In testimony in Ryan Ferguson case, a question of memory

Sunday, December 11, 2011 | 6:00 a.m. CST; updated 5:06 p.m. CST, Sunday, December 18, 2011
Ryan Ferguson talks to a Missourian reporter in a visitors room at the Jefferson City Correctional Center. Ferguson is serving a 40-year sentence for the first-degree robbery and second-degree murder of Tribune sports editor Kent Heitholt.

COLUMBIA — Charles "Chuck" Erickson seemed to become more sure of himself as time went on.

The 19-year-old was unsteady and nervous as he told Columbia Police detectives on March 10, 2004, that he and his former classmate, Ryan Ferguson, killed Columbia Daily Tribune sports editor Kent Heitholt in the newspaper’s parking lot in 2001. His confession appeared to solve a two-year-old mystery.

Ferguson, now 27, was arrested the same day. A year and a half later, he was tried and convicted of second-degree murder and first-degree robbery on the basis of Erickson’s confident testimony. Erickson, who had already pleaded guilty in exchange for his testimony, began serving a 25-year sentence. Ferguson was sent to prison for 40 years.

Roughly four years later — on Nov. 9, 2009 — Erickson mailed a letter from the Potosi Correctional Center to Ferguson, who is still incarcerated in the Jefferson City Correctional Center, asking to see Ferguson’s attorney. When Chicago-based lawyer Kathleen Zellner arrived to speak to Erickson for the first time, he told her he’d lied four years earlier.

“I could not accept in my conscious mind that I was the sole perpetrator and aggressor, so I put a lot of the blame on Ryan,” Erickson said in a deposition two weeks later. “I don’t remember how much of it he was there for. He could not stop me. He could not stop me, though he tried in the end.”

In a motion filed Feb. 8, 2010, to get Ferguson a new trial based on new evidence, Zellner makes note of 17 inconsistencies between Erickson’s deposition and trial testimony. In an interview, Zellner said she doesn't think Erickson formed any memories the night of Heitholt's killing because he was, as he wrote in a Dec. 14, 2010, addendum to his deposition, "out of his mind" on alcohol and drugs. Erickson's testimony came from what he read in police reports about Heitholt's death, Zellner said.

"Memories that had been supposedly recovered were completely flawed factually," Zellner said. "There were so many errors in his testimony, probably because the police report was flawed, too."

The questions that arise from these developments are not unique to the Ferguson case. Did Erickson change his story because he gave police a false confession? Or is the picture in his mind getting clearer as he remembers it piece by piece?

The case fits into the decades-old puzzle of repressed and recovered memories. Some memory experts say it’s the most heated controversy they have witnessed in the scientific community. After years of debate, there is still no consensus over whether someone like Erickson could have what most humans would consider an indelible experience (being involved in a murder), repress that memory for years (in this case, two years) and independently recall it later (for Erickson, through dreams).

The relationship between memory and the law has been a long one. This particular case has been complicated by the influence of alcohol and the fact that Erickson said his recollection of that night came to him in a dream. His saga poses the same question that so many highly publicized sexual abuse and trauma victims' cases did through the 1980s and 1990s: Can the court believe someone who forgets — and then remembers — experiences?

A shaky start

Ferguson’s attorney at the time of his 2005 trial, Charlie Rogers, called memory expert Elizabeth Loftus to the stand on the last day of testimony before the jury began deliberating. Loftus, who teaches at the University of California-Irvine, told a packed courtroom that repressed memories are a “hand-me-down Freudian idea” that have no basis in scientific proof — a view of hers that hasn’t changed.

“There really is no credible scientific support that you can wander around for two years and reliably recover a memory,” Loftus said in an interview last month. “We shouldn’t be locking people up in prison based on this theory.”

She testified that she thought Erickson’s police interrogators could have planted false memories in Erickson’s mind through the interview techniques they used. In the interview, she said she thought during the investigation that police investigators were clearly feeding Erickson information that filled the gaps in his memory.

