Freeman’s freedom? Judge orders new trial in contested murder case

October 14, 2010

A federal judge today granted a new trial for a Michigan man who has been serving a life sentence in prison since 1986 for a Port Huron murder.

In a 52-page opinion, U.S. District Court Judge Denise Page Hood in Detroit conditionally granted Frederick Freeman’s habeas corpus petition filed in 2007. She gave the state 90 days to appeal her order that he be retried, otherwise Freeman could be released pending a new trial.

“Justice is getting done,” said Richard Lustig, the Birmingham attorney who originally represented Freeman in the habeas petition. The University of Michigan Innocence Clinic currently represents the 47-year-old Freeman who is serving his sentence in the Saginaw Correctional Facility.

“It’s exciting,” says David Moran, co-director of the Michigan clinic. “It’s a  huge step toward eventual justice in this case. It’s possible the attorney general will appeal. We hope they don’t, but they can appeal, so it may drag out for a while longer.”

Joy Yearout, spokeswoman for the Michigan Attorney General’s Office, said the state would appeal. “We stand by Mr. Freeman’s murder conviction,” she said, adding she couldn’t say how soon an appeal would be filed. “We’re still digesting the opinion.”

Freeman maintains his innocence in the November 1986 murder of Scott Macklem, who was killed with a shotgun in a St. Clair County Community College parking lot while on his way to class. No one reported seeing the shooting, but a witness, after being hypnotized, picked Freeman out of a lineup of booking photos as the man he saw driving out of the parking lot that morning. Port Huron police focused on Freeman exclusively as the suspect in Macklem’s death after the sister of Macklem’s pregnant girlfriend, Crystal Merrill, mentioned him to police. Merrill and Freeman had dated earlier that year.

Following his 1987 trial, Freeman exhausted his appeals in state courts. But during the 1990s a team of supporters began assembling, believing in his innocence and finding several major issues with the investigation, evidence and trial.

Judge Hood granted Freeman’s request on three major grounds that his team has argued. First, she agreed Freeman should have been allowed to testify in his own defense at trial, which he did not. She also wrote in her opinion that his then-girlfriend, Michelle Woodworth, should have been called as a witness. Woodworth, who has since passed polygraph tests, told police and Freeman’s trial attorney that she was with him at their Upper Peninsula home when Macklem was shot.

“In light of the fact that Ms. Woodworth’s testimony provided [Freeman] with a solid alibi – that [he] was with her at the time Mr. Macklem was murdered – prejudiced [his] defense. The Court finds that defense counsel’s error was so serious that it deprived Petitioner of a fair trial or appeal,” Hood wrote.

She also said Freeman’s habeas should be granted because of issues related to the prosecution witness Phillip Joplin, a “jailhouse snitch.” Joplin testified that he had briefly shared a holding cell with Freeman who confessed to him he had killed Macklem.

The Court finds that the totality of the circumstances surrounding the content of Joplin’s affidavit and the effect his testimony had on the jury requires that habeas relief be granted on this issue,” she wrote.

If Hood’s ruling is upheld on appeal and the state proceeds with a new trial, Moran says a second conviction would be nearly impossible.

“It’s inconceivable that a rational jury that’s faced with the evidence that’s been developed since trial – and should have been presented at trial – could possibly find that Frederick Freeman had anything to do with this.”

The prosecutor on the case, Robert Cleland, is now Hood’s colleague on the federal bench in Detroit. He was appointed in 1990.

Last month Freeman and his supporters argued his innocence to the Michigan Parole and Commutation Board which will make a recommendation to Gov. Jennifer Granholm in the next few months whether Freeman should be released. Governors have the power to commute prison sentences and grant clemency and traditionally use that power during their last few months in office.

Amiko Kensu, Freeman’s wife, of Swartz Creek, outside of Flint, said she hoped Granholm would use Hood’s ruling to justify Freeman’s release regardless of the attorney general’s appeal.

“It would be so easy for her,” she said. Freeman changed his name to Temujin Kensu to reflect his Buddhist faith. He and Amiko married while he was in prison.

“I can’t believe it,” said Amiko Kensu.

Freeman’s case was featured in a lengthy two-part Metro Times series in 2007 (Part 1, Part 2) and shorter articles since.

  • Allen B. Woodside

    After nearly a quarter century (23 years) that Frederick Freeman has languished behind bars as a victim of a deliberate wrongful conviction, there is now a ray of hope that justice so long denied will soon prevail to bring his long ordeal to an end in the days ahead.

    I for one, applaud U.S. District Court Judge Denise Page Hood for observing the Canons of Jurisprudence in the Spirit of American Justice as prescribed in our U.S. Constitution and Bill Rights. Her ruling is a beacon of refreshing light in the all too often dark sphere of the so called “Criminal Justice System” – an “industry” which needs to look in the mirror and clean its house of all those that discredit it.

    I foresee this case someday serving as another text book model in law school curriculum. Hopefully, it will illustrate some of the many despicable facets in the makings of a morally reprehensible miscarriage of justice and thereby serve to reinforce the spirit of the law including the canons and codes of professional and ethical conduct so essential to the believability of the words we hear, but are not always true: “…with liberty and justice for all.”

    Unfortunately, this case, and others like it, will never fully portray the life altering pain and suffering brought upon accused innocent persons (including their families and friends) by unconscionable self-serving rogue policemen and prosecutors more concerned about their score cards than with justice.

    Allen B. Woodside
    Private Investigator
    Mount Clemens, MI

  • Anonymous

    Correction to my earlier comment:

    After nearly a quarter century (24 years)


  • Anonymous

    “In any country there must be people who have to die. They are the sacrifices any nation has to make to achieve law and order” – Idi Amin Dada – Ugandan Dictator quoted in 1976

    Has this become the adopted mentality of the U.S. Criminal Justice System?

  • Mike Mongan

    Thanks and blessings to Judge Page-Hood for the great moral courage she has displayed in overturning the rotten verdict against Temujin. We have been a small voice for the past decade pleading for him to receive justice. It now appears that is possible.

    When I first became aware of his case, I was naive and did not believe justice could drift so far astray. Since then I have learned that there are many in prison who very well may be innocent. This should give hope to them.

    I have seen the documentary on this case, “Justice Incarcerated”. I have talked to the principals in this case and Temujin himself. The evidence is overwhelming that he was over 400 miles away in Escanaba at the time of the crime. Why this took so long to surface is an indication of the deep and scarring problems with the business of justice as it is conducted in America. We, the people, must insist that the standards of justice be held high.

  • guest

    This case is concerning to me in that I don’t want an innocent man jailed for something he didn’t commit, but if this man did not murder then who did?

    Will justice prevail in this case and if not, then why not? Will the Prosecuting Attorney re-new an investigation into this murder? or will he shrug his shoulders and accept the decisions made?

    Will the Prosecuting Attorney listen to and investigate the evidence/arguments that have been made by the defendant?

    Will the Prosecutor question the imperfections or incompetence of our justice system?


    this page has a list of links about this case