IN THE CIRCUIT
v. ) Case No. _________
DAVE DORMIRE, Superintendent, )
PETITION FOR WRIT OF HABEAS CORPUS
COMES NOW Ryan Ferguson (“Ryan”), by and through undersigned counsel, and petitions this Court to issue a Writ of Habeas Corpus pursuant to Missouri Rule 91, based on violations of Ryan’s constitutional rights which enabled the State of Missouri to obtain a conviction and sentence totaling 40 years in the Missouri Department of Corrections against an innocent person. In support of this Petition, Ryan states as follows:
On October 19, 1984, the day of Ryan’s birth, his mother and father could never have imagined the Kafkaesque nightmare that lay ahead for their only son. Bill and Leslie Ferguson’s only thoughts that day were that their son would have the brightest of futures and fulfill all of their dreams for him.
Indeed, Ryan fulfilled many of those dreams. He was an Eagle Scout, a good athlete, handsome and popular. His life seemed on track when a cruel twist of fate derailed him. Ryan was arrested for a crime he did not commit. After five short days of trial, all of Bill and Leslie Ferguson’s hopes and dreams for Ryan died when they heard the judge utter the words “guilty of second degree murder” and “guilty of first degree robbery” as she read the jury verdicts on December 5, 2005.
On that date, the young man with so much promise was sentenced to 40 years in prison. His new home, a tiny cell in a maximum security prison, where he has languished for more than 2,000 days. Ryan has endured all of the punishment prison has to offer. He left behind the comfort and support of his family, his friends, his reputation and all of his hopes and dreams for a successful life.
after so many years of despair and hopelessness, the rotten core of his
conviction is laid bare before this court.
It is a story of betrayal, fueled by fear, ambition and a rush to
judgment. It is a story that is an
affront to our Constitution and the laws of
The sole witnesses against Ryan were a blacked-out, drug impaired teenager and a convicted sex offender. Now, both of these witnesses have admitted that their trial testimony was untrue. Their false testimony was aided and abetted by a cunning prosecutor who cared more about obtaining a conviction than seeking justice.
Ryan’s words before his sentencing ring as true today as they did on December 5, 2005:
“I really just wanted to say that today is a sad day, 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. They don’t have to worry about the police looking for them. I can’t understand that. I don’t see how Crane can live with himself with that.
But some day 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.” (Tr. 2253).
That day has finally arrived for the justice system to do justice for Ryan and set him free.
Procedural History and Statement of Facts
A. Procedural History
1. Ryan is incarcerated in
2. Ryan was charged in
3. Prior to trial the parties agreed that
due to publicity concerns, a jury would be drawn from
4. Following a jury trial in the Boone County Circuit Court before the Honorable Ellen Roper, Ryan was convicted of one count of second degree murder and one count of first degree robbery. Ryan was sentenced to 30 years on the murder count and 10 years on the robbery count, to be served consecutively. (See Sentence and Judgment Order, attached and incorporated herein as Exhibit “1”).
6. Ryan filed a timely pro se Rule 29.15 motion on November 14, 2007 and an amended motion on March 3, 2008. The amended motion made claims, inter alia, of Brady and ineffective assistance of counsel. An evidentiary hearing was held July 16-18, 2008.
7. Ryan filed a habeas petition that
challenged the jury selection process in his trial. On September 2, 2008, the motion court
transferred the habeas motion to the Circuit Court of Cole County,
Missouri. The court denied the
8. Circuit Judge Jodie C. Asel entered
findings of fact and conclusions of law overruling Ryan’s Rule 29.15 motion on
June 12, 2009, adopting almost verbatim the State’s proposed findings of fact
crediting the testimony of the prosecution’s witnesses while rejecting all
evidence in favor of Ryan.
9. In December, 2009, while the appeal of
the denial of Ryan’s Rule 29.15 petition was pending, Kathleen T. Zellner and
Douglas H. Johnson, admitted pro hac vice,
entered their appearance on behalf of Ryan, along with
Charles Erickson (“Erickson”), had recanted his trial testimony. In doing so, the court stated:
That is not to say that the issues of this case do not
give us pause. The sole evidence tying
11. Ryan filed a Motion for Rehearing and
Transfer which was denied on November 2, 2010.