“You could see the transmission of information from the policeman who interviewed him into (Erickson’s) mind and out of (Erickson’s) mouth,” Loftus said. “It was shocking to me at the time that somebody could be convicted based on such a dubious claim.”

She also noted that Erickson had all kinds of reminders — such as constant media coverage and the anniversary of Heitholt’s death — of the experience.

When CBS’ news program "48 Hours" did a segment on Ferguson’s case a few months after the trial concluded, correspondent Erin Moriarty reported that she'd interviewed six jury members who said they didn’t believe Loftus' testimony.

“You sometimes wonder, ‘Could I have done a better job in my testimony?’” Loftus told the Missourian. “The testimony wasn’t as well prepared as it might have been.”

She attributed her shaky testimony to being unable to prepare with Ferguson's legal team as effectively as she might have — because of a miscommunication. Loftus said no one picked her up from the airport, and she didn't know where to go or whom to call the night before she testified.

But Loftus said the focus needs to stay on the reasons Ferguson was — in her mind, wrongfully — convicted.

“I think we should be looking at the suspicious, dubious testimony that got him convicted and have our focus there,” she said. “Why did it happen?”

The next steps

Zellner said Loftus' testimony focused on the wrong theory. She questioned why Loftus didn't address Erickson's impairment that night because of alcohol and drugs.

Loftus herself said she didn't know what role alcohol played in Erickson’s recollection of that night.

"I think people can understand an alcoholic blackout much more than they could ever understand the repressed memory argument," Zellner said. "Kevin Crane did a great job on cross-examining her, and I think she had a lot of trouble relating to the jury and simplifying what she was saying."

Zellner said she plans to highlight the role alcohol and drugs played that night during Ferguson's April 16, 2012, evidentiary hearing for a new trial. (That hearing was originally scheduled for Oct. 25, 2011).

"People who commit murders don’t blank out on it," Zellner said. "(Erickson) had no memory of that evening because of the vast quantities of alcohol that he consumed. It was the first blackout he experienced." 

"It’s a classic false confession case to me," she said.

Zellner withdrew from representing Erickson because of the legal conflict between the two: Ferguson was granted an evidentiary hearing based on Erickson's recanted testimony. Zellner said Erickson's parents had their son undergo psychological tests administered by doctors at MU in 2001 after his grades began to fall. Those tests indicated the "possibility" of brain damage from either drug abuse or an episode of high fevers as a teenager.

The doctors recommended further testing — testing that was never done, Zellner said. She also said the results from the completed tests were brought up only once in court.

"When I read the trial testimony of everyone, I never thought that this could be a repressed memory because that’s an outdated concept that’s been pretty soundly refuted," Zellner said. "I thought that the key error that had been made was not having testing done on his memory."

Impressionable minds

Zellner's view aside, the debate continues. But if there’s one thing memory experts agree on, it’s the fact that our memories can change over time and be influenced by our interactions with other people. We’ve all experienced this — for example, when asked what we did on a vacation years ago, we might find the details a bit fuzzy. But chatting about the trip with others might paint a clearer picture of some events.

The memory experts who weighed in on Ferguson’s conviction agreed with Loftus that police questioning can alter memories.

A look at video footage of Erickson’s interview with police detectives and investigators shows them demanding clearer answers than Erickson’s frequent refrain of “I don’t know” or “I’m not sure.” One of them draws his chair closer to Erickson's and points in Erickson's face.

“Right now, your hind end is the one that’s hanging over the edge, and Ryan could care less about it,” the investigator says. “You better start thinking very clearly because it’s you that is on this chopping block.”

Erickson was able to provide some details about what he thought happened that night. On other details, he wasn’t sure.

“I’m making presumptions based on what I read in the newspaper,” he says at one point.

“I might not even know what I’m talking about,” he says at another.

“I don’t know if I’m just flipping out,” he says at yet another.

