The ruling might as well have said “Justice Denied.”
Paul Free, serving a sentence of life without parole for a nonviolent marijuana conspiracy offense he says he can prove he did not commit, is used to such outcomes after more than 20 years of incarceration in a maximum-security federal penitentiary. It’s the reason for this particular denial of justice that is so maddening to him this time.
One of the judges charged with deciding his fate claims Free should have brought up evidence of his innocence years ago and that his current “Motion for Rehearing” contains nothing new. However, anyone who actually takes the time to read the petition will see a brand new affidavit from the case’s star witness, a man who testified on the stand that he and Paul Free traveled together for years and were responsible for delivering large quantities of marijuana. This witness now states that he never knew Paul Free before the trial, in fact he didn’t even know him at the time of trial, but detectives told him whom they wanted to convict and he complied.
As astounding as this piece of evidence is, there is much more evidence that puts Paul Free hundreds of miles away from where the “crime” took place. But that is the least part of this dramatic story. The real story, casually dismissed by the judge claiming he saw no new evidence, lies in the resolve, determination, and resilience of the remarkable man at its heart.
Paul Free has worked tirelessly, every day, against near impossible obstacles and odds, for over two decades, to get a chance at the justice that was denied him during his trial. If he wasn’t writing a motion, or a reply, or an appeal to the courts of appeal, or to the Supreme Court, he was waiting on a response from them. All the while he was gathering as much evidence of his innocence as he could find. He hired investigators to first locate and then interview each of those who testified against him at trial, no small feat from the confines of federal prison and on a prisoner’s wages.
For many years Paul did everything on his own, but along the way he has gathered a dedicated group of supporters and followers, including this organization, who want to see him released.
Before we explore Paul Free’s twenty-year plus quest for the justice denied him, let’s be clear about two facts first:
- Even if Free did commit the crime in question, we are still talking about a marijuana-only conspiracy, with no violence and no victims. Free maintains not only did he not commit this crime, he could not possibly have done what the government accuses him of without going backwards in time and being in two places at once.
- Yes, a person absolutely can receive a life sentence for a nonviolent conspiracy offense in the USA. Even just for marijuana and even though 4 states have legalized marijuana for recreational purposes and 23 have for medicinal purposes. Most people with such convictions are senior citizens, like Paul Free, who have been locked away for decades. However the practice still continues. The CAN-DO Foundation’s newest identified marijuana lifer received his life without parole sentence in 2014.
A Confusing Trial
When Paul Free first went to trial for conspiracy to distribute marijuana back in 1995, he knew he was being framed. Yes he had a prior conviction for marijuana, but he had paid his debt to society and left that life behind. Nonetheless, various witnesses in the case kept referring to doing various illegal activities with “Paul.” It wasn’t until mid trial when two of the co-defendants Robert Lillie and Antonio Diaz, saw Free and informed the attorneys “that’s not Paul,” that Free realized there actually was a “Paul” involved in the case, it just was not Paul Free.
Free pleaded with his attorney, a public defender, to put these witnesses on the stand. The “defense” attorney refused. Free pleaded with the judge to allow him to replace his attorney, for he certainly was not representing the best interests of his client. The judge, who according to Free fell asleep on the bench five times during the trial, refused.
In order to prove he was not the “Paul” that the witnesses were talking about, Free asked to be identified in a lineup. The prosecutor at first refused, but after a lot of cajoling finally agreed to a photo-only line up with the stipulation that Paul Free’s public defender NOT be present. Remarkably, Free’s attorney agreed to the condition!
What was presented at trial was that defendant Douglas Shephard identified Paul Free in the photo lineup as the man he traveled cross country with to deliver illegal loads of marijuana. Yet Paul Free maintains he had never met Doug Shephard in his life.
A Two-Decades Plus Struggle for Justice That Continues Today
Through his two-decade plus struggle for freedom, Paul Free dealt with a number of private investigators he hired whenever he could save up enough funds to pay their fees. Some were helpful, most delivered a snippet of information then held him up for more money if he wanted anything more useful, while others took the first fee and disappeared, never to be heard from again. These unscrupulous individuals knew a prisoner had no recourse to do anything about it.
Like everyone doing long sentences on a conspiracy case, Paul Free’s conviction hinged not on actual evidence against him, but rather on the testimony of others who were trying to avoid prison time themselves. Like Free, they were given the opportunity to implicate others and thus avoid prison time. In other words, they had a big incentive to lie. Unlike Free they had no problem doing so.
At the time, Paul Free was offered 7 years or less if he testified against others. When he informed his public defender that he did not know the people he was being asked to testify against, the counselor’s answer was, “So?.”
Paul Free was then offered 7 years to implicate people that he did know, but did not know of their involvement with any crime. Free refused both deals. When I interviewed him in 2014 he told me that he would make the same decision today, even knowing the outcome, because, “What good is life if you can’t look at yourself in the mirror?”
