The Ethics of Rejecting Clemency

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.

10 thoughts on “The Ethics of Rejecting Clemency

  1. With evidence in front of her that a now old man was unfairly convicted of murder, Governor Jan Brewer refuses clemency for him. Is it politics? Is it ignorance? Is it prejudice? Is it hard-line justice?

    I don’t know. Here’s a question: what other options does the D.A. have, or the defense, or the ACLU, or anyone else? Marshall, answer this for me: at what point does the final decision rest with this single person of dubious purpose? Although the “confessor” is dead, can his attorney (confidentiality be damned) testify to what he knows? Can the courts — dedicated to justice — attempt to allow this poor old man a few last years of freedom with his son?

    PS Too bad “Law and Order” has been cancelled. It would have been a good episode…

  2. AKA Stephen Macumber

    I am on of the other son’s of William Macumber so lets talk about this man for a second.

    There have been several lies told about what happened so lets clear some of them up and ill let you in on a few things you all dont know about this man.

    First my mother was not able to testify at the first trial and at the second only to what she had seen so YES there was alot the jury did not hear.

    Ask him about sleeping with our 17 year old babysitter in front of us during our vacation to Oregon.

    Ask him about an ammo box me and my brothers found in the storage shed outside our house in pheonix that contained multiple adult toys and kiddy porn.

    Ask him why if he cared for his kids so damn much he and his father took everything of value we owned and left us with nothing. This included a van and a gun collection.

    Ask him about firing shots into our house with us kids inside and then failing a ploygraph afterwards about it.

    You all have no damn clue what your dealing with here. This man is a manipulator and youve been simple enough to fall for it. My family went thru hell with this not just once but twice with the second trial. and now 35 plus years later with all of this crap.

    As for why this was not brought up at the clemency hearing well if we would have been notified of it we would have been there.

    So all you people who think you know him? You were not there, We were, and there is alot to this story that has not been told like an entire series of events HE created leading up to his arrest.

    The fact he FAILED the polygraph when asked about if he fired the shots thru our house.

    The fact he tried to blame that incedent on my mother. It was only after this that my mother talked to internal affairs about the other lies he had told her thru the years.
    Oh he did not just lie to her but he lied ot us also. Ask Bill about telling us kids about him being shot in the belly in Korea and walking out 5 miles to a field hospital. He was a clerk here in the states we found out later.

    The fact there was not custody battle in fact they were doing a “do it yourself divorce” which has to be UNCONTESTED.

    The fact that my mother passed MULTIPLE polygraph tests on this subject and not just from phoenix but from all over whenever she applied for a job as a sheriffs officer or corrections officer.

    The fact that the EVIDENCE was never contested at the trials by his attorney. Now why would this be? If hes so damn sure it was planted then where is the proof? Show it to me and i will believe it. No more inuendo no more accusations I WANT PROOF.

    We as a family were hoping this would just blow over and not get out of hand but apparently that isnt going to happen here. So after all this time its time for the gloves to come off and all of what wasnt said to be said. If you want to call my mother a liar then youll have to call me one too along with my older brother. And as for Ron, you want to start flinging accusations well all I can say to you SHOW ME THE PROOF. NOT OPINION…..PROOF. I can tell you now you WILL be held liable for your words so you had better be damned sure of what you are saying as you are playing in the adult world now.

    IS there more? Of course there is but we had hoped that we would not have to deal with it all over again so what would have been the point of bringing all of this to light. Im 45 now and will not stand to see my mothers name run thru the mud by a bunch of people who dont want to print the truth. Why not the truth? Its not juicy enough. It doesnt sell papers.

    The simple fact is this. He murdered 2 kids and then left his own kids with nothing and has spent his entire life lying about it. Now he is the big man again. Hes getting the attention he so craves. and you are all doing nothing but help feed a monster. I hope you can sleep at night.

    • Thanks for your perspective, Steve.

      However, it has nothing whatsoever to do with the article you are commenting on, which involved the process whereby a Governor grants clemency, the fairness of the judicial process, deference to professionals who perform their job diligently and in good faith, and playing with lives for political gain.

      We don’t lock up people in the U.S. for being terrible people. We lock them up when they are convicted of crimes by juries convinced of their guilt beyond a reasonable doubt by all the available evidence. The other crimes and misdeeds committed by your father against your family and others: not relevant. The fact your mother passed polygraphs: meaningless—many people can and do fool polygraphs. They aren’t evidence.

      I sleep at night knowing the government can’t convict and imprison someone on partial evidence and a general consensus that the world would be better of without him. Two sons coming to radically different conclusions simply proves that biased parties can’t be trusted to render a judgment in such situations; that’s why objective panels are better adjudicators.