Loftus said psychological research supports an information-gathering style of interrogation as opposed to an interrogatory style that might alter existing memories or plant new ones. Erickson’s own confusion is apparent in the confession video, and he sometimes seems flustered when the investigators talk about what they know of Heitholt’s murder that hadn't yet been published in the media.

John Cannell, a retired forensic psychiatrist from California who was involved in about 20 trials each year in the late 1990s, said the same of interrogatory police techniques.

“It depends on the psychological structure of a person, but the police can, in some people, induce a false confession by interrogatory techniques,” Cannell said. "It's pretty scary when you think about it."

Harrison Pope is a professor of psychiatry at Harvard Medical School and the director of the Biological Psychiatry Laboratory at McLean Hospital, which is affiliated with the school. Pope, too, has testified in quite a few cases about the issue of repressed, recovered and false memories. He said that in psychiatric terminology, the fact that our memories are impressionable is called “suggestibility.”

While there are different levels of suggestibility, it’s something all humans exhibit, Pope said.

“There are all kinds of different things that influence human suggestibility,” he said, listing therapists, movies and television shows as examples. “We human beings are incredibly suggestible, far more than we like to admit that we are.”

When you’re trying to remember something, Pope said, “you’re attempting to piece together a narrative in your own life.”

As you try to create a timeline, there's speculation involved, he said.

David Spiegel is on the opposite side of the debate from Cannell and Pope. A professor of psychiatry at Stanford University since 1975, he has studied how people react to trauma and chronic stress. Spiegel said it’s entirely possible to recover memories.

He said any memory can be distorted. That includes both recovered memories and memories that are continuously remembered.

“Memory is changeable. It’s not like there is some pure form of recollection that is stored, and everything else is a distortion of it,” Spiegel said. “Every time, you may change what you recall. That means memories can be false and distorted years after they occur.”

Wired to recall

The similarities between the two camps seem to end there.

“Common sense will tell you that memories of traumatic events are not repressed,” Cannell said. “Numerous studies show that people do not forget traumatic events.”

Cannell and Pope agree that humans are engineered to remember things for survival, traumatic events among them. If something threatens our safety, they said, we’re biologically wired to recall it for the future.

“Mother Nature engineered you to concern yourself with what would help you survive. Repressed memory would be the theory that you could erase entire memories,” Pope said. “I do not believe there’s any acceptable scientific evidence that could happen.”

When people do recover memories, there are two possible explanations, Pope said. The first is that they actually do remember what happened but might be in denial or not even realize the memory exists until they're asked about it. They might not talk or answer questions about it, Pope said — but the memory is there.

The second explanation is that the person has created a false memory of an event.

“People wouldn’t necessarily intentionally or maliciously form a memory,” Pope said. “They may completely believe in their heart of hearts that it truly happened.”

Regardless of which explanation might fit Erickson’s case, Cannell and Pope said recovered memories need to be treated with skepticism.

“If someone claims to remember something and claims that there has been a long period before that during which they were unable to remember, that memory has to be regarded with considerable caution,” Pope said.

The American Psychiatric Association often discusses the topic of recovered memories as it relates to childhood abuse. Many of the cases over the past few decades that set off debates were based in allegations of traumatic childhood experiences such as sexual abuse.

The association notes in a statement that most people remember traumatic events, though they might not understand them or choose not to tell others. But the association also addresses the possibility of memories being recovered in a small number of cases after having been forgotten for a long time — and the possibility of creating false memories.

The association says that there’s more research to be done but that “although it is a rare occurrence, a memory of early childhood abuse that has been forgotten can be remembered later.”

That’s Spiegel’s take on the debate.

“We recover memories all the time,” he said. “We just have less trouble doing it in some circumstances than others."

Spiegel gave the example of asking for details about a trip.

“You’d have to think about it for a while and do a series of things to try and recall it,” he said.

