Reasonable doubt: Part II

Cops identified their suspect within hours of a small-town murder. Two decades into Fredrick Freeman’s life sentence, his advocates are making last-ditch attempts to right what they call a flagrant injustice.

He was a curiosity to her, this man in prison — a friend of a friend — who wanted someone to write to. He offered to be a good listener if she wanted to "talk about" anything through letters and over the phone.

She sent him back a letter saying, "Sure, I'll help you pass the time. But don't ask me to feel sorry for you because you were convicted. You did it."

His letter back said, "Read about my case."

Denise Deringer, then 33 and divorced with two children, knew that Fredrick Freeman, then 27, was serving a life sentence for murder. But she traveled from her Swartz Creek home near Flint to visit him in Jackson in 1991 after they exchanged several letters. In a community visiting room, she met the man she would marry.

"I went in there, and we never stopped smiling. Our faces hurt. We just talked and smiled and laughed so much," she says. "At the end of the visit, I told him, 'I'm never going to leave you here.


For 16 years she's been working to keep her promise; the boxes and file cabinets filling her living room are proof. Along the way, she's been joined by a team of former FBI agents, a documentary filmmaker, attorneys, law professors and a veteran television journalist who are seeking justice for Freeman. The team says other suspects — whom they've identified and investigated — should have been considered by police. They've documented new testimony and evidence and refuted central elements of what was presented at trial. They suspect at best negligence and, at worst, actual malice by the criminal justice system that investigated, tried and convicted Freeman in 1987.

"It's mind-boggling," says Sam Gun, a 30-year veteran attorney from Sylvan Lake who is the latest addition to Freeman's team. "You would like to think that somewhere in the system somebody is going to come forward and say, 'Come on. You're putting away an innocent man here.' ... It's incomprehensible to me."

Others on the team feel the same way. California filmmaker Dean Mongan, a native of Oak Park, calls the story "mind-boggling." He's been filming interviews and other footage for a documentary about Freeman for five years, and he had a screening of his work in Detroit earlier this summer. The film, though, remains unfinished. "I'll have an ending when Freeman's released," Mongan says.

In prison for life, Freeman was convicted 20 years ago of killing Scott Macklem, the 20-year-old son of the mayor of Croswell, a town of about 2,000 northwest of Port Huron. On the accusation of Macklem's then-pregnant teenage girlfriend, Crystal Merrill, police focused on Freeman as their only suspect beginning just a few hours after the shotgun shooting Nov. 5, 1986. Merrill and Macklem had dated in high school but then separated. Merrill and Freeman had a relationship in May and June of 1986 but hadn't spoken since July. Merrill and Macklem reunited later that summer and had a January wedding planned.

Merrill told police Freeman was a ninja who carried poison darts in his shoes and belonged to a secret organization that fought against drugs and prostitution. She also said Freeman had made threats against Macklem, but these were not clearly substantiated by anyone else. At one court hearing, she described Freeman as a man in love with her enough to kill another man.

Evidence presented by then-St. Clair County Prosecutor Robert Cleland at Freeman's trial was nearly all circumstantial. A single eyewitness put Freeman at the murder scene. That witness had picked Freeman out of a photo lineup as the man he thought he saw driving a car near where Macklem was shot in the parking lot of St. Clair County Community College the morning of Nov. 5, 1986. The witness said he glimpsed the man for five seconds through the windshield.

No physical evidence would tie Freeman to the crime. A print found on a shell box near the crime scene didn't match his. He didn't own a shotgun.

Freeman certainly had a checkered past — one prosecutors referred to throughout the trial. His probation for a bad check charge in Washington state followed him to Michigan and, at the time of his arrest, police found outstanding warrants in Ann Arbor for perjury and in Pleasant Ridge related to a scuffle with his ex-wife's boyfriend. He lived under a couple of aliases and worked sporadically selling vitamins.

One of the few would-be strengths of the prosecution's case was a jailhouse snitch who had shared a holding cell with Freeman for a few hours during the week before Freeman's trial. The snitch, Philip Joplin, testified that Freeman had confessed to killing Macklem. Joplin later recanted, saying he had lied to get a better deal from prosecutors and the judge. Documents show he got favorable treatment within a month after Freeman's trial.

