Ferguson lawyer: State’s position on new evidence ‘hyper-technical'

Thursday, February 18, 2010 | 6:16 p.m. CST

COLUMBIA — The state’s opposition to allowing new evidence in Ryan Ferguson’s appeal is “hyper-technical” and ignores the authority appellate courts have to remedy injustices, Ferguson’s lawyer said Thursday.

In a court filing Wednesday and an interview Thursday, Kathleen Zellner gave her view of the Missouri Court of Appeals for the Western District’s power to act when faced with perjured testimony.

The testimony in question is that of Charles Erickson, whose testimony was crucial in Ferguson’s 2005 conviction of second-degree murder and first-degree robbery.  Erickson originally testified that he beat Columbia Daily Tribune sports editor Kent Heitholt with a tire tool and Ferguson then strangled Heitholt to death. They then robbed the victim, Erickson testified.

In a recent sworn statement, however, Erickson said he lied during his testimony and that he alone robbed and murdered Heitholt, while Ferguson tried to stop him.

Zellner asked the court to send the case back to the trial court, where Erickson’s new statement could be introduced as evidence. On Tuesday, the state filed its opposition, arguing that Ferguson is not allowed to introduce new evidence at this stage of his post-conviction case. Shaun Mackelprang, the attorney general’s chief counsel for criminal appeals, wrote that the state wouldn’t oppose a hearing to examine Erickson’s statement but that the current case was the wrong time and place.

Zellner filed a motion Wednesday asking the court to allow her to reply. In the reply, which the court may or may not accept, she argued that a line of cases, including one decided last week by the Missouri Supreme Court, shows that appellate courts have the authority to remand a case to allow newly discovered evidence.

The state has pointed out that most of these cases were in the direct appeal stage, which Ferguson has already exhausted. But Zellner argued that the cases’ legal principles could apply equally to a post-conviction case such as Ferguson’s.

“I don’t believe the court is going to be as hyper-technical as the attorney general is trying to be,” she said in an interview. Later, she added: “If the court thinks there has been a miscarriage of justice, they will make the rules fit the situation.  There’s no possible way, when your key witness is confessing to the murder and saying he lied to the jury, that there’s not going to be some intervention by a higher court.”

Even if the court denies Ferguson’s motion to remand, Zellner noted, Erickson’s statement could still be used in a federal habeas corpus petition.

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