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July 22, 2007 Updated March 14, 2013
In a case rife with DNA and other physical evidence, not one shred of evidence linked 17-year-old Ryan Ferguson to the murder of Columbia (Mo.) Daily Tribune sports writer Kent Heitholt in 2001. Ferguson's conviction in 2005 proved only how far the police and prosecution would go to close Columbia's only unsolved murder. A Boone County (Mo.) Judge, at a three-day-evidentiary hearing in mid-July 2008, heard testimony of how the police and prosecution withheld exculpatory evidence from Ferguson's trial attorneys and manipulated and threatened witnesses who dared not support their trumped-up case against Ferguson.
Update: Judge Denies Ryan Ferguson New Trial, His Attorneys Appeal
On January 30, 2013 attorneys for Ryan Ferguson filed a 154-page petition with the Missouri Court of Appeals for the Western District, challenging the October 2012 ruling by Cole County Circuit Court Judge Daniel Green denying Ferguson a new trial. The appeal argues that Judge Green made eight errors is his application of the law as well as several errors in his factual findings.
“The case is about actual innocence,” the petition states. “No direct evidence tied Ryan to the victim’s murder. No physical evidence even placed him at the scene. The only circumstantial evidence against Ryan was the exhaustively impeached testimony of [Chuck] Erickson and the identification made by [Jerry] Trump. Both of those witnesses have now admitted that their trial testimony linking Ryan to the murder was false.”
Ferguson was convicted in 2005 of murdering Keith Heitholt in 2001, the sports editor of the Columbia (Missouri) Daily Tribune.
In April of 2012 Ferguson was granted an evidentiary hearing in Cole County Circuit Court before Judge Green. During the five-day hearing, the only two trial witnesses who linked him to the murder both testified that they had perjured themselves at murder trial. The recantations by Chuck Erickson, a teenage friend of Ferguson’s, and Jerry Trump were part of a habeas corpus petition submitted by Ferguson’s attorney, Kathleen Zellner of Chicago. Based on the trial testimony of Erickson and Trump, Ferguson was convicted of the Halloween night 2001 murder and sentenced to 40 years in prison. No one other than Trump and Erickson ever placed Ferguson at the crime scene.
In ruling not to grant Ferguson a new trial, Judge Green stated to found both recantations “not credible.” Of Erickson’s he wrote, “Erickson’s recantation is a textbook example of why the law views recantations with suspicion and caution.” He noted that Erickson had knowledge of unique facts of the murder during his trial testimony.
In making this observation, Judge Green exposed one of the errors Zellner argued in Ferguson’s pending appeal, namely that the police fed Erickson the “unique facts” he testified to at trial about Heitholt’s murder. In the article that follows, “One Murder, Two Victims,” video-taped police interviews of Erickson demonstrate detectives feeding him information about the murder he clearly did not know about.
To deny Ferguson a new trial, Judge Green had to ignore a mountain of evidence that clearly establishes Ferguson’s innocence. For example, none of the forensic evidence gathered at the crime scene – including fingerprints, hair clutched in Heitholt’s hand and bloody footprints – linked Ferguson or Erickson to the crime. What the forensic evidence did reveal was that Heitholt’s murder had taken six to eight minutes to occur.
The judge also had to discard the importance of testimony provided at the April evidentiary hearing from Michael Boyd, a sports writer at the Daily Tribune who was the last to see Heitholt alive in the Tribune parking lot, where Heitholt had been attacked and eventually strangled to death with his own belt. Boyd testified that as he was driving away from the parking lot around 2:20 a.m. that morning, he saw two individuals walking toward the Tribune parking lot.
Boyd was not called at trial by the prosecution because his timeline would have destroyed the prosecution’s timeline that the attack occurred between 2:12 a.m. and 2:20 a.m. In addition, Boyd told police at the time he was not sure of the race or gender of the two individuals he saw in the alley.
