A strange tale in the New York Times, told by reporter Adam Liptak, raises a persistent problem of executive ethics. Is it unethical for a state governor to reject a recommendation of clemency based on strong evidence?
As Liptak tells it, it had been 28 years since Ronald Kempfert had seen his father, imprisoned in an Arizona prison in 1975 for a 1962 double murder, when a lawyer contacted Kempfert and told him that his father had been framed—by his mother. Nearly the entire case against the father, William Macumber, had been based on his wife’s testimony that he had confessed the murders to her. Kempfert, knowing his mother, and knowing the toxic state of their marital discord at the time of her testimony, agreed that she was quite capable of doing such a thing, and after doing some digging on his own, concluded that his father, now elderly and ailing, had been wrongly sentenced to life imprisonment without parole.
There was more.
The jury that sent Macumber to prison for life did not hear about a drifter named Ernesto Valenzuela who, like Macumber, was charged with a double homicide. In 1967, Valenzuela told his lawyer, Thomas W. O’Toole, that he had been the killer in the murders Macomber was convicted of committing eight years later. O’Toole, who later became a state judge, has said that his client was completely credible about claiming responsibility for the 1962 murders. “There is no doubt in my mind that Ernesto Valenzuela committed those crimes….He was just making a point about bragging about the people he killed. He was a cold-blooded killer who relished committing the murders.”
O’Toole was prohibited from revealing his client’s confession by his ethical duty to protect client confidences. By the time of Macumber’s trial, however, Valenzuela was dead, killed in prison, and O’Toole offered to tell the Macumber jury what he had been told. (Note: This would still have been a breach of the lawyer’s duty of confidentiality, which survives the client. O’Toole courageously—and rightly, I believe—decided that the situation required him to breach the duty in the interests of justice.) But the judge refused to allow the testimony, ruling it hearsay, and similarly excluded the testimony of others to whom the drifter had confessed, a second lawyer and a psychiatrist.
This, combined with Kempfert’s testimony about his mother, was enough for Arizona’s five member clemency board, which unanimously ruled last year that there had been a miscarriage of justice and recommended that Macumber be released.
Arizona Governor Jan Brewer rejected the board’s recommendation, and has not explained why. The Times piece reports speculation that she has refused clemency because Brewer faces re-election, and clemency for convicted murderers generally loses more votes than it wins. If that is true—if her re-election prospects even entered into her reasoning in the decision—then her conduct is reprehensible, approaching evil. Keeping an innocent man in prison for reasons of career advancement is the stuff of pulp novel villainy. Assuming that Brewer has another reason for rejecting the careful and unanimous analysis of the state officials who review such cases as their job, what could it be? If she has one, she should articulate it.
Liptak quotes P. S. Ruckman Jr., a political science professor at Rock Valley College in Rockford, Ill., who is outraged by the Macumber case. “I have been following state clemency for 30 years,” Ruckman says, “and this is easily, easily, the most disturbing. It’s borderline despicable. Common-sense notions of justice should compel a governor to provide an explanation for imprisoning a man deemed innocent by an official board created to make such judgments,” he added. “You don’t imprison a man for no reason.”
I would go further than that. Unless a state governor can honestly conclude with near certainty that a clemency board is wrong, it is unethical—reckless, unfair, cruel, cowardly and irresponsible not to defer to its recommendation. Maybe Brewer has a legitimate reason for her decision in the Macumber case, but if she does, she has an obligation to Ronald Kempfert, the clemency board and the public to explain what it is. Until she does, reporters like Liptak will speculate that she is like the arch-villain Massala in “Ben Hur,” letting an innocent man rot in prison for her personal gain.