; expert testimony concerning the match between Latent Lift #1 and Bill’s palm print; and expert testimony regarding the match between the ejector marks made by Bill’s .45 and the ejector marks on the shell casings that had been found at the scene of the crime. The defense, which had not known about Linda Primrose prior to the first trial, called her as a witness but she recanted the statements she had made in 1962, testifying that she had made up those statements because she was mad at her mother. (At the time of the second trial, Ms. Primrose was married and had children of her own.)
The defense also presented expert testimony that (a) challenged the State’s shell casings evidence and (b) indicated that it was possible to transfer latent fingerprints from one fingerprint card to another. Despite Valenzuela’s confessions to a cellmate, to his two attorneys and to a psychiatrist, the trial court refused to permit the defense to present evidence regarding Ernest Valenzuela’s 1964 and 1967 confessions, ruling that it was hearsay that lacked “sufficient circumstantial probability of trustworthiness.” State v. Macumber, 119 Ariz. 516, 521, 582 P.2d 1962, 1067 (1978). Bill was convicted and given consecutive life sentences. The Arizona Supreme Court affirmed the convictions but held that the life sentences could not be imposed consecutively.
II. The Justice Project’s Involvement.
The Justice Project began work on the Macumber case in 2000. The Project’s file review and initial investigation disclosed the following:
- None of the exhibits including the finger and palm prints and the shell casings were in the files of the Superior Court or the MCSO.
- The breech face, firing pin, and extractor marks made by Bill’s Ithaca .45 did not match those on the shell casings found at the scene. The State’s firearms expert theorized that this was because the slide, firing pin, and extractor had been replaced in Bill’s gun. The same expert relied solely on ejector marks to connect Bill’s gun to the shell casings from the scene. Because neither the shell casings nor the photomicrographs used by the State’s expert have been located, it is not possible now to re-examine the extent to which the ejector marks on the shell casings from the scene actually “matched” the marks on casings fired by Bill’s Ithaca .45. Nevertheless, there are several reasons to question seriously the probative value of the ejector marks. Perhaps most importantly, even today there is no database of ejector marks from which experts can determine how unusual any particular mark (or pattern of marks) is. Consequently, there is no real basis for the assumption on which the State’s firearms expert in State v. Macumber relied — that each individual gun makes ejector marks that are unique to that gun. This is the primary problem that led the 2009 National Academy of Sciences Report, Strengthening Forensic Sciences in the United States: A Path Forward, to conclude that “[w]ith the exception of nuclear DNA analysis, . . . no forensic [“individualization”] method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual and source.” This is especially so with firearms and ammunition that have been mass produced. In that regard, the Ithaca Gun Company manufactured approximately 3.5 million “1911 A1″ .45’s primarily for government use, and also manufactured about 4 million “spare” ejectors. In addition, the type of shell casing found at the scene was mass produced by the Western Cartridge Company (which by the end of World War II had produced some 15 billion rounds of ammunition).
- With regard to the latent lift evidence, questions remain about Carol’s role, if any, in the reported match between Bill’s palm print and the Latent Lift #1 that was allegedly lifted by Jerry Jacka from the Impala. No independent or corroborating evidence exists that the Latent Lift #1 – used to convict Bill Macumber – was in fact Latent Lift #1 lifted by Jerry Jacka on May 24, 1962. By her own testimony, Carol Macumber had received training on how to lift latent fingerprints, including through classes at Glendale Community College and training at the MCSO. It is also worth noting that fingerprinting was included in the forensic “individualization” methods that the 2009 National Academy of Sciences Report concluded had not been rigorously tested.
- A substantial number of the MCSO’s Departmental Reports on the case are missing.
- Carol and Bill Macumber were experiencing serious marital difficulties in 1974, and Carol had moved out of their home some months before she told the MCSO that Bill had “confessed” to the McKillop/Sterrenberg murders in April 1974. Carol and Bill were divorced in April 1975. Custody of their three sons was very much in question. Indeed, there was good reason for Carol to fear the loss of custody. Simply put, Carol’s timing in reporting these homicides calls into question her credibility. She reported the alleged confession at a time when she potentially stood to reap personal gain in the divorce and custody proceedings. Carol had motive to lie and access to the evidence, as discussed below.
- When she turned Bill in, Carol Macumber was employed by MCSO where she had previous access to files and physical evidence relating to the McKillop/Sterrenberg murders. Carol admitted at the 1977 trial that she might have read the files, and indeed some of the “details” attributed by Carol to Bill can be found in MCSO Departmental Reports regarding the McKillop/Sterrenberg murders. For instance, on May 11, 1966, MCSO took a report on one Leonard Lester McFord II, who allegedly posed as Military C.I.D. looking for AWOL soldiers. Carol’s testimony suggested having read this Departmental Report: Macumber “stated to me that he was under orders from the CID, that the CID had told him that there would be two subjects at the A&W Root Beer Stand in Scottsdale.”
- Sources of potential DNA evidence (and therefore exonerating evidence) are now missing. Most importantly, the handkerchief found at the scene was described by Carol as belonging to Bill and had come from the glove compartment of his truck. Even today, DNA evidence could confirm or refute Carol’s claim. DNA from the thatch of hair found at the scene might also be used to confirm or refute Linda Primrose’s story. That evidence is gone.
- The McKillop/Sterrenberg murders were seen as a drug-deal-gone-south and drugs were seen as the motive for the homicides. Bill had absolutely no history of drug use or drug dealing, hence no motive.
III. Macumber Still Sits in Prison.
Not only do the above facts shed substantial doubt on the conviction, the crime was completely out of character for Mr. Macumber. At the time of his arrest, Mr. Macumber had no criminal record and no history of violence or involvement with drugs. In his 35 years in prison he has had one minor infraction, and nothing involving violence.
To believe that Mr. Macumber committed the McKillop/Sterrenberg murders, one would have to believe all of the following facts:
- That Mr. Macumber stayed silent for 12 years about the murders but then suddenly confessed to his wife – an employee at the Sheriff’s Office – just as he was getting ready to face a divorce and custody battle and as his wife was facing dismissal from the MCSO for improprieties on the job;
- That Mr. Macumber’s wife could remember the exact date 12 years prior when he came home one night with blood on his shirt;
- That Mr. Macumber held on to a gun he used in a murder for 12 years;
- That Linda Primrose lied when she initially came forward with specific details of the crime but was able to fool a lie detector test; and
- That Ernie Valenzuela convincingly lied to his cellmate, a couple of psychiatrists, an officer from the Sheriff’s department, his attorneys, and lie detector examiner and took responsibility for two murders he did not commit.
Thus, to believe all of these facts is implausible and is unsupported by the questionable evidence against Mr. Macumber. Because of this and the newly discovered evidence that tends to support his innocence, every member of the Board of Executive Clemency at least has substantial doubt as to Mr. Macumber’s guilt. The Board voted unanimously to grant Macumber clemency for his release from prison, and sent their recommendation to the Governor’s Office.
On November, 13, 2009, Bill Macumber and the Arizona Justice Project were informed of Governor Jan Brewer’s decision on whether to grant Bill Macumber clemency. Even though, in a rare actual innocence decision, the Board of Executive Clemency made a unanimous recommendation to the Governor that Bill’s sentence be commuted to time served based on their conclusion that Bill Macumber is likely innocent and serving a life in prison for a crime he did not commit, the Governor chose to disregard the Board’s recommendation, denying relief on all accounts. Bill will not be freed and he will not even be parole eligible after serving 35 years in prison. All those who have come to know Bill’s case are firmly convinced of his innocence, and the Justice Project will not give up in its efforts to free this innocent man from prison.