COLUMBIA — Ryan Ferguson's attorney is using two different avenues to seek a new trial for her client, convicted of the 2001 murder of Columbia Daily Tribune sports editor Kent Heitholt.
Attorney Kathleen Zellner of Chicago, who is working pro bono for Ferguson, sent a motion Friday to the Missouri Court of Appeals for the Western District asking it to rehear Ferguson's motion to remand his case to the 13th Circuit Court for Boone County. If the court refuses, she is asking that the case be transferred to the Missouri Supreme Court.
In August, the appeals court refused to grant the motion, ruling that Ferguson's defense team failed to demonstrate that his original trial lawyer was ineffective. The court in that decision, however, conceded that the case gives it "pause," given that there is little evidence tying Ferguson to the crime since Charles Erickson recanted the trial testimony that was used to convict Ferguson.
"This court correctly has 'pause,' " Zellner wrote in her motion for a rehearing, "because now that Erickson's testimony no longer implicates Ferguson, Ferguson is obviously, actually innocent."
Zellner said she soon will also file a habeas corpus petition in Cole County, asking for an evidentiary hearing that could result in a new trial.
If any of the three courts — the Missouri Court of Appeals for the Western District, the Supreme Court, or the 19th Circuit Court for Cole County — agrees to hear his case, he could be granted a new trial, denied a new trial or be exonerated by the court, said Bill Ferguson, Ryan Ferguson's father.
In her latest motion, Zellner alleged that the Western District Court of Appeals made several errors and misread case law in issuing its last ruling.
"In any event, this court erred where it held that an appellate court may only exercise its inherent power to prevent miscarriages of justice by granting a motion to remand outside the time constraints of rule 29.11 (b) while the case is pending on direct appeal."
Rule 29.11 (b) says motions for new trials must be filed with 15 days of a verdict unless the court finds cause to extend that period.
She said that conclusion was based on a misreading of two cases that have bearing on Ferguson's case.
Bill Ferguson said that if either the appeals or circuit court grants a habeas petition, or if the Supreme Court takes the case, new evidence could be admitted during a two- or three-day evidentiary hearing in which Erickson also would be called to testify.
Erickson is serving 25 years in prison for second-degree murder after making a deal with the state in which he agreed to testify against Ferguson in 2005 as his partner in Heitholt's murder. Erickson, however, recanted his testimony in a sworn statement in November.
"Everything he said in the trial was perjured," Bill Ferguson said. "That's what he said."
Ferguson is serving 40 years in prison for second-degree murder.
Zellner said that, with Erickson's recantation, there is no evidence to convict Ferguson. "(Erickson) is saying he doesn't have any evidence that would lead to a conviction of Ryan Ferguson a second time."
If any of the courts grants Ferguson a new trial, it would be remanded to Boone County, the site of the original trial. But Bill Ferguson said he doesn't believe Ryan Ferguson can get a fair trial here.
"We would immediately ask for a change of venue," Ferguson said. "And that shouldn't be much of a problem. I'm pretty sure Boone County would be happy to see us go somewhere else."
Zellner said it could be several months before the Supreme Court decides whether it will hear the case.