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Ryan Ferguson's freedom hangs in the balance

Wednesday, November 6, 2013 | 12:11 a.m. CST; updated 9:21 p.m. CST, Wednesday, November 6, 2013
Ryan Ferguson's family and lawyer Kathleen Zellner talked with the media Tuesday afternoon after Ferguson's conviction in the murder of Kent Heitholt was vacated by the Missouri Court of Appeals Western District.

*UPDATE: This story has been revised to correct the description of the court's action. The court vacated Ferguson's convictions.

COLUMBIA — While family and supporters hailed an appellate court's decision Tuesday to *vacate Ryan Ferguson's 2005 murder conviction, he was not immediately released and could face future legal battles.

The Missouri Court of Appeals Western District published an opinion Tuesday morning granting Ferguson's request. He had been convicted of murdering Kent Heitholt, a sports editor at the Columbia Daily Tribune, who was killed on Halloween night in 2001 while leaving the Tribune building. Heitholt was robbed and strangled with his own belt.

Ferguson has been serving a 40-year sentence in the Jefferson City Correctional Center for second-degree murder and first-degree robbery in the slaying. He has been imprisoned for almost eight years.

For Ferguson, the path to freedom could still have obstacles.

The state can ask the Missouri Supreme Court to accept transfer of the case. Terence Lord, clerk of the Court of Appeals Western District, said it could be one to three months before Ferguson is released. If the state doesn't file any motions with the Court of Appeals in the next 15 days, the court will issue a mandate and the Boone County prosecutor will have 15 days to decide whether to retry Ferguson.

If the state decides not to retry him, the court will issue a mandate ending the case and Ferguson will be immediately and unconditionally released.

After the ruling, Ferguson's attorney, Kathleen Zellner, filed a motion with the appeals court requesting that Ferguson be released on bond. As of Tuesday afternoon, the motion had not been reviewed by a judge, Lord said. Zellner was granted a court order giving the state seven days to file an objection to the bond motion.

Despite the obstacles ahead, Ferguson's father, Bill Ferguson, who worked for years to free his son, was elated by the decision.

"If (the state is) smart, they will agree not to try him again," Ferguson said.

On Tuesday, Ferguson wrote a statement, which Zellner, read aloud at a news conference that evening at the Tiger Hotel. He thanked his supporters but was wary of the battles ahead.

"I look forward to sitting at the Thanksgiving table with my family, if justice permits," he wrote.

Ryan Ferguson had been partying at a nearby club, By George, but has consistently denied being involved with the killing after his friend Charles Erickson said he and Ferguson committed the crime. Erickson is serving a 25-year sentence.

Zellner visited Ryan Ferguson in prison before coming to Columbia for the news conference. She said he was smiling, laughing and joking.

"For the first time, I could really see some joy in his face," she said.

Court finds Brady violation

The court based its ruling heavily on a Brady violation related to the testimony of a key witness, Tribune janitor Jerry Trump. The violation was important enough that other concerns raised by Ferguson's defense didn't need to be addressed, the opinion said. A Brady violation is when the prosecution withholds information from the defense.

Click here for a full explanation of the legalities of the opinion.

Trump spotted two white men at the scene of the crime shortly after Heitholt's slaying, but couldn't make out their facial features. After Ferguson and Erickson were arrested, he identified them as the two men but later recanted his testimony.

The state didn't disclose that an investigator with the prosecutor's office, Bill Haws, had interviewed Trump's wife, Barbara. Legally, the prosecution is required to notify the defense of all interviews. By not disclosing that information, the prosecution committed a Brady violation, the opinion said.

In the original trial, Trump said he identified Ferguson when his wife sent him a newspaper while he was in prison for a parole violation. He said the paper was folded in a way that he saw pictures of Ferguson and Erickson but didn't see the headline about them being arrested, and he immediately recognized them as the men he saw the night of the murder.

In her interview with Haws, Barbara Trump said she didn't remember sending her husband a newspaper while he was in prison. The court found that this information was vital in judging the credibility of Jerry Trump as a witness.

The defense also discovered that the state contacted Trump while he was in prison, which hadn't been disclosed before.

At an April 2012 evidentiary hearing, Trump said Kevin Crane, then chief prosecutor and now a 13th Circuit Court judge, called him while in prison and said it would be "helpful" for him to identify Ferguson and Erickson.

Haws and Crane met with Trump a week before he was released from prison, another interview that was not recorded, according to the opinion.

Crane said he didn't feel the need to disclose the interview because he wasn't sure that Trump would positively identify Ferguson and Erickson. He said when they met with Trump in prison, he "spontaneously volunteered" to identify the men.

Haws didn't file a report on either of those interviews, so Crane might not have known that the one with Barbara Trump took place, according to the opinion. However, the state is still accountable for the failure to report and disclose, according to case law.

In an interview Tuesday, Crane said he would re-examine the testimony from the evidentiary hearing to determine the timeline of when his office talked to Barbara Trump. Crane said he never personally talked to her.

Prior knowledge of the Barbara Trump interview might not have changed the verdict, but it would have given Ferguson a fair trial, according to the opinion.

The opinion found that Trump's testimony was crucial in Ferguson's conviction. If Ferguson's defense had known about the interview, they would have been able to gather evidence regarding Trump's credibility that they didn't find necessary before.

