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Attorneys, legal expert say Ryan Ferguson's lawsuit has merits, but will be difficult to win

Sunday, March 16, 2014 | 3:40 p.m. CDT; updated 11:17 p.m. CDT, Monday, March 17, 2014

COLUMBIA — Ryan Ferguson's multimillion-dollar lawsuit against those who played a role in his murder conviction has some merits, two attorneys and a law professor told the Missourian. But it will still be a difficult case to win.

Kathleen Zellner and the Missouri-based attorneys working with her filed a federal lawsuit Monday in the U.S. District Court Western District of Missouri. It seeks $100 million in damages and requests a jury trial for, among other things, withholding evidence that could have cleared Ferguson, fabrication of evidence, malicious prosecution of Ferguson and otherwise failing to properly investigate.

The Ferguson lawsuit at a glance

Defendants named in the Ferguson Lawsuit

  • Detective John Short
  • Detective Jeff Nichols
  • Detective Jeff Westbrook
  • Detective Bryan Liebhart
  • Detective Latisha Stroer
  • Detective Lloyd Simons
  • Sgt. Stephen Monticelli
  • Chief of Police Randy Boehm
  • Prosecutor's investigator William Haws
  • Prosecutor's investigator Ben White
  • Chief Prosecutor Kevin Crane
  • The city of Columbia
  • Boone County

Of the defendants from the Columbia Police Department, Stroer is the only police officer listed who still works for the department. The others have retired or moved to different agencies. Haws and White are still investigators for the Boone County Prosecuting Attorney's Office. Crane is now a judge in the 13th Circuit of Boone County.


Counts in the complaint

  1. Destruction and/or suppression of exculpatory evidence: Detectives and investigators withheld evidence obtained through interviews of witnesses.
  2. Fabrication of evidence: Stroer "deliberately misquoted" statements by witnesses; detectives fabricated a videotaped interview that led to the confession of Charles Erickson.
  3. Reckless or intentional failure to investigate: Detectives and investigators ignored evidence of Ferguson's innocence and failed to conduct an investigation to find the actual killer.
  4. Malicious prosecution: Ferguson was prosecuted without probable cause.
  5. Conspiracy to deprive constitutional rights: Detectives and investigators conspired to withhold and fabricate evidence.
  6. Failure to intervene: Detectives and investigators knew of one anothers' misconduct and did not intervene.
  7. False arrest: Ferguson was arrested by detectives without probable cause.
  8. Defamation: Crane and Boehm made statements that were false and caused harm to Ferguson following the vacation of his conviction.
  9. Indemnification: The city of Columbia and Boone County are liable for the wrongful actions of their employees.


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The case is what is known as a "federal 1983" case, referring to the federal statute under which it is brought, 42 U.S.C. §1983. It allows people to sue federal employees or other "state actors," such as police officers or prosecutors, for violating their civil rights.

Nine different claims were made in the complaint, including allegations that detectives and investigators for the prosecution failed to adequately investigate Michael Boyd as a suspect, fabricated evidence through coercion of Richard Walker and suppressed evidence obtained through interviews of Jerry Trump and his wife that would have impacted the credibility of Trump as a witness.

"If what is said turns out to be true, (the claims in the Ferugson lawsuit are) all pretty damning," said Brian McCallister, a Kansas City attorney who has litigated these kinds of cases. Only one of these claims needs to be proven in order for Ferguson to prevail.

But winning isn't always easy.

"The cards are stacked in favor of good cops, and they're stacked against bad cops," McCallister said.

Ferguson has "a leg up," however, since the appellate court has already found that there was misconduct on the part of law enforcement, McCallister said. 

Last November, the Missouri Court of Appeals Western District vacated Ferguson's conviction on the grounds of what's known as a "Brady violation." This kind of violation occurs when prosecutors don't disclose evidence that favors the defendant.

The appellate court found, for example, that William Haws, an investigator for the prosecution, failed to disclose statements made by Trump's wife that diminished the credibility of Trump as a witness. The court also determined that this information could have been used to defend Ferguson.

Questions of immunity

Investigators are required to turn over all evidence including evidence of innocence, not just evidence that supports the prosecution, McCallister said.

But because police and prosecutors have immunity, cases like Ferguson's can be very difficult, said Roger Brown, an attorney in Jefferson City who has experience with federal 1983 cases.

For prosecutors, the idea is that they need absolute immunity in order to guarantee they have total discretion to either bring or to not bring charges against someone, Brown said.

Prosecutors can't be sued for doing their job, said MU law professor Rodney Uphoff, who specializes in exoneration and prosecutorial misconduct, among other topics. But there are some situations in which prosecutors have qualified, rather than absolute, immunity, which means they are open to charges of misconduct and can be held individually liable for wrongful actions taken. 

