I'm glad to see that Bill is finally free, but why make him plead no contest knowing he was inno0cent, except to try to spare the state some liability for locking him up for so long? Real justice would have charged Bill's wife with perjury and tampering with evidence, and Jan Brewer with false imprisonment - they should share a cell together for the next 35 years.
Check out this link for info about the book on Macumber's life...
November 7, 2012
PHOENIX - A man imprisoned for nearly four decades for the killing of two 20-year-olds pleaded no contest Wednesday to second-degree murder charges in a move that secured his freedom.Bill Macumber, 77, entered the plea in Maricopa County Superior Court under an agreement with prosecutors and received a sentence of time served.
He had twice been convicted of first-degree murder in the 1962 deaths of telephone company workers Joyce Sterrenberg and Tim McKillop, but maintained his innocence.
Macumber's attorneys said he will get to enjoy a bit of freedom when he is released this week.
Judge Bruce Cohen had been set to hear evidence when attorneys on both sides presented him with the plea agreement. The judge granted Macumber's request after family members of the victims asked him to deny Macumber a chance to be released.
Prosecutors said they couldn't go forward with a third trial because key evidence had been destroyed or lost.
The conclusion of the case was "an imperfect effort at justice," Maricopa County Attorney Bill Montgomery said.
"How do you accept something like that?" McKillop's cousin, John McCluskey, asked outside the courthouse. "How do you take a blow in the stomach? We know he's guilty in our hearts."
The Justice Project has been advocating for Macumber's release in recent years, saying no DNA evidence linked him to the crimes, his wife framed him; and another man had confessed to the killings.
The clemency board told Gov. Jan Brewer in August 2009 that an injustice has been done in the case, and there was substantial doubt that Macumber was guilty of the crimes. Brewer denied the recommendation to either commute the sentence to time served or reduce it to 35 years to life in prison.
The board denied Macumber's second application for clemency earlier this year.
Authorities investigated the shootings for more than a decade before arresting Macumber. Investigators found a palm print on a car that matched Macumber, and bullet casings that matched those fired from Macumber's gun.
A jury convicted him of two counts of first-degree murder in 1975, and he received two concurrent life terms in prison. The state Supreme Court later overturned those convictions, saying the trial court wrongly excluded testimony from a defense expert who had challenged the ballistics findings.
Macumber was convicted again during a second trial, and the Supreme Court upheld the verdicts.
The Justice Project took up the case more than a decade ago, telling the clemency board in 2009 that jurors never heard of the confession by another man that was backed up by a witness account.
The Justice Project said Macumber's wife falsely pinned the murders on her husband as they were going through a divorce and he pressed for custody of their three sons. Montgomery said Tuesday he didn't support that claim.
The ABC15 Investigators have been following this investigation for more than two years. You can read the original investigation here .
Arizona Prisoners Rarely granted Clemency
May 12, 2012
After he was arrested in 2004 for selling a $20 lump of crack to an undercover police officer, prosecutor Eric Rothblum described him as "a clear societal liability." Londo was sentenced to 15 years and nine months in prison.
Seven years later, in 2011, Arizona's Board of Executive Clemency unanimously agreed that Londo had turned his life around. He was working on his GED, was drug-free and had earned a certificate for good behavior in prison
The board recommended commuting Londo's sentence to five years, stating in a letter to Gov. Jan Brewer that Londo was someone who "has made outstanding progress." The board noted, too, that the judge who sentenced Londo had called the prison term required by Arizona's mandatory-sentencing laws "excessively harsh" given the situation.
Brewer denied Londo clemency without comment last June.
Londo has plenty of company. Statistically, if you are convicted of a felony in Arizona, you are more likely to be struck by lightning than granted clemency by the governor. Excluding the cases of inmates nearing the end of a terminal illness, Brewer is on track to grant the fewest clemency cases in more than two decades -- even when a judge and unanimous board recommend a shorter sentence.
Recent board members interviewed by The Arizona Republic believe clemency will be granted even less frequently in the future.
Indeed, Brewer's decision to replace three of the five clemency-board members at once last month has led to legal and political turmoil: Departing board members say they were ousted for voting to grant clemency; and attorneys for an inmate scheduled to be executed Wednesday will be in Maricopa County Superior Court on Monday, seeking a court order to nullify the appointments, arguing that they violated state laws. If the court agrees, it would invalidate dozens of board decisions from the past three weeks and could stall the clemency process.
