Heitholt's colleague, Michael Boyd, was the
last known person to see the victim alive. He had a conversation with
Heitholt in the Tribune parking lot just minutes before his death. A
few hours after the murder, Boyd was questioned via telephone that morning
and again later that evening in person. On that day, he told two very
different stories. In one story, he stated Heitholt left the Tribune
building before him, and once outside, they stood by Heitholt's car for a
few minutes, and had a conversation about a stray cat that Heitholt
frequently fed. He then went back to his car and drove off.
In another story, he stated that he left the
Tribune building before Heitholt and was in his vehicle and adjusting the
radio for a couple of minutes, before he saw Heitholt exiting the building
and walking to his car. He then backed out of his parking spot and drove
through the parking lot, stopping at Heitholt's car. He rolled down his
window and had a conversation with Heitholt. They discussed a possible
problem with Boyd's car, the stray cat, and some work-related matters,
before he drove off.
Despite the fact that Boyd told two different
stories that day, and was the last known person to see the victim
alive, he was never investigated.
He would alter his story three more times, in February 2005, July 2005 and
June 2006, with changes ranging from which parking lot he was in, and even
the color and model of the vehicle he was driving that night.
In October 2004, some seven months after the
arrests, easily manipulated Erickson was offered a deal to plead guilty and
provide testimony to convict Ferguson. In return, his sentence would be
drastically reduced from life to 25 years, with a possibility of parole
after 12 years. As a result of his deal, Erickson's story changed
significantly.
Erickson now "remembered" that he hit the
victim 11 times. He now "remembered" exactly how Ferguson supposedly
strangled the victim. He also now mentions for the first time seeing Boyd, a
"white man," talking to the victim before he attacked him, yet Boyd is
African-American. The only way Erickson knew about Boyd was from reading the
police reports, and he believed Boyd was white because the police had
incorrectly designated Boyd as a "white man" in their reports.
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Copy of portion
of the police report stating Boyd was white.
Click here to view full page
of report. |
Erickson also completely changed his story
about the way they left the crime scene. He claimed they did indeed head in
the same direction as the K-9 tracking dog, although unlike the dog, they
headed back to By George. He stated they went in the complete opposite
direction of his original story.
There are huge inconsistencies in his story.
Erickson stated they went back to the club after the murder, thereby
arriving after 2:30 a.m. The club closed at 1:30 a.m. There has never been
any evidence to support that the club was open after 1:30 a.m.
Erickson claimed the motive was robbery and
that they needed more money for drinks, yet the victim's wallet, which was
in a console inside his car, was not taken. The only missing items were
Heitholt's watch, a portion of his belt, and the keys to his car.
Erickson claimed they couldn't leave the club
because there were police in the parking lot, yet there is no record of any
police activity at the club, and if the club were open after 1:30 a.m., as
Erickson stated, the club likely would have been given a citation.
Erickson claimed they drove past the crime
scene after leaving the club around 4 a.m. and saw the victim being placed
in a body bag, yet it is impossible to see the crime scene from the street,
and the body was not placed in a body bag until 5:20 a.m.
Erickson claimed Ryan's father, Bill
Ferguson, found a wallet, which Erickson alleged was the victim's, yet the
victim's wallet was never taken. Erickson claimed he vomited at the scene,
yet no vomit was found.
Erickson initially claimed Ferguson strangled
the victim on his back, yet the victim was strangled on his stomach.
Erickson claimed they were chased from the scene, yet no one chased the
perpetrators.
Erickson claimed he beat the victim with a tire tool,
yet not one of the 11 blows to the head resulted in a skull fracture. It is
widely believed that had a tire tool indeed been the weapon, at least one of
the blows would have fractured the victim’s skull. It is therefore believed
that the weapon was not a tire tool as claimed by Erickson.
Erickson claimed they saw Dallas Mallory in
his car with two female companions stopped at a red light at the
intersection of Providence and Ash, yet the Missouri Department of
Transportation stated that there was only a flashing yellow light at that
time. Regardless, Mallory did not hold a valid driver's license, and did not
own a car. Was he driving an imaginary car without a driver's license? If
what Erickson says were true, then why were the two female companions not
identified and interviewed?
On the day of the arrests, Mallory was
interviewed by a group of detectives. He denied seeing or speaking to
Erickson or Ferguson on the night of the murder. The detectives would not
accept his statement, so they yelled obscenities at him, tried to intimidate
him, and even threatened to charge him with the murder.
The detectives told Mallory that Erickson
claimed he saw him on the night of the murder, and that Mallory had been
wearing a police uniform as a Halloween costume. Upon hearing this
information, Mallory realized he must have seen Erickson that night, however
was adamant it was not in the early hours of the morning after the murder,
as he was not in the vicinity of the crime scene at that time.
It was later established that both Mallory
and Erickson were at a Halloween party hours before the murder occurred, and
were photographed together, with Mallory wearing the police uniform costume.
This is how Erickson knew Mallory was wearing a police uniform that night,
not because they spoke after the murder. That simply did not happen. The
only time that Mallory mentioned seeing Erickson on the morning of the
murder was under severe police duress. Since that time, Mallory has
maintained that he did not see or talk with Erickson or Ferguson on the
morning of the murder. On Dec. 1, 2004, Mallory provided an affidavit in
such terms.
On Jan. 4, 2005, the prosecutor interviewed
Mallory. It was during this interview that a subsequent paragraph was added
to the follow-up police report, for the first time claiming that Mallory saw
Ferguson that night, as this was previously omitted in the original report.
Mallory subsequently read this report, and explained that the police
falsified the portion of the report pertaining to his supposedly seeing
Ferguson on that night, when in fact he did not.
Add these to the previously mentioned
inconsistencies, and one wonders how any of this was believed. Despite all
of this, Ferguson stood trial in October 2005 at the Boone County Courthouse
in Columbia, Mo., presided over by Judge Ellen Roper. In his opening
statement, Prosecutor Kevin Crane told the jury there was no physical
evidence to connect Ferguson to the crime. The prosecution only had the
concocted testimony of Erickson and Ornt's supervisor, Jerry Trump, to pin
the crime on Ferguson.
During the course of the five-day trial,
Erickson testified against Ferguson, and this time, during questioning by
the prosecution, he was confident, concise and much clearer in the details
than before. He admitted on cross-examination having rehearsed his testimony
over the course of several weeks and role-played the assault with the
prosecutor and investigators from the prosecutor's office. If he knew the
details as clearly as he claimed, why would he need to rehearse?
On cross-examination by the defense, Erickson
also admitted that he had been guessing in the videotaped interrogations on
the day of his arrest, and that he was confused and didn't know many details
of the crime at that time, and was making presumptions based on the
newspaper articles. He further admitted that during the course of the
interrogation on March 10, 2004, he was trying to tell detectives that he
didn't know if he committed the crime. He also testified that he had found
many errors in the police reports.