As long as they have probable cause, prosecutors have absolute immunity. But, some would argue, prosecutors have only limited immunity when they give advice to law enforcement or take investigative action, according to Brown.

Police have qualified immunity for all of their actions. In order to show that police have acted wrongfully, Ferguson's attorneys must establish there was a well-known and protected constitutional right that officers would have or should have known about, and that they failed to protect that right in Ferguson's case, Brown said.

Brown said that where the case will be won or lost is over whether investigators' handling of witnesses in the Ferguson case rose to the level of being wrong, denying Ferguson his right to due process. It has always been a proper technique for police officers to lie to witnesses, Brown said, but a judge will have to determine if what happened during investigation of the Ferguson case crossed a line and was actually fabricated.

Ferguson's complaint asserts that police detectives and investigators for the prosecution violated his constitutional rights to a fair trial, freedom from prosecution without probable cause and unlawful deprivation of liberty. But law enforcement officers will likely argue there was no recognized constitutional right they violated, Brown said.

"It's a difficult case for the plaintiff," he said, "But if the facts are as they have pled them, that might get him past (these arguments)."

Prosecutors tend to get into trouble when they step outside their own role and into the role of investigator, McCallister said.  

Uphoff said that if Ferguson wants to hold the city and the county liable, rather than the individual prosecutor and investigators, it becomes even more difficult.

Normally a city or a county is not responsible for the actions of its employees, unless it can be shown that there was some sort of negligence, Uphoff said. This could include a failure to train employees adequately or hiring of an employee who was not qualified to do his or her job.

To show that the city of Columbia or Boone County is additionally liable, as the lawsuit states, Ferguson has to establish that there was a practice, policy or custom in place that led to the misconduct by law enforcement and prosecutors.

Cases that seek to find cities or counties liable for the actions of their employees are known as "Monell claims." Each of these cases turns on the facts of each particular claim, McCallister said, and he couldn't say whether they're generally more or less difficult.

Fact-heavy and time-consuming

Given the complicated nature of these cases, they can take quite a long time to resolve, McCallister said. His last such case took seven years and involved two appeals.

They're also fact-heavy, McCallister said. The success of the case will turn not on strategy but on whether the factual claims asserted in the complaint are found to support the legal claims.

The law is clear that if a police officer knew of evidence that tended to show Ferguson to be innocent and that an officer failed to turn this evidence over to the prosecutor, the officer could be found liable, McCallister said.

A common theme in these cases is a rush to judgment, McCallister said. What sometimes happens is that police officers or a prosecutor formulate a theory in a case, causing them to disregard or fabricate evidence. They begin to tell the story they want to hear, rather than the one the facts tell, McCallister said.

The lawsuit asserts that's exactly what happened in the Ferguson case, stating that police officers and prosecutors deliberately ignored evidence that would have proven Ferguson innocent and pressured witnesses to make statements against him despite contrary evidence. 

Brown said Ferguson's attorneys did a good job of structuring the complaint, organizing the counts in order from strongest to weakest.  The first three counts — destruction and/or suppression of exculpatory evidence, fabrication of evidence and reckless or intentional failure to investigate — are most likely to be successful, he said.

The money

Ferguson is seeking $100 million in total damages: $75 million in actual damages to compensate him for the financial losses as well as the loss in quality of life; and $25 million in punitive damages, meant to punish the defendants, if it is determined that their misconduct was willful and malicious. Because Ferguson requested a jury trial, the jury will ultimately decide the amount of damages.

The amount that is requested depends entirely on the specific facts of each individual case, McCallister said. Punitive damages should be proportional to the resources of the entity that is found liable and to the degree of willful wrongdoing or malice. For example, a large corporation could pay a much higher sum than an individual.

As for compensation to Ferguson, McCallister said that what he might be compensated for isn't just his loss of wages for the time he was imprisoned, but the loss of his freedom and his enjoyment of life.

The impact to Ferguson's quality of life is hard to imagine, and could be ongoing, McCallister said.

"This is going to follow him for the rest of his life," he said.

Zellner's experience in handling these kinds of cases is sure to be useful. She won $15.5 million in damages for Kevin Fox, a Chicago man who had been wrongfully imprisoned for eight months for the rape and murder of his 3-year-old daughter, according to previous Missourian reporting. With an attorney like Zellner, McCallister said, "the defendants are going to have their hands full."

Zellner didn't respond to a request for an interview Friday.

The city's risk management division is handling the case for the city defendants. The division has not yet determined who will represent the city of Columbia or the other defendants in the case, said Todd Guess, risk management assistant.

The county counselor's office did not respond to a request Friday afternoon for information about their legal representation.

Supervising editor is Katherine Reed.


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