At Ferguson’s trial, two Tribune janitors testified they saw two while males near Heitholt’s car at 2:21 a.m. One of them was Trump and the other was Shawna Ornt. Orrnt testified she could not identify either of the two males she saw that morning. Trump said he could and he identified Ferguson and Erickson, thus corroborating Erickson’s testimony about himself and Ferguson’s role in Heitholt’s murder.
It is hard to imagine how Judge Green could not find Erickson’s recantation credible. His trial testimony was far more bizarre and unbelievable. At the time of Heitholt’s murder, Erickson, like Ferguson, was a high school junior. Two years after Heitholt’s murder, Erickson began telling friends that he was having “dreams” that he and his friend Ferguson had murdered Heitholt. These comments quickly brought the police to Erickson’s door.
In his 2011 affidavit, Erickson averred, “Ryan Ferguson did not harm Kent Heitholt in any way.” In the years after Ferguson’s conviction, Erickson has been saying that he has no memory after midnight of what transpired the morning Heitholt was murdered because he [Erickson] had “an alcoholic blackout.” At the evidentiary hearing in front of Judge Green, he admitted he lied at trial to save himself from the death penalty. For his testimony against Ferguson, Erickson was allowed to plead guilty in exchange for a sentence of 25 years.
The same could be said of Trump’s recantation. It had the ring of truth because of its specific details. Trump, who was on parole at the time for molesting a teenager, told police the day after the murder that he saw two men in the parking lot but could not see them clearly enough to identify. He also said the same thing to his supervisor and several co-workers.
At Ferguson’s trial, Trump told the jury that while he was in prison for a parole violation, his wife sent him a newspaper article with photos of Erickson and Ferguson and from those he was able to positively identify both teenagers as Heitholt’s assailants. He testified he then contacted Boone County D.A. Kevin Crane and became the prosecution’s second witness.
In his affidavit, Trump said his testimony was a lie: it was Crane who met with him in December of 2004 after Trump had been released from prison and showed him the photos of the accused and told him it would be in his interest to identify Ferguson as one of the men in the parking lot the night Heitholt was murdered.
Crane is now a Boone County circuit court judge. Crane’s campaign for election to the circuit court heavily touted his winning conviction of Ryan Ferguson.
On a warm Halloween night in 2001, Kent Heitholt, the sports editor of the Columbia Daily Tribune, worked into the night. He logged off his computer at 2:08 a.m., chatted with some colleagues, and made his way out of the Tribune building to his car in the newspaper's parking lot. There he had a conversation with colleague Michael Boyd that lasted until approximately 2:17 a.m. Minutes after that, Heitholt was brutally beaten, hit 11 times over the head with a metal object, and strangled to death with his own belt.
About five minutes later, Shawna Ornt, a cleaning lady on the night shift, exited the rear of the Tribune building and noticed something amiss near Heitholt's car. She went back inside to alert her supervisor, Jerry Trump. Together, they returned to the loading dock at the rear of the building overlooking the parking lot, and saw Heitholt's body lying on the ground in a pool of blood near his car. They spotted two males near Heitholt's car, one at the back of the car, with blond hair and wearing a short-sleeved t-shirt, and the other at the front of the car, with black hair and described as being six feet tall and weighing approximately 200 pounds. The male at the back of the car called out to Ornt and Trump, "get help, someone's hurt."
Ornt called 911 to raise the alarm at 2:26 a.m. Columbia police officers, detectives, and a K-9 tracking dog responded to the scene.
Despite the fact that there was a good deal of evidence at the murder scene – fingerprints, bloody footprints, a hair in the victim's hand, and DNA – the case baffled the police until they had occasion to interview 19-year-old Charles "Chuck" Erickson 860 days later, on March 10, 2004.
