KANSAS CITY — Whether the state withheld information about how a crucial eyewitness identified Ryan Ferguson as one of two men he saw standing in the parking lot of the Columbia Daily Tribune building the night Kent Heitholt was murdered was the focus of oral arguments before the Western District Court of Appeals on Tuesday.
That eyewitness was Jerry Trump, a custodian at the Tribune who testified at Ferguson's trial in 2004 that he remembered seeing him and another man — Charles Erickson — in the newspaper's parking lot on Halloween night 2001 when Heitholt, a sports editor at the Tribune, was murdered.
In 2010, Trump recanted his statement, admitting he could be charged with perjury.
Ferguson, who was not present in court Tuesday, is serving a 40-year sentence in the Jefferson City Correctional Center for second-degree murder and first-degree robbery. His friend, Charles “Chuck” Erickson, who testified at trial that he and Ferguson killed Heitholt for drinking money, pleaded guilty to second-degree murder, first-degree robbery and armed criminal action, and received a 25-year sentence.
Ferguson and Erickson were arrested in 2004 when Erickson said he'd begun having dreams that they killed Heitholt. In 2010, Erickson also changed his story, stating Ferguson was not involved in the murder, and in 2012 he changed it again, saying he had no memory of the night.
Ferguson is appealing an October 2012 ruling by Cole County Circuit Judge Daniel Green that denied Ferguson a new trial.
In a standing-room-only courtroom filled with supporters wearing homemade blue and orange ribbons — blue to support Heitholt and orange to support Ferguson — Ferguson's attorney, Kathleen Zellner; and Assistant Attorney General Shaun Mackelprang debated how Trump identified Ferguson and Erickson.
Originally, Trump testified that he received a newspaper article from his wife while he was in prison. The article was folded in such a way that he saw Ferguson and Erickson's mugshots before he saw the headline announcing their arrest. So he wasn't biased by the story when he told investigators that the two young men in the pictures were the pair he saw in the newspaper parking lot the night of Heitholt's slaying. He testified that he found out who they were only after mentally identifying them.
On Tuesday, Zellner argued that Trump's original story was far-fetched and noted that inmates can't receive newspapers in prison. Instead, she claimed the prosecution must have shown Trump the newspaper article to elicit the biased identification.
Shortly after the trial, Barbara Trump denied sending her husband the newspaper.
Zellner said prosecutors also failed to disclose that they'd talked to Barbara Trump before the trial. She said if the defense had this knowledge beforehand, they could have interviewed her as well and possibly opened new lines of investigation about how her husband came to identify the suspects.
Mackelprang said with “reasonable diligence” the defense could have discovered the prosecution's interactions with Barbara Trump sooner.
But Appeals Judge Joseph Ellis said it would have been difficult for the defense to know they should have talked to her sooner because the prosecution did not disclose the meetings.
At the time of Ferguson's trial, Kevin Crane was the chief prosecutor of Boone County and led the prosecution for the state. He is now a 13th Circuit Judge in Boone County.
The appeals judges said Ferguson’s trial lawyer, Charlie Rogers, did not know Trump was an eyewitness until he appeared in court for his deposition. The state didn’t disclose the information because prosecutors weren’t sure if Trump would positively identify Ferguson, Mackelprang said.
The prosecution’s failure to depose Michael Boyd, the former Tribune reporter who was the last person to see Heitholt alive, also revealed the prosecution's blind zeal to make a case against Ferguson and Erickson, Zellner argued. Although Boyd has altered his story several times, his timeline places him at the scene of the crime a few minutes before the murder, if not during it, she argued Tuesday. Zellner has stated previously that he should have been treated as a suspect.
But the appeals court judges — Ellis, Cynthia Martin and Gary Witt — focused mostly in their questions on Trump and how he identified Ferguson. They interrupted Zellner when she tried to bring up Erickson's recanted testimony and the lack of physical evidence in the case, saying they wanted to focus on possible Brady violations — the prosecution’s failure to disclose evidence that might have impaired Ferguson's attorney's ability to provide an effective defense.
Ferguson has sought to get his conviction overturned more than a dozen times but has been denied by the Western District Court of Appeals and the Missouri Supreme Court, according to a timeline in the habeas corpus petition.
After Tuesday's one-hour hearing, Zellner said she was optimistic. She said Ferguson's case has the “trifecta” of elements: a lack of physical evidence tying Ferguson to the case, Trump and Erickson's recantations, and proof that the prosecution withheld evidence.
She said the appeals judges' focus on the inconsistencies in how Trump's eyewitness identification of Ferguson was obtained was a positive sign.
“Jerry Trump was material,” Zellner said. “He was the key to the conviction, so if the defense had had the Brady information, they would have impeached him, and the jury never would have believed the newspaper stories.”
Ferguson’s father, Bill, was also upbeat. He said he expected his son to be freed from prison in a few months.
“I think it’s a bad day for the attorney general and a good day for Ryan,” he said. “The truth is coming out after 10 years; it’s taken way too long.”
Rodney Uphoff, an MU law professor and expert on wrongful convictions, said the appeals court could go two ways: It could let stand the lower court's ruling, denying Ferguson's habeas petition, or rule that he deserves a new trial.
He said the latter decision would put the prosecution in a tough position because of Erickson's recanted testimony, though the state could present his original testimony.
"I think it’s fair to say that the prosecutor would have an uphill battle to win a conviction," Uphoff said.
Regardless of how the appeals court rules, the case is likely to go to the Missouri Supreme Court, Uphoff said.
After Tuesday's hearing, Bill Ferguson set off on a tour to promote his son's case across the country, in a Toyota Camry decorated with his son's face and the message "Free Ryan Ferguson."
Zellner said she expected an opinion from the judges in 30 to 60 days.
Supervising editor is Katherine Reed.