"The focus of Ferguson's defense strategy logically centered on discounting the only evidence Ferguson had been told connected him to Mr. Heitholt's murder — Erickson's confession," the opinion states.

At the original trial, Crane knew that Erickson's testimony could have issues, according to the opinion; Erickson's memories came back in dreams, and rough police interrogation tactics left people questioning whether the memories were genuine or suggestions from the police. During the proceedings, Crane acknowledged Erickson's memory issues and said he wanted to have another witness to help convince the jury.

The judges also suggested that Michael Boyd, a sports writer for the Tribune and the last person to see Heitholt alive, should have been investigated as a person of interest because he was so close to the crime.

Boyd's story changed between statements he gave to investigators in the months before the trial. The opinion states that the statements "reveal a curiously evolving and, in some instances, inconsistent recollection of events."

The opinion was written by Judge Cynthia Martin and was a unanimous decision with Judges Gary Witt and Joseph Ellis.

Reaction to the ruling

"I am so thankful for the supporters that have stuck with us for 9 1/2 years," Bill Ferguson said in a phone interview after the ruling. "If you wait long enough, you always get justice. He should have never been convicted."

Zellner, who has overturned 15 wrongful-conviction cases and never lost one, said Ryan Ferguson was speechless and thrilled Tuesday morning.

She praised the thoroughness of the opinion, calling it bulletproof.

"I had great confidence in this court," Zellner said. "That opinion — the detail and the effort — is really remarkable. I think from my perspective we confirmed that the system works."

Zellner said she doesn't think the case will be taken up by the Missouri Supreme Court.

"Common sense would tell anyone when you don't have any evidence, someone shouldn't be locked up," she said.

A spokeswoman for Chief Prosecutor Dan Knight's office said he had seen the decision but wouldn't comment until he had read it and discussed it with the Missouri attorney general's office.

A spokesperson for the attorney general's office said it would consult with the prosecutor and take the "appropriate next steps."

Zellner encouraged anyone in the public who wants to help Ferguson to call the attorney general's office and ask not to push forward.

"This battle should stop now," she said. "(Ferguson) should be allowed to go home with his family, and they should continue the investigation for the real murderer of Kent Heitholt. This is a battle that has no redeeming purpose, so it should stop."

Hundreds of tweets directed at Missouri Attorney General Chris Koster asked him not to move forward with the case.

Bill Ferguson suggested that if the case were brought to the Missouri Supreme Court, it would be for political motives, not out of a desire for justice.

Tribune Managing Editor Jim Robertson said he was thinking of the Heitholt family after hearing of the decision.

"I think the system works; I've said it before. They found a serious error on the part of the prosecution," Robertson said.

Heitholt's widow, Deborah Evangelista, and son Vincent didn't return requests for interviews. His daughter, Kali, declined to comment.

Bill Ferguson is asking for the public's help in finding the real killer. He handed out fliers of a composite drawn with the help of Shawna Ornt, an eyewitness who was able to see the suspect's facial features under a street lamp. He's offering a $10,000 reward.

The Fergusons aren't getting too comfortable; they're waiting until Ryan Ferguson has been released from prison to celebrate. They said there's no length they won't go to to get him released.

"It's sad that all of this is going on and Ryan can't be a part of it," Ryan Ferguson's mother, Leslie, said.

In the meantime, Ryan Ferguson remains in prison. He's keeping busy — he helps inmates get their GEDs, reads Dostoevsky and has written a book on working out and getting in shape. If he gets out, he plans to spend time with his family and play basketball, his father said.

A long history for the case

Click here for a full timeline of the Ferguson case.

The testimony at Ryan Ferguson's trial that convinced a jury of his guilt was mainly from two eyewitnesses, Erickson and Jerry Trump, who have both recanted their testimonies.

In September, Zellner and Assistant Attorney General Shaun Mackelprang debated in front of a three-judge panel in the Court of Appeals Western District to determine whether Ferguson should be granted a new trial. The hearing focused on possible Brady violations.

The judges stopped Zellner when she mentioned the lack of physical evidence in the case — fingerprints and blood at the scene did not match Ryan Ferguson — and the recantation of two key witnesses, wanting to focus on the Brady violations instead.

Outside the courthouse afterward, Zellner said the recantations were key.

Erickson had been partying with Ryan Ferguson the night of the killing and in 2004 started having dreams that the two committed the killing. They were underage but had been drinking at a local club. Erickson also admitted to using cocaine, Adderall and marijuana that night.

In 2009, Erickson taped a sworn statement that he committed the robbery and murder alone. Erickson testified at the 2012 evidentiary hearing that he had no memory of the killing whatsoever.

Trump also recanted his testimony at the evidentiary hearing, saying he only identified Ryan Ferguson because he thought it was what the prosecutor, Kevin Crane, wanted.

Ryan Ferguson has sought to get his conviction overturned more than a dozen times but had been denied by the Court of Appeals Western District and the Missouri Supreme Court, according to a timeline in the habeas corpus petition.

Bill Ferguson said at Tuesday's news conference that he forgave  Erickson and Jerry Trump a long time ago.

"We understand the pressure they were under, and they came forth and admitted their perjury," he said.

His next step if his son is freed? Helping exonerate Erickson.

Seth Klamann and Carley Meiners contributed to this report.

Supervising editor is Katherine Reed.


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