During cross-examination, he was unable to
clearly explain his lack of memory of the crime at the time of his arrest
and was often vague and had difficulty in explaining his answers to the
defense's questioning, prompting the defense to ask questions more than
once. He testified that he was currently on psychotropic medication, which
affects the central nervous system and alters brain function, which results
in changes to a person's mood, cognition, perception and behavior, and that
his jail psychiatric records over a year-and-a-half, brought into evidence
during the trial by the defense, showed no problems with his memory and that
his memory was intact.
He further admitted to having undergone
testing by psychologists at the University of Missouri weeks after the
murder, including memory testing, but made no mention of the crime. He
admitted to having graduated from a substance abuse treatment program in
October 2001, despite his continuing use of marijuana during the course of
the program, and his use of a detoxifying substance to clear the body of the
traces of marijuana to pass drug testing. He also testified that he had been
under the influence of alcohol and cocaine when he first told friends of his
dreams about the murder.
Kent Heitholt's wife, Deborah Evangelista,
was called by the prosecution, and testified that Heitholt often worked late
into the night at the Tribune, and that the day he was murdered was
his fifth year anniversary of his employment at the Tribune. During
Evangelista's testimony, the prosecution tendered photographs of Heitholt,
including a photograph taken on Oct. 31, 2001 some hours before his death.
Evangelista identified Heitholt's watch and belt, items he was wearing in
the photograph taken on the day of his murder, which were taken from the
crime scene.
The prosecution then called William Hawes, an
investigator with the Boone County prosecutor's office. Hawes testified that
on Aug. 2, 2005, he was instructed by the prosecutor to walk the route
Erickson described that he and Ferguson took on the night of the murder from
By George nightclub to the Tribune building and back to the club
after the murder. Hawes testified that this took him 17 minutes and 1
second.
On cross-examination, the defense pointed out
that while Hawes walked this route from the Tribune building back to
the By George nightclub, he failed to allow for the time Erickson claimed he
took washing the blood off his hands in a creek, going back to Ferguson's
car to dispose of the tire tool, and having the conversation with Dallas
Mallory. Nevertheless, it was agreed by Hawes that the earliest possible
time Erickson and Ferguson could have returned to the club would have been
2:26 a.m., almost an hour after the normal closing time.
The prosecution called Shawna Ornt's
supervisor, Jerry Trump, a registered sex offender, who earlier had told
police he could not provide a detailed description of the man he saw in the
Tribune parking lot. Trump now identified Ferguson as that man. They
also called Ornt, the person who provided the composite drawings, who did
not identify Ferguson as the person she saw.
Kent Heitholt's colleague, Robert Thompson, a
sports writer for the Tribune, testified for the prosecution that he
worked with Heitholt on the night of the murder. He testified that Heitholt
left the office at his usual time after 2 a.m. with colleague Michael Boyd,
and that 15 to 20 minutes later, Ornt went to the sports department in the
Tribune building and asked, "Where's Kent?" Thompson testified that
Trump then arrived at the sports department and stated there were two people
by Heitholt's car and that he thought Heitholt had been hurt. Thompson
testified that he ran out to Heitholt's car and saw him laying half
underneath his car and slumped on the left side of his stomach, face down.
He noticed there was blood "everywhere", so he shook Heitholt in an attempt
to wake him up.
Thompson testified that he then noticed that
Ornt and Trump had returned to the rear dock of the Tribune building,
so he called out to them that Heitholt was hurt badly and they should call
911. Thompson was unaware that 911 had already been called. His co-worker,
Russ Baer, then came out to Heitholt's car, and together they checked for a
pulse, but did not find one, so they rolled him over.
Thompson further testified that police and
paramedics soon arrived at the scene, and the paramedics cut Heitholt's
shirt open and tried to revive him, using cardio-pulmonary resuscitation
(CPR) and a defibrillator machine, but to no avail. He further testified
that police then sealed off the crime scene and the entire Tribune
parking lot and began its investigation.
The prosecution then called Det. Jeff Nichols
of the Columbia Police Department Major Crimes Division. He testified that
he arrived at the crime scene at around 3 a.m. on the morning of the murder.
He said he observed two pools of blood, one on the pavement near the rear
wheel of Heitholt's vehicle, and another right next to the victim's head,
and that he saw a belt buckle and a portion of a belt about a foot from the
victim's head.
Det. Nichols identified the pants, t-shirt
and sweater worn by Heitholt at the time of his death, and testified that
they were all covered in blood. He said that there were blood spatters on
the inside of the driver's door window and on the floor of Heitholt's
vehicle. He further stated that there was blood on the wheel of the vehicle,
which was transferred from Heitholt's bloody head hitting the wheel.
Nichols testified that on Nov. 3, 2001, he
performed luminol tests on the sidewalks leading from the Tribune
building south on Fourth, across Walnut and ending at Broadway. He testified
that there were two different types of bloody shoe prints found, and he
believed the shoe prints showed that two people were initially walking away
from the scene, and then they started running. He testified that this
luminol testing was done to check that the K-9 tracking dog was going in the
right direction on the night of the murder.
Nichols also testified that he processed
Heitholt's vehicle and obtained fingerprints from the interior and exterior
of the vehicle, and was unable to obtain the source of these fingerprints,
and they were therefore unknown. He further testified that he found the
victim's wallet inside a console in the vehicle.
Nichols said that he attended Heitholt's
autopsy, performed by Dr. Edward Adelstein at the Medical Examiner's Office,
and that he had placed bags on the victim's hands at the crime scene to
preserve evidence. He said he collected a hair sample from the victim's
hands during the autopsy.
On cross-examination, Nichols was questioned
about the luminol tests performed on Nov. 3, 2001, admitting he stopped the
testing near Walnut and Fourth, to proceed to McDavid Hall and Flat Branch
Park to perform luminol tests in those locations. This was the route the K-9
tracking dog and Officer Todd Alber had followed. He testified that no blood
was found at either of these locations, so they headed back to Walnut and
Fourth and proceeded towards Broadway.
The defense asked Nichols if it were possible
to see the victim or his vehicle on the night of the murder from Providence
Road, as Erickson said he had. Nichols confirmed it was not.
The defense then extensively questioned
Nichols about Erickson's interrogations on the day of his arrest. Nichols
admitted that during the videotaped drive around the crime scene, Erickson
didn't appear to know where the crime took place. He said, "He [Erickson]
didn't seem to know specifically where it occurred, and so I did show him. I
did tell him. I pointed out the specific location", and, "He [Erickson] was
having a hard time recalling exactly where this location was. And he was
having a hard time or seemed to be having a hard time figuring out exactly
what his route of travel was from the parking lot."
Nichols further admitted that during the
third videotaped interrogation on the day of the arrest, Erickson, "seemed
like he had a hard time recalling details." The defense asked Nichols if he
was really trying to find the truth from Erickson by not allowing him to say
he was confused and unsure. Nichols evaded that question by giving general
comments about interrogation tactics.
The prosecution then called Dawn Kliethermes,
a criminalist and latent print examiner with the Missouri State Highway
Patrol Crime Laboratory. Kliethermes testified that there was an unknown
fingerprint found on the rear inside passenger window of Heitholt's vehicle,
three unknown fingerprints found on the driver's side of the vehicle, one
unknown fingerprint on the rear-view mirror of the vehicle, and one unknown
fingerprint on papers on the driver's seat of the vehicle.
On cross-examination, the defense pointed out
that this amounted to six unknown fingerprints in this case, and questioned
Kliethermes whether these fingerprints matched Ferguson, Erickson, Heitholt
or Heitholt's daughter, Kali, to which she testified that they did not.
Cary Maloney, the DNA technical leader of the
Missouri State Highway Patrol Crime Laboratory, was called by the
prosecution and testified that he performed DNA tests on Heitholt's shoes,
t-shirt, pants and sweater worn at the time of his death, and all of the DNA
on these items belonged to Heitholt. On cross-examination, Maloney admitted
that none of the DNA tested in this case belonged to Erickson or Ferguson.
The prosecution's final witness was Dr.
Edward Adelstein, deputy medical examiner. He testified that there were
abrasions on the right side of Heitholt's cheek, bruising and hemorrhaging
to his eyes, bleeding under the skin, multiple injuries to the tops of both
hands, which were possible self-defense wounds, and abrasions and
hemorrhages to the neck. He also testified that Heitholt was struck 11 times
in the head by a dense object.
Dr. Adelstein further testified that
Heitholt's hyoid bone (a bone in the neck which separates fluid and air) had
been broken, and that it would take a great deal of pressure to break the
hyoid bone. He testified that Heitholt was strangled from behind, and that
the cause of death was asphyxia due to compression of the neck caused by
strangulation.
On cross-examination, Dr. Adelstein testified
that the lacerations to Heitholt's face were likely to have been caused by a
different object to the lacerations on his head, or that it was possible
that it was the same object, but that two different ends of that object were
used. He also testified that the strikes to the head could have been caused
by a variety of instruments, and that it was possible that there were two
different instruments used in the beating. The defense questioned whether
these types of injuries were consistent with street robberies, and Dr.
Adelstein responded that these types of injuries usually occurred during a
serious fight.
The prosecutor failed to provide the defense
with details of exculpatory evidence that two of his investigators, William
Hawes and Ben White, had obtained from two witnesses, Melissa Griggs and
Kristopher Canada, who were questioned before the trial. This is a violation
of the Brady Rule, a federal law requiring prosecutors to turn over to the
defense any information or evidence favorable to the defendant uncovered
during the crime's investigation. The witnesses were an employee and a
patron of By George. They told investigators that the club had indeed closed
at 1:30 a.m. The judge acknowledged this violation, noting this was improper
conduct and that all information should be passed onto the defense, but the
jury was never informed.
The prosecution did not call their lead
detective, Det. John Short, to give evidence. It is rare in criminal trials
that the prosecution does not call the lead detective to give evidence. They
did not call Dallas Mallory, the only person who could have corroborated
Erickson's story, because he had provided the defense with a sworn affidavit
stating he did not see or talk with Ferguson during the early morning hours
of the murder.
In his closing argument, the prosecutor
deceived the jury about the hair in the victim's hand. In Det. Nichols's
deposition, he stated that a hair was adhered to the bloody fingers of the
victim, and that he had taken a photograph of this hair. This hair is a
crucial piece of exculpatory evidence in this case, and is believed to
belong to the killer, yet a match to this hair was never found. In his
closing argument, the prosecutor told the jury there was no hair found in
the victim's hand. The prosecutor deceiving the jury about this crucial
piece of evidence is a form of prosecutorial misconduct.
Ferguson's defense team, which consisted of
lead attorney Charles Rogers, Kathryn Benson and Jeremy Weis, called Ryan
Ferguson's sister, Kelly Ferguson, who testified that, together with her
friend Christine Lo who knew the bouncer at By George, she had arranged for
Erickson and Ferguson to be allowed to enter the club on the night of the
murder, despite them being underage at the time. She testified that they met
Erickson and Ferguson at the front door of the club and they entered
together, and that they split up once inside, and she only saw her brother
in the club once after that time. She further testified that the lights in
the club came on between 1:15 a.m. and 1:30 a.m., and that the staff began
to push people out the door during that time, as it was closing time.
The defense then called Ronald Singer, a
forensic scientist and crime laboratory director of the Tarrant County,
Tex., Medical Examiner's Office Crime Laboratory. After receiving reports
from the defense, as well as photographs of the crime scene and Heitholt's
vehicle, Singer examined the blood spatter patterns and evidence. He
testified that he was able to provide a general reconstruction of what took
place in the attack, and that the blood spatter patterns were consistent
with a beating.
Singer testified that there was blood on the
inside of the driver's door of Heitholt's vehicle, which indicates that the
attack began with the driver's door open, and with Heitholt standing upright
near the door. Heitholt then moved and was attacked near the driver's
side rear tire of his vehicle.
Singer testified that at one point, Heitholt's head was at a similar level
to the hubcap, and his head came into contact with the hubcap, and that he
was then struck while his head was on the ground. He also testified that the
blood spatter pattern showed cast-off blood, which was blood from a blunt
object being sprayed off the object while the object was in motion,
presumably due to the beating.
The defense called Jenny Smith, a forensic
chemist at the Missouri State Highway Patrol Crime Laboratory. She testified
that she tested the hair found in Heitholt's hand, plus samples belonging to
Heitholt from his hair brush, and samples from Erickson and Ferguson. She
concluded that the hair found in Heitholt's hand was not consistent with
either Heitholt, Erickson or Ferguson. Smith further testified that she sent
the samples to the FBI Lab in Quantico, Va., for mitochondrial DNA testing.
The defense then called Karen Lanning, a
physical scientist in the Trace Evidence Unit of the FBI Lab in Quantico.
She testified that she conducted tests of the hair found in Heitholt's hand,
and compared it to hair samples from Heitholt's hair brush, and samples from
Erickson and Ferguson, and concluded that the hair found in Heitholt's hand
did not belong to Heitholt, Erickson or Ferguson.
Catherine Theisen, a forensic DNA examiner in
the Mitochondrial DNA Unit of the FBI Laboratory in Quantico, was then
called by the defense. She testified that she conducted mitochondrial DNA
testing of the hair found in Heitholt's hand, and compared it with buccal
swabs (swabs taken from inside the mouth) of DNA from Erickson and Ferguson,
and a blood stain from Heitholt. She testified that she extracted
mitochondrial DNA from each of these samples, and confirmed that the hair
found in Heitholt's hand did not match Heitholt, Erickson or Ferguson.
The defense called Holly Admire, a high
school friend of Ferguson and Erickson. She testified that she spoke to
Ferguson on her cell phone in the early hours of the morning on Nov. 1,
2001. The defense submitted her cell phone records as evidence, which showed
telephone calls between Admire and Ferguson after 1:30 a.m. on the night of
the murder.
The defense then called Melissa Griggs, an
associate of Ferguson and Erickson. She testified that she attended By
George on the night of the murder, and recalled seeing Erickson and Ferguson
at the club. She further testified that the club closed at 1:30 a.m. that
night.
The defense called Kristopher Canada, a barman at By
George. He testified that he worked as a barman at the club on the night of
the murder, and that the lights of the club came on between 1:10 a.m. and
1:15 a.m. that night, and that at that time the bouncers told everyone to
leave, and the doors were locked and the club closed at 1:30 a.m.
Both Griggs and Canada were located by the defense team on
day three of the trial. The defense discovered that they had both been contacted
by investigators from the prosecutor's office prior to the trial. Griggs told
the prosecutor’s investigator that the club had closed at 1:30 am that night.
Canada told them that he had worked at the club that night, and also confirmed
that the club closed at 1:30 a.m. This information was not passed onto the
defense.
The defense subpoenaed Columbia Police
Officer Todd Alber, who was the K-9 dog tracker who accompanied the dog
following the trail of the killer/s on the night of the murder. Officer
Alber did not receive the subpoena before he went on vacation, and therefore did not testify. As a substitute for Officer Alber, the defense
requested to call Officers Rugstadt or Hatton, who followed Officer Alber
and the dog that night in order to provide security for them. The court
would not allow these witnesses to be called, due to the lateness of them
being identified. This was prejudicial to the defense, as they were unable
to inform the jury of the route the K-9 tracking dog took, to confirm that
it was the opposite direction of what Erickson claimed during his
interrogation on the day of his arrest.
Ferguson took the stand in his own defense
and testified that he had no involvement in the crime. He was asked by the
defense whether he went to the Tribune building or parking lot and
whether he saw Heitholt anywhere that night, to which he replied, "No." He
was also asked by the defense whether he participated in the murder, to
which he again replied, "No." Using a map, he also pointed out to the court
where he had parked his car near the club that night, and the route he drove
after leaving the club to Erickson's home, before returning home himself.
In his cross-examination, the prosecutor
tried to intimidate and agitate Ferguson, but he remained calm and answered
each question clearly and respectfully. He stated that he never thought he
would be arrested for a crime he didn't commit.
The defense called Professor Elizabeth
Loftus, a memory expert and author of many publications on false memories.
She testified that it was her opinion, after 30 years of studying memories
and based on her vast research and experience, that Erickson's was a false
confession. She was of the opinion that a person cannot forget something as
significant as committing a murder, and not have any recollection of doing
so the next day, the next week or the next two years, and then suddenly
regain a memory of it at a later time.
The defense also submitted Ferguson's cell
phone billing records as evidence, which provided details of the time and
duration of the calls made and received by Ferguson on the night of the
murder, between 1:41 a.m. and 2:10 a.m., and showed that he talked
continuously during that time. These calls included five outgoing calls made
by Ferguson to various friends, lasting a combined duration of 10 minutes;
and three incoming calls received by Ferguson lasting a combined duration of
15 minutes. Ferguson testified that these calls were made and received after
he returned home, while he sat on the curb outside his home.
Due to the lapse of time involved, the cell
phone company's records no longer provided details regarding which
cell-phone towers transmitted the calls Ferguson made. Thus the defense
could not establish that the calls were made from Ferguson's home as he
alleged. These calls, if the defense could have established that Ferguson
had made them from his home, would have excluded Ferguson as the murderer.
The defense further highlighted the lack of
physical evidence in this case, and the fact that it was never determined
who the DNA, fingerprints, footprints and hair in the victim's hand belonged
to.
Ferguson's defense team made fundamental
errors in its handling of the case and the running of the trial. The defense
failed to interview Dallas Mallory and Michael Boyd, and did not call these
critical witnesses to give evidence during the trial. Neither did they call
rebuttal witnesses to show that Erickson was untrustworthy, a drug and
alcohol abuser, and prone to exaggeration.
They similarly failed to call character
witnesses to attest to Ferguson's upbringing, good nature, and lack of prior
criminal or violent behavior. Potential character witnesses could have
testified as to Ferguson graduating high school early, and obtaining the
rank of Eagle Scout, the highest ranking in the Boy Scouts of America.
Without these witnesses, the jury was given no insight into Ferguson's
character and personality, to demonstrate that he was not the cold-blooded
killer the prosecution made him out to be.
The defense failed to locate further
witnesses to confirm that By George had closed at 1:30 a.m. that night. It
also failed to obtain official records showing that the club had never
received any citations for being open after 1:30 a.m. The closing time of
the club is one of the major inconsistencies in Erickson's story. Therefore,
the defense's failure to locate witnesses to attest to the club's closing
time and thereby refute Erickson's story was severely prejudicial to their
client's case.
The defense failed to enlist an expert
witness to examine the victim's injuries, and attempt to discredit
Erickson's story. This denied the defense the potential to further question
Erickson's story, challenge his credibility, and highlight the countless
inconsistencies in his testimony and apparent recollection of the murder.
The defense failed to produce an adequate map
of the crime scene and surrounding area, and failed to label correctly and
use the map it did have. The defense's lack of preparation with regards to
the map caused confusion when witnesses were unable to accurately identify
various areas on the map and show their whereabouts and the routes taken on
the night of the murder.
In its closing argument, the defense focused
on there being no physical evidence linking Erickson or Ferguson to the
crime, that Trump's testimony was unreliable, and that Erickson's story was
inconsistent, continually changing, and unreliable, and that there was
no-one able to confirm Erickson's story. They also highlighted the major
points of the testimony of the defense witnesses, and Ferguson's cell phone
calls on the night of the murder.
However, the defense failed to list a number
of the obvious inconsistencies in Erickson's story to highlight to the jury,
including the fact that there was no vomit found at the crime scene, that
Dallas Mallory vehemently denies that he saw Erickson and Ferguson that
morning, that Erickson did not know how Ferguson supposedly strangled the
victim, how many times he hit the victim, the direction they left from the
crime scene, and that they supposedly drove past the crime scene and saw the
victim's body being placed in a body bag, which actually happened over an
hour after Erickson claimed.
Given that Erickson's story was the majority
of the prosecution's case against Ferguson, and that his story is
inconsistent and unreliable, thereby making the majority of the
prosecution's case unreliable, tearing apart Erickson's testimony should
have been the primary focus of the closing argument. Destroy Erickson's
credibility, destroy the case against Ferguson. The defense should have also
demonstrated that Trump's original statements to the police proved he could
not identify Heitholt's assailants. If the defense could have discredited
Erickson and Trump, the government's case against Ferguson would have
dissolved.
The defense made blatantly unprofessional
errors during the trial by repeatedly becoming confused and mixed-up with
Erickson and Ferguson's names, which was not only embarrassing, but
potentially confusing to the jury.