Erickson attended a New Year's Eve party in 2003, and while under the influence of alcohol, had been overheard saying he'd had a dream and feelings about possibly being involved in a murder, but had no memory whatsoever of actually being involved for two years, until this time. In February 2004, he mentioned being involved in the murder to a friend, Nick Gilpin, and a week later told another friend, Art Figueroa. Despite telling his friends about being involved in the murder, Erickson was not able to give any actual details, only vague generalizations, and was under the influence of alcohol each time he mentioned the murder. Another friend, Jonathan Alder, subsequently made a report to the police, which led to Erickson's interrogation.
Erickson, a junior high school classmate of Ryan Ferguson, and a known drug and alcohol abuser, was seen by his friends as a person prone to telling outrageous stories. His story on March 10, 2004 was no exception.
He was first interviewed by Columbia Police Det. John Short, and subsequently interrogated by him in a videotaped interview shortly thereafter. During the course of the 52-minute videotaped interview, Erickson "confessed" to the murder and robbery, and implicated Ryan Ferguson.
Although Erickson and Ferguson were only 17 years old at the time of Heitholt's death, Erickson stated that they were at a Columbia nightclub called By George, and had run out of money. He claimed they left the club before 1:30 a.m. when Ferguson suggested they go and rob someone for money. He claimed they went back to Ferguson's car parked nearby and that he grabbed a tire tool from the trunk.
He claimed they then walked to the Columbia Daily Tribune building and saw Heitholt in the parking lot. Erickson claimed he struck the victim over the head once, became sick and vomited at the scene. He claimed Ferguson then strangled the victim with his bare hands.
He claimed they then saw a cleaning lady and he called out to her. He claimed he sat down for a moment, and then they ran off towards the intersection of Providence and Ash, where within seconds of leaving the crime scene, he said they saw and spoke to a friend, Dallas Mallory, who was supposedly in his car with two female companions and stopped at a red light at the intersection. Erickson claimed he told Mallory what they had done. He claimed he washed the blood off his hands in a nearby creek, and they returned to Ferguson's car to dispose of the tire tool, before they went back to By George, arriving after 2:30 a.m.
Throughout the course of this interrogation with Det. Short, Erickson was confused and could not provide any accurate information relating to the murder. Short repeatedly asked questions specifically relating to the murder, and Erickson simply could not answer accurately.
Short realized this, and proceeded to spoon-feed specific details to Erickson. Whenever Erickson could not answer his questions accurately or in detail, Short provided the answers, and a confused, scared and easily manipulated Erickson simply went along with whatever the detective was saying.
One key element of Erickson's "confession" was the number of times he said he hit the victim. Short asked Erickson, "How many times did you think you hit him all together?" Erickson replied, "Just the once." Short, knowing the victim was hit 11 times, and knowing Erickson was wrong, asked, "Just the once? Well, the only problem I have with that is I know he was hit more than once," to which Erickson simply replied, "Yeah", and that, "I'm saying I just hit him once." Short continued, "You just hit him once? You didn't hit him more?" to which Erickson replied, "No", and again stated, "I didn't hit him more than once." Erickson never claimed Ferguson hit the victim.
Another key element of Erickson's story related to Ferguson's supposedly strangling Heitholt. Erickson had no problem in clearly saying that Ferguson strangled the victim, yet he had absolutely no idea how or what with. He first indicated that Ferguson had strangled the victim with his hands while the victim lay on his back on the ground. When later asked by Det. Short what Ferguson strangled the victim with, Erickson replied, "I think it was a shirt or something." Short, knowing Erickson was wrong again said, "Well, I know it wasn't a shirt." Erickson, clearly having no idea what to say, started guessing, "Maybe a bungee cord or something from his car." Unhappy with the answers given, Short again spoon-fed Erickson and decided to just tell him, "Well, we know for a fact that his [the victim's] belt was ripped off of his pants and he was strangled with his belt." Surprised to hear this, Erickson said, "Really?" and went on to say, "I don't remember that at all."