A False Witness Triggers a Life Without Parole Sentence
One of the “witnesses” the investigators found was a woman, Georgette Tomsick, who had the misfortune of being in the wrong place at the wrong time. She was not involved in the Sumpter organization that was on trial, but was apparently arrested in the same Organ Pipes National Park in Arizona while smuggling marijuana across from Mexico. This spot had been used by the Sumpter organization up to six months earlier and was used by other smugglers on an almost daily basis. Nonetheless, this woman was brought to Detroit. She was offered a sentence reduction if she pled guilty to being part of the Sumpter organization, despite the fact that she had nothing whatsoever to do with them. She did and as a result, the weight of the marijuana she was smuggling was attributed to Paul Free’s crime, raising his sentence from the mandatory minimum of twenty years, to life without possibility of parole.
Years later when investigators found her, this “witness” informed them that at the time, she was shown photos of Paul Free and others in the trial, but she could not identify any of them. Perhaps that is why she was never called upon to actually testify. Nonetheless, government agents did testify for five days about her, saying that she and Paul Free worked hand-in-hand to commit this crime. However ten years later, in a recorded conversation between the prosecutor in Free’s case and a panel at the court of appeals, the prosecutor was recorded admitting that, when he interviewed the woman before Paul Free’s trial, he learned that she and Free “were not connected.”
That statement contradicts what the prosecutors told Paul Free’s jury and sentencing court. Further, the date on a speeding ticket this woman received in Arizona, along with a notarized affidavit from Paul Free’s college professor that puts him in class in San Diego, establishes beyond any doubt that HE COULD NOT have been in Arizona with her at the time. The professor stated that Paul Free was in class each and every day of the entire course.
Through perseverance and hard work from the confines of prison, Paul Free was able to gather other physical evidence, such as rental car, hotel, and phone receipts that put him hundreds of miles away from where he would have had to have been to pick up the loads of marijuana in question.
A Lost Witness Located (again)
Eventually through snippets of information Free learned the Paul involved in his case was actually a man named Paul Atkinson, who seemed to work for the DEA. Witnesses told investigators they were threatened to testify against Free by Atkinson and other agents, and they feared for their lives and the lives of their family members.
When an investigator, in the company of a local sheriff, first located Douglas Shephard in 2007 in California, he agreed to meet with them the following day. However, the man who presented the most damning testimony against Paul Free had packed up all his belongings and disappeared by the time the investigator returned to follow up.
It took over 5 years for Paul Free to track down Douglas Shephard again. Free had never waivered in his search as he knew that Shephard held the key to his innocence. By the time another investigator was able to track Shephard down again at his new residence in Southern California in 2012, Paul
The Paul Free Case: A Twenty-Year Plus Timeline
01-29-1994 Richard Sumpter arrested in Detroit.
07-22-1994 Paul Free arrested in San Diego, California.
12-02-1994 Government submits 28 U.S.C. Section Notice of two priors. Counsel for Free says: “I thought there was only one and a 20-year maximum,” four days before trial begins.
12-05-1994 Trial begins. Robert Lillie’s counsel informs Paul Free’s attorney that Lillie saw Free in the courtroom and he said: “That man is not the ‘Paul’ with whom I committed the charged crimes.” Free’s attorney refuses to interview Lillie or bring him into court.
02-09-1995 Jury finds Paul Free guilty of Count-I Conspiracy.
02-14-1995 Antonio Diaz, in a separate sentencing hearing, informs the judge that he saw Free in the courtroom and Free is not the “Paul” he hired in the conspiracy.
06-16-1995 Paul Free sentenced to Life Without Parole. He asked the court to apply a “lower standard” that a preponderance to determine drug quantity effectively raising the APPRENDI issue five years before the Supreme Court decided that case.
08-03-1999 Sixth Circuit Affirms Paul Free’s conviction and sentence in U.S. V. ACEVEDO, 148 F.3d 577. No. 95-1694.
09-01-1998 Professor Pehrson returns from “being out of the country for the past eighteen months” and finds a letter Paul Free wrote him almost two years earlier and he certifies, by signing a Notary Affidavit, the he “checked his records” and discovered that Paul Free “had definitely” been in each of the professor’s (eighteen-day) Summer Session classes. Accordingly, Paul Free could not have been with Shepard, Diaz and Tomsick in Arizona and Washington State when government witnesses testified that he had been.
02-18-1999 Free’s “Certified” outgoing mail, including to an attorney and the Supreme Court is destroyed by guards at U.S. Penitentiary, Florence, Colorado.
06-18-1999 Free submits habeas Section 2255 Petition in the Detroit District Court. It contains Professor Pehrson’s affidavit plus the information from Robert Lillie and Antonio Diaz. Case No. 99-73802.
