COLUMBIA — Ryan Ferguson should remain in prison for the 2001 murder of Kent Heitholt, according to a response filed Monday by the Missouri attorney general's office.
The state's response to a habeas corpus petition, filed in February by Ferguson's attorney, Kathleen Zellner, stated that none of the four grounds cited in the petition to free him rise to a level worthy of such a writ, so that petition should be denied. The nature of the allegations, however, warrant an evidentiary hearing for three of the four grounds cited, the response stated.
Ferguson was found guilty in 2005 of second-degree murder and first-degree robbery in connection with Heitholt's slaying.
The Columbia Tribune's sports editor, 48, was found dead near his car in the Tribune parking lot early in the morning on Nov. 1, 2001. The case had few solid leads until 2004, when Charles Erickson came forward and told police that he and Ferguson, who were high school friends, had committed the crime when they were 17 years old.
As the result of a plea agreement, Erickson pleaded guilty and took a reduced sentence of 25 years in prison in exchange for testifying against Ferguson during Ferguson's 2004 trial. Ferguson was convicted and sentenced to 40 years in prison.
The first and largest part of the state's response addresses Zellner's contention that Ferguson should be discharged because he's innocent. The majority of her argument for Ferguson's freedom is based on changing information from witnesses during the original trial.
Trump was a janitor at the Tribune who testified in 2005 that he saw two young men in the parking lot immediately before he discovered Heitholt's body lying in a pool of blood.
At the original trial, Trump said he was serving a prison sentence when he saw a newspaper with Ferguson and Erickson's faces. He testified that he recognized them from the parking lot.
In October 2010, he submitted a statement admitting he lied on the stand. The first time he saw photos of Ferguson and Erickson wasn't in prison, but when then-prosecuting attorney Kevin Crane showed him photos during a meeting before the trial in December 2004.
Assistant Attorney General Stephen Hawke wrote in the response that Trump's recantation doesn't meet legal precedence.
Erickson also recanted his testimony. In a video statement released in February 2010 — five years after Ferguson went to prison — Erickson looked into a camera operated by Kathleen Zellner and said it was he — not his friend — who stood over Heitholt and strangled the editor with a belt.
Erickson said he lied about most details from his original testimony, but maintained that Ferguson was present while he killed Heitholt. He asserted that he lied on the stand because he felt coerced by police and the prosecution.
Zellner's habeas petition stressed that Erickson had a drug and alcohol problem and that he was likely blackout drunk at the time of the murder.
But in the state's response, Hawke cast doubt on the value of Erickson's recantation, stating that he can't recant his testimony and provide an alternate version of events if he can't remember the night in the first place. The response also dismisses the notion that Erickson was coerced; he was admitting to the crime before his arrest and after his incarceration, the response says, when there was no pressure from police or attorneys.
"Perhaps it is a different form of 'pressure' that has led Erickson to issue his latest statements," the response stated.
The Attorney General's Office said they could not elaborate on that comment.
Ornt was working as a janitor at the Tribune the night Heitholt was found dead. Ornt was called to the stand in 2005 by then-prosecuting attorney Kevin Crane. She testified that she saw two young white males near the body, and that one of them told her to get help.
At a hearing for a retrial in 2008, Ornt testified again, this time against Crane.
She said she repeatedly told the prosecuting attorney that the man she saw near the body was neither Ferguson nor Erickson, a previous Missourian article stated. She said Crane scared her, and she didn't know what she was allowed to say to attorneys or in the trial. She said she didn't tell Charlie Rogers, Ferguson's attorney at the time, because "he didn't ask," according to the Missourian article.
The state's response stated Zellner's habeas petition overlooks the fact that the hearing for retrial was dismissed, and Ornt's 2008 testimony wasn't found to be credible because of her interaction with Ferguson's father, Bill.
Bill Ferguson said Ornt contacted him in May 2007. They communicated several times through e-mail and phone calls and she gave him a video statement of her memories from the night Heitholt died.
"...She had not told anyone about this statement until she began a relationship with (Ryan Ferguson's) father," said a resolution for 2008 retrial request, referring to the video statement.
The second part of the response to Zellner's habeas petition is that Trump's testimony was used in trial as truth. Hawke asserted that "there was voluminous discovery before the trial" and that the state had properly disclosed all its contacts with Trump.
In the third platform, the state argued that a witness mentioned in the petition, Kimberly Bennett, provided redundant information that didn't bring anything substantial to the case
The state utterly rejects the idea that Ferguson didn't receive a fair trial because of the jury selection process in Lincoln County. At the time, the county practiced an "opt-out" option for people selected for jury duty. Individuals could pay $50 and perform community service instead of sitting through jury selection. After Ferguson's conviction, the process was deemed unlawful.
Cole County Circuit Judge Daniel Green is scheduled to consider both arguments on June 29 and could rule one of three ways:
- Ferguson can be freed if the judge doesn't accept the attorney general's response and decides the jury selection was unconstitutional.
- Ferguson could be granted an evidentiary hearing.
- Ferguson could not be granted an evidentiary hearing, and he stays in prison.