UNDISCLOSED: The State V. Fred Freeman

1UNDISCLOSED: The State v. Fred FreemanEpisode 3 - Unjust StewardsApril 20, 2020Colin Miller: One of the most difficult Biblical parables to decipher is the Parable of theUnjust Steward, which is also known as the Parable of the Shrewd Manager. And thevery different meanings we might draw from these alternate titles alone is part of theconfusion. Here’s a description of the parable by The Nothingness Principle :Male Narrator:In the parable, a rich man confronts his steward, who has made poor use of therich man’s goods. Rather than trying to make it right, the steward decides to suckup to his master’s debtors, cutting them sweetheart deals in hopes that they willtake care of him after he’s fired.So what does the rich man do? Well, he actually praises the steward for hisprudent financial moves. He seems to miss the part about being cheated.[00:52] Colin Miller: Some read the parable in straight-forward fashion as a celebrationof shrewd pragmatism in the face of impending calamity, something we’ve allunfortunately been dealing with these past few months. Others, though, read it as acondemnation of the steward for his unjust actions in using his master’s resources forhis own benefit. But my interpretation is that, while shrewd, the steward is necessarilyunjust because he is trying to serve two masters -- his boss and his boss’s creditors -creating an inevitable conflict of interest. And, as the parable closes: “No servant canserve two masters, for either he will hate the one and love the other, or he will bedevoted to the one and despise the other.”In the prosecution of Fred Freeman, several individuals presented themselves asshrewd managers, and it wasn’t until years later that they were revealed to be unjuststewards.Rabia Chaudry: Hi and welcome to Undisclosed: The State v. Fred Freeman . This isthe third episode in a four episode series about Fred Freeman, who was convicted ofthe 1986 murder of community college student Scott Macklem. I’m Rabia Chaudry, I’man attorney and author of Adnan’s Story , and as always, I’m joined by my co-hostsSusan Simpson and Colin Miller.

2Susan Simpson: Hi, I’m Susan Simpson. I’m an attorney in Washington, D.C. and Iblog at The View from LL2.Colin Miller: Hi, this is Colin Miller. I’m an Associate Dean and Professor at theUniversity of South Carolina School of Law, and I blog at Evidence Prof Blog. [02:55] Rabia Chaudry: As we noted at the end of Episode 2, at the close of thedefense case in the Fred Freeman trial, the prosecution was in a pickle. Whether it behypnosis, shifting stories, or identifying someone other than Freeman in the policelineup, their eyewitnesses had issues. Meanwhile, Freeman had numerous alibiwitnesses placing him in the Upper Peninsula of Michigan which made it impossible forhim to have driven to or from the scene of the murder of Scott Macklem in the LowerPeninsula in enough time.And so, prosecutor Bob Cleland called pilot Bob Evans as a rebuttal witness at the veryend of trial to testify that Freeman could have chartered a private plane to take him toand from the Lower Peninsula in enough time to commit the crime.Here, in an interview before he passed away, Freeman’s defense counsel David Deanexplains the import of Evans being called as a rebuttal witness:David Dean:At trial, you have to understand, neither Fred nor I knew that the prosecutor, untilrebuttal- the very last chance, we don’t have a chance after him speaking- hebrings up this theory that Fred had someone fly him down here. And of course,there was no evidence during the trial or anything in the police reports to indicatethat in fact that ever occured.[04:09] Rabia Chaudry: Breaking that down, if Cleland planned to call Evans as anexpert witness as part of his case-in-chief, he would have needed to disclose hisexistence and the nature of his planned testimony before the trial. In turn, the defensecould have prepared for Evans’s testimony at trial and presented his own evidence andwitnesses to challenge his theory as part of the defense case. But instead, Cleland wasable to convince the judge that Evans only became relevant based on what unfolded attrial, meaning that pre-trial disclosure was unnecessary and that Evans would get thelast word.

3And what Evans said was almost too good to be true.Susan Simpson: There was no evidence that Freeman had pre-arranged to fly fromEscanaba to Port Huron on the day of the murder, let alone that he flew down there atall. But, according to Evans.no problem. He would testify that there was always agroup of pilots hanging out at the airport, ready to fly a drive-up customer wherever theywanted, no questions asked. Here are a few excerpts from his testimony:Colin Miller narrating:You sit and look at this thing all week and polish it, and you wait for somebody tocome along, put gas in it so you can fly it, you know.It’s quite frequent for somebody to go out, come out Sunday or the spur of themoment, find a pilot hanging around, hey, take me up Somebody’s alwayswilling to do it.And ask somebody if they’d run them up there and I’ll pay the expenses, andmost pilots, specially a private pilot, it’s expensive flying, and they like to fly, andthey’ll go for any reason.Susan Simpson: As Freeman’s current attorney, Imran Syed, notes, this is ridiculous:Imran Syed:And then they come up with this theory of, well, theoretically you can just godown to the airport, any small airport in Michigan in 1987 and you’ll meet somerandom pilots and they will fly you 400 miles and back and not make an officiallog of that flight.I mean, that’s insane. There’s no evidence that anything like that happened, yetthat was presented to the jury in rebuttal in response to Mr. Freeman’s alibi.But, for the State, the ridiculous became the sublime as Richard Pellegrin, one of thejurors who convicted Freeman, remembered Evans’s exact claims years later:Richard Pellegrin:There are pilots in a restaurant- there’s a restaurant there, and they are waitingfor things like this. Somebody comes in, and they say, ‘Well, we’d like to fly ’and boy, they jump on it, see.

