Appeals court orders state to file response to Ferguson's petition

Wednesday, May 1, 2013 | 10:11 a.m. CDT; updated 10:17 a.m. CDT, Wednesday, May 1, 2013

COLUMBIA — The Missouri Western District Court of Appeals on Tuesday ordered the Attorney General’s Office to file a new response to Ryan Ferguson’s habeas corpus petition.

The court didn't grant his petition, Clerk of Court Terence Lord said, but rather said the petition deserves a response. "(The court) will probably schedule this for oral argument," he said.

The petition argues that a lack of physical evidence, a lack of credible witness testimony and a constitutional violation in the trial's jury selection entitle Ferguson to a new trial.

Ferguson is serving 40 years in prison for the 2001 murder of Columbia Daily Tribune sports editor Kent Heitholt. This habeas petition is his 14th attempt to overturn his conviction since his trial in 2005. He also requested a pardon from Gov. Jay Nixon in April.

In March, Attorney General Chris Koster argued Ferguson had no right to file a new petition with that court because he had no new evidence to present. The Appeals Court disagreed and is giving Koster 10 days to file a new response. Ferguson’s lawyer, Kathleen Zellner, will be allowed to reply in turn.

Lord said Judges Joseph Ellis and Cynthia Martin can ultimately deny the petition, grant it or ask the parties for additional briefs.

Ferguson’s father, Bill Ferguson, said Tuesday's order undermines the state’s credibility and moves his son’s case closer to a court hearing."This is a very positive step forward for us," he said.

The order seems to align with an argument presented by the Midwest Innocence Project in a friend of the court brief filed in March. The Innocence Project said Koster was misinterpreting legal standard when he asked the court to deny Ferguson’s petition.

"The Courts must strike a balance between the need for finality of judgments and allowing the actually innocent an opportunity to come before the Court," the brief states.

Supervising editor is Katherine Reed.

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