06-26-2000 U.S. Supreme Court decides the APPRENDI case.
07-25-2000 Free requests and receives leave to amend Section 2255 Petition with the APPRENDI argument.
07-12-2002 District Court Denies Section 2255 Petition.
11-29-2002 Request for Certificate of Appealability (“COA”) filed.
12-16-2002 COA denied in District Court.
12-30-2002 Free requests COA in Sixth Circuit. No. 03-1077.
01-09-2004 COA Denied in Sixth Circuit Court of Appeals. Review by a single judge: Martin.
02-15-2004 Free writes to investigator Clive Brown of International Nationtime Corp., 3550 Wilshire Blvd., Los Angeles, California, and requests that he locate Paul Atkinson.
04-09-2004 Clive Brown responds that payment received.
04-19-2004 Clive Brown responds: Paul Atkinson located.
05-14-2004 Free responds to Brown: “Thank you, can you find Georgette Tomsick?”
06-21-2004 C. Brown responds: received payment of $300.00 to locate Georgette Tomsick.
07-14-2004 C. Brown: Tomsick located in Las Vegas, Nevada.
08-17-2004 Free files for Certiorari review of COA denial in U.S. Supreme Court.
01-02-2005 Free responds to C. Brown: “Great job! How much for you to interview Tomsick and Atkinson?”
01-10-2005 U.S. Supreme Court denies review of COA request.
01-28-2005 C. Brown states he has spoken to G. Tomsick and P. Atkinson and will have signed affidavits from both for $2200.00 and for another $300.00 he will locate Douglas Shepard.
02-22-2005 C. Brown sends fax to Charles Free, Paul’s brother, stating that he “has interviewed Tomsick and Atkinson and for $2200.00 [he] will get a signed and notarized affidavit from each of them.” After they send $2500.00 they hear nothing except: “We need two more weeks” and “my mother is in the hospital” and “Tomsick’s mother is in the hospital” and “I am in Louisiana looking for 8 members of my family missing since Hurricane Katrina” and “We will have those affidavits… next week.”
04-02-2005 Letter from C. Brown to Free: “We are prepared to go back to Las Vegas.” Then: “Tomsick says due to an emergency she will be unable to meet with us until 5/15/05 at 3 pm.”
07-27-2005 Letter from C. Brown to Free: “Sorry it’s taken so long, we’ll have those affidavits signed soon and then we will go to Shepard’s house. Be patient.”
09-26-2005 Free contacts Mike Pirouzian of Observant Investigations and states that he cannot trust the Browns anymore and asks that he locate Doug Shepard. Pirouzian informs Free that Shepard is in Oregon.
02-02-2006 Letter from Free to C. Brown: “One year ago this month we sent you money to locate and interview Tomsick, Atkinson, and Shepard. To date we have heard nothing. Please let me know what is going on.”
08-04-2006 Free hires investigator Archer in Oregon to interview Shepard.
08-16-2006 Free hires Miss Snelling in Oregon to interview Shepard. She goes to a neighbor’s house and asks questions about Shepard. He disappears.
09-26-2006 Free hires Patrick Higgins of Accredited Investigations of Oregon to locate and interview Shepard.
10-11-2006 Free’s mother signs contract with Higgins to locate and interview Shepard. $1,125.00 retainer. Ck # 2909.
11-14-2006 Higgins to free: Still looking for D. Shepard.
12-11-2006 Higgins to Free: Expenses to date: $879.75.
03-26-2007 Higgins: Shepard is in California near Redlands. On the recommendation of Higgins, Free hires Larry Smith, a local private investigator.
05-15-2007 Free received transcript of Oral Argument held 03/09/2004 in CREHORE V. USA wherein the same Assistant US Attorney from Free’s trial ten-years earlier informs the Panel of the Sixth Circuit that he reviewed the agents’ notes and discovered that Free and Georgette Tomsick: “Were not connected.” At Free’s trial in 1994 the same prosecutor brought out, through three witnesses over five days that Tomsick and Free committed numerous crimes together against the United States.
06-21-2007 Free writes to L. Smith.
08-03-2007 Free writes to L. Smith.
09-10-2007 Free writes to L. Smith.
10-11-2007 Larry Smith goes to Las Vegas, speaks with Tomsick. He sends her a letter and an affidavit to sign. Smith informs Free that Paul Atkinson is deceased. Smith locates Doug Shepard in Hemet, California and interviews him in the company of a local Sheriff. Shepard says “I thought I testified against the right man… because the agents told me he was. Shepard agrees to meet the next day at a notary but he is seen packing his belongings in a truck and he disappears.
12-10-2007 Free receives transcribed copy of Oral Argument of October 23, 2007 in Sixth Circuit wherein the same prosecutor admitted that he “inadvertently” “submitted false evidence and committed fraud upon the court” when he submitted that Free and Crehore “communicated by phone “after the latter had been released on bond.
