PUBLISHER'S NOTE: Jailhouse informants, have probably been around for as long as there have been jails and inmates willing to trade information for a favor or two — including more privileges, a shorter sentence or dropping of charges. They commonly turn up in investigations which are not going anywhere - as in ‘no DNA'. “Incentivized informants” is the legal term of art, but too often they also have “a strong incentive to lie,” said Michelle Feldman, state campaigns director for the Innocence Project. That explains why, according to the project’s figures, 16 percent of DNA exonerations involved false testimony by informants. Broader studies of wrongful convictions put the figure as high as 46 percent. Innocent people have spent decades in prison while the guilty remained free, and often the victims of those informants never see justice either — a lose-lose-lose for the criminal justice system. "Boston Globe Editorial: February 15, 2020.
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PASSAGE OF THE DAY ONE: “There's not one single shred of evidence that I had anything to do with this crime,” Kensu said. There is no physical evidence connecting Kensu to the murder, and multiple witnesses placed him more than 400 miles away that day. But he may spend the rest of his life behind bars, thanks in part to the theory presented by the prosecutor at trial: that Kensu, who practiced martial arts, was a cunning ninja who was able to hire a plane to fly him from one end of the state to the other, shoot the victim, and return home without leaving a trace. Over the years, attorneys, journalists and independent investigators have challenged that theory and raised critical questions about Kensu’s conviction. High-profile supporters, including retired U.S. Senator Carl Levin, have pushed for his release. Since the conviction, a jailhouse snitch recanted his testimony that Kensu had confessed, and a federal judge overturned his sentence after finding, in part, that his lawyer provided ineffective counsel by never calling a crucial alibi witness. Yet Kensu remains in prison."
PASSAGE TWO OF THE DAY: "Kensu’s last shot at freedom lies with the state’s yet untested Conviction Integrity Unit. Modeled after efforts launched by local prosecutors to investigate innocence claims, Michigan’s CIU is one of only a handful of state-run units in the nation. CIU investigators have been examining Kensu’s case for months."
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PASSAGE THREE OF THE DAY: "The jailhouse snitch":That was the major flaw in the prosecution’s case: no physical evidence tied him to the crime. Jurors heard that a fingerprint pulled from the ammunition box found on campus wasn’t a match, and that the shotgun shell discovered near the scene wasn’t tested for fingerprints. Prosecutors did, however, have three witnesses who testified they believed they saw Kensu on campus that morning. One identified him in a photo lineup. Another witness, a student named Rene Gobeyn, picked him in a photo and an in-person lineup. Gobeyn testified that he heard a shot and then caught a glimpse of a man inside a car with his face ducked down, driving away from the scene. “It wasn't somebody that resembled him," Gobeyn said of Kensu at the trial. "It was him." But until a jailhouse informant took the stand, the case remained largely circumstantial. Phillip Joplin, a convicted felon, had written a letter to Cleland, the prosecutor, from jail. The letter stated that Kensu had confessed to the crime in the few hours they spent locked up together. At trial, Joplin testified that Kensu had enthusiastically described how he killed Macklem and constructed an “airtight” alibi to cover his tracks. “He said it could never be proven and he wasn’t worried about it,” Joplin testified."
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PASSAGE FOUR OF THE DAY: "New Evidence": Over the years, more evidence has emerged casting doubt on Kensu’s conviction. In 1995, a local investigative reporter ran a series of reports profiling his case. In them, Kensu passed a polygraph administered by an independent examiner in which he denied murdering Macklem. Joplin, the jailhouse informant, also recanted his testimony on camera. Kensu had actually insisted on his innocence in that holding cell, Joplin said. But when he tried to back out, an assistant prosecutor “exploded.” “He said ‘No, it’s too late for that man,’” Joplin said the assistant prosecutor told him, according to an interview transcript. “‘We’ve prepared for this whole thing. It’s all ready to go and you’re not going to do that.’” Joplin, who is now deceased, said he wrote the letter in a bid to get a deal. After trial, Joplin was transferred from prison to a less-restrictive halfway house. Before he died, he signed a legal affidavit stating prosecutors offered him special treatment in exchange for his testimony."
STORY: "Is Temojin Kensu a 'ninja killer' or a wrongfully convicted man?" by Reporter Hannah Rappleye, published by NBC News on March 21, 2021. (Rappleye is a reporter with the Investigative Unit at NBC News, covering immigration, criminal justice and human rights issues.)
SUB-HEADING: "In 1987, Kensu was convicted of murdering a Michigan college student despite multiple alibi witnesses and an elaborate theory for how he pulled off the crime."
