December 6, 2010

Confession of star witness in slaying also goes on trial
CHRIS HAMBY, Special to The Star

On the fourth day of his trial for a notorious murder, Ryan Ferguson sat on the witness stand. He had spent the previous night — his 21st birthday — in the county jail.

For the past few days, he had tried to project calmness even while his high-school classmate and alleged accomplice described for the jury how Ferguson had strangled the Columbia Daily Tribune sports editor to death. He had sat quietly as the prosecutor painted him as a cold-blooded killer.

But now he defended himself.

“I never thought I would be arrested for a crime I didn’t commit,” he told the prosecutor. “Would you believe you’d be arrested for a crime you didn’t commit?”

“I didn’t commit one,” the prosecutor shot back.

“Neither did I,” Ferguson said, prompting cheers from his supporters in attendance.

But the judge didn’t appreciate it, quickly silencing the crowd.

And the jury didn’t believe it.

A number of factors came into play for the 12 men and women — eight of whom later agreed to be interviewed — brought in from a rural county for the weeklong trial. They came to view Ferguson as arrogant and privileged. And they grew irritated with his methodical, slow-speaking attorney, who compared unfavorably in their eyes with the theatrical young prosecutor.

True, the statements of Ferguson’s accuser, Chuck Erickson, were strange. Erickson’s confession changed over time and sometimes contradicted known evidence.

But years after the trial, as jurors recalled those problems, seven of the eight jurors interviewed remained convinced of Ferguson’s guilt, primarily because they had no other answer to the case’s central question: Why would someone confess to a crime he didn’t commit?

Some people — including a leading national expert — say they think they know. But the explanation would be as strange as the case itself.

•••

By the time Ferguson’s trial began, it had been 19 months since he was arrested in front of his Kansas City apartment.

The much-publicized Halloween-night 2001 murder of the Tribune editor, Kent Heitholt, had been a distant memory until Erickson began claiming that he was recovering memories he had repressed for more than two years.

In Erickson’s evolving confession, Ferguson emerged as an unrepentant murderer who had suggested the robbery, then strangled Heitholt to death after Erickson beat him with a tire tool.

Erickson had pleaded guilty in November 2004 to second-degree murder, first-degree robbery and armed criminal action. He would later be sentenced to 25 years in prison.

On Oct. 14, 2005, jury selection began in Troy, Mo., a community of roughly 11,000 residents and the seat of largely rural Lincoln County. Ferguson’s previous attorney had asked for a change of venue because of the intense media coverage in Columbia.

Charles Rogers — Ferguson’s new lead attorney and a partner at a Kansas City firm — felt handcuffed by the move. He didn’t oppose a change of venue, but it seemed clear to him that, in Lincoln County, he would be picking from a much less educated and less defendant-friendly pool than he would have had in Boone County, where Columbia is the county seat.

In jury selection, during a discussion of the presumption of innocence, one man said: “They just don’t pick a person off of a street, just an innocent person. … So I got to believe there could be just a smidgeon of guilt.”

He became Juror No. 1.

•••

“You will see from the evidence,” Rogers told the jury in his opening statement, “that Chuck Erickson, when he was questioned by the police on March 10, wanted to be reassured that it was just a dream and that he really didn’t do anything. But, instead, you will see him be berated, coerced, cajoled, and taught what the police wanted him to say.”

Kevin Crane, the prosecutor, acknowledged to the jurors that, in statements to police, Erickson had seemed unsure and could not remember some details. But, he told them, “the essence of this homicide was there.” The core facts — Erickson beating Kent Heitholt and Ferguson strangling him to death — were always the same, he said.

Crane’s style proved a stark contrast to Rogers’. Crane was younger and known for his folksy theatricality in the courtroom. Rogers was previously a longtime public defender, and he described himself in a recent interview as “more nuanced” than Crane.

In interviews this year with eight jurors, a pattern emerged when discussing the lawyers. Rogers’ slow, deliberate manner irked them; they related far better to Crane. Many said that difference was a factor in their decision, and one said it was crucial.

(Rogers later said in an interview, “It was as uneducated and unsophisticated a jury as I have ever seen.”)

Rogers knew that discrediting Erickson was the key to the case. He played video excerpts from Erickson’s original police interviews and sparred with Jeff Nichols, the detective who conducted the later interviews.

Nichols acknowledged getting forceful with Erickson as an interrogation tactic — an area in which he had been trained.

“You didn’t tell him, ‘We want to find out what you know,’ ” Rogers pushed. “You told him: ‘You know this; you know this. Tell us about Ryan; tell us about Ryan. Your ass is on the chopping block.’ Right?”