Clemency is a way to correct an injustice, reduce an unfair sentence or give a second chance to someone who merits it. Sometimes called the criminal-justice system's "safety valve," it can take the form of a commutation, which reduces a sentence, or a pardon, which absolves a felon of the legal consequences of his or her conviction. But as Arizona adopted increasingly inflexible mandatory sentences over the last 30 years, a period that has seen the state's prison population soar eight-fold, governors' use of that safety valve steadily decreased.
Budget cuts have reduced the number of clemency cases the board can hear to one-fourth as many as three years ago, creating a nearly two-year, 900-case backlog.
This withering of clemency brings both personal fallout, in ruined lives and separated families, and a financial cost to taxpayers, who pay to house and feed inmates who could otherwise be working and paying taxes. In Londo's case, it will cost taxpayers at least $200,000, based on Department of Corrections per-inmate prison-cost estimates of $22,166 a year.
"It's very worrisome because we have a system now in which almost nobody has discretion to fix an injustice," says Rachel Barkow, a professor at the New York University School of Law who has written extensively on clemency. "With mandatory sentencing, the judge can't do anything; the jury isn't told what the sentence will be. The only check on the system, the only safety valve, is clemency."
From 1913, when Arizona established a board of pardons and paroles, until 1993, fewer than 60 inmates a year applied for commutation, on average. In 1993, the state adopted so-called "truth in sentencing" laws, which effectively abolished parole. The new code requires offenders to serve at least 85 percent of their sentence before becoming eligible for community supervision; for many felonies, 100 percent of the sentence must be served. The laws, along with mandatory minimums that took discretion in sentencing out of the hands of judges, left commutation as the only avenue for most offenders to seek a reduced sentence. By 2005, commutation applications soared to more than 1,200 a year.
The clemency board can recommend commutations, pardons, reprieves to temporarily delay a punishment, and the release of terminally ill inmates. Any inmate facing execution is automatically offered a clemency hearing. The board's recommendations are forwarded to the governor.
Brewer is the first governor in at least 34 years who has not issued a single pardon. She has denied each of the clemency board's 13 recommendations. By comparison, Janet Napolitano issued 22 pardons over six years, Jane Dee Hull issued seven over 5.3 years, Fife Symington issued 13 over 6.5 years, and Rose Mofford granted 13 over three years.
Neither Brewer nor her four predecessors commuted a death sentence. In the 31 executions since 1992, the board has never recommended a commutation.
Citing "the futility of the process," Thomas Kemp, 63, didn't ask for a hearing before his execution on April 25 for a 1992 murder. In a letter written a week before his execution, the unrepentant Kemp said a hearing would merely bring "public humiliation of the prisoner without any chance" of his death penalty being reduced to a life term.
There is an exception to Brewer's aversion to clemency: She has granted 19 requests to release inmates medically judged to have only days or weeks to live and who weren't considered a public-safety threat. Otherwise, in her three years and four months in office, she has routinely denied unanimous board recommendations for clemency, leaving scores of prisoners serving longer sentences than the board found they deserved.
Brewer declined requests for an interview. Her spokesman, Matthew Benson, issued a statement saying that every case is reviewed and that Brewer "fulfills this solemn responsibility with the seriousness owed, and always mindful of the victims harmed by these crimes."
The effect: Arizona's justice system has no safety valve, says Henry J. Florence, a Phoenix defense attorney for more than 40 years. More than 76,000 felony criminal cases a year are filed across the state. Nearly 96 percent are settled by plea bargains, according to state court statistics. Those plea-bargain sentences are driven by the long mandatory minimums in state law, Florence says. And, he notes, when cases do go to trial, the law bars jurors from being told how long a sentence a charge will carry.
Sentences defendedProsecutors fiercely defend mandatory sentencing. Maricopa County Attorney Bill Montgomery, who says his prosecutorial policy is not much different from those of predecessors Andrew Thomas and Rick Romley, rejects defense-attorney accusations that his office uses the long mandatory sentences to compel tough plea bargains. "It's never the ace card," he says, adding that since a defendant must agree to the length of sentence in any plea bargain, "we're not going to agree it's unduly harsh, or we wouldn't have pushed for it in the first place."
But those being offered the plea bargains -- and sometimes the judges imposing the sentences -- see it differently.
