GEORGE KENNEDY: Ryan Ferguson case unlikely to be reconsidered or retried

Thursday, November 7, 2013 | 7:27 p.m. CST

Nov. 1 was the 12th anniversary of the night Kent Heitholt was murdered. Dec. 5 will be the eighth anniversary of the day Ryan Ferguson was convicted of killing him.

We may never know who really killed Mr. Heitholt, but there’s no longer any compelling reason to maintain that it was Ryan Ferguson.

When Prosecuting Attorney Kevin Crane (now a Circuit Court judge) won that conviction, I wasn’t the only observer who had trouble understanding how he did it. After all, the heart of the state’s case was a drug abuser’s dream, supported mainly by a belated identification from an ex-con. There was no physical evidence to connect either Ferguson or his co-defendant, the dreamer Chuck Erickson, to the Columbia Daily Tribune parking lot where Mr. Heitholt was beaten and strangled.

Now we know, thanks to this week’s ruling by the state Court of Appeals for the Western District, that the winning team cheated.

The prosecutor failed to turn over to the defense, as the rules of criminal procedure require, the results of at least one interview that could have cast doubt on the supposed eyewitness identification.

I’m not a lawyer, so I called an experienced ex-prosecutor for some expert analysis. How important, really, is that failure, I asked. Very important, was the answer. You’re taught as a young prosecutor, she said, that you have to turn over to the defense every piece of evidence your investigators turn up – "especially anything exculpatory."

That means anything that would help the defense. It’s called the Brady Rule, after the title of a 1963 Supreme Court decision. In this case, the three appeals court judges called the failure a "material violation" that led them to conclude, "Ferguson’s conviction is not worthy of legal or public confidence."

After eight years in prison, Ferguson — now in his late 20s — is still there, pending a decision by the current Boone County prosecutor and the state attorney general whether to ask the state Supreme Court to consider the case or whether to seek a retrial.

My consulting attorney, who had just finished reading the 54-page decision, said she thinks it extremely unlikely either will happen. The appeals court ruling is too strong and clear to leave much room for doubt, she said. That would mean that Ferguson would go free.

Such an outcome would live up to the literal meaning of the Latin term habeas corpus, the technical name for the appeal process that produced the ruling. "You shall have the body" is the most common translation I’ve found in several dictionaries. In application, habeas corpus is a last-ditch defense. It requires the state to prove that a prisoner is being held legally. The writers of the U.S. Constitution considered it so important a right that it is guaranteed in Article 1 of that document.

In this case, the habeas corpus motion by Ferguson’s Chicago lawyer succeeded after more than a dozen appeals had failed.

Multiple reasons a retrial would be unlikely to produce another conviction were noted by the Court of Appeals. Chief among them are that Erickson has recanted his confession and the eyewitness has recanted his identification. Both now say they were pressured by Crane. A second eyewitness has said all along that she saw the face of one of the two men standing near Mr. Heitholt’s body, and he was neither Erickson nor Ferguson. Yet another witness substantiates Ferguson’s account that he and Erickson left the By George bar and drove home nearly an hour before the murder.

And there remains the fact that fingerprints, footprints and blood found at the scene do not match either of the convicted men.

Bill Ferguson, whose indefatigable support of his son has set a high standard for fathers everywhere, said after the appeals court ruling that he will continue to offer a $10,000 reward for the identity of the real killer. He will turn his attention now to trying to exonerate Erickson, who is serving a 25-year sentence.

The rest of us are left to wonder who and why and what now.

In sports, the rules are clear: When a winning team is found to have cheated, the decision is reversed and the cheaters are penalized.

In law, two questions remain unanswered: Is there a penalty for the cheater? How do you return to a man his lost eight years?

George Kennedy is a former managing editor at the Missourian and professor emeritus at the Missouri School of Journalism. He writes a weekly column for the Missourian.

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Ellis Smith November 8, 2013 | 6:32 a.m.

Here's my question: will the Heitholt murder investigation be reopened: that Heitholt was killed by "a person or persons [currently] unknown"?

While there are statutes of limitation on some crimes, murder is not one of them. You are certainly correct in suggesting that the truth of this matter may never be known, but should that have any bearing on closing the investigation?

Maybe Heitholt's heirs should be consulted as to their wishes. While their wishes may not have any bearing in law, consulting them would seem a fair thing to do. After all, Furgeson isn't the only party who has suffered greatly from this mess.

Is there any statute of limitation on disbarment for prosecutorial misconduct? If the legal community doesn't obey the rules, why should it expect the rest of us to do so?

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