IT MUST BE NOTED that ALL previous court decisions have relied on one false fact: they have all accepted the government’s assertion that Free’s claims of fraud, by officers of the court, are restricted to THAT ONE SINGLE INSTANCE OF FRAUD – which the prosecutor admitted; when, in fact, Free raised numerous instances of fraud that are well documented.
04-24-2008 Free filed, in U.S. District Court, Eastern District of Michigan: “Motion to Reopen the Case, An Independent Action Under Fed.R.Civ.P. Rule 60(b) [actually (d)] the All Writs Act, 28 U.S.C. Section 1651, and the Court’s Inherent Power to Protect the Integrity of the Judicial Process Based on Newly Discovered Evidence of Actual Innocence and Multiple Instances of Fraud Upon the Court, by Officers of the Court;” and, a “Motion for Order Directing Marshals to Seize the Files from the Office of the U.S. Attorney.”
07-07-2008 District Court, ED Mich, denied “Motion to Reopen”
08-05-2008 Dist.Crt. ED Mich., Denied COA.
12-15-2011 Paul Free receives an affidavit from Teshia Clapp, private investigator in Tennessee, who locates and interviews Jeremy May. May tells Clapp he never saw Paul Free before trial in Detroit, that Paul Free is not the “Paul” with whom he committed the charged crimes; and, after he read a part of the trial transcripts he told her that the prosecutor lied to the judge when he accused Free of threatening May in the hallway of the courthouse moments before May was to testify. May said this never happened. The prosecutor repeated that false and damaging statement at Free’s sentencing.
02-27-2012 Free receives a declaration from investigator Victor Torres who relates that he located and interviewed Douglas Shepard near Los Angeles, California. Torres states that he revealed to Shepard the content of the Jeremy May affidavit and informed him that Paul Akinson had died. Torres certifies that the only statements Shepard made were (1) that he thought the pre-trial line up photo identification process, where he was asked to identify Free, “was a bit illegal because the agents made me pick the man they wanted,” and (2) that Paul Atkinson had threatened to kill him if he ever revealed that Paul Free was innocent and that he, Atkinson, had been the one with whom Shepard committed the charged crimes. Torres further states that Shepard agreed to meet later and sign an affidavit but that never happened. WhenFree asked Torres to go back and get more information, Torres told him: “That’s all you get for $600.00” adding “if you want more you will have to send me $2500.00.”
01-31-2013 Free files a 28 USC Section 2241 petition in the U.S. District Court for the Eastern District of California, Fresno. FREE V. COPENHAVER, Case No. 1:13-cv-00148-MJS-HC, “2241-I.”
05-07-2013 2241-I Denied in District Court on procedural grounds as the court believed it lacked jurisdiction.
05-20-2014 Ninth Circuit Denied appeal of denial of 2241-I.
08-08-2014 Free was finally able to have Shepard interviewed again. This time Shepard agreed to write and sign an affidavit with his attorney and did so regarding the line up and his false identification of Free and his false testimony at trial.
Shepard’s 2014 Notary Affidavit reads: “I was asked to identify a photo of a man named Paul who took me to Arizona to pick up loads of marijuana or who was otherwise involved with me in the conspiracy. I saw there were approximately six photos of men in the photo spread and I told Detective Mark Thomas and Illinois State InvestigatorJames Michael Girton that I could not identify any of them. Agent Thomas then went over to a window and Agent Girton put his finger on one of the photos and said, “This is Paul Free, this is the man we want,” and he wrote the name Paul Free on that photo. The agents had to show me which photo was Paul Free, and when I was asked to identify Paul, they had to tell me “The man in the green sport coat,” when I was asked to identify Paul in the courtroom.”
10-02-2014 Free filed another 2241 petition in the Eastern District of California, Fresno, FREE V. COPENHAVER, Case No. 1:14-cv-01542-AWI-GSA, “2241-II.” It contains Shepard’s Notary Affidavit for the first time.
12-29-2014 Free files a 28 USC Section 2255 Motion in the Eastern District of Michigan, Detroit, Case No. 94-cr-80095, the original docket number of the case as law supports it is an extension of the original case.
02-23-2015 The District Court, ED Michigan, transfers the 2255 petition to the Sixth Circuit (erroneously) believing that it was a “second or successive” motion requiring precertification, contrary to Supreme Court case law. It was docketed on 02/23/2015 as Case No. 15-1185.
06-04-2015 The district Court for the Eastern District of California denied 2241-II and Rule 59(e) motion on procedural grounds believing that it lacked jurisdiction as 2255 was “available” in Michigan according to this court in California.
06-05-2015 Free timely filed a Notice of Appeal to the Ninth Circuit Court of Appeals of the California court’s decision. It is docketed as No. 15-15631.