Wednesday, June 16, 2010


"Sharon Keller, you'll recall, is the one who explained on Frontline that despite DNA evidence excluding Roy Criner as the rapist, his conviction would stand because we can't go around giving new trials to folks just because they've shown that they might be innocent. (That's pretty much precisely what she said. The exact quote is, "We can't give new trials to everyone who establishes, after conviction, that they might be innocent.")"

JEFF GAMSO: GAMSO FOR THE DEFENCE; (Commentary by an Ohio criminal defense lawyer);


BACKGROUND: Justice Sharon Keller has attained notoriety for allegations that she allowed convicted murderer and rapist Michael Richard to be executed on September 25, 2007 - notwithstanding his attempt to file a stay of execution - because the court clerk's office closes at 5. Keller is of particular interest blog because of the opinion she wrote for the majority in the Roy Criner case. Wikipedia informs us that: "Sharon Faye Keller (born in Dallas, Texas, 1953) is the Presiding Judge of the Texas Court of Criminal Appeals, which is the highest court for all criminal matters in the State of Texas. Because of her position, she has been involved in many high-profile and controversial cases, and has thus received widespread news coverage......In 1998, Keller she wrote the majority opinion in a 5-3 (one judge abstaining) decision that denied a new trial to Roy Criner. Criner had been convicted of sexual assault in 1990, but newly-available DNA testing had shown that the semen found in the victim was not his......Judge Tom Price, who ran for the Chief Judge seat, in a primary election, said that Keller's Criner opinion had made the court a "national laughingstock." Judge Mansfield, who had sided with the majority in denying Criner a hearing, told the Chicago Tribune that, after watching the Frontline documentary, reviewing briefs and considering the case at some length, he voted "the wrong way" and would change his vote if he could. "Judges, like anyone else, can make mistakes ... I hope I get a chance to fix it." He stated that he hoped Criner's lawyers filed a new appeal as he felt Criner deserved a get a new trial......Following the (appeal court's) refusal to order a new trial, the cigarette butt found at the scene (and not adduced at trial) was subjected to DNA testing.The DNA on the cigarette was not a match for Criner, but it was a match for the semen found in Ogg. Ogg's DNA was also found on the cigarette, indicating that she shared a cigarette with the person who had sex with her (and who presumably killed her). These results convinced the district attorney, local sheriff and the trial judge that Criner was not guilty. The Texas Board of Pardons and Paroles recommended he be pardoned and, citing "credible new evidence [that] raises substantial doubt about [Criner's] guilt," then-Governor George W. Bush pardoned him in 2000.

The thorough, unabridged Wikipedia article on Keller can be found at:


"One is William Macumber, and his problem (other than being 74 and in failing health, with heart problems and arthritis and having spent 35 years in prison for a double murder it seems likely he did not commit), is that he's in Arizona,"
Gamso's post published earlier today under the heading, "Arizona, Texas, Innocence - Or Not," begins.

"The other is Chuck Jones, known as Butch," the post continues.

"His problem (other than having been executed in 2000), is that it's too late for him even if he didn't kill Allen Hilzendager.

The other day I talked about the decision in Holland v. Florida and paid some attention to the part of Justice Scalia's dissent where he explained that human decency and conscience might lead one to rule in Holland's favor, but that he was made of sterner stuff and believed it important that Holland be executed despite the unfairness of allowing it. (OK, that's not exactly how he said it, but that's what it came to.)

Scalia's famous for this sort of thing, of course. So's Sharon Keller, still Chief Judge of the Texas Court of Criminal Appeals (the hearing before the ethics commission is this coming Friday, June 18).

Sharon Keller, you'll recall, is the one who explained on Frontline that despite DNA evidence excluding Roy Criner as the rapist, his conviction would stand because we can't go around giving new trials to folks just because they've shown that they might be innocent. (That's pretty much precisely what she said. The exact quote is, "We can't give new trials to everyone who establishes, after conviction, that they might be innocent.")

Texas also gives is Rick Perry and John Bradley who together are doing a bang-up job covering up the likelihood that when it killed Cameron Todd Willingham, it probably killed someone innocent.

But as, the font of so much that's newsworthy these days (except, of course, perhaps Sarah Palin's boobs and the fact that God smote Jesus while sparing the Hollywood Hustler adult emporium just across the road), it's really no surprise that Arizona is doing what it can.

* * * * *

In 1962, a young couple were murdered in the Arizona desert north of Scottsdale. Nobody was charged. There may not have been a suspect. Then, in 1967, Ernesto Valenzuela was charged with a similar double homicide. He told his lawyer, and then a second lawyer and a psychiatrist, that he'd done the Scottsdale area killings, too. All in confidence. And they all kept quiet.

And so things stood. Double homicide. No suspects. Cold case.

In 1974, William Macumber was just another guy whose marriage was falling apart. That's when his wife, Carol, went to her boss - the local sheriff - and said that he'd confessed the killings to her. And there was a partial palm print and a shell casing that prosecutors said were somehow matched to him.

By the time of the trial, Valenzuela had been killed in prison and the lawyers and psychiatrist were prepared to testify on Macumber's behalf. But this was Maricopa County, and you know how that worked out. The judge wouldn't let the jury hear about Valenzuela's repeated confessions. Not surprisingly, Macumber was convicted and sentenced to life.

I don't know how many factually innocent people are in prison in the United States. I've seen estimates ranging from about 0.1 to 20% of the prison population none of which seem to be based on much more than guesswork. Whatever the percentage, even if you take that 0.1% and divide it in half, it adds up to a whole lot of people. I don't know if William Macumber is one of them. But lots of people think he is. And that he was framed by his wife.