4So, who was Bob Evans? As far as the jurors knew, he was a neutral and objectiveState’s witness whose name likely evoked one of the most wholesome figures inAmerican history:Commercial Audio, male:There’s lots of restaurants. We’d like you to pick ours. At Bob Evans, we do itright, or we don’t do it.It wasn’t until decades later that Freeman’s pro bono private investigator would learnthat Cleland and Evans didn’t do it right. They didn’t do it right at all:[07:14] Colin Miller:What’s some of the major work that you’ve done in that area looking into thistheory about chartering the private plane?Private Investigator:So, in 2008, I contacted Detective Harry Hudson who was one of the twodetectives that worked on this case.Detective Harry Hudson I worked with for many years, and I can say that HarryHudson is a good man. He was a good investigator, that he would never want tosee an innocent person sent to prison for something they didn’t do. But HarryHudson wasn’t the detective that was in charge of this case.He was one of two, but he had a Sergeant that was over him as far as theleadership in the investigation of this case.But I met with Harry one evening in 2008 and talked to him about this case. Andwhen I talked to him about the airplane theory, he said to me, ‘Herb, you knowwho the airplane pilot was, don’t you?’ and I said, ‘No, I have no idea.’ All I knewwas that his name was Robert Evans and that he had testified.Harry said that Bob Cleveland who was running for Attorney General here in thestate of Michigan that year, and in fact had just lost the election the day beforethe murder- when Bob Cleveland would fly to his speaking engagementsthroughout Michigan- that Bob Evans was Bob Cleveland’s personal airplanepilot, and would take him to these speaking engagements. And I had neverknown that, and of course this wasn’t brought out at trial.

5[09:05] Susan Simpson: An article from the local paper on the very day of theMacklem murder details the extent of this relationship: According to Cleland, he logged“more than 6,000 miles in the air” traveling around Michigan to campaign for AttorneyGeneral.So what ethical rules were violated by Cleland not disclosing his business relationshipwith Evans? Colin spoke with law professor Kevin McMunigal, an expert onprosecutorial ethics from Case Western University Law School:Colin Miller:Can you tell me the issue with an attorney, such as a prosecutor, callingan expert or a quasi-expert witness and not revealing a relationship, such as abusiness relationship with that witness?Kevin McMunigal:Well, the primary issue is there’s a constitutional duty to disclose exculpatorymaterial, that includes impeachment material, and this stuff would be clearlyimpeachment material. The witness could be attacked because of his priorrelationship. So that should have been revealed.And, there’s also an ethical obligation, in the ethics rules of the state that requiresprosecutors also to turn stuff over. So both, it’s an ethical violation and aconstitutional violation not to turn that stuff over.Susan Simpson: And then there’s the impact that the nondisclosure could have had onthe jury:Colin Miller:The jury, without getting disclosure about this business relationship, is essentiallythinking, ‘Oh, this is just a neutral, objective witness, right?Kevin McMunigal:Right. The risk is that they will overvalue the expert testimony. If the guy ispresented as somebody with some kind of expertise, and there’s a lot of. sort oflooks nice, sort of technical mumbo-jumbo about times, place Was this guy wealthy enough to have had access to a private plane to fly himback and forth and stuff? Or was he-

6Colin Miller:No. He was on welfare. He was appointed counsel as indigent, so there’s noindication that he would have had the resources to be able to do this.Kevin McMunigal:Yeah. So that Yeah. That makes it seem incredibly implausible.[11:29] Colin Miller: And, speaking of implausible. Remember Cleland’s claim that heshrewdly came up with the plane theory on the fly based on what happened at trial,meaning that there didn’t have to be pre-trial disclosure? One of Welser’s reports notesthe following:So, yeah, the jury never learned about the serious conflict of interest that Evans hadbased on his business relationship with Cleland, and Cleland’s sandbagging by labelingEvans a surprise rebuttal witness put the defense behind the eight ball.But while Bob Evans presented a theory about how Freeman could have committed themurder, and while the State’s eyewitnesses testified that Freeman could have been inthe community college parking lot before and after the murder, the State still neededsome evidence that Freeman actually, you know, committed the murder.Ron Bretz:Often times, you’ll get these cases where the prosecution doesn’t seem to havemuch evidence against the defendant, and then at the 11th hour, they come upwith some goofball who was in the jail with him, who has a criminal record aslong as your arm, who says, ‘Well, yeah, he told me he did it.”Rabia Chaudry: That’s law professor Ron Bretz, who has worked on the Freemancase. And he’s talking about the jailhouse informant in this case, Phillip Joplin. Freemanwas arrested on November 14, 1986. He didn’t confess to the police that he committedthe Macklem murder, and he didn’t confess to a man named Walter J., who was in thejail cell next to him: