Jury 'opt out' policy could be key to new Ferguson trial

JEFFERSON CITY — Thanks to a now-defunct jury selection system in Lincoln County, Ryan Ferguson might get a new trial.

On Tuesday, Cole County Circuit Judge Daniel Green fixated on one of the four claims stated in Ferguson’s recent appeal: that Ferguson should be granted relief because jury selection requirements were violated.

Ferguson is currently serving 40 years in the Jefferson City Correctional Center for the first-degree robbery and second-degree murder of Columbia Daily Tribune Sports Editor Kent Heitholt in 2001.

Green heard a volley of arguments from Ferguson’s attorney Kathleen Zellner and Assistant Attorney General Stephen Hawke debating the validity of the claim.

Despite Hawke’s contention that the jury in Ferguson’s 2005 trial was in no way prejudiced, Green seemed to favor Zellner’s claim that the selection was unconstitutional.

Zellner had bolstered her argument by referring to another case with similar jury selection. In the case of People v. Preston, the convicted Preston was granted a retrial  based on the flaws of the selection process.

Green called the new precedent “the law of the land,” and asked Zellner for a few additional supporting documents. Green said after he had received this information, he would rule quickly on whether Ferguson should receive a new trial.

Ferguson’s appeal

Ferguson’s latest legal play was a writ of habeas corpus, which asked for his removal from incarceration on four grounds:

• Charles Erickson has recanted statements that Ferguson killed Heitholt
• Jerry Trump has recanted statements that he saw Ferguson at the crime scene
• A new witness’s testimony contradicts the timeline of the original story
• Jury selection was unconstitutional

The three new witness testimonies could result in a new evidentiary hearing, and perhaps a new trial. But if the judge agrees with the fourth claim, a new trial could automatically be granted. Zellner said she was pleased that Green focused on the final claim, as it could result in the swiftest release.

“That was our idea,” Zellner said.

Lincoln County Jury

Because of a frenzy of pre-trial publicity in 2005, jurors were bused in from neighboring Lincoln County for Ferguson’s trial. During that time, Lincoln County courts had an unusual rule that potential jurors could opt out of jury duty by paying a $50 fine and doing community service.

This past September, state appellate judges ruled that the process was unlawful, and overturned the 2007 drug conviction of Donald W. Preston based on this decision.

Second time around

These particular cries of foul from Ferguson’s team may sound familiar to those following his case for the past few years. In 2009, Cole County Circuit Judge Richard Callahan denied an appeal on the same grounds. However, Zellner says it’s different this time.

“Callahan didn’t have the recantations, and I think we would have had a different outcome,” she said. “There wouldn’t even be enough evidence to arrest Mr. Ferguson at this point.”

Zellner also said a game changer was that the Preston retrial was granted after Ferguson’s original appeal.

“A case decided with identical jury selection was ruled unconstitutional,” she said.

Bill Ferguson, Ryan’s father, was visibly upbeat at the conclusion of the hearing. He worked the room of reporters, echoing Green’s statement: “It’s the law of the land.”

The elder Ferguson said he’s been very patient with the legal system, and thinks this time, it might actually work in his son’s favor.

“If you give justice enough time,” he said, “you will get justice.”