Short changed the subject, then later returned to the subject of the strangling and asked, "So it's possible Ryan could have strangled this guy with his belt, got the keys, and you not know about it?" Again confused, Erickson asked, "The guy – the man's belt?" to which Short replied, "Yeah". Still confused and surprised, Erickson continued, "His own belt?" Short answered, "Yes. Does that ring a bell?" to which Erickson replied, "Not at all." Short then asked, "But you saw Ryan strangle him though?" and now not as certain as he was earlier, Erickson replied, "I thought I did", and said, "I might not even know what I'm talking about now."
After this interrogation, detectives took Erickson on a videotaped drive around the crime scene and surrounding area. It was during this time that Erickson asked the detectives to show him where the murder had taken place. One would think that in confessing to a murder, one thing Erickson would be sure of was where it took place.
After their drive around, Erickson was again interrogated in a 22-minute videotaped interview by another detective, Jeff Nichols. It was during this interrogation that the detective threatened Erickson, saying that Ferguson would talk and blame Erickson for the whole event. Erickson replied, "I don't know. I mean, I don't even really know, it's just so foggy, like I could just be sitting here fabricating all of it and not know. Like, I don't know. I don't."
Erickson also said, "This is after reading the newspaper article in October and this is kind of what I put together with, I mean I don't know if I'm just flipping out or whatever, but I mean this is kind of what I put together with what could have happened", and, "I'm just presuming what happened. I'm making assumptions based on what I read in the newspaper."
Det. Nichols told Erickson that he had provided specifics that no one else could know. Erickson asked, "Like what?" and the detective said the cleaning lady, which Erickson said he read in the newspaper.
At this point, Nichols became aggressive and said, "I'm not going to sit here and listen to this kind of gibberish ok? I'm not going to waste my time doing that." He raised his voice and pointed his finger at Erickson, saying "I'm gonna start talking and you're gonna start listening." He again threatened Erickson and told him that Ferguson would talk and blame him, and "It's you that is on this chopping block." (Click here to view a video clip of this interview).
Erickson became scared and was still confused. Det. Nichols moved closer to Erickson and continued pointing his finger at him aggressively and said, "I don't want to hear 'all of a sudden I just think I may have fabricated all of this.'" The detective then went back to the beginning of his story, probing for more details that Erickson simply didn't know, so the detective told the story himself, and Erickson went along with it, too scared to say otherwise.
Despite the gaping holes in Erickson's story, the fact that he was confused, knew very little details of the crime, and said on numerous occasions that he didn't know what he was talking about and was making it all up, the police arrested and charged him with second-degree murder and robbery.
That same day, March 10, 2004, 19-year-old Ferguson was arrested at 12:35 p.m. in Kansas City. He was transported to Columbia and interrogated for nine hours. Ferguson repeatedly pleaded his innocence. Knowing he had nothing to do with Heitholt's murder, he felt he did not need an attorney during the interrogation. Detectives tried numerous tactics to obtain a confession, but Ferguson remained steadfast in maintaining his innocence.
Ferguson maintained that he and Erickson went to By George on that night, arriving around 11:30 p.m. He stated they left at 1:15 a.m., before it closed at 1:30 a.m. He made his first phone call to his sister, Kelly Ferguson, at 1:18 a.m. He then drove to Erickson's home to drop him off, before returning home himself, at around 1:40 a.m. He then made five telephone calls, and received another three calls between 1:41 a.m. and 2:10 a.m., and talked continuously during that time. He maintains that after this time, he went to bed.
Nevertheless, Ferguson was arrested and charged with first-degree murder and robbery. Astoundingly, and despite the fact that he had no criminal record, his bail was set at $20 million, the highest bail ever set in the history of the United States for one count of murder.
Columbia detectives were not able to link any of the physical evidence at the crime scene to either Ferguson or Erickson. There were bloody footprints leading away from the scene. A match to these was never found. There was a hair in the victim's hand, and fingerprints at the scene, which did not belong to the victim. The Federal Bureau of Investigation Laboratory tested the mitochondrial DNA found at the scene, but was not able to link this evidence to Ferguson or Erickson.
