UPDATE: Ferguson denied new trial

COLUMBIA — Boone County Circuit Judge Jodie Asel denied Ryan Ferguson’s appeal of his 2005 murder conviction in an opinion released Monday, refusing to grant Ferguson a new trial.

Asel rejected Ferguson’s claims that his original legal team was ineffective during his trial and that Boone County Circuit Judge Kevin Crane, who was prosecutor in 2005, withheld evidence.

Ferguson was convicted of second-degree murder and first-degree robbery in connection with the 2001 killing of Columbia Daily Tribune sports editor Kent Heitholt. Asel’s ruling is not official for 30 days, after which Ferguson could appeal the decision to the Missouri Western District Court of Appeals

Public defender Valerie Leftwich, Ferguson’s attorney, said she wasn't sure whether she would ask Asel to reconsider the case in light of new facts or wait and appeal to the Western District.

“I’m disappointed with the outcome and that it took a year to just sign off on the prosecutor’s proposed findings,” Leftwich said. “It’s very difficult to win at the trial court level,” she added.

The decision came almost 11 months after a three-day evidentiary hearing that focused on conduct by lawyers on both sides of the original trial. The state’s principal witness, Ferguson’s high school classmate Chuck Erickson, also figured significantly in the proceedings.

Erickson pleaded guilty and testified at Ferguson’s trial that the two of them, both 17 at the time of the crime, killed Heitholt. Erickson’s credibility was an important point in the appeal.

Asel rejected Ferguson’s claims that Crane failed to disclose that another man had claimed to be involved in the murder and that a key witness, Shawna Ornt, had told him that Ferguson and Erickson were not the people she had seen at the crime scene.

Asel wrote that the man who told police he’d overheard an acquaintance claim involvement in the murder was “grasping at straws to get a better deal from the State.” His story didn’t make sense and would not have affected the outcome of Ferguson’s trial, Asel said.

Likewise, she discounted Ornt’s testimony at the July 2008 hearing.Ornt, who worked for a cleaning service at the Tribune at the time of the murder, testified that she had told Crane that Ferguson and Erickson were not the people she saw by Heitholt’s car, where the victim’s body was found.

But Crane and Bill Haws, an investigator in his office at the time, said that Ornt had said simply that she couldn’t identify the people she saw.

Asel wrote: “This Court finds Ms. Ornt’s testimony not credible. … This Court finds Kevin Crane and Bill Haws’ testimony to be credible.”

Asel also found that decisions made by Ferguson’s original legal team – Charles Rogers, Jeremy Weis and Kathryn Benson – were either sound trial strategy or at least not unsound to a degree that would have changed the outcome of the case.

Ferguson had contended that his lawyers should have called Dallas Mallory to testify at trial. Erickson testified that he saw Mallory shortly after committing the crime. At one time, Mallory told police that he had seen Erickson that night, but in a later affidavit, he said that he had only said this after being intimidated by police.

Asel said that the decision not to call Mallory to testify at trial was sound because his credibility would have been called into question by police witnesses. She also found “no credible evidence” that police or prosecutors intimidated Mallory.

Similarly, Asel ruled that testimony by three men who spoke with Erickson in the Boone County Jail would not have significantly affected the case. The men said that Erickson vacillated about his involvement in the crime and sometimes said he might have dreamed it. Asel wrote that the effect of their testimony would have been “minimal” and “minor and equivocal.”

Ferguson’s lawyers were also justified in not calling a pair of experts to testify, Asel stated. One – a doctor who evaluated Erickson’s mental state – wouldn’t have aided Ferguson’s case, Asel said. And testimony by another – an expert in false confessions – would not have been admissible, she ruled.

Richard Leo testified at the 2008 hearing that Erickson’s confession had some of the hallmarks of a false confession, but he relied only on the videotaped confession, not on any interviews with Erickson or the detectives involved. Further, Asel said, this testimony wouldn’t be allowed because it infringed on the jury’s role of evaluating the credibility of witnesses.

Ferguson’s father, Bill, said he wasn’t surprised by the ruling. “It seems to be an unwritten law that you never overturn at (the trial court) level,” he said.

In a separate appeal, a judge ruled Jan. 9 that an unusual jury selection policy in Ferguson’s original trial did not prevent him from having a fair trial. The appeal reached the state Supreme Court, which declined to hear the case in May.