COLUMBIA — Faced with a new sworn statement from Charles Erickson that he lied during Ryan Ferguson's murder trial, the Western District Court of Appeals had a number of options. It could have sent the case back to the trial court in Boone County for a hearing, or it could have refused to allow the new evidence to be heard.
Instead, the court chose a third option that seemed to surprise even Ferguson's attorney: to bypass the trial court and take the statement under consideration now.
"This was our No. 1 hope, but we didn't really think it would happen," Ferguson's lawyer, Kathleen Zellner, said Tuesday.
The decision means the Western District appellate court will take under consideration a November videotaped statement in which Erickson says that he alone murdered and robbed Columbia Daily Tribune sports editor Kent Heitholt while Ferguson tried to stop him. Erickson originally testified that Ferguson strangled Heitholt to death.
Heitholt was killed in the early morning hours of Nov. 1, 2001, in the Tribune parking lot. Ferguson and Erickson were arrested in March 2004.
"What this signals is that they're (the appellate court) going to decide this; Boone County is not going to decide this," Zellner said.
Ferguson's family and attorneys have long been critical of the handling of the case by Boone County courts and prosecutors.
In a brief filed with the appellate court, Zellner argues that the wording and content of Boone County Circuit Judge Jodie Asel's 2009 decision not to grant Ferguson a new trial is almost identical to the prosecutor's proposed findings. In an interview, Zellner said this was "highly improper."
Zellner said her goal has always been to get Erickson's statement in front of the appellate court. The Tuesday decision means that will happen much sooner than if the case went back to the circuit court.
Terry Lord, the clerk of the Western District court, said the decision to hear new evidence at the appellate level is not unusual in cases where there is a complex motion such as the one filed by Ferguson.
The state will now have a chance to respond to Zellner's arguments that Ferguson should get a new trial. Then Zellner will answer that, and she said she'll ask the court to hold an oral argument.
Erickson's statement, as well as the evidence presented at a July 2008 hearing in Boone County, would be fair game during the argument. At that hearing, Ferguson attempted to show that the prosecutor withheld evidence and that Ferguson's original attorneys were ineffective.
Representatives for the attorney general's office did not return messages seeking comment Tuesday.
Ferguson was convicted of second-degree murder and first-degree robbery in 2005 and is serving a 40-year sentence. Erickson pleaded guilty to second-degree murder, first-degree robbery and armed criminal action and is serving a 25-year sentence.