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.
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.
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."