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Ferguson still faces tough road ahead

Sunday, February 14, 2010 | 12:01 a.m. CST; updated 5:46 p.m. CST, Sunday, February 14, 2010

*CORRECTION: Kathleen Zellner said, "But I know eventually that Ryan Ferguson will be freed." An earlier version of this article misquoted her.

COLUMBIA — Chuck Erickson says Ryan Ferguson is innocent, but that doesn't necessarily mean Ferguson will be innocent in the eyes of the law.

Hopes for a new trial for Ferguson were buoyed Monday following the announcement of Chuck Erickson's recanted testimony and confession to the 2001 murder of Columbia Daily Tribune sports editor Kent Heitholt. Erickson originally implicated Ferguson in the crime, but now denies Ferguson was responsible for the act.

But there are reasons to be skeptical about Ferguson's immediate chances for freedom. Ferguson's campaign for exoneration faces a labyrinthine appeals process that can be hostile to newly changed testimony — resulting in a legal chess match for Ferguson's defense that may require some unorthodox strategy, and from Ferguson, a little patience.

The strategy

Ferguson's latest motion already hints at some of the complex procedural moves that Kathleen Zellner, Ferguson's attorney, will have to execute in order to free her client.

The new motion filed Monday — a 200-page document encompassing Zellner's request to send the case back to the local circuit court, plus Erickson's statement and several trial excerpts — is the first step in Zellner's plan for a new trial.

"This is not a technicality," Zellner said. "This is the whole ballgame."

Beyond the initial surprise of Erickson's recantation and confession, Zellner's motion contains a rather curious argument: Erickson is facing substantially increased jail time for admitting to perjury and possibly breaking his deal with the prosecution; therefore, the motion says, "the only conclusion to be drawn is that (Erickson) is telling the truth."

In later passages, the motion cites Erickson's story as proof Ferguson was not guilty of murder or robbery, and narrates his innocence using simple, unattributed, declarative sentences: "Ferguson had no plan with Erickson to rob anyone and no idea what Erickson was going to do. When Erickson attacked Mr. Heitholt, Ferguson tried to stop him."

If the motion's arguments were taken literally, it would mean that Ferguson perjured himself in his 2005 trial. Ferguson has maintained since his arrest and at trial that neither he nor Erickson were at the Tribune on the night of Heitholt's murder. In 2005, the defense's argument centered on the lack of physical evidence connecting Ferguson or Erickson to the scene of the crime.

The move is simply tactical, according to Zellner, and not representative of an argument that would be deployed in a trial court. "I'm certainly not saying that in any way (Ferguson) has retracted his original testimony," Zellner said.

Instead, arguing for the credibility of Erickson's new statement is part of a broader strategy to discredit him as a witness.

Legally speaking, whether or not Ferguson was actually at the crime scene isn't the point at all now, Zellner said. In fact, it may never come up. "Ferguson will probably never testify again," Zellner said. "Because we're not going to need him to testify."

In 2005, Erickson's testimony rested at the heart of the prosecution's case against Ferguson. If Erickson's testimony is no longer credible — since he is either lying now or when he originally testified — the prosecution has no case, Zellner said.

Boone County Prosecutor Dan Knight did not immediately return a call seeking comment.

For Zellner, all the defense needs to do is to get a trial or a hearing to consider Erickson's new statement in light of all the evidence. "Regardless of whether he's telling the truth, he's unreliable and has committed perjury," Zellner said. Then, Zellner said she'd argue for Ferguson's release and a dismissal of the charges.

But why not just argue that Erickson is unreliable from the beginning? 

Because the biggest struggle in securing Ferguson's freedom may be convincing a court that Erickson's new story is worth giving the case another shot.

Recanted testimonies not a sure thing

Ten years ago, a Missouri man named Joseph Amrine sat on death row, waiting to die. He had been convicted of the 1985 murder of Gary Barber, a fellow prisoner in the state penitentiary. Three inmates had come forward to testify about Amrine's guilt.

