COLUMBIA — Ryan Ferguson's attorney argued in court Tuesday that jury selection in Ferguson's 2005 murder trial was improper and violated the defendant's constitutional rights.
Public defender Valerie Leftwich said 12 potential Lincoln County jurors opted out of service by performing six hours of community service and paying $50. That denied Ferguson his right to a jury composed of a random cross section of the community, Leftwich said in a motion hearing before Boone County Circuit Judge Jodie Asel.
Ferguson was convicted in 2005 of second-degree murder and first-degree robbery in connection with the 2001 murder of Columbia Daily Tribune sports editor Kent Heitholt. But Ferguson has maintained his innocence and has since filed a number of appeals. He is currently serving a 40-year sentence.
In 2004, Ferguson's friend Charles Erickson pleaded guilty to second-degree murder, first-degree robbery and armed criminal action in connection with Heitholt's death in exchange for his testimony against Ferguson, which was crucial to the state's case. Erickson is serving 25 years in prison.
Tuesday's hearing on the motion to allow Ferguson to challenge the jury selection in his trial represents the most recent step in the appeals process. An earlier appeal reached the Missouri Supreme Court, which refused to hear the case, in August 2007.
In November 2007, Ferguson filed a new appeal, asking for a retrial because of ineffective assistance of counsel in his initial trial. During three days of hearings in mid-July, new testimony challenged Erickson's confession and included information which Ferguson's original defense team did not pursue or was not provided. His new defense attorney said the information is important in proving Ferguson's innocence.
No ruling is expected on the issues raised in those hearings until October at the earliest.
On Tuesday, Boone County Assistant Prosecuting Attorney Stephanie Morrell argued that the jury selection issue can't be brought up now because Leftwich didn't include it in her original July motion in the appeal. But Leftwich said she didn't discover the potential jury selection issue until 10 days after the last hearing on the original motion. She said Lincoln County's practice was discovered by a public defender in Troy who saw a form that referred to the "Court Alternatives Program."
Lincoln County Circuit Judge Dan Dildine, who set up the practice, said the ability to opt out is "offered to very few people and almost nobody takes it." It is not available to most potential jurors, he said.
The policy is designed for people who aren't exempted by statute but who say they would be significantly inconvenienced if they had to serve jury duty. Such people are given three options, Dildine said: serve as jurors with the promise that they won't be called for more than three dates; serve as jurors during a later session that is more convenient; or perform six hours of community service and pay the $50 fee to a local nonprofit that coordinates the community service. Dildine estimated that fewer than a dozen people each year choose the community service option.
As Leftwich and Morrell ventured into relatively uncharted legal territory in court Tuesday, Asel took a pass, moving the issue to Cole County, where Ferguson is serving his sentence. Asel told Leftwich to file a habeas corpus petition there.
"This is a new issue," said Bill Ferguson, Ryan's father, after the hearing. "You could see by the way (the attorneys and judge) were dodging around."
Leslie Abramson, a professor at the Louis D. Brandeis School of Law at the University of Louisville who specializes in criminal and civil procedure, said that although jurors can get exemptions for a number of reasons, he had never heard of allowing potential jurors to get out of service through payment or community service.
"I'd be a little concerned on socioeconomic grounds," Abramson said. "Only the people who could afford to opt out would opt out. To the extent that people could start opting out because they could pay, you might end up with a different cross section of society."
Ferguson and Erickson, both 17-year-old Rock Bridge High School students at the time of the murder, were arrested in 2004 after police received a Crimestoppers tip. Erickson told police he was having "snapshot" memories of the crime. He testified that he hit Heitholt with a tire tool and Ferguson strangled Heitholt with his belt.
The prosecutor in the case was Kevin Crane, who is now a Boone County circuit judge.
Ferguson's case was the subject of a segment called "Dream Killer" on the CBS national news program "48 Hours Mystery," and Bill Ferguson operates a Web site, www.freeryanferguson.com, that proclaims Ryan's innocence.