Ferguson’s original attorneys say they did not receive information from prosecutor

Thursday, July 17, 2008 | 7:56 p.m. CDT; updated 10:05 a.m. CDT, Monday, June 15, 2009

COLUMBIA — In a retrial hearing Thursday, Ryan Ferguson’s new attorney tried to prove that his trial attorneys did not follow up on all the possible leads and were not properly prepared to defend Ferguson during his first murder trial.

Stephanie Morrell, Boone County assistant prosecuting attorney, made the case that even if the attorneys had presented the additional evidence, the verdict would have been the same.

Thursday was the second in a three-day hearing to determine whether Ferguson had inadequate defense representation in his 2005 trial and whether he will be granted a new one. He has to not only prove that there is more evidence to strengthen his case, but also that his original attorneys did not adequately gather the evidence and defend him.

Ferguson was convicted of the 2001 slaying of Columbia Daily Tribune sports editor Kent Heitholt after Charles “Chuck” Erickson told Columbia police that he and Ferguson committed the murder when they were 17 years old.

Ferguson’s three trial attorneys — Charlie Rogers, Jeremy Weis and Kathryn Benson — were called to the stand to testify about possible mistakes they made and evidence they did not receive.

Shawna Ornt, who found the body, testified Wednesday that she had told Kevin Crane, then the Boone County prosecuting attorney, that neither Ferguson nor Erickson was the man she saw nearby. But all three of Ferguson’s attorneys said they never received any information regarding those statements made to Crane.

Crane would have been legally obligated to disclose that information to the defense.

However, in Ornt’s deposition with Ferguson’s trial attorneys, she said she could not positively or negatively identify the person she saw based on the photos of Ferguson and Erickson in the Columbia Daily Tribune.

The attorneys also said they never heard anything from the prosecutor’s office about Clarence Mabon, who told Ronald Hudson he committed the crime, according to Hudson’s testimony Wednesday.

Valerie Leftwich, Ferguson’s new attorney, asked them about whether they had thought about finding several witnesses who testifed Wednesday, including the bouncer at the bar where Erickson and Ferguson were the night of the murder. Morrell pointed out that four people — one patron, the bartender, Ferguson and his sister — testified about what time the bar closed.

Leftwich highlighted that the trial attorneys did not “properly preserve” their objections, which means when Ferguson appealed the first time, there was a higher standard of proof and therefore he did not win the appeal.

The defense provided a statement from Ferguson’s original attorney that listed several men who were in Boone County Jail at the same time as Erickson and might have heard him say that he wasn’t sure if he had committed the crime. Benson said she had seen the list and said she didn’t know why the defense team had not followed up on the information.

“We should have interviewed them and wanted to interview them,” she said. “We just didn’t get it done.”

The other attorneys said they had not seen the e-mail list.

Columbia Police Department K-9 officer Todd Alber testifed Wednesday that he was not subpeonaed to testify until the day before it would have happened, and that he was out of town.

The attorneys said they thought the prosecution would call Alber to the stand.

Rogers, the lead attorney, also testified that he did not check the aerial photo of Columbia he submitted, and a jury member actually pointed out that it was incorrect. By the end of the trial, he said, he was using the prosecution’s map.

Earlier Thursday morning, Delany Dean, a forensic psychologist who twice evaluated Erickson, testified that she saw “no indication” that Erickson was delusional or had fabricated memories but said that Boone County Jail records indicate that Erickson was being treated for symptoms of obsessive-compulsive disorder.

One of the main arguments of Ferguson’s original defense in the 2005 trial was that Erickson had “dreamed” that he was involved.

Dean, who was hired by Erickson’s attorney in July 2004 and by Crane in Septemeber 2005, said Erickson described his memories of the murder as “spotty.”

But “he never referred to his memories as a dream to me,” Delaney said.

Dean read from the Diagnostic Statistical Manual IV, which is a guide for diagnosing mental disorders. It said that obsessive-compulsive disorder can be accompanied by delusions, wherein the person falsely believes he or she has done something, although Dean said she had never come across such delusions and did not see them in Erickson.

The mental health record did not state whether Erickson had been diagnosed by a physician, but Dean said Erickson told her that it was a nurse who treated him. Dean also said Erickson told her the second time she met with him that he washed his hands and face to the point where it could be considered a compulsion.

Dean also said Erickson had clear memories of encountering Dallas Mallory and that there was “something particularly upsetting in them.”

Erickson testified in the original trial that he and Ferguson ran into Mallory stopped in a car in a southbound lane of Providence soon after the murder, when he told Mallory about the crime.

Mallory testified Thursday that he did not see Erickson after he left a party around 9:30 p.m. that night. He also said he left the Blue Note when it closed, around 1 or 1:30 a.m., and went straight home, and therefore could not have seen Erickson after the murder, which occurred around 2:15 a.m.

Mallory also said he did not have a car or a driver’s license in October and November 2001.

He testified that he did not remember how he got home that night and had been drinking since 3 p.m.

Mallory told police in 2004 that he had seen Erickson that night.

In December of that year, after he spoke to police, Mallory signed an afadavit saying he did not see Erickson after the party or Ferguson at all on the night in question.

In January 2005, he met with Crane and told him that he had seen Erickson that night.

He testified Thursday that he was scared of the police and prosecutors and just “told them what they wanted to hear so I could get out of there and call my dad.”

Crane has been subpeonaed to testify.


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