Years after the murder, two of the three inmates came forward to recant their testimonies and say Amrine was innocent, claiming they'd been coerced by prison authorities. Federal Judge Fernando Gaitan Jr. declined to hear an appeal by Amrine, saying it didn't follow the proper procedural rules.

Later, when the third inmate also recanted his testimony, Gaitan didn't find him credible, and refused to reconsider the other two recanted testimonies — because he'd already refused to hear them. Amrine was no longer implicated in the murder by any witness, but was still slated to face the executioner. When the case reached the Missouri Supreme Court in 2003, then-Assistant Attorney General Frank Jung argued for the court to rule against Amrine's appeal — saying lower courts had already decided the recanted testimonies weren't credible.

In the end, the Missouri Supreme Court disagreed in a tight 4-3 decision. The prosecution either needed to give Amrine a new trial or let him go. He was freed in 2003 after serving 16 years.

While Amrine's case is a dramatic exception to the rule, it's emblematic of the low credence courts put in recanted testimonies.

"They're very disfavored," said Katherine Goldwasser, a professor at Washington University in St. Louis specializing in criminal law. "The law is really inhospitable to the claim that recanted testimony should result in a new trial."

Admitting recanted testimony into evidence is "putting the rabbit in the hat," Goldwasser said. Most appeals courts believe that the original trial process is for rooting out factual errors like false testimony; appellate courts are focused more on ensuring proper trial procedure.

From the appellate courts' perspective, Erickson's recantation may not be viewed as credible enough to warrant a new trial.

"He was on the stand, he was cross-examined, the jury heard his testimony," Goldwasser said. Appellate courts may rule that Ferguson already had a fair trial since the defense already had a chance to discredit Erickson's story, she said.

Many cases with recanted testimony that have ended with exoneration usually have something else going for them. Goldwasser pointed to the case of Josh Kezer, who was recently released after serving 16 years for a murder he didn't commit.

Kezer was implicated by three inmates who later recanted. But Kezer was freed by then-Cole County Circuit Judge Richard Callahan on a larger body of favorable evidence, plus on proof that prosecutors had withheld evidence from the defense.

Those who have argued for Ferguson's innocence have said then-prosecutor Kevin Crane withheld evidence from Ferguson's attorneys. Additionally, the court of appeals can consider new testimony that was excluded by Boone County Circuit Judge Jodie Asel in an appeal denied at the circuit court level in June 2009.

It's yet to be seen whether the Western District Court of Appeals will find those claims substantial and award Ferguson a new trial, with or without the recantation.

But Zellner was adamant in arguing that Erickson's new statement was more than just a recantation.

"This is a confession," Zellner said. "That is a whole different animal than recantations. I only know of one other case in the U.S. where a co-defendant has come forward and confessed."

Zellner was referring to the case of Joseph Burrows, an Illinois man convicted of murder by the testimony of a cocaine addict who would later confess to acting alone. Burrows won a new trial when the addict recanted, and the prosecution dropped the charges after losing their own appeal of the decision.

What's next?

Given the skepticism judges have regarding recanted testimony, Zellner is trying to convince the court of appeals that Erickson is telling the truth in order to win a chance to show a trial judge that Erickson is a liar. Zellner's motion deploys a kind of dog-whistle logic — an argument intended only to be heard by the legal ears of the Missouri Western District Court of Appeals, where Ferguson's case currently sits.

Since the district court of appeals can't hear new evidence — trial courts are supposed to hear evidence first — Zellner is asking that the case be sent back down to Boone County for Erickson's statement to be considered in either a hearing or a new trial. The court of appeals has broad discretion in deciding whether or not to grant Ferguson's motion, but Zellner said she won't be discouraged if she's not initially successful.

"Obviously you never know what a court's gonna do," Zellner said. "But I know eventually* that Ryan Ferguson will be freed. And whether we do that in the state court or the federal court, we will do it. The system works. It's self-correcting, but it works."


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Comments

Vijay Rathinam February 14, 2010 | 11:59 p.m.

I think Ryan would have had a chance if Chuck said he wasnt there or didnt remember him being there

(Report Comment)
Arthur O'Hare February 15, 2010 | 10:05 a.m.