“Sure,” Nichols answered. “I went at that line of questioning. And I will not deny that.”

•••

The one other piece of evidence that Ferguson’s defense team had to combat was the testimony of Jerry Trump, one of two janitors who had seen two men stand up from behind Heitholt’s car moments before discovering his body. Police originally indicated that he could not give a detailed description of the men, but now he had a different story.

While in prison serving a sentence for five counts of endangering the welfare of a child, he had seen the photos accompanying the newspaper story about the arrest of Ferguson and Erickson and had immediately known they were the guys he had seen on the night of the murder.

During the trial, Trump pointed out Ferguson as one of the men he had seen.

In a recent interview, Trump said he stood by his identification but had serious doubts that the two men he saw had killed Heitholt. Why did one of the men step forward and say, “Someone’s hurt out here, man”? Why did they walk off casually?

“I don’t think I could have ever sat in a jury room and say that these guys were definitely the ones that did kill him,” Trump said recently. “I don’t think this one’s solved.”

The other janitor, Shawna Ornt, also saw the pictures in the newspaper, but she came to a different conclusion. She testified at a 2008 hearing that she could say with certainty that Ferguson and Erickson were not the people she had seen.

•••

On the witness stand, Ferguson came across as a spoiled rich kid, jurors said.

Ferguson gave an account of Halloween 2001 similar to Erickson’s — up to a point. But he said they had left the bar at about 1:20 a.m. or 1:30 a.m. when the lights came on and the bar closed. He might have called his sister to try to find her, he said. His cell phone records indicated that he called her at 1:19 a.m.

He testified that he drove Erickson home, then went back to his house, where he sat on a curb outside and talked on the phone so he would not wake his parents. His cell phone records showed a series of calls from 1:41 a.m. to 2:10 a.m. — about the time Heitholt was walking onto the Tribune parking lot. (One friend confirmed in court that she talked to Ferguson at 1:41 a.m.)

After the calls, Ferguson testified, he went to bed.

The final witness was psychologist Elizabeth Loftus, who had testified frequently about false memories. Her research had brought her to the attention of the Ferguson team. She was at the forefront of a line of studies suggesting that it was possible to implant an entire false memory of a traumatic event in the mind of an apparently normal person.

After reviewing Erickson’s videotaped interviews and the related police reports, Loftus determined that newspaper articles and suggestive police interviews may have provided Erickson with details that he used to construct a memory.

In interviews with jurors, however, it became clear that most viewed Loftus’ testimony as basically irrelevant. Most jurors already believed that repression — if it occurred at all — did not happen the way Erickson described it.

Some thought Erickson had always remembered the murder on some level and had come forward when his guilty conscience became overwhelming. Many were convinced by the level of detail in Erickson’s testimony. A few jurors said they were aware of inconsistencies in and lack of supporting evidence for parts of Erickson’s testimony. But, as one put it, “I just felt that he wouldn’t have pled guilty if he didn’t do it.”

•••

It took the jury about five hours to convict Ferguson. On the first vote, according to interviews with jurors, everyone voted “guilty.”

At 9:42 p.m., the judge read the verdict: guilty of murder in the second degree, guilty of robbery in the first degree.

About two hours later, after hearing more testimony, the jury recommended sentences of 30 years for the murder charge and 10 years for the robbery charge.

One juror, who had not previously spoken publicly about his experience, said in an interview that he was never convinced Ferguson was guilty, but he didn’t say so during deliberations.

“I probably should have been the lone holdout,” the juror said. “I don’t know that he (Ferguson) got a fair shake.”

He said he was not sure why he voted “guilty,” even though, in his mind, it was a 50-50 decision — maybe because all the other jurors seemed so sure Ferguson was guilty, he added, or maybe even because it was late on a Friday and everyone seemed ready to go home.

•••

Since the verdict, research into false confessions has continued as they have emerged as a more common contributing factor in wrongful convictions than once believed.

Studying proven instances of false confessions, researchers have grouped them into three categories. The strangest and least common of these is the “persuaded” or “internalized” false confession. In these cases, the suspect becomes convinced, often during a long and intense interrogation, that he must have committed the crime even though he has no memory of doing it.

It is this category into which Richard Leo, one of the nation’s leading experts on false confessions, believes Erickson’s confession belongs.

