Judge recuses himself from latest Ferguson appeal

Wednesday, December 5, 2007 | 7:02 p.m. CST; updated 5:10 p.m. CDT, Monday, July 21, 2008

COLUMBIA — A Boone County judge recused himself Tuesday from deciding whether a Columbia man convicted of murder had effective representation by his lawyers during his trial.

Kevin Crane, who was elected in 2006 to serve as a judge for Division III of the 13th Judicial Circuit Court, was the prosecuting attorney in the murder trial of Ryan W. Ferguson in 2005. Ferguson, 23, recently filed another appeal after being convicted of second-degree murder and first-degree robbery in the 2001 murder of Columbia Daily Tribune sports editor Kent Heitholt. Ferguson was sentenced in 2005 to 40 years in prison.

Crane’s conflict means that he will not hear Ferguson’s post-conviction relief appeal, according to court documents. The appeal, which was filed in November, is Ferguson’s second attempt to have his case heard and his sentence overturned. In August, the Missouri State Supreme Court refused to hear Ferguson’s appeal, which led to his filing of a secondary appeal on the grounds of ineffective assistance of counsel.

The petition states that Ferguson’s attorneys were ineffective because “they failed to adequately investigate” statements made by several people including Ferguson’s co-defendant, Charles T. Erickson, and Jerry Trump, a cleaner at the Tribune office who said he saw two men by Heitholt’s car the night of the murder.

Erickson, 23, who was charged along with Ferguson in the murder, pleaded guilty to second-degree murder, first-degree robbery and armed criminal action and was sentenced to 25 years in prison. He received a lesser sentence for testifying in Ferguson’s trial.

When Heitholt was killed, Erickson and Ferguson were 17-year-old students at Rock Bridge High School. Two maintenance workers found Heitholt’s body in the early morning of Nov. 1, 2001. Police did not arrest the two men until March 2004 after police were notified that Erickson had been talking about the killing.

In his new appeal, Ferguson also wrote that his attorney “failed to adequately cross-examine Det. Jeff Nichols of the Columbia Police Department about his findings” and also failed to “ask for continuances generally for additional time to investigate.”

Filing a post-conviction relief appeal on grounds of ineffective assistance of counsel is very common with convictions, said Columbia criminal lawyer Mark Abbott of Abbott, Schappe and Francis Law Firm.

“It is one of the safety mechanisms built into our legal system,” he said.

But proving that an attorney’s failure to do something has led to a guilty verdict is extremely difficult, Abbott said.

“Trial strategy is left up to the counsel,” Abbott said. “There’s also an assumption of law that defense attorneys have done all that they could do.”

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