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The Problem with Judges who do not keep up with the times

Fred Freeman
Fred Freeman - 33 years and counting

The courts grant a writ of habeas corpus to very few individuals. This blog is about Mr. Freeman’s second habeas and how a judge justified not setting him free. I've tried to summarize the 36-page document, which you can read by clicking here. I am not a lawyer.

For over three decades Fred Freeman has fought for his freedom, based on a claim of actual innocence, i.e., they convicted the wrong man! The original trial was a mockery of justice with extremely weak eyewitness testimony and only speculation, rather than evidence, as to how he might have pulled it off. Hard to do when you're 450 miles away from the crime scene. By character assassination, a jury found him guilty.

William Bertelsman
William O. Bertelsman

Judge William O. Bertelsman is a Senior U.S. District Judge of Eastern Kentucky. The status of “senior” means that he stepped down from the court eighteen years ago! Still, from time to time, he is given cases to decide by himself., rather than a panel.

Judge Bertelsman begins by summarizing that Freeman’s habeas depended upon two main points: a Brady claim and an ineffective assistance of counsel claim. The petition must be based on procedural grounds, usually related to unethical behavior or incompetence, which end up denying the person his constitutional rights. Still, Freeman underscores his main claim that he is innocent. In other words, these two issues of procedure are ways of getting to the underlying issue that Freeman is an innocent man. Further, Freeman is required to show that these issues, had they been corrected for the original trial, would have persuaded the jurors to decide differently. Bertelsman notes that Freeman cannot pursue a freestanding actual innocence claim because, and this is difficult to believe but is true, habeas law does not recognize such a claim. It doesn't matter if you are innocent! In our system, you must find a procedural flaw.

Bertelsman then analyzes the original trial testimony in light of these claims.

If only I could have seen his face!

First, Bertelsman summarizes the eye-witness testimony presented in the trial. He points out the weaknesses in the testimony, such as when one of the witnesses states “My feeling on it was that somebody’s mother couldn’t have picked him out in that lineup.” Bertelsman describes how the other main "witness" stated that he could not see much of the person’s face and his collar was up, that he was wrong about the license plate, and that he originally identified in a photo-lineup a man other than Freeman. So Bertelsman seems to be on board.

Second, Bertelsman deals with the claim that the prosecution withheld evidence from the defense, which would have weakened the credibility of the witnesses, a clear Brady violation. At the heart of it are the facts that the two main witnesses were given a photo lineup that was highly suggestive that Freeman was the suspect. But at trial the prosecution showed the jury a photo lineup which had all of the suggestive differences removed, giving the jury the impression that the two main witnesses had not been manipulated by a lineup. With the two main witnesses having such weak visuals of this person far away driving out of the parking lot, the suggestive photo lineup was extremely influential.

Bartelman summarized why Freeman was granted his second habeas, but from there, it is all downhill. Bertelsman shows a complete lack of knowledge of what is commonly accepted today: that witnesses can be completely unsure of their eyewitness identification at the time, but through repeated exposure to the picture of one man and other manipulation by the prosecution, at trial they can identify the person they saw as if there had never been a doubt in their mind. Such testimony is extremely persuasive with the jury, especially if the jury is not told about the witnesses earlier doubts. (Best practices today help to minimize any influence by the police on eyewitness identification.)

He says, “The prosecutor specifically framed his questions to Gobeyn and Krueger to ask for an independent identification—asking them to consider only what they saw on the day of the murder in making the identification. Both unequivocally identified Freeman. Thus, even if the jury believed that the original photographs tainted the initial identification [in the photo lineup], the identification at trial is separate and without any such flaw.”

Lineup after witness said suspect was about 6'6"

Bertelsman fails to understand that the prejudicial photo lineup created confidence at the time of trial that did not exist earlier. They are not separate! Bertelsman must believe that these witnesses have photographic memories. Except for the select few who truly do, everyone else’s memories are malleable and easily manipulated. Today virtually anyone in the field knows that Bertelsman’s statement “And the identifications made at trial were independent of the lineups” is an impossibility. He then justifies his decision by citing other court decisions made before these dynamics were clearly understood.

Bertelsman also believes that since the prejudicial photo lineup and the in-trial identifications are entirely separate, that even if the jury found out that the two witnesses had been shown misleading photo lineups, they would believe the identifications at trial, and therefore would not have changed their minds.. Bertelsman seems oblivious to the fact that without the prosecution manipulating these witnesses with biased photo lineups, they never would have picked out Freeman then or at trial.

There are many oddities about Bertelsman's views, including this statement "Freeman must show, by clear and convincing evidence, that all jurors would have found him innocent if they had been presented with the original and prejudicial photographs." That's strange because last I checked, it only takes one juror to prevent a unanimous verdict of "guilty". Wow!

I don’t know all the reasons why Bertelsman was asked to review this case (except for the obvious, that the powers that be chose him so that Fred would not be released), but one thing is for sure, he represents a viewpoint about the reliability of eye witness testimony, the heart of the case, that has been completely debunked and shown to be utterly wrong. How tragic that old notions can derail a person’s chance for freedom.


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