GIST: Temujin Kensu has lived for 34 years behind the walls of Michigan state prisons. In 1987, he was convicted of the murder of a college student in Port Huron and sentenced to life without parole. For 34 years, he’s insisted—to anybody who will listen—that he’s innocent.
“There's not one single shred of evidence that I had anything to do with this crime,” Kensu said.
There is no physical evidence connecting Kensu to the murder, and multiple witnesses placed him more than 400 miles away that day. But he may spend the rest of his life behind bars, thanks in part to the theory presented by the prosecutor at trial: that Kensu, who practiced martial arts, was a cunning ninja who was able to hire a plane to fly him from one end of the state to the other, shoot the victim, and return home without leaving a trace.
Over the years, attorneys, journalists and independent investigators have challenged that theory and raised critical questions about Kensu’s conviction. High-profile supporters, including retired U.S. Senator Carl Levin, have pushed for his release. Since the conviction, a jailhouse snitch recanted his testimony that Kensu had confessed, and a federal judge overturned his sentence after finding, in part, that his lawyer provided ineffective counsel by never calling a crucial alibi witness.
Yet Kensu remains in prison.
Since the 1980s, more than 2,000 innocent people have been exonerated and released from prison, thanks to DNA testing and new evidence uncovered by advocates working on behalf of the wrongfully convicted. But Kensu's case illustrates the obstacles in undoing a questionable conviction when there is no forensic evidence absolving the defendant, such as DNA results.
The case “is a really frustrating example of how unfair our system can be,” said Imran Syed, Kensu’s attorney and the assistant director of the Michigan Innocence Clinic.
Kensu’s last shot at freedom lies with the state’s yet untested Conviction Integrity Unit. Modeled after efforts launched by local prosecutors to investigate innocence claims, Michigan’s CIU is one of only a handful of state-run units in the nation.
CIU investigators have been examining Kensu’s case for months. If they determine he is innocent, it remains unclear whether the county prosecutor, who has called Kensu the “most dangerous individual that has come to St. Clair County,” will agree to move to vacate his conviction. If not, Michigan’s Attorney General can’t say how such an impasse will be resolved.
“There is no clear precedent on this issue,” Courtney Covington Watkins, a spokesperson for the Attorney General’s Office, wrote in a statement.
‘Red Flags’
Shortly before 9 a.m. on Nov. 5, 1986, 20-year-old Scott Macklem was fatally shot with a 12-gauge shotgun in the parking lot of St. Clair Community College.
The Port Huron Police Department didn’t have much to go on. No one saw the shooting, and bystanders gave various descriptions of cars and individuals nearby. Investigators recovered little evidence from the scene: no hairs, fibers or footprints and no murder weapon. A 12-gauge shotgun shell was, however, found nearby, along with an empty ammunition box. A latent fingerprint was recovered from the box, according to police.
Macklem, whose father was the mayor of a nearby farm town, had no criminal record. He and his fiancée, a young woman named Crystal Merrill, were expecting their first child. Police case files show no evidence that investigators dug deeply into Macklem’s finances or personal relationships. They did, however, find signs that he wasn’t focused on his schoolwork. Two teachers told investigators that Macklem was in danger of failing their classes and his attendance had declined in the weeks leading up to his death.
That morning, investigators interviewed Macklem’s family members at the hospital, including Merrill. According to case records, her teenage sister told a detective that she and Merrill thought the murderer had to be a man named John Lamar.
Lamar’s real name was Fred Freeman, who later changed his name to Temujin Kensu after converting to Buddhism. Kensu, then 23 years old, had developed the habit of using aliases in order to dodge warrants, including one for aggravated assault and another for passing bad checks.
Merrill and Kensu had briefly dated about six months earlier. She told a detective that Kensu was “heavy into Ninja” and had threatened to kill her and her family if she told anyone about his “lifestyle.”
From that day on, case records and trial testimony show, investigators didn’t pursue any other suspect.
Syed, Kensu’s attorney, said detectives immediately concluded that Kensu committed the crime and worked “backwards” to prove it.
“There were really large red flags in the case against Freeman,” he said. “But they just trudged forward, undeterred, because they had some really undying belief that he’s the guy who did it.”
Kensu was arrested nine days after the murder. From the backseat of a patrol car, he insisted he was innocent and said he would take a polygraph. He said he had only ever seen Macklem once, while visiting Merrill at work some six months earlier.
“He stared at me a few times,” he said. “I looked back at him, and that was about it.”