Evaluating whether a sentence merits clemency can be thorny. Consider Christopher Lindquist's case. On Oct. 11, 2009, Lindquist, then 22, drove home drunk from a friend's birthday party. Speeding and weaving, he ignored the sirens and lights of a policeman on a motorcycle until he pulled into his parents' carport. He got out of the car holding a knife with metal spikes along a brass-knuckle-type handle. Officer Eric Thrower, standing behind his motorcycle at the foot of the driveway, drew his gun and ordered Lindquist to drop the knife. Lindquist stepped forward, out of the carport, and following the officer's second command to drop the weapon, threw the knife into some bushes and ran into the house. His parents brought him back outside, where he was arrested.
"Why he had the knife in his hand, I couldn't tell you," said his father, Steven Lindquist. "He couldn't tell me."
He said the prosecutor's only offer was a sentence of 71/2 years.
The Lindquists chose to go to trial. Christopher Lindquist was convicted and given the mandatory 101/2 years for aggravated assault.
"The jury didn't know he was going to get 101/2 years, or I think they would have voted for a lesser charge," says Steven Lindquist.
In a written order, Maricopa County Superior Court Judge Pendleton Gaines called the sentence "clearly excessive and disproportionately harsh" for "a one-time incident of defendant's intoxication and an assault, consisting of the display of a knife, in which there was no physical injury." Noting Lindquist's consistent remorse, unclear evidence over whether the incident amounted to an assault, a lack of prior criminal history and other factors, Gaines issued an order at sentencing allowing Lindquist to expedite his case to the clemency board within 90 days.
In his petition to the board, Christopher Lindquist wrote that his behavior that night was "completely out of character for me. ... I would like the board and Governor to know how sincerely remorseful I am. I want to apologize to my family, friends, co-workers and especially to Officer Thrower. Not a day has passed that I haven't thought about the events that I caused that night."
He had one prior conviction, for driving under the influence. He promised never to drink again.
In November 2010, the board unanimously recommended that his sentence be reduced to three years. The governor denied commutation in March 2011.
"We had a lot of hope," said Steven Lindquist. "To see the governor deny him, and then to see her boasting on TV that she never grants such things, what's the point?"
Immediate clemency rareDespite defense attorneys and judges' frequent complaints about the harshness of mandatory sentencing, they rarely push for immediate clemency, says Donna Hamm, who with her husband runs Middle Ground Prison Reform, a prisoner-advocacy organization. Even when they consider a sentence grossly disproportionate, few judges regularly issue what are called 603(L) orders. Named for the statute they fall under, such orders allow the defendant to petition the clemency board within 90 days for a commutation. Otherwise, inmates must wait two years.
It is rare for judges to issue 603(L) orders, and few of those granted ever reach the governor. Arizona judges have issued only 49 in the last three years, and of those 19 made it to Brewer's desk. She has granted only two and has denied all 14 that have been submitted since October 2009. By comparison, Hull granted one in three such cases and Napolitano granted one in six.
Among those denials is Shannon Connely, a 42-year-old real-estate agent who had no prior arrests or convictions before a run-in with police on May 7, 2009. He was asleep, at home, when a police officer looking for a missing child pulled up in front of his house. Awakened by squealing tires and barking dogs, and worried because of a recent attempted burglary, Connely said, he grabbed his holstered handgun and ran out the front door. The officer drew his weapon and ordered Connely to drop the gun. Instead, according to witnesses, Connely cursed at the officer, pointed out that his gun was holstered, and ordered him off the property. The officer shouted at him again to drop the gun and lie on the ground. Connely did so; the officer shot him with a Taser and then arrested him.
Offered probation if he pleaded guilty to a felony, Connely opted to go to trial. He was convicted of aggravated assault and given the mandatory 101/2-year sentence.
Montgomery defends the sentence as appropriate. "We ask police officers to put their lives on the line every day and to make difficult decisions. When someone threatens them, we sanction that with a severe sentence," he said. "I will say that if this individual had dropped the weapon at the first command, it would have been a very different case, if it had been a case at all."
At the August 2010 sentencing, Superior Court Commissioner Steven Lynch noted that Connely had never removed his gun from the holster or pointed it at the officer. He said the sentence "is clearly excessive" and issued a 603(L) order.
At his clemency hearing, Connely acknowledged the seriousness of his mistake, apologized and expressed remorse. Among many other letters, his daughter Danielle, 16, wrote to the board describing how the family lost its home because of what happened. "I have had to move away from my school and friends I have had since 3rd grade," she wrote. She said she needs her dad's help and advice, ending by writing, "I NEED MY FATHER!"