Freeman has always contended it was impossible for him to have shot Macklem — he was 450 miles away at the time, living near Escanaba with his pregnant girlfriend. Alibi witnesses testified he was in the Upper Peninsula within three hours of the shooting. His girlfriend told police she and Freeman were together all of the night before and the morning of the killing, but she did not testify at trial, saying police had threatened to take away her infant if she did. The prosecution countered Freeman's alibi by suggesting he could have chartered a private plane. No records of flights, payment for flights or other proof was provided.

"I read the whole transcript and I don't see how they could convict the guy," says Thomas Brennan, retired Michigan Supreme Court chief justice who reviewed the case following the request of a law student.

Shortly after meeting Freeman and hearing what she then thought were unbelievable stories about his case, Deringer started searching for his files. She filed Freedom of Information requests with the Port Huron Police Department and the St. Clair County Prosecutor's Office. She called Freeman's trial attorney, David Dean.

And she, too, sat down to read the 13-day trial transcript.

"I just knew it wasn't him. There was just no way," she says. "I tried to put myself in the jury's position even not knowing him. I kept thinking, 'Where's the evidence that he did this?'"

What she found in the transcripts was a prosecution's case based on suggestion, character assassination and circumstance. But Deringer knew she needed more than her own instinct that he was innocent to keep her promise to get him out.

"I was not getting a lot of help and I thought, 'Oh my God. I need a private investigator.' I had to find somebody who could at least give me some advice about what the heck I'm doing," she says. "I literally had a phone book and thought, 'I need to try and find an investigator that's close enough to Port Huron so it wasn't horribly hard for him to commute, but far enough out of Port Huron that he wouldn't be part of the influence of it."

She found Allen Woodside in 1992.

Fond of Hawaiian shirts and full of stories about managing the Roostertail, a Detroit riverfront nightclub, during the 1960s, Woodside gave Deringer directions to his downtown Mount Clemens office above a beauty shop near the courthouse. The former Pinkerton detective and military police officer with the Army worked mainly on Macomb County cases helping lawyers gather evidence for their clients.

"I went down there to meet him and told him the story. He sat across the desk from me, listened very nicely, and I'm sure thought, 'This woman's nuts.' But he said, 'I'll look into it and, if the things you're telling me check out somewhat, I'll be very interested in helping out,'" Deringer says.

Woodside remembers being floored by her story.

"I thought it was rather incredible. Here I am, I've got the girlfriend of a prisoner in the system coming to me, wanting me to help work on this case. That's not unusual," Woodside says. "She's telling me all this and I can't believe it. How many plots can you have in a story? How many irregularities can there be in a case? There were so many compelling issues in the case and she laid them out for me. It was hard to believe this many things could happen."

He thought the most offensive aspect was Freeman's defense attorney's drug problems. So he started there, first to check Deringer's credibility and secondly to begin assembling information to help Freeman's appeal.

Woodside wasn't quite prepared for the trail of injustices he would find.

"All I had to do was take what they call the proverbial loose thread on the sweater, which she had already identified. All I had to do was grab ahold and pull on it, and it all unraveled for me with respect to the alibi witnesses and Joplin. But I started with him," he says.


The detective digs in

Freeman says he had asked for David Dean as his attorney on the recommendation of a Port Huron police officer. A native of the Port Huron area who served in the U.S. Marines, Dean worked as an elementary school teacher before graduating from law school. He started at the St. Clair County Prosecutor's Office in 1979, and by the early 1980s was working on big cases. In 1980 Dean prosecuted Stephen Campbell for first-degree murder. Campbell had provided the gun another man used to kill himself while drunk. Dean won Campbell's conviction in St. Clair County Circuit Court. But the verdict would be overturned on appeal, a decision affirmed in 1984 by the state Supreme Court which found Michigan had no law prohibiting assisted suicide. The Campbell case has been credited with publicly elevating the issue of assisted suicide in Michigan. Six years later Jack Kevorkian's attorneys would begin citing the Supreme Court decision in their arguments for the lawfulness of "Doctor Death's" conduct.

But Dean left the prosecutor's office after four years. "That was where my heart was," he says. But he moved into defense work "for the money."

In private practice during the 1980s and 1990s, Dean defended clients on a variety of criminal charges but told Metro Times he eventually stopped taking drug cases because of the conflict they posed with his personal use. Now clean for a decade, he says he was a cocaine user throughout the 1980s.

"I'm sorry for that," he says. "It got to the point where I went home, and I don't know whether it was the stress of the job, or what. I [owned] a bar. I had a restaurant where I got involved with a little bit of drugs and a little bit of alcohol."

But he insists it didn't affect his practice. "People don't understand. They think, 'You do a line of coke, it lasts you for five hours. You go to work the next day and you're still under the influence of drugs.' They don't understand that a line of coke doesn't last 24 hours."

At least one court has disagreed about the effect of his drug use on his ability to represent clients. A St. Clair County Circuit Court judge in 1991 granted a new trial to a convicted murderer because of Dean's drug use. "He has a substance abuse problem, which has not been refuted, and in my opinion that would affect his status as a defense counsel in this particular case," Judge Ernest Oppliger ruled. During those proceedings, Dean's former assistant testified that he was using at the time of Freeman's case. Dean denied this to Metro Times.

Dean, who now lives in Florida, was eventually suspended from practicing law in Michigan by the Attorney Grievance Commission Board, which also ordered substance abuse counseling. According to published reports, board investigators charged Dean had purchased cocaine or had it purchased for him at least 19 times during the summer of 1990. In 2001, the Michigan Attorney Discipline Board denied Dean's reinstatement petition.

Woodside thought by documenting Dean's history, he could help show the attorney couldn't have provided an adequate defense for Freeman. That could be grounds for a new trial in some courts.

Woodside also met with Michelle Woodworth.

Woodworth and Freeman lived together near Port Huron the summer before Macklem was killed but moved to Escanaba around Labor Day. She was pregnant then with Freeman's child. She told Port Huron police throughout their investigation that Freeman was with her at the time of Macklem's shooting. A few months before the trial, she reported to a Port Huron police captain that the lead investigator on the case, John Bowns, had threatened her. "Come on, you know he did it. Just come clean," he told her, she said in an affidavit for Woodside. Bowns also threatened her with perjury if she testified at trial, she alleged, and said she could lose custody of the child she had by Freeman.

Woodside also found the jailhouse snitch, Joplin. A career criminal, Joplin spent a few hours in a holding cell with Freeman. Joplin testified that Freeman had confessed to shooting Macklem, contrary to what another man in the cell said at trial. Joplin told the jury he had not received anything in exchange for his testimony.

But he told Woodside otherwise and provided an affidavit that was included with one of Freeman's appeals. "As an inducement to having me testify against Mr. Freeman, I received promises from the St. Clair County Prosecutor's Office and from the Officer-In-Charge of Freeman's case. ... Detective [John] Bowns told me more specifically what [an assistant prosecutor] had meant. He said I would not be returned to prison; that I would be released into community placement and that [the assistant prosecutor] would watch out for me to make sure all of this happened."

Documents from the Department of Corrections show Freeman's trial judge, James Corden, had "chastised" the department for not allowing Joplin parole to St. Clair County. A Department of Corrections manager wrote in a letter a month after Freeman's conviction that he and a St. Clair County assistant prosecutor had "been in contact" about Joplin's placement in a Port Huron residential program.

By midsummer 1993, Woodside had documentation of Dean's drug arrests, an alibi statement from Woodworth and Joplin's documented admittance of his false testimony. "I was focusing on all of the exculpatory evidence," Woodside says.

Meanwhile, Detroit attorney Ralph Simpson had been appointed from the State Appellate Defender's Office to handle Freeman's first appeal. He remembers it as one of his more difficult cases of the time.

"It was a long and serious charge. There were a lot of resources devoted by the county to the case," he says. "It was lengthy. It was high-profile. It was controversial. The chief prosecutor was actively involved in it."

As an appellate public defender, Simpson handled appeals throughout the state. He describes a difference between the pressure on "small town" cops and prosecutors and their metropolitan counterparts. "In St. Clair County, I think it was fair to say, if you didn't resolve a high-profile murder case, it was going to be talked about in the media and the public and be significant," Simpson says. "It was very, very, very important to [the prosecution and police] to win the case."

Woodside gave Simpson his findings, some of which he used, including information about the snitch's deal from prosecutors and the latest statement that he had lied at trial. "I was trying to give him some solid meat and potatoes ... so he could present something in the appeal process that would give the higher-ups in the system something to feed on and to contemplate and to weigh in the decision with respect to an appeal," Woodside says.

The appeal spent years in the courts. Simpson had filed it during the summer of 1987 focusing on issues including the prosecution's character assassination of Freeman at trial, the use of a hypnotized witness and the assertion that Freeman could have flown between Port Huron and Escanaba (which would explain how witnesses saw him in the Upper Peninsula just three hours after Macklem's shooting).

"The prosecution should not be allowed to talk about it if they don't have any evidence. And it was clear they didn't have any evidence that happened," Simpson says in reference to the flight.

Freeman's defense attorney should have objected to the prosecution's inclusion of Freeman's "prior bad acts" at trial, the Michigan Court of Appeals ruled in 1993. But nonetheless, the court upheld Freeman's conviction. The Michigan Supreme Court then refused to hear the case. Woodside decided to go to the court of public opinion. He wrote dozens of letters to local and national journalists trying to get them interested in Freeman's story. No one was until the private investigator had a chance meeting with WXYZ-TV (Channel 7) reporter Bill Proctor.

The men met, and Woodside shared his boxes of documents. Proctor read them and started reporting. He found jurors. He interviewed Joplin, who was back in prison, and Freeman. He flew to the Upper Peninsula and talked to some of the alibi witnesses.

In 1995, Proctor aired five days of reports about the case, including footage of Freeman's only lie detector test. Within hours of being arrested, Freeman had asked for a polygraph. The results wouldn't have been admissible in court, but investigators use them as a tool to test the credence of suspects or leads.

With arrangements made by Proctor, Freeman took a polygraph test in 1995 while incarcerated at the Macomb Correctional Facility in New Haven. Chester Romatowski, a Michigan State Police polygraph expert, administered the exam while WXYZ cameras captured it.

Romatowski asked Freeman if he knew for sure who shot Macklem. Freeman answered no.

Romatowski asked Freeman if he shot Macklem. Freeman answered no.

Romatowski asked Freeman if he was in the parking lot of St. Clair Community County Community College when Macklem was killed. Freeman answered no.

Romatowski asked him if he had told the complete truth as to what he knew regarding he shooting of Macklem. Freeman said yes.

Romatowski reviewed the results and concluded the wrong man had been convicted. "Mr. Freeman did not shoot Mr. Macklem. I feel very confident about that. I don't believe he's involved in the shooting in any way," Romatowski said.


A new lead

Just after Proctor's 1995 broadcasts, Freeman sent a letter and copy of Proctor's broadcasts to a Christian lawyers group that passed it on to Lansing attorney Jonathan Maire.

"I'd get those things periodically from prison. Normally I just tell them I'm not able to have the time to help them, but, in this case, after seeing the letter and the tape, I decided to go and talk to Freeman," Maire says. Finding him credible and intelligent, Maire dug deeper into Freeman's case. He reviewed all the documents and investigator reports but, as Simpson was handling the first appeal, there wasn't much Maire could do.

But then in 1997 an anonymous tip came in about who supposedly shot Macklem: a former Michigan man who lived in Georgia.

To help track that, Maire found Harold Copus, a former FBI agent turned private investigator in Atlanta. He reviewed the case. "I found some holes in part of what was going on," Copus says in his relaxed Southern drawl. "It had a bad smell. I say, 'You introduce a little chicken shit in chicken salad, and it never gets any better.'"

Copus began visiting Michigan at his own expense in 2004. As he interviewed people around Port Huron, he found a new focus for the killer's motive that had been unexplored: Macklem's drug activity. "Early in the investigation, I was hearing people whisper that young Macklem was involved in narcotics," he says. "They were very reluctant to talk because the Macklem family was such a big family in that town. They were afraid there was going to be retaliation."

But when Copus got people alone and promised to never reveal their identities, he heard similar stories. "They kept saying, 'You're going to find out he's involved in drugs,'" he says. "I heard it from more than one source."

Copus also focused on the supposed shooter named in the anonymous tip.

He found a man in a Michigan prison who claimed to have been double-crossed by the supposed shooter and fingered in a murder.

Copus turned over his findings to Maire.

Maire used the possibility of another suspect, in part, in his October 2004 motion in St. Clair County Circuit Court to overturn the original verdict. A prisoner's second appeal in the state courts is allowed when there is new, exculpatory evidence that has surfaced since trial or first appeals. Maire raised other issues Simpson hadn't in the first appeal, including Dean's possible ineffectiveness as counsel because of his drug use and prosecutorial misconduct in using the jailhouse snitch and how some other evidence was presented.

But St. Clair County Circuit Court Judge James Adair denied the request, ruling that the new suspect and other issues did not warrant retrying the case or having a hearing for new testimony. The Michigan Court of Appeals upheld the ruling in August 2005; the Supreme Court declined the case in January 2006.

The year Judge Adair denied the motion, his son, John, also a lawyer, was playing in golf tournaments with Troy Dean, the son of Freeman's defense attorney, David Dean, according to information published in the Port Huron Times Herald newspaper.

Maire was unaware of the social ties between the Adairs and the Deans, but was nonplussed. "There's nothing about that county that would surprise me," Maire says. "It's a very strange place legally. ... Every now and then you run into a county that just kind of seems to be off the wall. That was one of them."


In the news

In the decade following his original broadcasts about Freeman's case, Proctor reported sporadically about his appeals. He kept in touch with Freeman and Woodside, but didn't devote too much time to the story.

"By no means was it a daily part of my life or was there really any intensity for most of that time. I had done what I could and I was ready to do more. I just didn't know what the hell that was. I guess there were issues of how much disappointment I could face. Here I knew the guy was innocent. Every time I thought about it, my stomach would churn," he says.

His June 2005 heart attack changed that. It led him to re-evaluate the traditional reporter's role.

"I went from journalist to advocate," says the 59-year-old Proctor. "I started thinking about what it was that needed to be done and how we could get it to move."

A police officer himself for four years during college, Proctor was forced to examine all the failings of a system he had believed in as he reviewed what happened to Freeman. "There's no doubt that the more you look at this case it is essentially the ultimate template for wrongful convictions and the failures that lead to them," Proctor says.

For months he reviewed cases. He taped a few new interviews. He sought support from local and national innocence advocates.

And a year ago, the case got what Freeman's team of advocates considers its biggest break.


Behind the bars

In the years since his conviction, Freeman says he has "grown up" in prison. Now 44, he has changed his name to Temujin Kensu to reflect his Buddhist faith. He and Deringer married in 2001 when he was in Lapeer Correctional Facility. Instead of Denise, she now goes by "A'miko," which means "stealer of hearts."

In prison, Freeman studies languages and history, reads law, helps prepare legal documents for himself and other inmates, and waits for the days his wife can visit.

He also stays in shape. One day about three years ago, he was lifting weights in the prison gym while he and other inmates were complaining about their lawyers. "We all do that in prison," he says.

But this time, when the inmates were comparing what was wrong with their attorneys, Freeman said his was a cocaine user. "I knew an attorney who was a coke user," another inmate told him. They were both talking about David Dean.

Freeman began to initiate simple conversations about Port Huron to determine what this other man knew.

"Within 15 minutes of our second conversation, he started talking about ... [former Port Huron Police Officer] John Bowns," Freeman says. "Once he'd opened the door, he began to talk more."

Freeman took some notes in front of this man and wrote other accounts of their conversations down in his cell immediately after them. As he gained trust, he'd have the man initial some of the reports. And then he contacted Proctor to say this might be the break they'd been hoping for.

"When I first told Bill, he was like, 'Come on.' I know he wasn't completely convinced in the beginning. That's how ugly it is," Freeman says.

But Proctor listened and told Copus, who was coming to Michigan as much as he could from Georgia to investigate the new lead. Copus interviewed this new source and calls him an "eight or a nine" on the scale of reliability.

That was enough for Proctor to go to his friend Sam Gun, the Sylvan Lake attorney. Because the informant could be considered a co-conspirator in the Macklem murder because of his admissions, the team thought he should have an attorney to represent him. Gun met with the man, asking him why he was coming forward and what he wanted.

"He thought Freeman was a decent guy, but I think my client's motivation is really to clear his conscience. He's looking for some inner peace that he doesn't have at night. He goes through visuals of people that he killed, and it haunts him," Gun says.

Gun says he's tested the man's credibility. And he passed.

"Besides working for the criminal syndicates, he also worked for the government [FBI and ATF] and he was very instrumental and credible when they needed him," Gun says.

Taking several pictures of prosecutors, police officers and other attorneys involved with Freeman's trial, Gun went to see the new source.

"He was familiar with them because while he was monitoring ... he was also observing their activities," he says.

A cheery, red-headed man, Gun will talk a limited amount about his "client." He won't say his name. He won't say his hometown. He won't say what crime he's in for or which prison he's in now.

But he will say this:

During the 1980s, Gun's client, a man we'll call Jim, was an enforcer for organized crime bosses in the Detroit area. "An enforcer is someone who takes care of business for drug lords: a little protection, security, makes sure things run smoothly, makes sure people who owe their money pay. People who either need to be taught a lesson or made an example of, sometimes they get taken out — that's what he did," Gun says.

When his bosses were worried about a midlevel dealer in Port Huron skimming profits and product, they sent Jim to watch him. "He observed all kinds of things that would personally endanger him today if he were identified," Gun says. "There was a tremendous amount of corruption ... in the Freeman case, just so you know. That's a consequence of the corruption that was there."

When the man Jim was sent to watch had a deal go "sour" with a low-level dealer, the man asked Jim to kill him. That low-level dealer: Scott Macklem.

Jim says he refused to kill the 20-year-old student who was voted "most popular" in his high school class, but he agreed to play middleman. The night of Nov. 4, 1986, Jim says he and Macklem packaged cocaine together all night. When Macklem left for school the next morning, Jim called the shooter and told him where Macklem would be. He killed him with a single shotgun blast in the parking lot and drove away in a borrowed car. (After Freeman was arrested, police received an anonymous tip, linking a similar car back to the shooter named by Jim. But police ignored that lead.)

The police investigation, by detectives' own statements in trial and to other investigators since then, never considered Macklem's background. Gun says that was by design. "They did everything they could ... not to even discuss his involvement in drugs, so it just looks like a college student who was the son of the mayor of Croswell [was murdered]. But he was deeply involved in the business, enough so that he had an argument and [the man Jim was sent to watch] would want him killed," Gun says.

The shooter and Macklem knew each other, Freeman's defense team says. Bowns, the lead investigator on the Macklem murder, was involved as well, Gun says. His client has said Bowns, who died in 2005, took drugs out of Macklem's gym bag that was found on the ground near his body immediately after the shooting.

"It's amazing when you read it. It's incredibly difficult to conceive the depth of the corruption in Port Huron. It was so solid. Police are accused of having a golden blanket, that's what was happening in Port Huron," Gun says.

The alleged shooter, who is today free and living in metro Detroit, knew Macklem and lived in the area, the defense team has determined.

"The person who did this was also around this circle of people for at least a year before the shooting," Proctor says, "and was very likely one of the two people who had been following and threatening Scott before — and before [Freeman] was involved in the life of Crystal at all."

Port Huron Police records and trial testimony could support that.

Freeman denies ever making threats against Macklem either directly to him or through Merrill. "Once they named me, they had to come up with it," Freeman says now. "Even Crystal didn't initially say this. Bowns made this up later on."

A close reading of police reports and witness statements suggests there could have been another man making the threats. Most of the information about threats recorded in police reports did come from lead investigator Bowns. In his report describing his initial interview with Merrill, however, Bowns makes no reference to threats she said Freeman made against Macklem.

The only reference to threats in the first round of interviews comes from Jerry Keller, the manager at the men's clothing store where Macklem worked. According to Bowns' notes, Keller said that about three weeks earlier Macklem had confided that Freeman had threatened him over Merrill.

But the notes of the follow-up interview with Keller by another detective, Harry Hudson, are at odds with that. According to Hudson, in that interview, Keller put the beginning of the harassment back to January or February of 1986, a couple months before Freeman met Merrill. And Keller said that the following summer Macklem said he was "still having trouble" with that man. This interview makes no mention of threats from Freeman in the weeks before the shooting.

A few months after Macklem's death, Hudson met with Merrill to talk about threats Macklem might have received or confrontations he was involved in. Merrill told him that she and Macklem had been driving about 1:30 a.m. on Nov. 1 near Port Huron when two men passed them in another car. They slowed down in front of Macklem and Merrill and then followed them as they turned onto another road. Merrill admitted it was too dark to be certain it was Freeman.

Freeman swears he was in the Upper Peninsula that weekend, not in the Port Huron area.

Hudson also talked to a neighbor who had gone pheasant hunting with Macklem in October. The neighbor told Hudson that Macklem had said "some guy was after him and also bothering Crystal. Scott didn't mention the suspect's name, but described him as a 'psycho' and the guy tried to start a fight with him a few days ago." Freeman denies being in Port Huron in October as well.


The other side?

Part of Freeman's team's frustration is the lack of will on the part of the the victim's side — the Macklems, the Merrills, Cleland and Port Huron Police — to discuss the case.

Metro Times had the same experience. A woman at the Macklem house saw a reporter in the driveway and slammed the door.

"You can turn right around and get the hell off my property," a woman at the Merrill house told a Metro Times reporter before she had introduced herself. "If you take any pictures of my property, I'll call the police."

Crystal Merrill, now Crystal Partaka, owns a flower shop called A Thyme to Blossom in Lexington. She did not return telephone calls. Neither did Michelle Woodworth, who teaches karate in Davison.

Cleland refuses all media interviews, said a woman who answered the telephone at his U.S. District Court office. Cleland arrived in the federal judiciary in 1990 by appointment from then-President George H.W. Bush. Like all federal judges, he has a lifetime appointment.

Now, one of Freeman's last two chances at freedom is in a federal judge's chambers five floors below Cleland's. In January, attorney Richard Lustig filed a habeas corpus brief arguing Freeman's constitutional rights have been violated because of what's happened to him in the state courts. The case is before Judge Denise Page Hood.

"The issues are real good, and if there ever was a claim of innocence, this is it," Lustig says.

Lustig, a high-profile defense attorney based in Birmingham, agreed to take Freeman's case pro bono after reviewing the files. "The only way you can get to the innocence is to show that the lawyer or the judge did something during the course of the trial that was so improper or so outrageous that you didn't get a fair trial," Lustig says.

Lustig can't pinpoint the biggest issue in Freeman's favor. He provides a list: the defense attorney's drug history, Freeman's alibi witness who wasn't called, the argument that Freeman hired an airplane when he "didn't have two cents to rub together."

"The whole thing stinks," he says. "It's about the original circuit court judge not giving them the opportunity to make an evidentiary hearing to show the things about the lawyer, to show the things about the airplane, to show the things about the cars."

The state is represented by the Michigan Attorney General's office to address the claims in the habeas petition. After receiving two extensions to the time limit to file responses, the state last month asked that Judge Hood remove herself from the case since Cleland is on the bench in the same district as Hood. Lustig objected. The court is considering the request.

While actual claims of innocence aren't necessarily legally relevant to habeas petitions, Freeman's defense team hopes that, with a new alleged shooter, his habeas brief will be taken a little more seriously.

One of the problems is getting that information to the court, wherever the case ends up.

"I've written a personal, confidential letter to Judge Denise Page Hood advising her of my guy and trying to figure out how he could assist her in deciding this habeas petition hopefully without exposing himself," Gun says.

Freeman's other remaining hope for freedom is at the state level, specifically with the newly formed Executive Clemency Advisory Council. In an effort to help the state Parole Board review applications for the release of sick, elderly, nonviolent or foreign inmates, Gov. Jennifer Granholm appointed the clemency council in February.

Its seven members include representatives for crime victims, law enforcement and the public. They meet once monthly and review clemency applications received from the governor's office, prison wardens or the inmates themselves. Freeman is on the council's agenda for its Aug. 14 meeting, says Russ Marlan, spokesman for the Department of Corrections.

If the council members decide by majority vote that the clemency applications have merit, they send them to the Michigan Parole Board. If the parole board decides by majority vote the clemency application has merit, it sets a public hearing.

Of the 115 cases the clemency council has reviewed, 85 were deemed to have merit, according to Marlan. Of the 85, the parole board is in the process of reviewing 33. Of the others, 28 were reviewed and determined not to have merit. The other 24 received what Marlan calls "preliminary interest." Three have been set for public hearings this month, the rest are being prepared.

Ronald Bretz, a professor at Cooley Law School in Lansing, has followed the council's formation but isn't convinced its recommendations will lead to many clemency releases by the governor.

"While the clemency council takes its job seriously, no governor since [William] Milliken has granted more than a few and usually not until the end of their last term. So the chance of a prisoner receiving clemency in Michigan is extremely remote," he says.

Still, Granholm is under pressure to reduce the state's prison overcrowding.

"While historically clemency is a very rare thing, this is a good time to be considered," says Bretz, who is the president of the Citizens Alliance on Prisons and Public Spending.

Freeman, meanwhile, is hopeful that between the habeas corpus filing and the clemency application he has some prayer of release.

"I still want them to know I didn't do this," he says. "Can I go home yet?"

Sandra Svoboda is a Metro Times staff writer. Contact her at 313-202-8015 or [email protected]. Research assistance was provided by Metro Times interns Achille Bianchi, Caitlin Cowan, Jonathan Eppley and Alfred Ishak.