The court refused to allow the jury to hear that evidence from the confessor’s attorney. “The privilege does not end with death,” the judge ruled. That ruling was criticized for perversely elevating the reputation of a deceased criminal over a defendant’s right to defend himself. Testimony from another attorney and a psychiatrist who also heard the confession also was kept from the jury as hearsay. The court that convicted Macumber relied mostly on his then-wife’s testimony that he confessed to her about the then-12-year-old murders at a time when their marriage was disintegrating.

Flash forward 35 years. Recently, the Arizona Clemency Board unanimously recommended that Macumber, now 74 and in poor health, be released “to correct a miscarriage of justice.” Gov. Jan Brewer rejected that recommendation “without explanation,” according to a recent report in The New York Times.

Macumber seems to be not a double murderer but a multiple victim — a victim of unjustly rigid rules of evidence (surely the confession would have raised a reasonable doubt of his guilt); a clemency process wherein governors have more to lose politically by releasing convicts than they have to gain by showing mercy; and the wrath of his still-hostile former wife, whose 42-year-old son was quoted by the Times as saying, “I think she’s capable of anything.”


Ronald Goldfarb’s latest book, In Confidence — When to Protect Secrecy and When to Require Disclosure, reported the Macumber case as an example of an unjust rule of evidence.