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.