Police searched Erickson's home on March 10, 2004, and performed luminol tests (a special liquid chemical that illuminates traces of blood, even after many years, or when cleaned and invisible to the human eye) but there was no evidence found to connect Erickson to the crime. Ferguson's car was similarly luminol tested, and not one trace of blood was found. Ferguson's tire tool was tested, and it was determined that it had no connection to the crime. How is it possible for these two to have committed such a horrific and messy crime, bashed a man who was six-foot three-inches tall and weighed 315 pounds, with a metal object 11 times, which produced pools of blood, yet not get any blood on their clothes, or in the car they drove that night?
Shawna Ornt, the only person able to provide a detailed description of the men she saw, provided information to Det. Nichols in November 2001 to produce a composite drawing of the man she saw behind Heitholt's car. She described him as being in his early 20's, six feet tall, around 200 pounds and with blond hair. Erickson and Ferguson were barely 17 years old at the time, and between five-foot five inches and five-foot six inches tall, and weighed between 140 and 150 pounds. Det. Liebhart stated that Jerry Trump "could not provide a detailed description of either of the individuals."
Copy of portion of the police report (#10) stating Trump could not provide a detailed description.
Strangely, Ornt was asked to provide information for another composite drawing of the same man on March 25, 2003, some 17 months later. It begs belief to think that she could provide enough information to produce a second composite drawing 17 months after she saw a man in the early hours of the morning, less than 25 feet away from where she was standing, for only a matter of seconds. Nevertheless, neither of the composite drawings based on Ornt's descriptions bears any resemblance to Erickson or Ferguson.
The K-9 tracking dog followed the scent of the killer/s from the crime scene south down Fourth Street, crossed Broadway, behind a diner, and continued south to Locust Street, where the dog then headed east along Locust Street, and south down Fifth Street to the University of Missouri and McReynolds Hall, where the scent was lost.
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.
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.
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’s Rule 29.15 appeal was denied by Judge Asel on June 12, 2009. The defense filed the Movant’s Proposed Findings of Fact, Conclusions of Law, Order and Judgment on September 15, 2008. The prosecution filed the State’s Findings of Fact, Conclusions of Law, and Judgment on September 29, 2008. Nearly nine months later, Judge Asel merely adopted the judgment prepared by the prosecution, signing the same in the prosecution’s favor, to deny each and every ground of appeal put forward by the defense in what can only be described as a heavily biased judgment.
Arguably, Judge Asel’s 40-page decision was replete with factual errors and misinterpretations of the evidence presented at the July 2008 hearing. It included findings that no Brady violations occurred and that Ferguson’s trial counsel were not ineffective (despite significant evidence to the contrary in relation to both of these findings), and that Ferguson “failed to show that his conviction or sentence violates the Constitution or laws of this State or of the United States”.
Obviously dissatisfied with the judgment, Ferguson is now in the process of appealing Judge Asel’s decision to the Western District Court of Appeals in Kansas City. He has now appointed Kathleen Zellner of Illinois to represent him in this next phase of the appeal process.
In a new development, in November 2009 Erickson provided Zellner with a sworn videotaped statement saying that he alone committed the murder, and that Ferguson was not involved, but was merely a bystander who tried to stop him. Erickson has taken sole responsibility for the murder, and admits that he lied during his testimony when he claimed Ferguson strangled the victim.
Erickson’s sworn statement has been added to Zellner’s appeal brief, which was filed in February. The prosecution had been granted a two-month extension to file its response documents, which are now due in May. An oral hearing will then take place before a decision is made as to whether or not the appeal is allowed and a new trial is granted. This process could take many months.
In the meantime, the fight for Ferguson’s freedom continues.
Dedication: This article is dedicated to the memory of Andrew Bartrop, who inspires me to fight for justice for the innocent, such as Ryan Ferguson
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 – (3-House)
Jefferson City, MO 65101