What is the new evidence Zellner says she has? The fact that Erickson has recanted his original statemant is NOT evidence. How can one believe anything Erickson says anyway?
He is not a compulsive liar, he is a pathological liar. I am not advocating Fergusoan's guilt or innocence, obviously,
I was not there. All I know is like many of you, what was seen on television. However this young man deserves a new trial on a couple of accounts. Jury misconduct. At least one jurer said he had his mind made up before all the evidence was presented. That in my mind is jury misconduct. At the conclusion of his trial this thing had the most reasonable doubt of any trial I have ever seen. Had I been on the jury I would have found him innocent on that basis. A new trial, at least is in order here.

(Report Comment)
Carol Van Gorp February 15, 2010 | 1:28 p.m.

Give Ryan a new trial. There is absolutely no evidence to hold him, much less convict him. Do not keep an innocent boy in prison.

(Report Comment)
Mike LoConte February 15, 2010 | 3:07 p.m.

Ryan shouldn't be in prison at all. There NEVER was any evidence that he was involved in the murder to begin with. I hope that finally justice will be served in this case and that Ryan can go on with his life as a free man. Will keep Ryan and his family in my prayers.

(Report Comment)
Cindy Sheltmire February 15, 2010 | 3:23 p.m.

I do believe that Ryan Ferguson should be given another trial, due to the fact that Erickson's testimony is admitted to be fallacious, and that false testimony was the basis of his conviction. If Ryan is innocent, then it is criminal to retain him behind bars. His so-called "trial" was a foregone conclusion based upon hearsay. It is unfortunate that the real perpetrators have not been found, since there is no evidence that Ryan and Chuck were anywhere near the crime scene. A new trial should be in order due to Erickson's changed testimony.

(Report Comment)
Lori Verdick February 15, 2010 | 4:56 p.m.

Some things are so obvious, and Ryan's innocence is one of them. I ask others to pray for this man's freedom, and return him safely to his family. He will have my prayers for sure. To Ryan and his loving family, stay strong!

(Report Comment)
John Watkins February 15, 2010 | 4:58 p.m.

I am a retired judge and would certainly want to start over on this case. It's too much of a mess to keep anyone in prison!

(Report Comment)
Amy Carpenter February 15, 2010 | 5:32 p.m.

I've followed this case since its first airing on 48 Hours Mystery. It makes me ill to think what Ryan has been put through and what lengths the Boone County law enforcement and court system went to in order to "close" their case. I've read the web page www.freeryanferguson.com and watched all the videos it contains. I'm glad Ryan has a family who is fighting for him so strongly, and now has a new attorney who is fighting for him, as well. I hope that he is released very soon.

(Report Comment)
Shelly Walde February 15, 2010 | 6:19 p.m.

I believe he should be allowed a new trial. No harm can come from it. If the jury still believes he is guilty they can speak to that. If the system does not want him to have a new trial, then it appears they are afraid of something. What? The truth? If a new trial brings the truth to the forefront, then that is what our justice system promises. Anyone in his shoes would ask for the same. He should not be denied a chance to finally have ALL of the facts presented. The facts will speak for themselves. Give the man the fair trial he deserves.

(Report Comment)
Stacy Davidson February 15, 2010 | 6:48 p.m.

If nothing else, all evidence points to reasonable doubt. The jury should be held in contempt for their comments on 48 Hour Mystery. The one juror that stated he had his mind made up way before the end of the trial. I thought in America, we are innocent until proven guilty. WHERE IS THE PROOF?? Mr. Crane should be sanctioned for his part of this travesty. He took an oath to uphold the law and do right. True there is always that question in your head did they or didn't they...but did anyone see those videos of Erickson being "interrogated" by the Columbia police. What a joke! He didn't know ANYTHING...they were spoon feeding that idiot. This is a sad, sad situation. Set Ryan Ferguson free! His life has been changed for the rest of his life. It's sad what happened, but not one single person can put him there. Not one single reputable person can put him there...not one single person.

(Report Comment)
VELMA ORTON February 15, 2010 | 6:49 p.m.