In April 2011, the board unanimously recommended Connely's sentence be commuted to the seven months already served, that he be put under community supervision and complete an anger-management program.
"We were ecstatic," recalls Joy Ardolino, his sister-in-law. "It was a unanimous decision; they saw what the case was and agreed that the sentence was outrageous."
Brewer denied the commutation last October.
"Why have a clemency board if you aren't going to follow their recommendations?" asks Ardolino. "The governor was in the middle of a campaign and it's a police issue, so she's going to say no. I think it's atrocious."
Hamm, the reform advocate and a former state judge, said she understands the frustration that prisoners' families feel. But, she says, "Executive clemency is an act of grace -- to correct a manifest injustice, to recognize a special case in which there has been extraordinary movement towards rehabilitation or some other extraordinary circumstance. ... It seems logical you should have a good chance if you get five votes from the board, but the governor is well within her authority to do her own investigation and make a completely independent decision." Hamm's husband, James, had his murder sentence commuted by Mofford and went on to graduate from Arizona State University's law school.
Perhaps the most-debated commutation rejected by Brewer is the case of William Macumber, who was convicted in 1975 of a 1962 double homicide and sentenced to life in prison. In a unanimous recommendation three years ago, the board said he had served excessive time in prison and had a record of behavior showing he is not a threat to society. Most importantly, the board called his conviction a miscarriage of justice, saying that "the evidence that now exists certainly casts serious doubt on Mr. Macumber's conviction."
Former state Judge Thomas O'Toole told the board that another man confessed to committing the murders to him in 1967, but attorney-client privilege required him to remain silent about the confession until after his client died.
Montgomery's office strenuously opposed Macumber's clemency petition, calling his petition misleading.
Brewer denied commutation in November 2009, sparking critical national-media coverage. In October 2010, Brewer fled her own televised news conference after Macumber's son asked the governor about her decision.
"The parole board says he's innocent, yet she still won't do anything," says P.S. Ruckman Jr., an Illinois political-science professor who publishes a blog on clemency, pardonpower.com. He is highly critical of Brewer and other governors who he says don't appear to take their pardon powers seriously.
"Sometimes the law has a disproportionate impact and may be too rigid. That's what the pardon power is for," he says. "Brewer has the power and discretion to have a larger sense of justice and to do something about it. That's her duty."
Governors avoid itBrewer's reluctance to grant clemency isn't unique. Before the advent of mandatory-sentencing and "truth in sentencing" laws in recent decades, roughly one in four or five clemency applications would be approved, according to a 2010 Duke Law School study. But increasingly, governors around the country avoid it, says NYU Law School professor Barkow.
"It's common among Democrats and Republicans alike," Barkow said, noting that President Barack Obama's clemency rates also are at historic lows.
Officials fear the potential political nightmare of releasing from prison someone who goes on to commit a violent crime, she said. She noted the 2000 commutation in Arkansas by then-Gov. Mike Huckabee of an inmate, subsequently granted parole, who gunned down four police officers in Parkland, Wash., in 2009 before he was shot to death. Though the inmate had been in and out of prison and jail in Washington state and was out on bail, the media focused on the commutation by Huckabee, who had been a candidate for the 2008 Republican presidential nomination.
"Every time something like that happens, every politician takes note," said Barkow, adding that, politically, the potential downside can far outweigh the fact that some commutations are warranted in the interests of fairness and justice.
Since taking office, Brewer has granted five commutations, aside from those for inmates at death's door. Four of these reduced sentences by less than 21/2 years. The biggest reduction was for Christopher E. Patten, who was sentenced to seven years for manslaughter as the driver of a vehicle in a 2005 drive-by shooting in Phoenix. The judge noted that Patten was forced at gunpoint to drive the vehicle, turned himself in to police and testified against the shooters at the risk of his life. He served just under two years before the governor granted a commutation in October 2009. Aside from those granted to dying inmates, Brewer hasn't granted any commutations in the last 17 months and has rejected 39 recommended by the board, out of 1,180 applications, according to board records. That does not include the nearly 900 cases in the backlog.
Effects of budget cutsBudget woes brought on by the recession have reduced the board's ability to handle commutation requests. Two years ago, as part of broader cuts, Arizona's Legislature made four of the five board positions part-time instead of full-time, and slashed the board's budget.