What must have made this case so difficult
for the jury was the fact that Erickson had already admitted to being
involved in Heitholt's murder. The jury knew that Erickson would be spending
the next 12 to 25 years of his life in prison as a result. This is powerful
information for any juror to digest. Who could imagine that Erickson was not
involved in the murder if he had already admitted to it? This type of
knowledge apparently allowed the jury not to be bothered by the lack of
evidence or the countless inconsistencies in this case. They were not
bothered by the fact that this case was investigated by detectives who were
disinterested in the truth, or that the case relied on the word of Erickson,
an unreliable witness given the major inconsistencies and changes in his
story over the one-and-a-half year period between the arrests and the trial,
and the word of a registered sex offender who previously could not provide a
detailed description, yet four years later identified Ferguson as the person
he saw. After only five hours of deliberation, the jury returned a guilty
verdict.
Five members of the jury were later
interviewed by "48 Hours Mystery" and several stated they had already made
up their minds about Ferguson's guilt before the defense began its case.
This is tantamount to jury misconduct.
In December 2005, Ryan Ferguson was sentenced
to 40 years in prison – 30 for the murder and 10 for the robbery. He will be
eligible for parole in 2040.
The murder of Kent Heitholt was hideous and
brutal. It took the life of an innocent man. The conviction of Ryan Ferguson
makes him the crime's second innocent victim. In the prosecution and
police's zeal to close Columbia's only unsolved murder, Ryan Ferguson was
the scapegoat for a crime he had nothing to do with, where not one shred of
evidence implicated him. All the prosecution had was the fabricated
testimony of a delusional, confused teenager and the specious, concocted
testimony of a sexual offender.
Ryan Ferguson's court-appointed appeal
attorney, Ellen Flottman, appealed his conviction in late 2006 to the
Missouri Western District Court of Appeals. That court denied his appeal on
June 26, 2007, upholding his conviction.
Ferguson's new appeal attorney, Valerie Leftwich, filed a Rule 29.15 Motion
for Appeal in the Boone County Court on March 3, 2008, citing various grounds,
including Brady violations and ineffective assistance of counsel.
As stated in the Movant's (Ferguson's) Proposed Findings of Fact, Conclusions
of Law, Order and Judgment, the test to determine whether counsel were
ineffective is "whether counsel failed to exercise the customary skill and
diligence that reasonably competent counsel would have exercised under similar
circumstances, and whether Ryan was prejudiced as a result, that is, whether
there is a reasonable probability the outcome would have been different."
An evidentiary hearing was held in relation to this appeal on 16, 17 and 18
July 2008 at the Boone County Courthouse, presided over by Judge Jodie Asel.
[Videos of excerpts of the evidentiary hearing:
Part I and
Part II]
Ferguson claimed two distinct Brady violations, relating to Ronald Hudson and
Shawna Ornt. Both testified at the evidentiary hearing in relation to
information they provided to the police investigating Heitholt's murder and/or
Prosecutor Crane, which evidence was not disclosed to the defense prior to
Ferguson's trial.
Ronald Hudson's attorney, Rob Fleming, testified that Columbia Detective
Bryan Liebhart interviewed Hudson in his presence on Nov. 22, 2002 at the Boone
County Jail. Hudson had previously informed Fleming that he had information in
relation to Heitholt's murder and wanted to exchange this information as part of
a plea agreement for a pending robbery charge.
Both Fleming and Hudson testified that Hudson had told Detective Liebhart
that in February or March of 2002 Hudson was standing outside Labor Ready in
Columbia and was talking with an African-American man named Clarence Mabon.
Mabon told Hudson that he had been involved in "the incident with the newspaper
reporter" and that the sketch the police were showing was not of the people
involved in the murder. Hudson provided Detective Liebhart with other
information about his past incarceration and about how he had met Mabon.
Fleming and Hudson testified that Detective Liebhart ended the interview,
with the detective saying they were not interested in his information, as it
"did not jive" with the information the police had. Fleming testified that he
was given the impression that the main reason for this was that Mabon was
African-American, whereas the police were focusing on two white males.
Fleming and Hudson further testified that on December 3, 2002 a second
interview was conducted between Hudson and Detective John Short, with Fleming
present. After this second interview Detective Short informed Fleming that
Hudson's information did not fit with the information the police had from
witnesses, again relating to their belief that they were looking for two white
males, not an African-American man.
Detective Liebhart testified at the evidentiary hearing that he did not write
a report regarding the interviews with Hudson.
Ferguson's trial attorneys testified that they were never provided this
information, that is, information that another person had admitted to being
involved in Heitholt's murder some two years prior to Erickson and Ferguson's
arrests. They testified that had they received this information, they would have
investigated it further. This would have been valuable information to provide to
the jury, and further evidence to support Ferguson's innocence. Mabon was never
investigated in relation to Heitholt's murder, despite his claim of being
involved, and despite there being no valid suspects at the time of these
interviews with Hudson.
Shawna Ornt, who testified at Ferguson's trial in October 2005, also
testified at the evidentiary hearing. During Ferguson's trial Ornt was not asked
by either the prosecution or the defense whether she could identify Ferguson as
the person she saw in the parking lot on the night of the murder. During the
course of the evidentiary hearing, it became abundantly clear why the prosecutor
never asked this crucial question.
Ornt testified that she had repeatedly told Prosecutor Crane that she had
seen pictures of Ferguson and Erickson, both in the newspaper and on television,
and that neither of them were the people she saw that night. She testified that
after the arrests she was invited to meet with Crane, and she told him that
neither Ferguson nor Erickson were the people she saw. She testified that Crane
told her that he knew these were the right people and that Jerry Trump had also
said so. Ornt continued to tell Crane that they were not the right people, but
Crane was persistent in trying to change her mind and have her agree with him.
She testified that, "He [Crane] made me feel like I was wrong about what I was
saying".
She further testified that she again met with Crane prior to the trial for
"trial preparation", where she again told him that neither were the people she
saw on the night of the murder. She described the boys in the pictures (Ferguson
and Erickson) as being younger than the people she saw. Despite feeling
intimidated by Crane, she was adamant that they were not the right people, and
she told Crane she would not identify Ferguson in Court.
Perhaps the most telling portion of Ornt's testimony at the evidentiary
hearing was her statement that if she had been asked during Ferguson's trial, by
either the prosecution or the defense, whether Ferguson was the person she saw,
she would have said no. Therefore, clearly the prosecutor could not ask this
question of her, as he already knew her answer, but it is bewildering why the
defense failed to ask this pertinent question.
Ferguson's trial attorneys testified at the evidentiary hearing that the
prosecution did not disclose this information to the defense prior to trial,
that is, that Ornt had told them on numerous occasions that she would not
identify Ferguson in court. This is clearly a violation of the law, and was
severely prejudicial to Ferguson. Had his defense team received this
information, they would have investigated further, and presented this
information to the jury.
During such an investigation the defense would have discovered that Ornt also
told others that neither Erickson nor Ferguson were the people she saw. In fact,
during the evidentiary hearing Ornt stated that "I told everybody I knew" that
they were the wrong people.
One such person that Ornt told was the owner of the cleaning company she
worked for, Alicia Shelton, who testified that Ornt had told her that she had
seen the pictures of Erickson and Ferguson on television after their arrest and
that they were not the people she saw. Had the defense presented this
information to the jury, it could have substantially altered the outcome of the
trial.