After reviewing transcripts, reports and videos from the case, Leo testified at a 2008 hearing that Erickson exhibited many of the classic signs of a persuaded false confessor. During the police interrogations, Leo testified, Erickson appeared to be trying to guess the correct crime facts; he was convinced he committed the crime but could not remember the details. Police repeatedly fed Erickson details, contaminating his confession, Leo said.

The distinguishing characteristic of Erickson’s confession, Leo said in a recent interview, was that Erickson entered the police interrogation already thinking he may have committed the murder. In persuaded false confession cases, it usually takes hours of intense interrogation to get the suspect to doubt his own memory, at which point the police typically suggest some version of a repressed memory theory. Erickson, it seems, had already reached this stage on his own.

“This is a very unique case,” Leo said. “A different police department might have just dismissed him (Erickson) and said: ‘Come on, until you can tell me some really unique details, I’m not going to take this seriously. You may have mental health issues.’ ”

On Nov. 22, 2009, Erickson looked into a video camera and delivered a statement that set off a string of court filings and gave the Ferguson team renewed hope.

“Things happened much differently than I had previously stated,” Erickson said.

His testimony at Ferguson’s trial was a lie, he said. The truth was that he alone had murdered and robbed Heitholt, while Ferguson tried to stop him.

“I did not tell Ryan what I was going to do,” he said. “He had no idea that I would act in such an aggressive manner. … He could not stop me, though he tried at the end.”

He gave the statement to Ferguson’s new attorney, Zellner, who has won 12 exonerations and recently agreed to represent Ferguson pro bono.

Looking through the evidence and past filings in the case, she recalled in an interview, she saw police who had made “a more blatant effort to coerce a confession” than in most cases she had encountered. The prosecutor’s office, she said, at best had pieced together a shaky case around a witness who was simply unworthy of belief.

Ultimately, she saw a man she was “100 percent certain” was innocent, sitting in prison.

Not long after Zellner decided to take Ferguson’s case, Erickson sent a letter to Ferguson asking to speak with his lawyers. Zellner wasted no time setting up the meeting and arranging for it to be videotaped.

The reversal by Erickson, who declined to be interviewed for this article, probably will be a key point in the habeas corpus petition that Ferguson’s legal team is preparing to file in Cole County. That filing will give Zellner her first real opportunity to present new evidence and argue that Ferguson is innocent.

Ferguson’s direct appeal — a challenge to his conviction on narrow legal issues not akin to a reconsideration of the facts — failed in 2007. He presented new evidence at a post-conviction hearing in 2008, but the trial court denied his request for a new trial.

Ferguson’s legal team has been re-interviewing witnesses and gathering new evidence for the habeas petition — probably his last chance in state court.

Ferguson sits in the Jefferson City Correctional Center’s visitation room in a small plastic chair at a 3-foot-tall table more appropriate for a child’s tea party than a maximum security prison.

Ferguson says the same thing he has always said: “I had nothing to do with this.”

Asked what he would say if he could talk to Erickson, he says: “I’d say: ‘Be honest. Just sincerely look into your heart, look at the facts, try to understand yourself, and try to organize your thoughts on what you think happened and what reality is.’ ”

He has just come from his volunteer job tutoring other inmates trying to earn a GED. He is teaching himself to play guitar (there are two that are shared by about 270 men, he says), and he works out daily (“You can’t tell with these clothes on,” he says, laughing and tugging at his baggy prison-issue shirt). He hopes to finish his degree when he gets out.

Every statement about a possible exoneration and future plans is preceded by “when” — not “if” — he gets out. But he says he’s also a realistic person. “It might be two or three more years, but that’s all right,” he says. “I can’t make it go faster.”

Ferguson’s tempered optimism is reminiscent of the defiant but hopeful statement he gave at his sentencing hearing on Dec. 5, 2005.

The judge was halfway through pronouncing a 40-year sentence for Ferguson when Rogers broke in.

“Mr. Ferguson would like to address the court,” he said.

Ferguson stood in front of the courtroom with Heitholt’s daughter sitting a few rows back.

“I really just wanted to say that today is a sad day,” he said, “because the justice system has failed not only my family and I, but the Heitholts and the community. It has failed because they’re sending an innocent man to jail. Because they’re letting a horrible person run free, without a care. … But someday the truth will come out and everyone will see that I am innocent, and I will be free. And that will be a great day, because on that day the justice system will finally have done justice.”

Chris Hamby, a staff writer at The Center for Public Integrity, graduated from the University of Missouri-Columbia with a master’s degree in journalism. Hamby wrote his master’s project on the Ferguson case. He has worked with The Kansas City Star for several months reporting and editing these stories. He can be reached at cnienaber @kcstar.com.