He cited a study done in 2009 by Richard J. McNally and Elke Garaerts, that found it’s possible for people to not think about past traumatic experiences — specifically childhood sexual abuse — for years and recall them as accurately as people who remembered their abuse.

“These people did not experience their (childhood sexual abuse) as traumatic; they either failed to think about their abuse for years or forgot their previous recollections, and they recalled their (abuse) spontaneously after encountering reminders outside of psychotherapy,” the study reads. 

Spiegel also addressed the point Loftus made about external triggers that should have set off Erickson’s memory in the two years he said he couldn’t remember the killing — events like news coverage or the anniversary of Heitholt’s death. He said those outside influences might not overcome what motivates a person to repress a memory in the first place.

“The mere existence of a potential trigger wouldn’t necessarily reverse his mental reluctance to recall what happened,” Spiegel said. “If I were the lawyer for (Ferguson), I would say the same thing, but that doesn’t mean it isn’t possible for (Erickson) to repress that information until something triggered it.”

Unanswered questions

The burden of understanding Erickson’s psychology is complicated by a few other factors — one of them is the fact that Erickson said his memory of the night Heitholt was killed came to him through dreams. Pope noted that stories put together based on dreams shouldn’t be assumed, at face value, to represent an event that actually happened.

"A dream in and of itself can have all manner of experiences," Pope said. "You could dream things that could not have actually happened."

But Erickson said his dreams prompted him to talk to his friends Art Figueroa and Nick Gilpin in a way that pushed Gilpin to go to the police. What was so real about those dreams that he turned himself in and confessed to a crime? 

Erickson’s alcohol consumption that night also confounds the story. Pope said that when a person truly blacks out from drinking too much alcohol or taking too many drugs, a memory of an event isn’t ever formed.

“In those cases, it’s not on your hard drive to start with,” he said. “That’s different from hypotheses of repressed memories that would claim that a perfectly normal person would somehow be able to drive the memory into unconsciousness, thereby resulting in amnesia.”

Without further psychiatric evaluation and hard evidence tying either Erickson or Ferguson to the scene, it’s difficult to definitively answer the question of what’s happening inside Erickson’s mind. Erickson himself might not have an explanation.

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don bradley December 11, 2011 | 6:52 a.m.

The case had nothing to do with memory.

The cops spoonfed information to an impressionable suspect, even providing him with the information about the use of the victim's belt which was a fact the police intentionally held back from the media for two years so they could rapidly eliminate false confessors. What do you think these cops did? Fall off a turnip truck and immediately go in and conduct an interrogation? They knew what they were doing. It was intentional, but it had nothing whatsoever to do with memory.
I have the greast respect for Prof. Loftus but memory was irrelevant. Chuck Erickson knew he didn't do this and the police knew he didn't do it.

(Report Comment)
Gerald Shelnutt December 11, 2011 | 7:48 a.m.

This case is a part of the problems within the Columbia Police Department as surely as the more recent firing of an officer charged with abuse.

We (the average citizen) read this and think it is entirely possible that these two boys were railroaded by a police department that knew exactly what it was doing.

The bottom line is we are afraid of the city law enforcement, afraid of what it might do to us, afraid of what it might do to it's own officers.

(Report Comment)
Bill Ferguson December 11, 2011 | 2:16 p.m.

If Erickson truly has recovered memory then why is it that he was unable to remember a single fact on his own? Everything he said was either fed to him by the police and Prosecutor Crane or Erickson read it in the newspaper or gained it through other media sources.

If Erickson has recovered memory, why is it he thought he saw Dallas Mallory in his car stopped at a red light downtown just after the murder? Mallory testified during the 2008 hearing that he did not see Erickson downtown that night and didn’t even own a car. We also have an affidavit from MODOT saying the lights in the downtown area were flashing yellow at that time of the night. There would have been no reason for Mallory to have stopped.

Why is it that Erickson thought he went back to By George at 2:45? Two dozen witnesses have sworn the club closed at 1:30. Not one single person has come forward to say otherwise.

