Manifest Injustice by Barry Siegel

ethics committee ruled that the attorney not only “may” disclose but is obliged to. “We hold that it is the ethical obligation to disclose the confidential information of the past commission of crime by his now deceased client,” the committee wrote. “The prosecution of the third party in the fact situation presented may constitute a fraud upon the courts and a gross denial of due process upon one who may be unjustly accused. As such, the failure to disclose the information by the inquiring attorney would constitute the continuing of the client’s wrong by the bond of silence.… The attorney as an officer of the Court has an obligation to assist in maintaining the integrity of the Courts and of the legal profession.… A lawyer is bound to disclose such confidential information under those circumstances.”
    With that opinion in hand, O’Toole on October 8 wrote to Judge Charles Hardy, who would preside at Macumber’s trial, copying the letter to the county attorney and Bill’s lawyer, James Kemper. “Pursuant to Arizona Ethics Opinion No. 74-30, dated October 2, a copy of which is attached, please be advised that I am in possession of certain information which I am ethically required to disclose to your court or the defendant, or both.… I would greatly appreciate notification by your court regarding what, if any, procedure you desire me to follow in revealing this information to the appropriate parties.”
    The next day, Judge Hardy wrote back, also copying his letter to Kemper and the prosecutor. “I wish to thank you for your letter of October 8.… In my judgment full disclosure of the information should be made to both the prosecutor and defense counsel. If such disclosure is made to both sides, I can see no reason to also make it to the court. I commend you for recognizing the ethical implications involved.”
    A week later, O’Toole wrote directly to Kemper: “By letter of October 9 … Judge Hardy has instructed me to make available to you and the prosecution information in my possession concerning [ State v. Macumber ]. I suggest that you and the prosecutor contact me for the purpose of arranging a meeting to discuss this matter.” O’Toole’s concluding sentence conveyed his sense of urgency: “I am hopeful that we can meet as soon as possible.”
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    Jim Kemper, through informal channels, likely received advance notice of these letters before they arrived. While visiting Bill Macumber on October 7, he told him about Thomas O’Toole’s emergence and Valenzuela’s confessions. This officially confirmed what Macumber had heard from his divorce attorney. He did not know what it meant legally, but he believed it had to be beneficial.
    That’s what his brother thought when he visited later in the evening. Bob Macumber came with his own good news: They’d raised $58,000 for bail, with more neighbors and relatives offering their houses and stock as collateral. They would be going before the judge in two days, on Wednesday morning. If all went well, Bill would be home by Friday, October 11. The guards let him stay out of his cell for almost half an hour as a way to celebrate. He couldn’t conceive of being able to sleep that night.
    The week unfolded slowly, Macumber imagining when he would see his sons, thinking how great it would be to eat supper with his mom and dad. He battled his mood swings but kept recording them dutifully in his journal. By lunchtime on Thursday, he’d still heard nothing. He played solitaire that afternoon, trying to keep busy. He could see the doors to the elevator from the viewing port in his cell’s steel door. Every time they opened, he jumped a little, thinking it might be someone coming for him. Then, just before the swing-shift guards reported for duty, Macumber received a note from downstairs, written by a Lieutenant McKinney: “Bill, your Dad just called and said you will be out on bail tomorrow.”
    The young guard Mr. Parks, part of the