[Click here to watch
a video of excerpts of Ornt and Shelton's testimony during the evidentiary
hearing.]
Further in relation to Ornt, Ferguson claims his counsel were ineffective in
that they failed to investigate her ability to identify him. The defense deposed
Ornt prior to the trial, but failed to ask whether he was the person she saw on
the night of the murder. Had they asked this, they would have known her answer
would be no, and they could have presented this information to the jury.
Ferguson has also made various claims of ineffective assistance of counsel,
predominantly relating to trial preparation and important witnesses who were not
called to give evidence during the October 2005 trial.
The issue of subpoenaing Columbia Police Officer Todd Alber was again raised
during the evidentiary hearing. It was again explained that the defense failed
to subpoena Officer Alber prior to the trial and prior to him leaving for
vacation, and he was therefore unable to testify. He did however testify at the
evidentiary hearing in relation to the route the K-9 tracking dog took on the
night of the murder.
Officer Alber testified that the dog followed the same trail as the luminol
trail (performed by Detective Nichols on November 3, 2001) for approximately two
blocks, but the dog continued past where the luminol track ended. The dog went
behind the Broadway Diner and continued in a southeasterly direction towards the
University of Missouri campus, ending at McDavid Hall. Officer Alber further
testified that once past the Broadway Diner the dog continued tracking on a
different path than what Erickson testified to at trial. He stated that
according to Erickson's testimony, the path he and Ferguson traveled that night
headed east at the Broadway Diner before continuing west and north back to By
George, rather than the dog heading southeast to the University campus.
 |
| Map showing both of
Erickson's routes and the K-9 tracking dog route. |
Ferguson's trial attorneys testified that they wanted Officer Alber to
testify at the trial, as his testimony in relation to the path the dog took
would have impeached Erickson's testimony, as it was in complete contrast to his
version of the route they apparently took. This would have been powerful
evidence for the jury to consider, but they were not given the chance to hear
this, due to the attorneys not subpoenaing Officer Alber in time.
In the alternative to Officer Alber testifying, the defense should have shown
the jury a videotaped recreation of the path Officer Alber and the K-9 tracking
dog took, which was prepared by the Columbia Police Department. This video was
in the possession of the defense, and showed Officer Alber and the K-9 tracking
dog running the route they followed on the night of the murder. During the
evidentiary hearing Officer Alber testified that this video accurately reflected
portions of the route they took.
The defense should have and could have submitted this video, which would have
shown the flaws in Erickson's testimony, especially in light of Officer Alber
being unavailable to testify at trial.
The most important person Ferguson believes should have been called during
his October 2005 trial is Dallas Mallory. Mallory testified at the evidentiary
hearing that on March 10, 2004 the police attended his work, Forum Cleaners, and
took him to the Police Department to interview him. He told the police that he
had not seen Erickson or Ferguson on the night of the murder. He testified that
the police yelled at him, called him a liar, and threatened to charge him with
Heitholt's murder if he didn't tell them the truth. He stated that they
threatened that they would make a note of his vehicle registration details and
all police officers would pull him over at any time his vehicle was seen, to
take him in for more questioning. He became very scared during the interview and
was crying as they continued to yell at him and call him a liar.
Mallory continually told the police that he was telling the truth, but they
would not believe him. He testified that he told them that he had been in a
police uniform costume and that he had been drinking rum since 3:00 pm that day
and had consumed a large portion of alcohol.
He was interviewed for a second time on September 14, 2004, and was so scared
from the abuse he received at the first interview that he simply told the police
whatever they wanted to hear, in an effort to avoid their abuse and threats. He
testified that the police report of September 14, 2004 did not contain
information that he had given them, but rather what the police told him they had
received from Erickson. Mallory denies the contents of that report.
Mallory further testified that he signed an affidavit on December 6, 2004
which stated that he did not see Erickson or Ferguson in downtown Columbia on
the night of the murder, and that he never told police that Erickson told him
they had "beat someone down", as Erickson claims. He further stated in that
affidavit that he did not have a driver's license at that time and did not have
a car. He testified that all of the information in this affidavit is true and
correct.
Mallory's supervisor at Forum Cleaners, Donna Beck, testified that she
remembered the police attending Forum Cleaners to take Mallory to the police
station to interview him, and that upon his return to work he was very upset and
it was obvious he had been crying. She stated that Mallory told her that the
police had been yelling at him and that "he was getting dragged into something
that he knew nothing about". Beck testified that she knew that Mallory did not
have a car or a driver's license on Halloween 2001. She further testified that
had she been contacted by Ferguson's defense team, she would have testified at
his trial.
Ben White, an investigator with the prosecutor's office, testified at the
evidentiary hearing that he had spoken with Mallory on a number of occasions. He
further testified that during the trial in October 2005 he told Mallory that if
he testified as to what was in his affidavit, he would testify that Mallory told
him something different and he would look like a liar.
Detective Liebhart also testified at the evidentiary hearing, stating that he
had also interviewed Mallory, and that he had said the same thing as in his
original interview with Officer James Harmon. Officer Harmon's report says that
Mallory denied seeing Erickson and Ferguson, and stated that he appeared to be
completely truthful during their conversation.
Ferguson's trial attorneys were well aware of Mallory and the information he
could provide to the jury, but failed to call him. In fact, Mallory was present
at the courthouse during the trial, and could easily have been called to
testify, and would have done so if he had been asked. Mallory's testimony would
have cast serious doubt on Erickson's version of events and would have gone a
long way to discrediting his testimony.
Mike Schook was also not called to testify at Ferguson's trial. Schook worked
at By George Nightclub on the night of the murder. He testified at the
evidentiary hearing that he had worked at the club for approximately two years
and that during that time the doors to the club were never open to the public
after 1:30 am, and that he had never stayed at the club beyond 2:15 am. He
testified that on Halloween night of 2001 he had to disconnect the speaker wires
because the DJ had continued to play beyond 1:15 am while the lights were on and
staff were clearing patrons from the club.
He further testified that the standard procedure for closing the club each
night was to turn the lights on at 12:50 am and start clearing patrons by 1:15
am. Once all patrons had left the club, he would go out into parking lot and ask
everyone to leave, so that by 1:30 am there would be no patrons or cars in the
area of the club. The staff would then clean the club, which was normally
finished by 2:00 am.
Had the defense called Schook to testify during Ferguson's trial, he would
have provided this information to the jury, which would have been in direct
contrast to Erickson's story that he and Ferguson went back to By George after
the murder, arriving around 2:30 am; an hour after the club was closed, and that
they had stayed there for a further hour until approximately 3:30 am.
Further, Ferguson's defense team failed to obtain records relating to By
George prior to trial from the Missouri Division of Alcohol and Tobacco Control
– Licensing (Liquor Control). Had they obtained these records prior to trial,
they would have shown that in the ten-year history of the club they had never
been cited for being open after hours, i.e. after 1:30 am.
