Convicted murderer F.T. Freeman was granted writ of habeas corpus in 2010 by a District Court in Michigan. But the 6th circuit reversed in 2012. The issue is equitable tolling and discovery of attorney drug addiction and major trial mistakes. The “ninja” is reference to an alleged prosecutor’s witness derogatory characterization of the defendant.

JAN TROMBLEY, Respondent.

Civil No: 07-10350


744 F. Supp. 2d 697


Decided October 14, 2010 by US District Judge Denise Page Hood:

This is a habeas case under 28 U.S.C. § 2254. Michigan prisoner Frederick Thomas Freeman, (“Petitioner”), who is confined at the Saginaw Correctional Facility in Freeland, Michigan, has filed a petition for writ of habeas corpus through counsel raising the following claims: (1) Petitioner was denied the right to make a record regarding his defense attorney’s drug use; (2) ineffective assistance of counsel; (3) ineffective assistance of appellate counsel; (4) prosecutorial misconduct; (5) actual innocence; (6) trial court error in allowing Petitioner to be dressed in prison garb and shackles in the presence of the jury; (7) jury instruction error; and (8) cumulative error. Petitioner was convicted of first-degree murder, Mich. Comp. Laws §750.316. He was sentenced to life imprisonment. For the reasons that follow, the petition will be conditionally granted.


Petitioner’s conviction arose from the shooting death of Scott Macklem, on November 5, 1986, in the parking lot of St. Clair Community College shortly before 9:00 am. The prosecution theorizes that Mr. Macklem was murdered by Petitioner due to his jealousy of Crystal Merrill and Mr. Macklem’s relationship. Crystal Merrill is the former girlfriend of Petitioner. Ms. Merrill and Mr. Macklem were engaged to be married and were expecting their first child together. Petitioner argues that he did not commit the murder and that he was not at the scene of the shooting. Petitioner produced alibi witnesses at trial to support his theory of the case.


Petitioner makes the following claim of prosecutorial misconduct:

The prosecution repeatedly elicited from witnesses such prejudicial but irrelevant material, seeking through these witnesses to portray the Petitioner as a violent man, a ‘Ninja assassin,’ a ‘psychological terrorist.'” Witnesses were asked to describe the Petitioner as “frightening” (e.g. Heidi Bartel, Joplin, and John Manalli) and one who committed violent acts (e.g. Thomas Forde and Paul Demares) all of which had nothing to do with the victim in this case. The prosecution displayed in the courtroom an inflammatory array of items which were never connected to the Petitioner and were never offered in evidence, including guns, knives, and other weapons, martial arts equipment, pornographic magazines and listening devices.

The Court responds that:

None of the questions or answers rise to the level required for prosecutorial misconduct.

Nevertheless, this District Court does grant habeas based on other grounds and orders a new trial (particularly for ineffective assistance of counsel … not just the attorney’s drug use, but as regards preserving right to call an alibi witness and preventing the defendant from testifying on his own behalf). But this writ of habeas corpus is reversed by the 6th Circuit in 2012.

The major issue of the case is the time limit and whether the case deserves equitable tolling. The 6th Circuit before Circuit Judges Martin and McKeague and District Judge Caldwell, sitting by designation, concludes in opinion by Circuit Judge McKeague, May 18, 2012:

Freeman has failed to carry his burden of showing either actual innocence or entitlement to an evidentiary hearing. His petition is time-barred. It follows that the remaining issues presented both by the Warden’s appeal and Freeman’s cross-appeal are rendered moot.

On remand, Writ of habeas corpus denied, Motion denied by: Freeman v. Trombley, 2012 U.S. Dist. LEXIS 156779 ( E.D. Mich. Oct. 26, 2012) — So that’s only last month — so will this case go on to SCOTUS?

See also this 2007 blog MetroTimes: Reasonable doubt: Part I and Reasonable doubt: Part II By Sandra Svoboda