Charles Erickson has a debilitating mental illness. He has been and still is in this particular delusional episode since 2003. If you read the paper I'v written about him you will understand. I have illustrated many of his symptoms from this case alone. He cannot be held responsible because he has no control what so ever over the disease. The tragic thing is he has no idea that he is delusional so the delusion is "real."

Please go to: http://msostergaard.word press.com

(Report Comment)
VELMA ORTON February 15, 2010 | 7:10 p.m.

Please let us have a new trial for Ryan along with a valid diagnosis from a Psychiatrist for Charles. Just imagine what the consequence of that would be for each of them.
Does anyone else think it quite strange that since 3-10-04 when the arrests were made that Charles has never had a psychiatric examination?

(Report Comment)
Judy Cardinal February 15, 2010 | 7:14 p.m.

I have followed Ryan's case since watching it on TV. Watching the trial with the lack of evidence, espcially since there was evidence found at the scene that didn't match either of the accused, was like watching a comedy of errors. It makes me ill to think this is how our justice systems works, but it happens and innocent people sit in jail for years. I don't like the comment from Ryan's lawyer about trying to stop Erickson from committing the crime. Just making that comment has to make me wonder why she would even make that statement. Was Erickson even there, I have to doubt that one also. This whole case needs to start over with a new judge and prosecutor, with the real evidence being presented. Obviously Ryan's first lawyer was'nt very competent and this should be reason enough for a new trial. Wishing the best for all the Fergusons!

(Report Comment)
Dale Jones February 15, 2010 | 7:32 p.m.

Just reading the above comments, its very to clear that this local criminal system was not professional, honest, ethical, and just.

The fair solution would be to have NEW TRIAL to give the case a fair honest trial without the injustice to Ryan in this case. If he is guilty, then so be it.

This is the most unethical group of judges, lawyers, police I have ever seen in my life. This group needs to be held accountable. That being the case, I have fears that the local group of Judges and etc wouldn't be fair, honest, and professional.

My statement to the local justice system to regain your reputation, allow a NEW TRIAL and/or set Ryan FREE!!

(Report Comment)
Bill Ferguson February 15, 2010 | 8:51 p.m.

JUDGE ASEL BLATANTLY CHANGED CHARLES ERICKSON’S TESTIMONY…
One would think after 11 months Judge Asel would have found time to read the trial transcript at least once to insure she had the testimony correct.

This doesn’t seem like a mistake it seems blatant

Either Judge Asel is lazy or bias or both.

She is a Judge and should not make mistakes like this.

In either case Judge Asel should correct the record before her FINDINGS goes to the Western District Court…..

Can anyone think of one single reason why she should not correct the record?

Judge Asel should have recued herself from Ryan’s 29.15 Hearing considering her social connections to Prosecutor now Judge Crane.

Now we see the results
In her FINDINGS which you can see below Judge Asel changed Erickson’s testimony…..
============================================
On page 3 of Judge Asel’s findings of Fact, Conclusions of Law, And Judgment June 12, 2009

Judge Asel writes
“According to Erickson’s Testimony, at some point Movant realized that he had some money in the glove box so they went back to the club.”

Wrong Judge Asel!

First Ryan’s car did not have a glove box

Second that is not what Erickson said during the trial.

According to Erickson’s testimony the money was found once they were setting in the club the second time.

The testimony clearly shows they did not take any money from the glove box and than enter the club….

Of course we know the bar was closed at 1:30am still this is Erickson’s testimony

This is completely and totally incorrect
Below is a copy of the Trial Transcript from page 576 and 568

(Report Comment)
Bill Ferguson February 15, 2010 | 8:54 p.m.

23 Rogers Q. Well, I thought you guys were out of money.
24 Erickson A. Yeah. Well, I don't know if he got money from the
25 victim or not. But I know when we got back to the bar, he
Page 567
1 goes in a compartment in his wallet and he takes out this $20
2 bill,
Page 568
If Charles Erickson’s confession of murder and perjury is remand back to Boone County Judge Asel should recuse her self considering her conduct related to Ryan’s 29.15 Hearing.