Erickson also said there was a police officer in the parking lot. No police officer has ever come forward!

In Erickson’s “recovered” memory he said he was the one who spoke to the witness, Shawna Ornt, that night at the crime scene. He had just turned 17, stood 5’6”, had black hair and wore a hooded sweatshirt. Yet Ornt has testified that the person who spoke to her had blond hair, wore a short sleeved t-shirt, was over 6 feet tall, in his early twenties and did not look like Chuck or Ryan.

Erickson doesn’t have recovered memories…..these are dreamed or fantasized memories many of which were fed to him by Crane and the police.

(Report Comment)
Derrick Fogle December 12, 2011 | 8:47 p.m.

Why is this about memory? Why not physical evidence? I still find it highly improbable that two drunk teenage boys could have committed such a brutal, bloody murder without both leaving behind, and taking with them, a boatload of physical evidence.

(Report Comment)
Lisa Havener December 20, 2011 | 5:32 p.m.

Recovered memory is something that has been thoroughly refuted- but even then it never referred to an event such as this- it was about young children who were so horrifically abused that they blocked it out of their minds for years. A grown man does not commit a murder then block it out of his mind for 2 years. No way, no how. I can't believe the idea is even being floated. Chuck Erickson is a man with serious mental issues. The horrifying part is that he ruined someone else's life along with his own.
This case has the whole nation horrified and sick. It is time to right the wrong. Attention is just growing. What is wrong in this city?

(Report Comment)
LIlith Green December 21, 2011 | 6:51 p.m.

I just read this article and it dredged up so much anxiety for me. I am worried sick over this poor guy. I have followed this case for at least two years. My comments are not quite adhering to the topic of memory but they are things that I just have to say to clear my head.
I am sorry to be so cynical but here are things this case has taught me:
1)If you are accused of something do not take anything for granted. Do not assume reason or logic will win. Do not assume the arbitrators or any authority has your best interest or even THE best interest of the poeple at heart. Even if the case against you seems PREPOSTEROUS; the accuser a madman; the proof not existent... DO NOT PRESUME! People are emotional. PEOPLE ARE NOT OBJECTIVE. People are shaped by their environment. Most people CAN NOT discern between fact and fiction because they can not view their own motivations objectively. Most people will justify every action through some kind of self-aggrandizing feedback loop.

2) Do not believe in some imaginary principal of fairness which is supposedly encoded in our justice system. All the players of the system on not on equal ground. The people who have the most power in the system can skew the outcome of a court case to their favor. KNOW THIS GOING INTO IT AND COMPENSATE FOR IT. Demand 100% from everyone especially if your freedom is on the line.

3)If you have a friend who appears to be using drugs or alcohol to the detriment of his or her mind, who might have a mental illness, or whose grasp on reality is shaky at best, think twice about your associations with them. I have seen people get burnt. This case is the worst example of that. Yes, a drug addled mentally impaired person can accuse you of something you didn't do. If his incomprehensible testimony is 'convenient' in a certain circumstance it WILL BE USED. Period. It doesn't matter if it doesn't make sense and is written on a Burger King napkin.

4)Get a lawyer who loves to win. Always wants to win...NEEDS to win, who LOVES to talk, who is affable, cute, folksy or charismatic. You are on the other side of a cabal of public servants who see and must prosecute the most despicable and sociopathic members of society. You will be viewed as 'the other'. To them you are not 'you'. You are scum. You must WALK ON WATER to prove that you are not what they expect. Your lawyer must help you do this. They will want to win. This is the goal. This is game. Pick a lawyer who is into the game.

I understand the prosecutors and what they have to go through on a daily basis. I also understand that in this case Ryan, of course, is not guilty. No way. None of the stuff used to convict him makes any sense. A fool can see that. My head swarms with the inconsistencies. I think we all feel a little uneasy reading about a case like this. Please let him be free someday. This hurts my head.
Thanks for reading.

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