Ryan Ferguson asks for rehearing by appeals court

Tuesday, September 14, 2010 | 6:00 p.m. CDT; updated 8:32 p.m. CDT, Tuesday, September 14, 2010

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.

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sandra bond September 24, 2010 | 11:49 a.m.

I have been following this case for a while now and today i was watching Dateline ID and heard them mention that they found hair clutched in the victims hand yet it wasn't Ryan Fergusons or Erickson's.The nagging question is..Who's hair was it??? and why the only DNA evidence wasnt looked at more closely.please could you look into this and offer up an answer for this question is really bothering me.

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Kim Courtney September 24, 2010 | 11:52 a.m.

I am a 30yr old Black female. I am somewhat prejudice against whites. But, with that said I know Ryan Ferguson is innocent just because there's lack of what's right. Come on, there's no physical evidence and Chuck's recantation(whom I believe needs serious mental help,seriously) even if you believe he did it, this is not how the Justice System works,are you kidding me.

(Report Comment)
Kim Courtney September 24, 2010 | 11:59 a.m.

This comment is to Sandra Bond I watched DatelineID also, I know right. It seems to me that their just lookin for someone to put this on. And, yeah if you are white don't read to much into my previous comment I'm from Mississippi;-)(that should excuse my jaded view,hopefully)

(Report Comment)
Mary Vieth November 17, 2010 | 7:43 p.m.

My husband and I just got finished watching 48 hours on ID regarding Ryan Ferguson. I just want to say that I am disgusted with the way the Prosecutor, the jurors and the judge handled this miscarriage of justice. There was nothing in that trial that convinced myself or anyone that I know that he commited this crime. No DNA or Forensic evidence??? "Really"... unbelieveable. I think that the prosecutor, jurors, and the judge should lose everything they have and should spend time in jail themselves for doing what they have done. They all know that they have done this poor kid wrong and should have to pay for it. I can't believe that this is our justice system at work. Makes me sick to my stomach to think that this is how the State of Missouri or any state for that matter would handle things. I am glad that I don't live there. Who knows what they would find to charge anyone with??? Makes you think doesn't it. Could be any one of us??? How scary is that...

(Report Comment)
Edward Reed November 18, 2010 | 6:29 a.m.


...It is deeply disturbing and reckless, how our justice system works. This guy is serving 40 years in prison for a murder, when there is ABSOLUTELY NO physical/forensic evidence linking him to the crime... NONE! Whose hair was in the victim's hand? Whose bloody shoeprint was at the scene? Neither one of those were able to be linked to the defendant! That alone places ALOT of doubts, in my mind.

This case makes me sick! The prosecutor Kevin Crane, the judge (wish I knew his name), and the jurors should be put in jail for convicting this guy on such little AND biased evidence.

This is EXTREMELY SCARY. Haven't you people ever heard of the INNOCENCE PROJECT? Over 200 people have been proven to be innocent of the crimes that they were convicted of. These people spent years, even decades behind bars for crimes that they did not commit! They were PROVEN to be innocent! So how many do you think are still behind bars, praying that someone will finally find out the truth? How many people do you think have been executed for crimes that they did not commit?

YOU DON'T KNOW, WHAT YOU DON'T KNOW! That's why you are NEVER supposed to convict someone of any crime, let alone MURDER, unless you are SURE, beyond any reasonable doubt that the accused is guilty!

The United States has more of it's citizens locked up than ANY OTHER NATION ON EARTH.... yes, even more than China, whose population is 4 times greater than that of the U.S. Look it up, I'm not exaggerating!

I will be moving out of the country within the next couple of years (sooner, if possible).... this stuff happens ALL THE TIME!... and I am extremely scared living in the United States.

This is extremely terrifying! What freedom do we have here in America? We don't..... it's a myth! America IS NOT the land of free!

(Report Comment)
Mary Vieth November 22, 2010 | 7:21 p.m.