Revenge of the Ninja
In his opening statements during Kensu’s 1987 trial, St. Clair County Prosecutor Robert Cleland told jurors that his motive for murder was to control Merrill. Kensu wanted to mold her “into his property, his handmaiden, virtually his slave,” Cleland said.
Merrill testified that she met Kensu in early May 1986 at the video store where she worked, and that they dated for a few weeks. She had stopped seeing Macklem before she met Kensu, but got back together with him after she and Kensu broke up, about six months before the murder.
Dating Kensu, Merrill said, was “like living in hell.” She testified that he raped, physically abused and psychologically terrorized her.
She also testified he confided to her that he was a “higher up” in the Yakuza, the Japanese organized crime syndicate, and wanted to train her to be part of the organization.
“I had no idea what was the truth and what wasn’t,” she said.
Merrill testified that Kensu threatened to “put a contract out on Macklem” after Macklem called the video store while Kensu was visiting and she denied it was him. “He threatened me,” she testified. “He says if you don’t quit lying to me, he says, I’m going to kill you, and he says if Macklem doesn’t stop bothering you, I’m going to take care of him, too.”
While she testified, Cleland displayed photographs of martial arts weapons that belonged to Kensu. No one else would testify about any connection between the men, but jurors would hear witness testimony, and statements made by the prosecutor, that Kensu was rude, arrogant and fancied himself a ninja.
As the trial wore on, Kensu listened, aghast.
“Nobody cared that there was no evidence that I had anything to do with this murder,” he said.
The jailhouse snitch
That was the major flaw in the prosecution’s case: no physical evidence tied him to the crime. Jurors heard that a fingerprint pulled from the ammunition box found on campus wasn’t a match, and that the shotgun shell discovered near the scene wasn’t tested for fingerprints.
Prosecutors did, however, have three witnesses who testified they believed they saw Kensu on campus that morning. One identified him in a photo lineup. Another witness, a student named Rene Gobeyn, picked him in a photo and an in-person lineup. Gobeyn testified that he heard a shot and then caught a glimpse of a man inside a car with his face ducked down, driving away from the scene.
“It wasn't somebody that resembled him," Gobeyn said of Kensu at the trial. "It was him."
But until a jailhouse informant took the stand, the case remained largely circumstantial.
Phillip Joplin, a convicted felon, had written a letter to Cleland, the prosecutor, from jail. The letter stated that Kensu had confessed to the crime in the few hours they spent locked up together.
At trial, Joplin testified that Kensu had enthusiastically described how he killed Macklem and constructed an “airtight” alibi to cover his tracks.
“He said it could never be proven and he wasn’t worried about it,” Joplin testified.
‘People don’t teleport places’
Kensu said he was burning to take the stand in his own defense, but his trial attorney told him he wasn’t allowed to testify. If he had, he would have told jurors that he was some 400 miles away when Macklem was killed.
Kensu and his girlfriend, Michelle Woodworth, moved to Michigan’s Upper Peninsula in July – four months before the murder – and eventually settled outside Escanaba.
He says he got home sometime after 2 a.m. on November 5, after his car broke down in the parking lot of a restaurant. At 9 a.m., when Macklem was shot, Kensu says he and Woodworth were still in bed.
The couple eventually drove into Escanaba. By 12 p.m, three hours after the murder, they stopped at a martial arts studio and then went to various shops, running into friends along the way. Later that afternoon, Kensu’s car broke down again in a K-Mart parking lot and he bought a fuel pump to fix it.
The defense called nine witnesses to support his alibi.
Those witnesses include a man named Paul DeMars, who testified that he met Kensu sometime after midnight on Nov. 5, in the parking lot of a Big Boy restaurant in Escanaba. Kensu called him, DeMars said, because he needed a jump start for his car. As the battery charged, the men stayed at Big Boy until about 1:30 a.m. An assistant manager at the restaurant corroborated his account.
A martial arts studio owner named John Manelli said Kensu stopped into his studio in Escanaba sometime around 12 p.m. on Nov. 5. The men talked for more than an hour, lamenting about how difficult it was to do karate kicks with jeans on. An instructor also testified she had a conversation with Kensu at the studio, at the same time.
Other witnesses testified they saw Kensu and Woodworth that afternoon and evening, in Escanaba. Employees from K-Mart and an auto parts store confirmed a man with a busted car had come into both businesses late that afternoon.
“He was hundreds of miles away from where this crime happened,” Syed, Kensu’s attorney, said. “People don’t, you know, simply teleport places. There needed to be a very, very good explanation for how someone could commit a crime hundreds of miles away from where they were known to be.”
