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Attorney seeks new hearing for Ferguson

Thursday, August 5, 2010 | 6:33 p.m. CDT; updated 10:43 a.m. CST, Saturday, March 12, 2011

KANSAS CITY — Trial attorney Kathleen Zellner is looking for the quickest possible way to get Ryan Ferguson out of prison.

That was the gist of her oral arguments before the Missouri Court of Appeals for the Western District on Thursday morning. There, Zellner argued her motion to send Ferguson's murder conviction back to the trial court in Boone County for a reconsideration of evidence, old and new. 

"We will go anywhere," Zellner said during her rebuttal. "We will go to any forum."

The state countered Thursday, saying Zellner's motion isn't the right one.

Ferguson, 26, was convicted of second-degree murder and first-degree robbery and sentenced to 40 years in prison for the 2001 killing of Columbia Tribune sports editor Kent Heitholt.

The prosecution's case against Ferguson rested largely on the confession and testimony of Charles Erickson, who testified during the 2005 trial that he beat Heitholt with a tire tool before Ferguson strangled the man to death.

But in November 2009, Erickson asked Zellner, Ferguson's new Chicago-based attorney, to come visit him, alone and without the prosecution present, at the Potosi Correctional Facility. In a videotaped statement Zellner took, Erickson recanted his previous testimony. He acted alone in Heitholt's murder, he said. 

Zellner said Thursday that in light of Erickson's recantation, Ferguson's continued imprisonment is a "manifest injustice" that the appellate court has inherent authority to explore.

"Now, you once again have Mr. Erickson controlling this case," Zellner said in her argument, adding that Ferguson's fate has, thus far, been largely at Erickson's "whim and fancy."

Zellner also questioned the role of the prosecution in the "construction of (Erickson's) testimony," suggesting that the state might have had prior knowledge of what is now known to be perjury.

"I think that has to be explored," she said.

Shaun Mackelprang, the attorney general's chief counsel for criminal appeals, rejected those allegations. He told the court the state is investigating Erickson's new statement to determine whether Ferguson is being held unlawfully. But he said he couldn't divulge more information about the investigation.

He did say Erickson's new statements don't clear Ferguson's name; a full evidentiary hearing is needed to determine whether Erickson actually perjured himself. More information is needed about the motivation behind his statements now and in the past, Mackelprang said.

He acknowledged the question is one primarily of form, not substance: In what court should new proceedings take place?

Mackelprang also argued Zellner's approach was not procedurally appropriate. The appellate court's duty is to review cases in which the original trial court is found to have erred, he said. It is not designed to receive new or existing evidence.

"(The motion before the appeals court) is simply adding an unnecessary layer of complexity to the case," Mackelprang said.

Judge Victor Howard, who presided over the three-member court, also questioned Zellner's strategy.

"Why wouldn't habeas be the appropriate remedy in this case?" he said to Zellner.

Zellner didn't answer the question directly.

Mackelprang agreed that a habeas motion — to determine and potentially end wrongful imprisonment — would be a more appropriate claim for Zellner to make. That motion would be filed in Cole County, where Ferguson is being held.

After the hearing, Zellner said she expected the appeals court to rule quickly on her motion. She said she was pleased with the tone and direction of the morning's proceedings.

"I feel we're going to get relief," she said, adding that the questions about her decision not to previously file a habeas motion were fair and understandable.

"We were just trying to gauge what would be fastest," she said. "All we wanted out of this was the hearing."


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