      I am sorry, terribly, for your awful family situation. Nobody should have to endure what you and your brother have. But I am very comfortable regarding my verdict on the manner and substance of Gov. Brewer’s handling of this.

  3. Dont patronize me sir and for god sakes dont make any attempt to look at the evidence. This “OBJECTIVE PANEL” you talk about did not notify us of the hearing or we would have been there.
    If you or anyone including the Arizona Justice Project would have take the time to look thru what is PUBLIC record you all would have know the FACTS. But the facts arent what matter here are they?

    What matters is you all have your fodder to throw at whatever cause your currently all up in arms about and this denial of clemency was just that. BE damned hes a double killer and probably more Just make the governor look bad at all costs.

    Well sir I and my family are part of that cost and I will not stand back and let people make up thier own FACTS here. He was convicted not by 1 but 2 jurys of his peers were they impartial? All of the lies that my mother had framed him, that she was under investigation for misconduct, all fabricated and we have the proof.

    Sir I am a registerd Democrat and swing towards the liberal side of the political spectrum so the Governor is not one that I agree with on ANY level but she got this right. She says she made this decision for personal reasons and if you look she lived in the same area we did at the same time so MAYBE just MAYBE she does have her reasons. What those are I dont know.

    As for my brother. This has nothing to do with my father as much as it has to do with him getting back at my mother. He is using this for his own gain and not because of any deep seeded conviction my father is innocent which makes him no better and in many ways worse than the rest of the talking heads because he KNOWS better. He will be held accountable for his comments as he knows they are blatenly false.

    I have remainded quiet for 35 years about this issue and that I now have to come out and speak to these issues bothers me greatly but with all that has been said I am left no choice left alone it will not just go away.

    If the Governor made this decision for political reasons then I agree there are definite ethics issues here but I ask you investigate further as its very possible she does have her own personal reasons and until the ethics issues against her are proven then her word is what we have to take. That is what I call being impatial.

    • No patronizing intended, Stephen—I apologize for seeming that way. But I’m not the Clemency Board, not am I qualified to render a competent judgment on all the evidence and conflicting theories here. From what I have read, if I were a juror (or a judge), I’d probably conclude that your father was guilty by a preponderance of the evidence but not beyond a reasonable doubt—and that the standard. The Clemency Board would be correct to recommend release even if they thought he was guilty, but believed that he had been wrongly convicted.

      None of which exonerates Governor Brewer from publicly explaining her rejection of the Board’s recommendation. If she does so, as she certainly can, she has an obligation to the system and the public to say why. She’s not a Queen: she needs to explain why she is rejecting clemency, and make clear that it isn’t on a whim, or because she was in a cheery mood, or because she wants the hard-ass vote. YOU should want her to do so, so she can make a statement confirming her legitimate belief in your father’s guilt. I’ve been a prosecutor and a defense counsel, and this is a messy case. It needs some competent closure, not just a brush-off.

      • Sir I cannot agree more if she made this decision on political grounds only. and if that is the case then she needs to be investigated.

        I just want everyone to understand there are real life concequences for people when these types of issues are used as a p0litical football. There have been a lot of lies being trown about by my fathers attorney and my brother and rest assured I will be getting the transcripts from the clemency hearing to find out what was said since we were never informed it was taking place.

        I too would like to apologize for coming off terse as this has been a very big strain on myself and my family.

        I agree that she needs to explain why she made her decision but please keep in mind even though I may not agree with her politically she may have very valid reasons for not disclosing.

        Thank you.

  4. With all due respect to Mr. Macumber and his son, a jury heard the evidence and, if there is any doubt to be cast on the verdict, there are appeals. What court would not release an allegedly innocent man? Or even offer him a new trial? The Arizona Supreme Court has not done this, nor has any appeals court. So, this leads me to believe that Mr. Macumber was properly convicted, and until I see otherwise Governor Brewer is wholly justified in denying parole.

    • 1) Clemency, not parole. 2) Of course she’s justified…assuming that she’s actually reviewed the transcript and concluded that he is guilty, and that the verdict was just. Her refusal to discuss the case suggests otherwise. 3) Your faith in the criminal justice system, juries and the appeals process is touching, but naive. What court wouldn’t release an innocent man? Too many to count.

  5. One of the hardest, if not THE hardest, things to get done legally is to get someone clemency AFTER they’ve been convicted. Nearly impossible. So just because 2 juries convicted him, does not make the decisions correct, and that is what is being questioned here. I guess if I were investigating this case, I would have to check the file for the wife’s fingerprints in any of it, including the prints she’s alleged to have forged. I would also have to find out the identities of all the other people in that car that the Mexican guy who supposedly killed the 2 was driving. I would also have to find the Primrose girl and get question her at length and get the names of those people in the car, especially the girl who pulled her hair out?

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