‘If he flew, he had time’
That explanation came from a rebuttal witness named Robert Evans, a pilot, who testified that Kensu could have chartered a plane and flown to Port Huron and back to Escanaba between 1:30 a.m. and 12 p.m. on Nov. 5.
Private pilots often hang around airports waiting for customers, Evans said.
“Somebody’s always willing to do it,” he said.
According to testimony, detectives searched for evidence that Kensu hired a plane, including poring through airport and airline records in Escanaba and Port Huron. Escanaba’s airport manager found no records of a flight taking off on Nov. 5, the day Macklem was killed, but also said it was “possible” a plane could take off and leave without logging the flight, according to one detective’s testimony.
Ultimately, however, investigators never discovered any evidence that Kensu flew to Port Huron: no flight records, receipts, or witnesses.
But the theory landed. Kensu was convicted of first degree murder and sentenced to life without parole. Jurors later told a local news outlet they believed it was possible he had chartered a plane and that the martial arts studio witnesses were mistaken.
Cleland told news outlets that Kensu’s alibi witnesses and the absence of physical evidence made it a “difficult” case. But no one, he said, could account for his whereabouts between 1:30 a.m. and 12 p.m. on the day of the murder.
“The point is, everybody in the case could be telling the truth, and it does not provide an alibi for Fred Freeman,” he said. “If he flew, he had time to come to Port Huron and go back to Escanaba. Ample time.”
Except there was one person who could. But she never got to testify.
‘I will say it until I die’
Woodworth, Kensu’s former girlfriend, insists that she was with him at the exact moment Macklem was killed.
Woodworth said she told detectives that. The police file backs her up: the day before his arrest, Woodworth told investigators he was at home with her that morning, according to the lead detective’s notes. But they accused her of lying, she said, and threatened her with jail time.
“I did tell them that I knew he didn’t do it because I was with him,” she said. “But it was like an already done deal, that he had done it and he was already guilty, and I needed to come forward and confess.”
Woodworth said she told his court-appointed lawyer, David Dean, that she was willing to testify. But she never received a subpoena to come to court, and she didn’t ask why at the time. “It was overwhelming and I knew nothing about the legal system,” she said.
Information that came to light after the trial helps explain Dean’s handling of the case. Dean, who is now deceased, was addicted to cocaine throughout the trial, according to public records and his own accounts. In 2001, he was disbarred due to his drug abuse.
Woodworth said she would have told jurors that Kensu was at home, with her, at nine a.m. on Nov. 5, making it impossible for him to have murdered Macklem. In 1999, she recounted the same during a polygraph exam, arranged by private investigators and administered by an independent polygraph examiner, and passed.
“I’ve never wavered on it,” she said. “From day one, from the day that they came and they asked me about him, and they accused him of doing this, until this day, I have never gone back on my word and said anything other than he is completely innocent.”
“I know he is,” she added. “I was there. I will say it until I die.”
New Evidence
Over the years, more evidence has emerged casting doubt on Kensu’s conviction.
In 1995, a local investigative reporter ran a series of reports profiling his case. In them, Kensu passed a polygraph administered by an independent examiner in which he denied murdering Macklem. Joplin, the jailhouse informant, also recanted his testimony on camera.
Kensu had actually insisted on his innocence in that holding cell, Joplin said. But when he tried to back out, an assistant prosecutor “exploded.”
“He said ‘No, it’s too late for that man,’” Joplin said the assistant prosecutor told him, according to an interview transcript. “‘We’ve prepared for this whole thing. It’s all ready to go and you’re not going to do that.’”
Joplin, who is now deceased, said he wrote the letter in a bid to get a deal.
After trial, Joplin was transferred from prison to a less-restrictive halfway house. Before he died, he signed a legal affidavit stating prosecutors offered him special treatment in exchange for his testimony.
Private investigators, including a retired detective from the Port Huron Police Department, also uncovered major revelations.
Herb Welser, 65, discovered serious inconsistencies in reports drafted by detectives and tracked down additional alibi witnesses. One of Welser’s most significant discoveries was that investigators showed eyewitnesses a distorted photo lineup that made it more likely they’d pick Kensu. (Port Huron police declined comment.)
Among Welser’s other findings: the man who testified that Kensu could have chartered his own plane to Port Huron had flown the prosecutor around the state of Michigan during his campaign for attorney general. (Cleland, the former prosecutor who is now a federal judge, declined to comment.)
“This is the police department that I retired from,” Welser said. “But when I saw what appeared to me to be an innocent person that’s been in prison now for over 30 years, I felt I just couldn’t walk away from that.”