His application to the Supreme Court was denied.
12. Ryan petitions this Court for a writ of habeas corpus, bringing issues and evidence before the court that could not have been presented in his original Rule 29.15 motion for post-conviction relief as explained below.
13. Ryan supplements his claims with powerful new evidence that he is actually innocent of the murder of Kent Heitholt (“Heitholt”). Persuasive evidence of innocence requires consideration of constitutional claims otherwise deemed procedurally barred:
[I]f a petitioner...presents evidence of innocence so
strong that a court cannot have confidence in the outcome of the trial unless
the court is also satisfied that the trial was free from non-harmless
constitutional error, the petitioner should be allowed to pass through the
gateway and argue the merits of his underlying claims. Schlup
v. Delo, 513
14. Constitutional violations rendered Ryan’s trial fundamentally unfair. Moreover, Ryan has clear and convincing evidence of his actual innocence. Based upon the newly discovered evidence, no rational trier of fact could convict Ryan. Ryan’s conviction must be reversed, and he must be discharged from custody.
B. Statement of Facts
This case is about innocence. No direct evidence tied Ryan to Heitholt’s murder. No physical evidence even placed him at the scene. The only circumstantial evidence was the testimony of Charles Erickson (“Erickson”) and Jerry Trump (“Trump”). Both of those witnesses have now admitted that their trial testimony was false.
should be noted at the outset that not only has the Appellate Court explained
that it is “mindful that
The Trial Evidence
In its opinion of August 31, 2010, the Appellate Court recited the trial testimony in a light most favorable to the verdict as follows:
October 31, 2001, Chuck Erickson, a seventeen-year-old high school junior,
attended a party at night at his friend’s house in
outside, they went to
the assault, a custodian at the
The police were unable to develop any leads immediately after the murder, based primarily on the fact that little forensic evidence was left at the scene of the crime.
March 10, 2004, the police drove to Kansas City, Missouri, where they arrested
Ferguson, who was later charged with the class A felony of murder in the first
degree, in violation of § 565.020 and the class A felony of robbery in the
first degree, in violation of § 569.020.
Erickson pled guilty to first-degree robbery, in violation of § 569.020,
second-degree murder in violation of § 565.021.1(2), and armed criminal action,
in violation of § 571.015. In exchange
for a lesser sentence, Erickson agreed to testify against [
Claim Number 1
Ground for Relief Pursuant to Rule 91: Actual Innocence
its Opinion rendered August 31, 2010, the Appellate Court for the Western
District of Missouri explained that the “sole evidence tying
The Janitor Jerry Trump’s False Trial Testimony
Jerry Trump (“Trump”) was a janitor working at the Columbia Tribune on November 1, 2001. He was the only witness, other than Erickson, who testified against Ryan. Trump testified, at trial, that while he was incarcerated he received, from his wife, a copy of an article from the front page of the Columbia Tribune. (See Trump’s Trial Testimony, attached and incorporated herein as Exhibit “4”, Tr. 1020). The article was about the Heitholt murder and indicated that one of the perpetrators had come forward. (Exhibit 4, Tr. 1021). The article included pictures of Erickson and Ryan. According to his trial testimony, as Trump sat in his prison cell looking at pictures in the article, he suddenly recognized the newspaper photos as the two individuals he saw by Heitholt’s car the night Heitholt was killed. (Exhibit 4, Tr. 1022). Thus, Trump’s testimony placed Ryan with Erickson at the murder scene immediately after the murder.
Trump testified as to how he was able to identify Ryan from the newspaper article his wife sent him while he was in prison. Suspiciously, immediately prior to his release the prosecutor’s office contacted him about the Heitholt murder and requested a meeting. This is perplexing because Trump had denied being able to identify the two individuals by Heitholt’s car on November 1, 2001 and the prosecutor supposedly knew nothing about Trump receiving the newspaper article. (See Police Report 10, p. 3, attached and incorporated herein as Exhibit “5”) (Exhibit 4, Tr. 1017).
