By Linda Laderman
More than 30 years ago, Escanaba resident Fred Freeman, was found guilty and sentenced to life in prison for the murder of 20-year-old Port Huron resident, Scott Macklem, a slaying that his attorney and the lawyers at Dickinson-Wright believe he did not commit.
In 2010, the University of Michigan’s Law School’s Innocence Clinic took up Freeman’s case after it was brought to their attention by “Proving Innocence,” a Michigan nonprofit dedicated to freeing the wrongfully convicted. Then in 2017, Dickinson-Wright, lent its support to the clemency application.
“At the Innocence Clinic unfortunately we only see the ones that went wrong, we don’t see the ones that went right,” said Imran Syed, assistant law professor at U-M and an attorney representing Freeman. “You look at this and it’s just such a strange case. You can’t help but think there’s no way that someone can’t see the truth of the underlying case.”
To that end, the Innocence Clinic filed a post-conviction motion, stewarding it through the Michigan courts and then to the federal court, where they filed a habeas petition.
“It’s (the petition) being reviewed by a senior federal judge in Kentucky since the entire federal bench in the Eastern District of Michigan recused itself from the case,” said Syed. “The prosecutor in Freeman’s case is now a federal judge in (the) Detroit (district),” Syed added.
Freeman’s habeas petition argues that the prosecution violated the Brady Doctrine by keeping exculpatory evidence from the defense, and by extension the jury, Syed said.
“What we are litigating now has to do with the two witnesses that identified Freeman out of a photo lineup. What was shown to them as opposed to what the jury saw had essentially been changed,” Syed said, referring to the manner in which the photos were cropped. “We felt that was very significant because the jury was unaware that certain elements were cropped out.”
The original photos weren’t discovered until 2008 when a private investigator who was a former law enforcement officer, uncovered them, Syed noted.
“The important question is would the jury have benefitted from knowing that the photo lineup shown to them was not the same as the one the witnesses were shown,” Syed said. “At the end of the day the only real evidence in this case is based on the testimony of two men who claimed they saw someone who looked like Freeman. One of them failed to identify him in a live lineup. Witnesses who didn’t see the suggestive photos failed to identify Freeman.”
Freeman, who has been diagnosed with a degenerative muscular disease, recently told public radio station WUOM, “It’s terrifying what they can do to you. And it’s terrifying that once they’ve done it and you’re caught in the gears of the machine it’s almost impossible to get out again.”
Freeman’s expression of futility reflects a process that has been riddled with errors, Syed said, adding that anyone who takes the time to review the trial transcripts would recognize the mistakes that went unchallenged.
“What shocked us a little bit is how difficult it has been to get someone to notice the flaws and obvious problems with this case just because they’ve been there for so long,” Syed said.
In addition to the habeas petition, Freeman and his attorneys are waiting to hear from Governor Rick Snyder’s office about the clemency application that was submitted this past March, said Dickenson-Wright member Ryan Shannon.
“When the Michigan Innocence Clinic reached out their reputation was enough to at least get us looking at the case,” Shannon said. “When we looked at the case more closely it was very compelling.”
Like Syed, Shannon found the trial transcripts indicative of numerous procedural irregularities.
“The transcripts from this trial is hundreds and hundreds of pages, and going through it the reaction was that there were a surprising and concerning number of problems with the proceedings,” Shannon said. “There was a large amount of prejudicial character evidence that should not have been submitted to the jury. If you can convince the jury that someone is a bad guy, they won’t care whether or not the person committed the crime.”
A defense counsel with a substance abuse problem, that was undisclosed, and a significant number of procedural errors that went unchecked, further complicated the case, Shannon said.
“Another part of the problem was you had a defense counsel who had an undisclosed substance dependency issue trying a case that was rife with speculation about things that could have happened but didn’t. That’s another thing that can confuse a jury,” Shannon said.
Much of the speculation about “things that could have happened but didn’t” was based on a statement that Freeman made to Crystal Merrill, a woman he had dated for a short while. At the time of the murder, Merrill was engaged to Macklem.
According to Syed, during a phone conversation that was recorded by law enforcement without Freeman’s knowledge, he told Merrill he was more than 400 miles away, in Escanaba, at the time of the murder, saying “I would have had to charter a plane in order to have done this.”
At trial, two alibi witnesses attested to Freeman’s presence in Escanaba when Macklem was murdered in a Port Huron parking lot. Still, the jury was allowed to hear Freeman’s statement about having to charter a plane in order to commit the murder, in addition to testimony from the prosecutor’s personal pilot.
“Not only was the jury unaware that the pilot was employed by the prosecutor, but it was virtually impossible for Freeman to have made the trip from Escanaba, committed the murder, and made it back in time to be seen there,” Syed said. “The prosecution, and even the attorney general, have hung their hat on Fred’s statement about renting a plane. That’s ridiculous. You had to have evidence that he did it. It should have been 100 percent disregarded.”
Besides testimony about the plane and the photo lineup, the jury heard from a jailhouse informant who was incentivized to say that Freeman confessed to the murder.
“It’s shocking to me that such evidence was presented,” Syed said. “Whatever Freeman may have been, however much you might dislike him, the chance that he committed this crime is infinitely small.”
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