‘They cannot get relief’
Despite the new evidence, Kensu has lost nearly all of his appeals.
Legal experts said appellate courts, which should serve as the remedy for wrongful convictions, too often rule against such claims on procedural grounds.
“All of our wonderful constitutional protections, which are great, are not aimed at determining whether the person who is accused of the crime committed the crime,” said Marissa Boyers Bluestine, assistant director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School.
“The end result is that we have potentially tens of thousands of people in prison who committed no crime,” she added. “And they cannot get relief.”
Kensu did, however, achieve one legal victory. In 2007, he filed his own writ of habeas corpus, a civil action that prisoners can file to challenge the constitutionality of their detention. A federal judge granted his request, in part on grounds that Kensu had received ineffective assistance of counsel because Dean had not called Woodworth to testify as an alibi witness.
It was a critical error, U.S. District Judge Denise Hood wrote, one so serious it deprived Kensu of the right to a fair trial. She also determined that Cleland, the prosecutor, had solicited perjured testimony from the jailhouse informant. Prosecutors “should have known his testimony was untruthful,” she said.
She ordered that Kensu be released or granted a new trial. But whatever hope he drew from that decision was squashed when a higher court overturned Judge Hood’s ruling on procedural grounds--namely, that he had filed too late.
“It was, ‘Well, yeah, you might be innocent,’” Kensu said. “‘But you might not. Big deal.’”
Where courts fail, prisoners often seek the mercy of governors, who have the power to commute a criminal sentence or pardon a conviction. It’s clear, however, that Macklem’s tragic murder hangs heavy over St. Clair County and Michigan’s criminal justice system.
Kensu has been denied clemency three times, most recently by Gov. Gretchen Whitmer. Michigan’s Parole Board, which does not examine innocence claims, has consistently opposed his release.
Some, including prosecutors and Macklem’s loved ones, believe he is guilty and too dangerous to be let out of prison.
Merrill, who has lived for decades in the shadow of Macklem’s death, declined to be interviewed by NBC News. But she wrote in an email that her belief in Kensu’s guilt has never wavered. He is a “monster,” she wrote.
“After thirty-four years, I am still 100% positive that Freeman killed Scott as he had threatened to do so often, along with my family,” she added.
Macklem’s family declined to comment. The current prosecutor, Mike Wendling, also declined to comment. But at Kensu’s most recent commutation hearing, Wendling said his predecessor warned him not to let Kensu out.
“If there’s one priority, you make sure Fred Freeman stays in prison,” Wendling said he was told. “He's the most dangerous individual that has come to St. Clair County.”
‘We have a duty’
Local prosecutors’ steadfast belief in his guilt may complicate Kensu’s last chance at getting out of prison.
Prosecutors, often reticent to admit error or misconduct, are sometimes the biggest impediment to re-opening questionable convictions. Yet district attorneys across the country are increasingly launching efforts to examine innocence claims.
There are now more than 50 such units in the U.S. Some haven’t resulted in any exonerations, while others have been prolific. Wayne County, Mich., prosecutor Kym Worthy has overseen the release and exoneration of nearly 30 people since 2018.
In 2019, Michigan Attorney General Dana Nessel formed the state’s own CIU, modeled after Wayne County’s program. State-level CIUs are rare, but growing: Attorneys General in at least seven states, including Virginia and New Jersey, have launched conviction review units.
So far, Michigan’s CIU has referred more than 100 cases for possible DNA and forensic testing, according to a spokesperson with the Attorney General’s Office. But due in part to the pandemic, the already tedious and challenging work of probing criminal convictions –some decades old, like Kensu’s – has slowed.
His case could, however, be one of the first tests of the state’s authority. While county prosecutors have clear jurisdiction to move to vacate their own convictions, it’s unclear whether Michigan’s attorney general, considered the state’s highest-ranking lawyer and law enforcement official, has the power to vacate local convictions on her own. In the case of a stalemate, courts may ultimately have to serve as the final arbiter. “Our office hopes to not have any conflicts with local prosecutors and in the event that we do, we will consider next steps if or when we encounter such a situation,” said Covington Watkins of the Michigan Attorney General’s Office.
Despite the obstacles he and his supporters have encountered over the past 34 years, Kensu believes that state investigators will find what he has always known to be true: that he is an innocent man. “I don’t think they can conclude anything other than this was a wrongful conviction,” he said."
The entire story can be read at:
https://www.nbcnews.com/news/all/temujin-kensu-ninja-killer-or-wrongfully-convicted-man-n1260983
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog; -----------------------------------------------------------------
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