My husband and I just watched the miscarriage of justice that was carried out by the Missouri court system. We cannot believe that this boy was found guilty. "Really", I am so confused on how these people can say with a non guilty concience that he commited this crime. The interview with the jurors was just a complete joke. Saying that they had made up their mind before Ryan ever went on the stand??? I didn't think that was the way that our jury's were supposed to work... hmmm... makes you wonder just exactly what people are thinking and if they would have been so quick to judge if it would have been their own child on trial. I think not. There was not one part of that trial that even partially convinced me that Ryan had anything to do with the murder. What a Joke you are Mr. Prosecutor. I believe that man should lose his job, home, family, and everything that he ever worked for as a result of the misjustice that he has carried out in this case. I don't even know how he can sleep at night, knowing that this poor boy is in prison for a crime that he didn't commit. Shame, Shame, Shame on all of you who did not look at the evidence when we have DNA and such profound forensic sciences at work. Worse yet to hide what you did have!!! Carma follows all, so to all the jurors, prosecutor and anyone else who had a hand in this... Bad Carma to all of you... Think about that when you close your eyes everynight. I will gladly sign a petition for Ryan to have a fair trial which he well deserves.

(Report Comment)
John Gustafson November 27, 2010 | 7:27 p.m.

Ryan Ferguson is still innocent until proven guilty. A miscarriage of justice ocurred when this young man was convicted and sentenced to 40 years in prison. There was no physical evidence, let alone, circumstantial evidence that proves beyond a reasonable doubt that this man is guilty. The jury did not follow concrete instructions of deliberation. And their comments after the trial was incomprehensible concerning their decision. I sincerely hope Ryan Ferguson will receive a fair trial once and for all. This case was definitely an example of not proving anything against the defendant, Ryan Ferguson. And he is the only one who has never once changed his story...Erickson and the janitor did change their stories, yet the jury still acted improperly by convicting this young man. There was no dna evidence or anything else that connects this young man to the scene of the crime, therefore, he is was not proven guilty. There was ten times more evidence proving O.J. Simpson's guilt, yet he was declared innocent. I feel so very sorry for Ryan Ferguson. Our justice system is flawed, infected, inconsiderate, ignorant, and totally blind if it allows Ryan W. Ferguson to remain behind bars. When I saw this story on the TLC television channel tonight, I could not believe this young man was then refused an appeal. I hope something positive will happen for Ryan Ferguson. I will gladly sign a petition to grant him a new trial, even to free him from prison immediately. I hope and pray Ryan Ferguson will finally get to enjoy his life and a good future ahead. John E. Gustafson November 27, 2010

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Robyn Frid March 26, 2011 | 8:01 p.m.

I live in Ohio and watched Ryan's trial on TV. I was really surprised the jury found him guilty, there was no evidence. I'm not saying that being a prosecutor isn't a hard job but, it almost seems that they have tunnel vision or only see things in black or white. Why do they not want to see justice being done. It seems to me that someone should only be convicted of a crime when there is overwhelming evidence. You have O.J. being let off the hook when there is overwhelming DNA evidence and Ryan being convicted with no evidence. Makes no sense to me.

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Robyn Frid March 26, 2011 | 8:11 p.m.

One other thing. Did the prosecutor drug the jurors?

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Joanna owens August 9, 2011 | 1:11 p.m.

I just watched Dateline ID and am disgusted. First question, Why didn't the investigators get in touch with Ryan's girlfriend whom he said he talked to on the phone that night after getting home. Second, if the hair in the victims hand didn't match either boys, WTF. Are you kidding me? That hair was pulled out in desperation and fighting back. I feel for that boy and his parents. As for the other loser, he needs serious help! Also, Ryan said he only had $30.00 that night. No way would he have been too intoxicated to remember exactly what happened. Finally, the boy who the other kid said he talked to at a red light...
come on!

(Report Comment)

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