(continued from Kensu Homepage)
I was pleased to speak with you at the retrial hearing on Monday. I realize you are attempting to piece together all of what you heard from the participants you spoke with. Because such interviews are within short, limited time frames, I'm sure the answer or information you receive is quite abbreviated and conveyed in sound bites. I know because, I found myself having to do so.
In order to gain a reasonable level of familiarity with all the issues of this case is a major undertaking. As to the number of issues raised by the defense in this case they are numerous. I might also add, none of which can be considered irrelevant, petty, frivolous or without merit by the standards set forth under the Michigan Court Rules, Code of Professional Responsibility, nor the many major Appeal Decisions of record. .
I am compelled to write to you in order that I might tell you what I wish I had the time to tell you at the hearing. I want to share my findings and feelings in hope that it will further enlighten you and other media folks to better understand the underling factors leading to the wrongful conviction of Mr. Freeman/Kensu, not to mention many other persons in like circumstance. Chances are you have already heard much of what I'm about to tell you plus a lot more concerning other investigators findings and opinions. Nevertheless, I'd like you to read my commentaries and opinions more than anything else in hope that my perspective of the issues might lend to a clearer overall picture of this unconscionable denial of justice.
Rule 3.8 Special Responsibilities of a Prosecutor.
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the degree of the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order; and
(e) exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6.
A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Precisely how far the prosecutor is required to go in this direction is a matter of debate. Cf. Rule 3.3(d), governing ex parte proceedings, among which grand jury proceedings are included. Applicable law may require other measures by the prosecutor, and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4. Paragraph (c) does not apply to an accused appearing pro se with the approval of the tribunal. Nor does it forbid the lawful questioning of a suspect who has knowingly waived the rights to counsel and silence. The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest.
In paragraph (b) and (e), this rule imposes on a prosecutor an obligation to make reasonable efforts and to take reasonable care to assure that a defendantís rights are protected. Of course, not all of the individuals who might encroach upon those rights are under the control of the prosecutor. The prosecutor cannot be held responsible for the actions of persons over whom the prosecutor does not exercise authority. The prosecutorís obligation is discharged if the prosecutor has taken reasonable and appropriate steps to assure that the defendantís rights are protected.
Please note that the above-cited rule pertaining to prosecutors remains basically the same today as it was in 1986. And so far as I know the rule is also basically the same in every state of the union. How many prosecutors violate their obligations under this rule? The answer is simple, just look at the number of individuals in the last decade who have had their convictions overturned because of sloppy/prejudicial police work, over-zealous/reckless/politically ambitious prosecutors, unqualified/uncaring judges and of course, hoodwinked/uninformed jurors. Add to this a few individuals in the media all too willing to gullibly print whatever they are told by the "authorities" without questioning it and you have a perfect formula for a wrongfully manufactured conviction.
How many prosecutors have been called down and disciplined for such unconscionable behavior? The answer is simple, damn few and far between! Why? Because the so-called "Criminal Justice System" (excuse the oxymoron) is the largest, fastest growing industry in the United States. A large segment of the legal profession has a vested interest in this lucrative industry. Its my opinion that most attorneys who primarily practice criminal law, whether defense or prosecution, and most judges (who of course are in the same union) do not wish to rock the boat they are riding on for a variety of reasons, some excusable, some not. I view the legal profession as no different than any other profession when it comes to cleaning its own house. Attorney Canons, codes of ethics and prescribed guidelines for professional conduct mean absolutely nothing unless vigorously and swiftly enforced. Otherwise, they are nothing more than window dressing to serve as a cloche of legitimacy to shroud the sins of a well-connected minority among their profession. There are many good and honest men and women within the legal profession as in all other professions. They have great integrity and do abide by their canons and codes. The problem is (as I see it) they can not afford to get out of step least they be targeted by the local power brokers within their local/state bar association and/or the fellow attorney(s) or judge(s) with whom they are inclined to take issue. I suspect the same or similar condition exists in the legal profession as it does throughout most segments of the law enforcement profession. Itís often referred to as the "blue code of silence" which by now is the widely known reason why police corruption is so difficult to uncover and eradicate. Many labor unions have been known to exercise the same but more brutal technique to keep their rank and file membership in line. As a mater of fact many secretive cults and fraternities and religion-based organizations have been known to utilize the same controlling threat/fear tactics to keep their memberships in line. If I am wrong in my analysis of why the legal profession fails to properly clean its own house then I welcome anyone in the profession to step forth to show or explain to me another reason and set me straight. I'm all eyes and ears!
At last known count, Michigan's Jackson Prison was considered the largest and highest populated walled prison in the western hemisphere, if not the whole world. Nationally, we have more prisons and prison populations per capita than any other country. One of the major occupations among the working class in northern Michigan is that of prison guard and other related prison service jobs. Statistically, there are thousands off innocent prisoners who, like Fred Freeman, have fallen through the cracks of a very uncontrolled, unmonitored and undisciplined "criminal justice system." They end up wrongfully convicted and imprisoned or executed for crimes they did not commit. The appeals process in nearly every state is a shameful farce that underscores what has become a true adage: "You can get a much justice as you can afford." Amnesty International has been examining wrongful and other questionable convictions throughout the USA for several years now because of the high incidence of human rights violations in our American justice system.
If a retrial for Fred Freeman is denied, it will further confirm (at least to me) that the prosecutorial role is not at all about justice. It's really and simply all about winning for self serving reasons, which in this case, were and still are clearly evident to anyone taking the time to familiarize themselves with the all the facts of the case.
Note: For a good summation of the case facts go to: http://www.ijconline.org
The prosecutor in question, Robert Cleland, failed miserably in meeting the obligations of his office. It was not by oversight, mistake, technical error, misjudgment or any other typical excuse for such a transgression. It was deliberately calculated and orchestrated for his own personal gain and reward... an appointment to a federal judgeship. You can bet that every possible "under the table string" has and continues to be pulled to prevent a retrial. This is because it would not only involve a new and hopefully just verdict to free Fred Freeman, but would also by the same token, result in a damning public revelation of the misconduct of Robert Cleland and others of his staff including police who knowingly participated in the wrongful charges and conviction of Freeman. If a retrial is denied it will be for this reason and this reason alone. It certainly will not be because the first trial was an "open and shut case" as the current and previous Port Huron Prosecutors would like to have everyone believe.
Now, as I get off my soapbox, I'll conclude by saying that not all things are what they appear to be or are said to be. My advice to the naive is to beware of deceiving illusions that suggest one thing, but in reality manifest in something entirely different. I'm not just talking about the speeches of politicians running for office, but something more personal and closer to home... things we are taught growing up, come to believe in and expect to be true. For example our individual rights and freedoms, which ought not be taken for granted. They are slowly and silently eroding away.
The last line of the pledge says: "...with liberty and justice for all." An ideal which, when I was a boy scout really believed was what our country was all about and always prepared to protect and defend. I now hate to have to say it, but this last line has become more of a ďpunch lineĒ for a joke. The absurdity of it reminds me of the big brother slogans in Orwell's classic 1984. There are too many glaring contradictions and supportive evidence across the entire board to prove it simply is not really true in the fullest spirit and meaningful sense that it's intended to imply.
If there is any moral to all of this it might be this:
Should you ever find yourself mistakenly or falsely identified as a suspect in a criminal matter you better Wish and Hope.
Wish the real perpetrator either turns him/her self in and confesses or is caught by an honest cop. If not...
Hope the prosecutor didnít sleep through ethics class and isn't keeping a scorecard of his wins and losses to wave around during his next run for public office.
With best regards,
Allen B. Woodside, LPI, CPP Ret.