Ferguson's appeal questions Lincoln County jury selection procedures

Monday, December 15, 2008 | 10:39 p.m. CST; updated 10:03 a.m. CDT, Monday, June 15, 2009

JEFFERSON CITY — Both Ryan Ferguson’s attorney and an assistant attorney general trod through uncharted legal territory Monday during a hearing in an appeal of Ferguson’s 2005 murder conviction. It was all an attempt to answer a basic question: Was jury selection in Ferguson’s trial improper?

Ferguson’s public defender, Valerie Leftwich, argued that it was improper because of a Lincoln County policy that allows potential jurors to opt out of service by paying $50 and performing six hours of community service. The policy denied Ferguson his right to a jury made up of a random cross-section of the population, Leftwich said.

In general, both sides agreed on the facts, leaving Cole County Circuit Judge Richard Callahan with a complex set of legal questions to consider.

To complicate matters, the two sides offered conflicting interpretations of a Missouri law about challenging jury selection that Callahan said had a “serious statutory construction problem.” Meanwhile, Callahan expressed concerns that a ruling in favor of Ferguson could open the floodgates to a deluge of appeals.

The jury in Ferguson’s 2005 trial was brought in from Lincoln County, and 13 people from the pool of 848 exercised the community service option, created by Lincoln County Circuit Judge Dan Dildine. The policy was meant to accommodate people who weren’t exempted by statute but would have been significantly inconvenienced by having to serve.

A key question Monday was whether Ferguson could question the jury selection process three years after the trial.

Ferguson was convicted of second-degree murder and first-degree robbery in connection with the 2001 killing of Columbia Daily Tribune sports editor Kent Heitholt. Ferguson, who is currently serving a 40-year sentence, has maintained his innocence and filed a number of appeals.

Ferguson’s friend Charles Erickson pleaded guilty to second-degree murder, first-degree robbery and armed criminal action and testified against Ferguson.  Erickson is serving a 25-year sentence.

Ferguson’s appeal based on jury selection, which is taking place in Cole County because that’s where Ferguson is in prison, is one of two pending appeals of his conviction. He is awaiting a ruling from Boone County Circuit Judge Jodie Asel in the other appeal, based on ineffective assistance of counsel.

Assistant Attorney General Andrew Hassell argued Monday that Ferguson had lost his right to contest the jury selection because he had not raised the issue soon enough. But Leftwich argued that she had filed a challenge as soon as she found out about the jury selection policy in July.

That’s when a seemingly inscrutable piece of Missouri law came into play.

A state statute says that any challenge to jury selection must come before the jury is sworn in or “within fourteen days after the moving party discovers or by the exercise of reasonable diligence could have discovered the grounds therefor (sic), whichever occurs later.”

The attorneys and judge tried to determine whether the law allowed Ferguson to challenge the jury selection policy after discovering it three years later, regardless of when his lawyers should have discovered the policy.

Leftwich said the law did allow it, but Hassell said that was not the law’s intent.

The attorneys then argued for differing interpretations of what should be expected of a “reasonably diligent” lawyer.

Hassell argued that the jury selection policy was not a secret and that a “reasonably diligent” lawyer would have discovered it by talking to the circuit clerk before the trial.

Questioning Lincoln County Circuit Court Clerk Grace Sinclair in court Monday, Hassell asked, “If Mr. Ferguson’s attorneys had asked about the program back in 2005, would you have told them about it?”

“Yes,” she replied.

But Leftwich argued that it was unreasonable to expect Ferguson’s Kansas City lawyers in his 2005 trial to know about the policy when even local attorneys were unaware.

Public defender Thomas Gabel, who has worked in Lincoln County for seven years, testified that he didn’t know about the policy before spotting a reference to it in a court document this year. When he asked other area lawyers about it, he said, they were also unaware of it.

Callahan later asked Hassell, “Are you saying every time you go to a new jurisdiction you have to inquire about community service and any other odd programs?”

But Callahan also seemed concerned about the implications of ruling that the community service option constituted improper jury selection.

“I take it this is a habeas case that could be filed by any criminal defendant convicted in Lincoln County (while the policy was in effect)?” he asked Leftwich.

“Yes,” Leftwich said.

After Monday’s hearing, Leftwich acknowledged that Callahan seemed concerned about the implications of ruling in Ferguson’s favor but said: “I’m confident Judge Callahan is going to do what’s right for Ryan. Judges are always a little concerned about opening the floodgates.”

Ferguson’s father, Bill Ferguson, was hopeful after the hearing.

“I was impressed with him,” he said of Callahan. “To me, it was encouraging that he was so engaged.”

Both sides must file their proposed judgments with Callahan by Jan. 5.

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