Jury 'opt out' policy could be key to new Ferguson trial

Tuesday, July 12, 2011 | 7:45 p.m. CDT; updated 6:40 p.m. CDT, Thursday, July 28, 2011
Chicago attorney Kathleen Zellner, representing Ryan Ferguson, looks at her fellow attorneys on Tuesday, following Cole County Circuit Judge Daniel Green's statement that he will take the oral arguments under advisement and later issue a ruling regarding Ferguson's council status hearing in Jefferson City, Mo. Ferguson is serving a 40-year sentence for second-degree murder and first-degree robbery for the beating death of Columbia Daily Tribune sports editor Kent Heitholt in 2001.

JEFFERSON CITY — Thanks to a now-defunct jury selection system in Lincoln County, Ryan Ferguson might get a new trial.

On Tuesday, Cole County Circuit Judge Daniel Green fixated on one of the four claims stated in Ferguson’s recent appeal: that Ferguson should be granted relief because jury selection requirements were violated.

Ferguson is currently serving 40 years in the Jefferson City Correctional Center for the first-degree robbery and second-degree murder of Columbia Daily Tribune Sports Editor Kent Heitholt in 2001.

Green heard a volley of arguments from Ferguson’s attorney Kathleen Zellner and Assistant Attorney General Stephen Hawke debating the validity of the claim.

Despite Hawke’s contention that the jury in Ferguson’s 2005 trial was in no way prejudiced, Green seemed to favor Zellner’s claim that the selection was unconstitutional.

Zellner had bolstered her argument by referring to another case with similar jury selection. In the case of People v. Preston, the convicted Preston was granted a retrial  based on the flaws of the selection process.

Green called the new precedent “the law of the land,” and asked Zellner for a few additional supporting documents. Green said after he had received this information, he would rule quickly on whether Ferguson should receive a new trial.

Ferguson’s appeal

Ferguson’s latest legal play was a writ of habeas corpus, which asked for his removal from incarceration on four grounds:

  • Charles Erickson has recanted statements that Ferguson killed Heitholt
  • Jerry Trump has recanted statements that he saw Ferguson at the crime scene
  • A new witness’s testimony contradicts the timeline of the original story
  • Jury selection was unconstitutional

The three new witness testimonies could result in a new evidentiary hearing, and perhaps a new trial. But if the judge agrees with the fourth claim, a new trial could automatically be granted. Zellner said she was pleased that Green focused on the final claim, as it could result in the swiftest release.

“That was our idea,” Zellner said.

Lincoln County Jury

Because of a frenzy of pre-trial publicity in 2005, jurors were bused in from neighboring Lincoln County for Ferguson’s trial. During that time, Lincoln County courts had an unusual rule that potential jurors could opt out of jury duty by paying a $50 fine and doing community service.

This past September, state appellate judges ruled that the process was unlawful, and overturned the 2007 drug conviction of Donald W. Preston based on this decision.

Second time around

These particular cries of foul from Ferguson’s team may sound familiar to those following his case for the past few years. In 2009, Cole County Circuit Judge Richard Callahan denied an appeal on the same grounds. However, Zellner says it’s different this time.

“Callahan didn’t have the recantations, and I think we would have had a different outcome,” she said. “There wouldn’t even be enough evidence to arrest Mr. Ferguson at this point.”

Zellner also said a game changer was that the Preston retrial was granted after Ferguson’s original appeal.

“A case decided with identical jury selection was ruled unconstitutional,” she said.

Bill Ferguson, Ryan’s father, was visibly upbeat at the conclusion of the hearing. He worked the room of reporters, echoing Green’s statement: “It’s the law of the land.”

The elder Ferguson said he’s been very patient with the legal system, and thinks this time, it might actually work in his son’s favor.

“If you give justice enough time,” he said, “you will get justice.”

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Jan Davis July 16, 2011 | 5:59 p.m.

I just hope and pray that now that this much has occurred, this will soon be over for Ryan and his family. Ryan Ferguson is as innocent as can be, I could call and say I dreamt I did it and be in the same boat, all it took to get him convicted was a dream and a prosecutor who is the lowest of the low. He isn't worth mentioning and I hope he pays dearly for the lies and deceit he didn't hesitate to use to get his conviction. I hope he has read every word I have had to say about him, because I feel he is the scum of the earth. Ryan Ferguson is a good, decent man that deserves to be free and Kevin Crane deserves to be locked away for what he did to him. I would look the man straight in the eye and say it to his face, I have never made one comment about him that I wouldn't repeat to him directly. He deserves punishment for what he did.
To Ryan and his family, hang in there, it will be over soon, what they did to Ryan was the worst case of injustice I have ever heard of in my life, but he will again be free as he deserves to be. He has my support 100%, always has and always will.
Janice Davis

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Jan Davis July 16, 2011 | 7:33 p.m.

I just read somewhere that Kevin Crane declined to comment based on the fact that he may be called to testify in an upcoming trial, this I understand. He also commented that he has always been ethical. He is the most unethical person I have ever heard of in my life and I hope it wasn't storming when he made that ridicilous comment, or he could have been struck by lightning right then for such an outrageous lie. That man doesn't know the meaning of "ethical". Everything he did from the beginning of this interrogation all the way to the trial was as unethical as could be. He is a low-life lying unethical poor excuse for a human.
Janice Davis

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Jan Davis July 26, 2011 | 5:59 p.m.

Well Judge Green sure was a disappointment. He was all but ready to rule in our favor, then decided at the last minute not to. Sounds like something rotten in going on in MO to me, someone is stopping all efforts to free Ryan, and the only thing I can think of is something very wrong was done, and they are very afraid of the truth. Please go to and sign my petition called "wrongful conviction of an innocent man" We may have to take our concerns all the way to the president and we may have to step on the toes of the Governor, the AG, and of course Kevin Crane who allowed this to happen in the first place, but if we believe in it strongly and I do, we should not be afraid of any of them. MO is known as the "show me" state right? Well let's show MO the people of the US will speak and speak loud, and be heard. Whatever they are hiding, and whatever is keeping them from allowing justice to be heard needs to be exposed. I certainly am not afraid of them, but I think there are some powerful people in on it. I think they are afraid of the truth, I believe we should show them we are not.
Janice Davis

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