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Q&A: Could Ryan Ferguson be tried again?

Thursday, November 14, 2013 | 6:44 p.m. CST

COLUMBIA — Ryan Ferguson's supporters consider him a free man, but there's a possibility he could be prosecuted again in connection with Kent Heitholt's death.

The Missourian asked MU Endowed Professor of Law Rodney Uphoff, a criminal law and wrongful-conviction specialist, what the next steps could be after Ferguson's release from prison Tuesday. The Missouri Court of Appeals Western District on Nov. 5 vacated Ferguson's 2005 conviction for Heitholt's murder.

Q: Columbia police have declined to answer specific questions about any new investigation into the slaying of Heitholt, saying only that they will follow up on new leads and evidence. If a police investigation turned up new evidence against Ferguson, could he be charged and tried again in connection with the same crime?

A: Yes, he could be retried at any time.

Why doesn't double jeopardy apply in the Ferguson case?

In a provision known as double jeopardy, the Fifth Amendment protects people from being prosecuted for the same crime twice. It reads "No person shall be subject for the same offense to be twice put in jeopardy of life or limb."

But double jeopardy does not apply in the Ferguson case because he was not acquitted at trial, nor was his case dismissed with prejudice. In Ferguson's case, he had been convicted of second-degree murder and first-degree robbery.

The appeals court determined that he did not receive a fair trial. Therefore, Ferguson could be retried at any time in the future if new evidence surfaces.

Is it likely that the prosecutor will file charges again?

It's extremely unlikely unless they uncover some strong evidence against him. But the police don't have such evidence at this point.

Will these crimes show up on Ferguson's record?

Ferguson's conviction will no longer show up on his record because the conviction was vacated. That means it has been voided and no longer exists. He is eligible to vote, and these crimes will not show up in background checks.

The Ferguson family has called for the release of Charles "Chuck" Erickson because they believe he is innocent. Could Erickson be released from prison?

He's going to face an uphill battle because he pleaded guilty upon advice of counsel. He also made multiple confessions. Erickson would have to convince the court that his guilty plea was involuntary and that his lawyer provided ineffective counsel in recommending that he take a plea rather than go to trial.

There are some cases where guilty pleas are vacated, but it does not happen very often.

Will Boone County Circuit Judge Kevin Crane, who served as a prosecutor in Ferguson's trial, face any consequences for neglecting to turn over exculpatory evidence, also known as Brady material, to the defense in Ferguson's case?

Lawyers must adhere to professional codes of conduct. The Office of Chief Disciplinary Counsel would have to investigate him to determine if he violated the Missouri Rules of Professional Conduct and decide if the violation or violations were serious enough to warrant discipline. That investigation could either be internally instigated or conducted after an external complaint is filed with (its) office.

The potential repercussions include private reprimand, public reprimand and even disbarment from the legal profession.

Many critics have complained that prosecutors are only rarely held accountable for withholding important evidence despite the frequency and seriousness of the problem.

A dramatic exception occurred in the 2006 Duke University lacrosse case. In that case, the elected prosecutor was disbarred for not turning over exculpatory evidence.

(Editor's note: Crane is currently in "good standing with no public discipline," according to a spokeswoman with the counsel's office who wouldn't provide her name.)

Is there any recourse for the Ferguson family because of the way the prosecutor mishandled the case?

Crane or (prosecutor's investigator William) Haws could be named in a civil lawsuit by Ryan Ferguson.

According to the appeals court, Crane's and Haws' actions deprived Ferguson of a fair trial and violated his constitutional rights.

Civil trials in wrongful convictions can lead to multimillion-dollar settlements. Joshua Kezer and Ellen Reasonover, both of whom were wrongfully convicted, received $4 million and $7.5 million, respectively, in civil settlements.

Supervising editor is Katherine Reed.


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