(Report Comment)
Marlin Frazee February 15, 2010 | 9:23 p.m.

Judge Asel should correct the record and recuse herself if this case is remanded back to Boone County.

(Report Comment)
VELMA ORTON February 16, 2010 | 12:34 p.m.

On 2-15-2010 at 6:49 pm I gave a link to a paper I wrote about the mental illness of Charles Erickson. The correct link is:
http://msostergaard.wordpress.com

I demonstrate from the facts in the case that Charles most likely has delusional scizophrenia. Even tho I am not a psychiatrist I do have extensive experience with a person who has this disease. The simalarities are too striking to ignore.

(Report Comment)
Jan Davis February 17, 2010 | 12:27 p.m.

I most definitely feel Ryan should have a new trial. I never felt he should have been tried for this case in the first place, given the testimony of a very mentally unstable young man who based his testimony on a dream and information fed to him by the "wonderful experienced detectives" that interrogated him after hearing the bizarre wild story from Chuck Erickson. I am a nurse, I do not have a law degree, and I have not worked a great deal with the mentally ill, but have had the training to at least recognize it as should the detectives that worked this case. I would love to see Kevin Crane charged with a crime, but would be happy to just see him stripped of all power, as he obviously does not have the training nor the insight to recognize what he should have. I wouldn't believe anything Chuck Erickson said at this point, I now do not have a clue what if any role he had with this horrific crime, but I am concerned that this latest story he has now come up with still involves Ryan being at the scene, and I do not for one minute believe he ever was. I think the detectives simply failed to do what they were paid to do, their jobs! Ryan is as innocent of this crime as I am, but even though I have never even been to Missouri, I believe their over-zeaous desire to solve it and slap themselves on the back for "solving" it was so strong, that I could have gone in with the same story, say I dreamt it, even though fact would have and could have proven I hadn't even left the state of NC, they would have given me the same treatment. They need to be punished for what they have done to Ryan, and Charles Ericson is badly in need of serious help for mental illness. Ryan was not at that scene, and I do not believe Chuck Ericson was either. I think in his delusional state, he may even think he was, which is sad, but that only means he needs help. Ryan should either get a new trial, or they should just simply realize how ridicilous it was to have even charged him with it in the first place and IMMEDIATELY set him free with a clean record. Everyone should read the entire story and write any public offical they can and keep doing so until someone with some common sense, that Kevin Crane does not have, listens! Set him free!
Jan Davis
Jdavis481960@aol.com

(Report Comment)
kevin anderson February 24, 2010 | 11:57 a.m.

My thought is that they should grant Ryan a new trial. Because if they believed Erickson in the first trial, then why are they not going to belive him now?? GRANT RYAN A NEW TRIAL! and leave Erickson in jail just for being stupid. From the opening of the 48 hrs show that I watched I never thought Ryan was guilty. And usally when I watch those types of shows I'm sometimes not sure or convinced that they are guilty. This is one of the cases that I saw that I never thought he was guilty. Witch leads me to say that how in the world could the jurors that were interviewed said that they never had a doubt from the very beginning that he was guilty. That to me is rediculous. WELL ALL I CAN DO IS HOPE FOR THE BEST AND HOPE FOR A NEW TRIAL AND GET A NORMAL JURY TO HEAR THE TRIAL.

(Report Comment)
Melinda Miles June 19, 2010 | 4:31 p.m.

i have just seen this story for the first time and am now doing a little bit of research and reading a lot but I have found nothing that states whether they checked the hair that was found at the scene for DNA against the National Databases? Plus I feel like the other post, why are the NOT believing Chuck now but they believed him before? And there has been a lot of talk about Ryan's lack of emotion but I know from myself that I probably would have been in such shock and disbelief I would not have probably shown emotion either. I know in the south where I am from we use humor to deal with pain a lot so maybe that is what Ryan was feeling in a way. I find it hard to believe a jury of 12 believed one kid over the other but even so would totally dismiss that there was no physical evidence to match either boy and that 2 drunk 17 years could commit a crime leaving no evidence. UGH!

(Report Comment)

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