Their son, Ronald Kempfert is one of them. According to Adam Liptak of the Times, it was 2003 when Kempfert heard from a lawyer looking into the case.

“Your father is innocent,” said the lawyer, Larry A. Hammond. “And we’re pretty sure your mother framed him.”

That would seem a lot to digest, but Mr. Kempfert, 42, said he felt no hesitation. “My reaction was that it didn’t surprise me,” he said. “She’s my mother, and I love her. But I think she’s capable of anything.”. . .

Mr. Kempfert said he believed that his mother had done more than lie.

“I can fully see how my mother could have set him up and framed him,” Mr. Kempfert said. “She had access to the evidence. She was doing fingerprint courses at the time.”

Not too surprisingly, Carol denies doing.

But Mr. Macumber’s former wife, now known as Carol Kempfert, said he was a dangerous sociopath who deserved to die in prison. She denied making up his confession and tampering with the evidence used to convict him.

It is her former husband, she said, who is a pathological liar. “I was in law enforcement for almost 20 years, and no one came close to being able to manipulate like Bill,” she said. “This man could sell water to a drowning person.”

Mr. Macumber, she said, would have said anything to save their marriage.

Huh? What? He confessed a double murder in order to save his marriage to a cop? Anything's possible, I suppose.

As I said, I don't know if Macumber killed those people. What I know is that the Arizona parole board voted unanimously that because Macumber's innocent the Governor, Jan Brewer, should order him released. That's unusual enough to be worth repeating. Here's how Liptak put it.

Last year, the five members of the Arizona Board of Executive Clemency unanimously recommended to Ms. Brewer that Mr. Macumber be released after 35 years in prison “to correct a miscarriage of justice.”

That was in May 2009. Brewer sat on it for six months. Then, in November, and right after she announced that she was running for another term, Brewer denied the recommendation. Liptak wondered why.

“Every executive clemency case is carefully scrutinized as the governor balances the very real and important concepts of public safety, justice and mercy,” [her] spokesman, Paul Senseman, said in an e-mail message.

That's the answer you give when you have no answer to give. It says nothing. And thereby says all.

It's politics, pure and simple. Let him go, and it might come back to bite you on the ass.

Maybe you won't look tough enough on crime and will lose the election. ("Brewer the Wuss," will read the signs.

Maybe he'll commit a crime. ("Willie Horton Macumber," will read the signs.)

Maybe you're just a shit-ass lousy person ("Brewer sucks," should read the signs.)

I don't know.

* * * * *

I sneered above at the Texas approach to innocence what with Sharon Keller and the Perry/Bradley team choosing either to ignore it (Keller) or hide from it (Perry/Bradley).

The lower courts, though, can be a different story.

There's Judge Kevin Fine, of course, and his upcoming hearings on the execution of the innocent (see here, for instance).

Now add the Honorable Paul C. Murphy, visiting judge in San Jacinto County.
Butch Jones, was executed in 2000.

It was back in 1989 that Jones was tried, found guilty, and sentenced to die for the killing of a liquor store owner, Allen Hilzendager. Jones was no saint. He'd spent plenty of time in prison. He'd committed (no dispute about it) a murder. But he insisted he didn't kill Hilzendager. The alternative is that it was Jones' co-defendant, Kerry Dixon, Jr. who's doing life for his part - sitting in the car during the robbery murder.

Timothy Jordan testified that Jones confessed to him. He's now recanted and says that Dixon told him it was Jones who did the killing. That's a big difference. Does it make Jones innocent? No. But it raises the question.

And now, 10 years after the execution, a judge has ordered DNA testing on a hair - the only physical evidence purportedly linking Jones to the killing.

The state fought the effort to get the testing, of course. Only defendants can ask for it, they argued, and there's no defendant since Jones is dead. Anyhow, there's other evidence that might be consistent with his guilt. And who really cares? You know, Jones was a career criminal, after all. Besides, you test one guy's DNA you should maybe test everyone's. My gosh, what a lot of work just to find a few mistakes.

Except, you know, maybe you'd want to know. Cindy Horswell, writing in the Houston Chronicle, sums up the possibilities.

The hair fragment, left in the evidence room since his 1989 trial, was the only physical evidence connecting Claude Jones to the crime scene. A Texas Department of Public Safety expert could testify then only that a cursory microscope examination indicated the strand “matched” the suspect’s hair. The expert could not exclude many others whose hair could have the same characteristics.

The DNA testing being proposed now had not been developed before the trial.

Barry Scheck, Innocence Project’s co-director, said the DNA testing could do one of three things:

• It could prove Claude Jones guilt if he’s a match, similar to the post-execution DNA testing done on the 1981 rape-murder case involving the Virginia coal miner Roger Coleman.

• It could exonerate him if the hair matches his co-defendant, Kerry Dixon Jr., who was supposed to have remained in the get-away truck while the elder Jones entered the liquor store.

• If the hair matches neither of them, then the state did not have sufficient evidence to prove Claude Jones’ guilt, Scheck said.

Once again, I don't know what happened at Zell's liquor store in Point Blank, Texas. Maybe Jones went to his grave lying about his innocence. He wouldn't be the first guy.

On the other hand.

The state, of course, is appealing Judge Murphy's decision.

Better not to know, and all that.

Except, like I say, maybe you'd want to know."

The post can be found at: