Could Missing Photos Free Convicted Murderer?

December 04, 2013, 11:03 AM


It took years of repeated requests to get the information that should have been readily available under Michigan’s Freedom of Information Act, but Frederick Freeman’s support team finally got ahold of the photographs used, in part, to convict him of murder.

And now the Michigan Supreme Court has ordered that a trial court consider the photos in a hearing to decide whether Freeman, currently doing life in prison, deserves a new trial.

This is a case that has been in and out of the Michigan courts for years, summoning intense passions on both sides. Freeman’s supporters say he is an example of justice run amuck: an overzealous prosecutor, police withholding evidence and failing to properly investigate, and a community whipped into such a frenzy that Freeman can’t get fair hearings. Prosecutors, meanwhile, characterize Freeman as a dangerous psychopath who was fairly tried the first time and convicted by a jury that did its job.

Only Suspect in Case

Freeman, 50, was the only suspect Port Huron police ever considered in the murder of Scott Macklem, who was gunned down in a community college parking lot in 1986.  Macklem, the son of a mayor of the small town of Croswell in Sanilac County,  was dating and planned to marry Crystal Merrill, who was pregnant with Macklem’s son. Merrill had dated Freeman several months earlier.

At trial, Freeman had witnesses who put him in the Upper Peninsula just a few hours after the shooting. No physical evidence ever linked him to the scene.

But two eyewitnesses identified him as a man who was near the scene within an hour of the shooting. One witness, after being hypnotized, said Freeman was the man driving a car across the parking lot right after he heard shots. Another said he thought Freeman was a man he saw an hour prior to the shooting in an adjacent area.

But Freeman and his defense team maintain these witnesses were tainted. BEFORE they picked Freeman out of a physical lineup, police showed them a photo lineup that included a picture of Freeman.

And that photo clearly showed Freeman with a Pleasant Ridge jail placard, uniquely suggesting he had been arrested there while the other five had Port Huron identifiers. In addition, a side view of Freeman faced one way, while the others faced the opposite direction. Those differences created a bias that made witnesses more likely to identify Freeman, his team argues.

By the time of trial when the photos were shown to the jury, they were different, says Freeman attorney David Moran, director of the University of Michigan Innocence Clinic. “They were heavily cropped at trial to remove the suggestive elements,” he says. “It was misleading and made the eyewitnesses seem more credible.”

In the decades since the trial, legal and criminal justice researchers, advocates and other professionals have shown how unreliable and susceptible to suggestion eyewitness testimony can be. Relying on it for a conviction can be a risky strategy for police and prosecutors interested in accuracy.

In this case, the missing photographs lead to further questions about police conduct regarding Freeman’s case. As Freeman’s team pursued his innocence claims, Port Huron police did not produce the photos used in the line up or at trial until a few years ago when Freeman’s private investigator, a former officer there, received them in response to a Freedom of Information request. It was not the first time investigators, attorneys or journalists had asked for them.

Michigan Supreme Court Weighs In

The photos, Moran says, are suggestive enough to merit a new trial request. The Michigan Supreme Court agreed last week, sending it back to St. Clair County Circuit Court for a hearing following an appellate order.

No dates have been set, and when there is a hearing, it is no guarantee of a new trial, let alone a different outcome. Freeman’s appeals, parole requests and other efforts have been repeatedly denied.

Still, this Michigan Supreme Court order provides a glimmer of hope he hasn’t had. And the subject of the hearing is yet another question about just how he was convicted in the first place.

The current St. Clair County Prosecutor, Michael Wendling, did not respond to an interview request.

Here are previous reports by this writer.

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