By Katie VloetOct. 17, 2013
Severely burned and near death, Fred Spencer was rushed to a hospital in Saginaw, Mich., while firefighters put out the blaze that destroyed his uninsured house and killed his live-in girlfriend.
That was Jan. 30, 2000. While Spencer was in the hospital, the state's arson investigator audiotaped interviews with Spencer on Feb. 10 and 12. Spencer—under the influence of the narcotic pain medication Demerol and the antipsychotic medication Haldol—rambled nonsensically about shoes and dish soap but did not, in spite of pressing questions by the investigator, confess to anything.
Five years later, a man came forward to say that he saw Spencer start a second fire in the rubble at the house on Feb. 18, 2000. The information led to charges being filed against Spencer for both fires, as well as the murder of Spencer's girlfriend—even though the man who came forward was so discredited that the prosecutors disavowed him at trial.
Spencer was convicted in 2006 of murder and arson for the first fire, even though he was acquitted for the Feb. 18 fire, and was sentenced to life without parole.
The Michigan Innocence Clinic at the University of Michigan Law School took up the case earlier this year (Sarah Zearfoss, senior assistant dean for admissions, financial aid, and career planning at Michigan Law, initially was counsel of record on the case). In February, U.S. District Judge Patrick J. Duggan granted habeas relief based on ineffective assistance for the trial counsel's failure to move to suppress the hospital statements as involuntary. He ordered that Spencer be released in 180 days if a new trial was not set. On Oct. 9, Spencer was released on a personal recognizance bond while the Michigan Attorney General appeals the habeas grant to the Sixth Circuit.
"The Court finds that the weakness of the State's case, the persuasive evidentiary value of the Spencer's statements, and the State's heavy reliance on Spencer's statements as evidence of guilt bolster a finding of prejudice caused by trial counsel's failure to file a motion to suppress the hospital statements," Duggan's opinion says.
"We are pleased that Judge Duggan stated so emphatically that Fred Spencer was not in any condition to be interrogated while he was recovering from the fire and on heavy medications, and that the interrogator's questions were coercive," said David Moran, director of the Michigan Innocence Clinic.
"The only evidence that prosecutors had against our client was that he didn't emphatically enough deny setting the fire. The prosecutor spent more than half of his closing argument maintaining that because the heavily drugged Mr. Spencer gave rambling, incoherent, and wildly inconsistent answers, he was lying and therefore guilty."
The hospital questioning was conducted by Greg Proudfoot, a detective sergeant and state fire marshal for the Fire Marshal Division of the Michigan State Police. He recorded both interviews, without informing Spencer he was doing so.
Proudfoot asked questions such as, "[Is] there any possibility that you started the fire even accidentally and just don't remember it?" Proudfoot also warned Spencer that "juries think" that dying by fire is "a terrible, terrible way to go." Spencer paused and said, "I know I didn't set the fire." Proudfoot responded by saying, "That's not true Fred. And you know it's not true."
The Michigan Court of Appeals held on direct appeal that the statements from the hospital interviews could not be suppressed as a matter of law because Spencer did not confess. The Attorney General's office more recently argued that, even if the statements were involuntary, Spencer's attorneys may have had strategic reasons to let the jury hear them, Moran says—perhaps by illustrating that Proudfoot was so incompetent and unethical that he would aggressively question a critically injured and heavily medicated patient in the intensive care unit.
Duggan's opinion points out that Proudfoot lied to Spencer by telling him that a woman Spencer had flagged down to call 911 during the fire said she saw Spencer was burned when she saw him near the street outside the burning house. Such a statement would have supported a prosecution assertion that Spencer started the fire in the water heater. In fact, the woman—who happened to be a trauma burn nurse—had told Proudfoot that Spencer was not burned when she saw him, before he went into the house for a second time, and Proudfoot later admitted that what he told Spencer was a lie.
"Here, the lies are relevant," Duggan's opinion says, "because they underscore Proudfoot's accusatory agenda and the concealment of that agenda from a wounded and heavily medicated suspect. Here, Spencer's weakened physical and mental state, of which Proudfoot was aware, coupled with Proudfoot's subtly coercive tactics render the statements involuntary."
Motive for setting the fire also was never established, Moran points out. When Proudfoot told Spencer that "that fire was not an accidental fire," Spencer paused and then said, "Don't know what to tell ya." Similarly, when Proudfoot attempted to clear up whether Spencer wanted to kill his girlfriend, Spencer responded by saying, "Why'd I kill Kathy?" and "wouldn't it be kinda dumb if I was goin to burn the house...a couple a days before I could put insurance on it?"
Upon his release, Spencer moved in with his sister and began treatment for a recurrence of lung cancer. Moran argued before a panel of the Sixth Circuit on Oct. 8 that Judge Duggan's decision should be affirmed. If the Sixth Circuit affirms the decision, the prosecution will have to decide whether to dismiss the charges against Spencer or retry him without using the statements taken from him when he was hospitalized.
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