Ferguson's trial attorneys failed to investigate three cellmates of Erickson
at the Boone County Jail and call them to testify at trial. Keith Fletcher, Eric
Gaithings and John James were all housed with Erickson prior to Ferguson's trial
in October 2005, and all spoke to him about the murder. All of these were known
to the defense prior to trial, and should have been called to testify.
Fletcher testified at the evidentiary hearing that he was in the same pod as
Erickson from the first day he was brought to the jail. Erickson told him that
he had dreamed that he and Ferguson had killed Heitholt, and that the police had
told him everything that happened, and he went along with it because they told
him he was guilty. He further testified that Erickson told him he believed he
could go home if he confessed, and that he was unsure whether he had actually
committed the crime. Erickson said he was going to take the plea to get it over
with. Fletcher and Erickson also wrote to each other numerous times after
Fletcher left the Boone County Jail.
Gaithings testified at the evidentiary hearing that he was moved into the
same cell block as Erickson a few months after Erickson's arrival at the jail,
and that they spent many hours together and knew each other well. Erickson
talked to him about the case, and would change his story on a daily basis; some
days he would say he dreamed he did it and believed it, and on other days he
would say he didn't do it at all.
James testified at the evidentiary hearing that he shared a cell pod with
Erickson and they talked every day. He further stated that Erickson was very
scared. He told him about a dream he had about the murder where he committed the
murder with someone else, not Ferguson. He told him that he didn't know if he
committed the murder or not, and that he "just keeps having this dream and it
won't go away". James further testified that Erickson had smoked two bowls of
marijuana prior to his interrogation, and believed that if he went along with
the police they would go easier on him. He also testified that during his time
in jail with Erickson, on several occasions where events broke out, the other
cellmates would tell Erickson to take the fall for them, and he would. James
said, "He was easy to talk into things like that".
Ferguson's defense team testified that they wanted to interview these three
cellmates of Erickson but "just didn't get it done". The testimony of Fletcher,
Gaithings and James would have highlighted to the jury that Erickson knew very
little about the crime, had dreams about it and had no idea whether he actually
committed it or not. This would have gone towards explaining Erickson's
inconsistencies and state of mind.
Psychologist Dr. Delany Dean, who examined Erickson on two occasions, should
have been investigated by Ferguson's attorneys and called to give evidence as to
Erickson's mental health. Dr. Dean testified at the evidentiary hearing that she
was retained to examine Erickson. She first examined him at the Boone County
Jail on July 12, 2004 at the request of his attorney, Mark Kempton, and again on
September 8, 2005 at the request of the Boone County Prosecutor's Office, after
his plea negotiations. The purpose of the second examination was to determine
his current mental status and any condition that might affect his capacity to
provide testimony at Ferguson's trial. Dr. Dean testified that it was unusual to
be contacted by a prosecutor to evaluate an adult witness prior to trial
testimony.
Erickson's Boone County Jail records indicate that he was diagnosed with
various conditions, including obsessive compulsive disorder, major depression,
post-traumatic stress syndrome, history of conduct disorder, and alcohol,
cannabis and cocaine abuse while at jail, and was prescribed medication for
these conditions.
Dr. Dean testified that her examinations of Erickson were over a year apart,
and that his ability to remember the events on the night of the murder was about
the same on each occasion; that is, his memory of the events were no clearer in
September 2005 than they were in July 2004. She testified that Erickson
consistently used the term "spotty" to describe his memory of the night of the
murder, and that in September 2005 his memory of that night was "like a movie".
She further testified that Erickson told her that seeing Mallory the night of
the murder was very clear in his mind, as opposed to other events which were
"spotty".
Dr. Dean testified that obsessive compulsive disorder, which Erickson was
suffering from, is an anxiety disorder listed in the "Diagnostic and Statistical
Manual of Mental Disorders IV", which features recurrent obsessions or
compulsions that are severe enough to be time consuming or cause marked distress
or significant impairment. The manual states that the most common obsessions are
repeated thoughts about contamination and repeated doubts, such as wondering
whether one had performed an act such as harming someone.
Had Dr. Dean been called to testify at Ferguson's trial, she would have been
able to explain this disorder to the jury, and show that Erickson's testimony
against Ferguson was unreliable. She would have also been able to explain why
Erickson believed he committed the murder and adopted what the police told him
as his own memories.
Jerry Trump was one of the prosecutor's main witnesses during the trial and
Ferguson's attorneys failed to fully investigate him to enable them to provide
impeachment testimony against him. Had they done so, they would have discovered
Christine Varner, who worked at the Job Center through which Trump was employed
at the time of the murder.
Varner testified at the evidentiary hearing that she spoke with Trump at the
Job Center about the murder the day after it happened. Trump told her what had
happened that night, and that he could not clearly see the people in the parking
lot. He also said that he had been scared and didn't want to be seen by them so
he stood back so they couldn't recognize him. She testified that she watched the
"48 Hours Mystery" program in relation to the murder and saw Trump identify
Ferguson during the trial. She stated that when she saw that, she said, "Well
that's not what he said [to me], it just really stood out".
[Click here to watch
video of excerpts of Varner's testimony during the evidentiary hearing.]
This testimony would have severely discredited Trump's identification of
Ferguson, one of the most compelling pieces of evidence against him, and could
have significantly changed the outcome of the trial.
Ferguson believes his trial attorneys should have called a false confession
expert to testify at his trial, such as Dr. Richard Leo, Ph.D., J.D. Dr. Leo
testified at the evidentiary hearing in relation to false confessions. He stated
that there are certain things to look for in a false confession, including
police techniques, the confessor's personality and vulnerability, the indicia of
reliability in the story and mistakes made in police work. Dr. Leo testified that
highly suggestible people tend to accept and repeat back information that is
suggested by another. He further stated that an innocent confessor will not be
able to supply accurate details of the crime unless they guess them, and will
not be able to lead police to new information or explain unique aspects of the
crime. He stated that the false confession will not be corroborated by existing
objective evidence, and will usually contain guesses and errors which are
inconsistent with, or contradicted by, the objective case evidence.
Dr. Leo further testified that there are three types of false confessions;
voluntary false confessions, compliant false confessions, and persuaded false
confessions. It was his opinion, upon viewing videos of Erickson's
interrogation, that his was a persuaded false confession. In this type of
confession, the confessor is uncertain about their guilt, but because of what
they learn during the interrogation they come to believe they probably committed
the crime even though they cannot remember doing so. Dr. Leo testified that
Erickson's interrogation was full of uncertain language, including him saying "I
don't know" 24 times, and improper police interrogation techniques such as
feeding facts to Erickson and correcting his statements when they were wrong.
Had Dr. Leo, or a similarly qualified false confession expert, been called to
testify at Ferguson's trial, he would have explained false confessions to the
jury and cast serious doubt over Erickson's confession which, being the majority
of the prosecution's case against Ferguson, would have had significant
ramifications in the trial.
Ferguson's trial attorneys failed to submit the articles from the Columbia
Daily Tribune dated November 1, 2001 and November 1, 2003 relating to Heitholt's
murder, to show what facts Erickson had read prior to his interrogation.
Erickson claimed the only facts of the case he knew were from what he read in
the newspaper, and that he was making presumptions based on what he had read in
those articles. Therefore the articles would have helped explain to the jury how
he knew facts about the murder when he was not involved.
Ferguson's trial attorneys also failed to adequately prepare an aerial
photograph of the Columbia area for use during witness testimony, specifically
during their cross-examination of Erickson. A large portion of their
cross-examination related to the route he claimed he and Ferguson took on the
night of the murder. During the cross-examination both a juror and the
prosecutor pointed out to the defense that the photograph was incorrect,
specifically in that the By George Nightclub was incorrectly marked on the
photograph and the Broadway Diner was not on the photograph at all. The defense
were then forced to change exhibits in front of the jury, which would have
undermined their credibility.
Ferguson has also cited a variety of specific legal issues, including his
trial counsel's failure to include various issues in their Motion for a New
Trial. One such issue was the court not allowing Officers Hatton and Rugstadt to
testify in relation to the route the K-9 tracking dog took on the night of the
murder. Another issue related to the instruction to the jury regarding
intoxication. Both of these issues should have been included in the Motion for a
New Trial.
His trial attorneys also failed to object to a number of issues during the
trial, and include these issues in their request for a new trial. During the
empanelment of the jury Ferguson's counsel failed to object to the prosecutor
speaking about Erickson's plea agreement with the State. During the
prosecution's direct examination of Erickson, the defense failed to object to
Crane's "improper bolstering" of Erickson, and intertwining his personal opinion
into his questioning of Erickson, which insinuated that he had special knowledge
of his guilt.
Most importantly, the defense failed to object to Crane deceiving the jury in
his closing argument in relation to the hair found in Heitholt's hand, when he
said, "Number one, ladies and gentlemen, and we went through excruciating detail
on this, there's no evidence that that hair was ever in his hand. And there was
no evidence that it was bloody". This statement is against the State's own
evidence and this should have been highlighted to the jury.
 |
| Copy of portion of Laboratory
Analysis Request form for testing of hair in victim's hand.
Click here to view the full form. |
[Click here to view
a video in relation to the hair found in victim's hand and the prosecutor
lying to the jury about this hair.]
During the trial the prosecution objected to Ferguson's videotaped
interrogation being admitted into evidence and shown to the jury, specifically
during the defense's redirect examination of Ferguson. During their
cross-examination of Ferguson the prosecution tried to impeach him by asking him
questions in relation to whether he told the police during his interrogation the
same information he was testifying to. Ferguson's attorneys requested the court
to allow the interrogation video to be shown, to counter the prosecution's
claims of fabrication. The court would not allow this, so the video was not
shown.
Ferguson's attorneys were ineffective in that they should have cited the
"curative admissibility doctrine" in an effort to have the video shown. The
doctrine "applies after one party introduces inadmissible evidence. In that
situation, the opposing party may introduce otherwise inadmissible evidence of
its own to rebut or explain inferences raised by the first party's evidence". In
this case, the defense should have argued that in light of this doctrine, and
the prosecution effectively "opening the door" on what was on Ferguson's
videotaped interrogation, the video be allowed, however they failed to do so.
Further, Ferguson's initial appeal attorney, Ellen Flottman, failed to
include this issue in the original appeal. Had this issue been included, it
could have changed the outcome of the appeal and he may have been granted a new
trial as a result.
Following the filing of the Rule 29.15 Motion for Appeal, Ferguson filed a
further appeal, for habeas corpus relief, in the Cole County Court on August 13,
2008, citing that he was denied his rights to due process, equal protection
under the law, and freedom from cruel and unusual punishment due to the Lincoln
County jury selection process.
By agreement, Ferguson's jury for his October 2005 trial was selected from
Lincoln County, specifically from Troy. On July 28, 2008 Ferguson's lawyer
discovered information in relation to the selection process of the jury for his
trial.
An evidentiary hearing in relation to this appeal was held at the Cole County
Courthouse in Jefferson City on December 15, 2008, presided over by Judge
Richard Callahan.
During the evidentiary hearing, District Defender of the Public Defender's
Office in Troy, Missouri, Thomas Galen, testified that in July 2008 he
discovered a document which, amongst other things, included the term "$50.00
Jury Duty". Unaware of what this related to, he asked court personnel and was
informed that this referred to potential jurors being able to pay the sum of
$50.00 to remove themselves from jury duty. Potential jurors were offered the
choice of participating in jury duty or undertaking six hours of community
service which attracted a supervision fee of $50.00. Galen further discovered
that this policy had been implemented by Judge Dan Dildine, who had been using
it for several years. The policy was in use during Ferguson's October 2005
trial.
Circuit Clerk for Lincoln County and former Deputy Clerk, Grace Sinclair,
testified at the evidentiary hearing as to the Lincoln County jury selection
procedure. She testified that there are three terms per year for jury selection
with each term lasting four months. Each person in the jury pool is sent
notification two months prior to the beginning of their term. The notice
includes a request that potential jurors contact the court if they believe they
are unable to participate. The jury pool relating to Ferguson's trial included
848 potential jurors, with the term running from October 4, 2005 to January 31,
2006.
The "Lincoln County Jury Pool Excused/Disqualification Report" was submitted
as evidence during the hearing, and Sinclair testified that this report
contained the names of jurors excused by the court during this term, including
their reason for excusal. Sinclair testified that there were 13 people in this
pool excused from jury duty prior to Ferguson's trial, by having performed six
hours of community service. She further testified that the $50.00 fee did not
come into effect until 2006, and accordingly, the 13 jurors were not required to
pay this fee.
Ferguson stated that his jury was not randomly selected or selected from a
fair cross-section of the community, and was not selected in accordance with the
laws of Missouri. A writ of habeas corpus can be issued "when a person is held
in detention in violation of the constitution or laws of the State or Federal
Government". Ferguson claimed that because his jury was not correctly and
legally selected, his trial was unfair, and as he is incarcerated solely as a
result of that unfair trial, he is currently being held in violation of the law,
hence the claim under habeas corpus. He therefore requested that his conviction
and sentence be vacated.
Ferguson's habeas corpus appeal was denied on January 9, 2009. Judge Callahan
ruled that the claim was procedurally barred as it should have been brought up
earlier, either during the trial or in a previous appeal. This however was
impossible, as Ferguson's lawyer only discovered this information in July 2008.
Judge Callahan further ruled that the selection of the jury was not in
compliance with the statute, however it was not "substantial non-compliance" as
it effected only 13 out of the pool of 848.
Ferguson is still awaiting the outcome of the Rule 29.15 appeal, which should
be ruled on in the coming month.
For more information on this case, Ryan
Ferguson may be contacted by writing to him at:
Ryan Ferguson #1137593
Jefferson City Correctional Center
8200 No More Victims Road – (5-House)
Jefferson City, MO 65101
Ryan's outside contacts are his parents, Bill
and Leslie Ferguson. They can be contacted at
Freeryanferguson@aol.com or
send a comment through
FreeRyanFerguson.com.
