Ryan Ferguson loses bid for new trial; defense vows to continue

COLUMBIA — Ryan Ferguson, convicted in the 2001 murder of Columbia Daily Tribune sports editor Kent Heitholt, faces another hurdle in his quest for exoneration. Tuesday, the Missouri Court of Appeals for the Western District denied Ferguson's latest appeal to have his case sent back to the 13th Circuit Court for Boone County so he can ask for a new trial.

But the three-member appeals court, in an opinion written by Judge Gary D. Witt, also said it is troubled by the case.

"That is not to say the issues of this case do not give us pause," said the court, citing the fact that the only evidence against Ferguson was the testimony of his co-defendant, Charles Erickson, and an identification by Tribune janitor Jerry Trump.

Erickson, who is serving 25 years in prison after pleading guilty to second-degree murder and agreeing to testify against Ferguson, has changed his account of the crime since the trial. He said in a videotaped statement in November 2009 that he alone killed Heitholt, but he continued to assert that Ferguson was present at the crime scene, which was a parking lot on the north side of the Tribune building.

Ferguson has maintained from the beginning that he was not there.

Ferguson's lawyer, Kathleen Zellner of Chicago, said Tuesday that she now will file a habeas corpus petition in Cole County Circuit Court to ask for a new trial. She said she is confident that request will be granted.

The court said Ferguson's defense team failed to demonstrate that his original trial lawyer was ineffective and that Ferguson filed his motion to remand the case to circuit court too late.

"We must reject Ferguson's Remand Motion because Missouri law is clear that he is not entitled to file another motion for a new trial at this time," Witt wrote.

Zellner said that procedural ruling isn't a big blow.

"Basically, all the court has said is that this isn't the forum to try. I'm still very optimistic," Zellner said. "You need Erickson to recant (in court). Now that we have that, a conviction like that is not going to stand."  

Zellner said she will file the petition within 30 days.

Ferguson's father, Bill Ferguson, echoed Zellner's optimism.

"From our perspective, this is the best thing that could have happened."

Ferguson and Zellner both said the delays inherent in the appeals process have allowed them to develop new evidence. Zellner would not reveal that evidence but said it serves to exonerate Ryan Ferguson.

In its ruling, the court said Ferguson's options are not over.

"Ferguson is not without recourse to have this newly-discovered evidence heard in a Missouri court of law," the opinion states. "Habeas corpus relief is available."

Bill Ferguson said his son is taking the delay in stride. Ryan Ferguson was sentenced to 40 years in prison for second-degree murder and armed criminal action after his convictions in 2005.

"He's so used to it. He knows he's innocent. We all know he's innocent," Bill Ferguson said. "He always knew there would be delays, but now we're beginning to see light at the end of the tunnel."

Heitholt was beaten and strangled to death in the parking lot of the Columbia Daily Tribune early on the morning of Nov. 1, 2001. Police for years had no strong leads and no suspects, until Erickson confided to a friend that he "may have" committed the crime.

That friend contacted police, who then arrested Erickson and Ferguson. Ferguson was convicted largely on the confession of Erickson, which Ferguson has always maintained was fabricated.

Ferguson's defense team is also questioning the veracity of an eyewitness identification by Trump, the Tribune janitor. Bill Ferguson said Trump was encouraged to make the identification by then-Boone County Prosecutor Kevin Crane. The appeals court rejected that claim.