Duane Belcher, who was until recently the board's chairman and executive director, says the cuts forced him to reduce the number of commutation hearings to 25 a month from 100. That led to the two-year backlog and to a plunge in applications to 346 last year, less than half as many as two years ago, Belcher said.
Brewer recently replaced Belcher, who served as chairman for 20 years, and two other board members: 2010 Brewer appointee Marilyn Wilkens and 2007 Napolitano appointee Ellen Stenson. The ousted board members expressed shock at being pushed out all at once. Board members' terms are staggered, and typically one new member is appointed each year.
Belcher and Stenson attributed their departures to the governor's displeasure with their votes to grant clemency in the Macumber case; Wilkens said the governor's aides grilled her over her vote in another case.
The manner in which Brewer replaced the three also has ignited a legal fight. Attorneys for Samuel Lopez, who is scheduled to be executed Wednesday for a brutal 1986 murder, will argue in court Monday that the appointments of three new board members, Bill Livingston, Melvin Thomas and the new chairman, Jesse Hernandez, should be declared null and void. In court filings last week, the attorneys argued that the committee that recommended the appointments violated the state Open Meeting Law and other statutes. They included a statement from Wilkens declaring that her interview by the committee, conducted in executive session, didn't comply with state statutes.
Stenson said Friday that she hadn't spoken with Lopez's attorney but that she, too, wasn't told in advance that she would be interviewed in executive session, and wasn't told she could object to the closed-door venue.
"It doesn't make any sense" to replace three board members at once, said Stenson, adding that it makes it difficult for new members "to learn the procedures before their vote is needed. This makes it hard on the new members and the old members, and it's unfair to the inmates, the families or to anyone."
Lopez's attorneys also are seeking a stay of his execution until the court determines whether the board is legally constituted. A spokesman for the governor said the appointments complied with state law.
If Superior Court Judge Joseph Kreamer were to nullify the appointments, Brewer's office would have to begin the process from scratch, potentially leaving the two remaining board members to handle cases on their own for days or weeks. Then, because state law specified that only the chairman can declare a quorum of two, Brewer either would have to make one of the existing members the chair, or leave the board unable to hear cases until a new round of appointments was complete.
In any event, Belcher, the former chairman, said last week that it's clear to him that the governor wishes to see fewer clemency cases land on her desk.
Commutations and pardons:Gov. Rose Mofford (April 4, 1988 to March 6, 1991): 13 pardons, 2 commutations.
Gov. Fife Symington III (March 6, 1991 to Sept. 5, 1997): 13 pardons, 16 commutations.
Gov. Jane Dee Hull (Sept. 5, 1997 to Jan 6, 2003): 7 pardons, 28 commutations.
Gov. Janet Napolitano (Jan. 6, 2003 to Jan. 21, 2009): 22 pardons, 34 commutations (including 9 "imminent danger of death" cases).
Gov. Jan Brewer (since Jan. 21, 2009): 0 pardons, 24 commutations (including 19 "imminent danger of death" cases).
Except for "imminent danger of death" cases, Brewer has not granted a commutation since Dec. 15, 2010.
Three types of clemency hearingsArizona's Board of Executive Clemency conducts three types of clemency hearings: commutations, pardons and reprieves. If a majority of the board approves a clemency request, its recommendation is sent to the governor, who makes the final decision. In Arizona, the governor can't grant clemency without a board recommendation.
A commutation reduces a sentence. Inmates facing imminent execution automatically are granted a commutation hearing. Other inmates can apply for commutation after they have been in prison two years and have at least one more year to serve. A judge who considers a mandatory sentence too harsh in a particular case can issue a 603(L) order, which allows an inmate to request a commutation hearing within 90 days. Terminally ill inmates also can request a commutation if they can submit medical documentation that they're expected to die in less than six months.
A pardon absolves a convicted felon of the legal consequences of the crime and conviction. Pardons most often are granted to people who already have completed their sentence and who are seeking to have their civil rights, such as the right to bear arms, restored.
A reprieve is a delay or temporary suspension of the carrying out of a sentence.
The board also can act on its own authority to grant absolute discharges or parole for people convicted under sentencing laws in effect before Jan. 1, 1994. An absolute discharge can grant release from imprisonment; but it is more often used, on the recommendation of the Community Corrections division, to end parole early for someone who has shown exceptional performance while under supervision.