Trump said that he was released from prison December 13, 2004. (Exhibit 4, Tr. 1027). He met with prosecutor Kevin Crane (“Crane”) at his office approximately one week later. (Exhibit 4, Tr. 1027). According to Trump, for the first time, during the meeting with Crane, he told someone from law enforcement about seeing the newspaper article which led him to recognize Ryan and Erickson as the two individuals he saw by Heitholt’s car on the night of the murder. (Exhibit 4, Tr. 1027). Trump testified that he was not shown any photographs of Ryan until the day of his trial testimony. (Exhibit 4, Tr. 1028). Trump then made an in-court identification of Ryan as one of the individuals he saw at the scene of the murder. (Exhibit 4, Tr. 1029).
defense sought to bar Trump’s identification at the trial. Specifically, the defense argued that the
identification was unduly suggestive because “governmental action” had led to
the identification. But during voir dire examination outside the
presence of the jury, Trump testified that after receiving the article with photographs
of Ryan and Erickson, he “remembered them as the ones that I had seen behind
Trump further testified that nobody from “law enforcement” (including the prosecutor’s office) had ever shown him photos of Ryan and Erickson prior to the day of his testimony. (Exhibit 4, Tr. 1002). Trump testified that he had not seen the photographs in the article from the time he was sent the newspaper by his wife while he was in prison. (Exhibit 4, Tr. 1005). At the conclusion of the hearing, the trial court overruled the defense motion to exclude Trump’s identification, presumably, because of the lack of governmental involvement in the identification of Ryan and Erickson. (Exhibit 4, Tr. 1017). Trump was allowed to identify Ryan in the presence of the jury. (Exhibit 4, Tr. 1006-07).
Trump’s New Evidence
On October 11, 2010, Trump provided an affidavit attesting to the fact that his trial testimony was false because he had never received a newspaper article, while in prison, from anyone with pictures of Ryan and Erickson. (See affidavit of Jerry Trump dated October 11, 2010, attached and incorporated herein as Exhibit “6”). Then, on December 28, 2010, Trump provided a supplemental affidavit again confirming that his testimony was false, but adding further detail about the involvement of Crane in fabricating his trial testimony about receiving the newspaper article in prison. (See supplemental affidavit of Jerry Trump dated December 28, 2010, attached and incorporated herein as Exhibit “7”).
In his first affidavit Trump admits that when he was first interviewed by police he informed them he could not identify the two individuals he saw by Heitholt’s car. (Exhibit 6, ¶7). Trump told other people that he could not identify the individuals, nor could he describe them. (Exhibit 6, ¶¶8-9). These statements are consistent with what Trump told his sister, Barbara Randolph. (See summary of Investigator Kirby’s interview with Ms. Randolph, attached and incorporated herein as Exhibit “8”). Ms. Randolph was shocked to learn that Trump had identified Ryan at the trial because Trump had told both her and her husband he had not seen anyone and could not identify anyone. (Exhibit 8, ¶10). These witnesses were not previously presented to impeach Trump. Clearly, discrediting Trump’s testimony would have changed the outcome of the trial.
Trump’s Meeting with Prosecutor Crane Which Led to the
Fabrication of His Testimony
Before Trump was released from prison, he was contacted by the prosecutor’s office in November or December of 2004, requesting a meeting upon his release. A short time after his release, Trump met with Crane and probably Investigator William Haws (“Haws”). (Exhibit 6, ¶¶12-13).
Contrary to his trial testimony, Trump now states that he never received a newspaper article about the Heitholt case while he was in prison, nor did he look at any article with pictures of Ryan and Erickson while he was incarcerated. (Exhibit 6, ¶16). Instead, the first time Trump saw pictures of Ryan and Erickson was at Crane’s office when Crane showed him pictures of several people, including Ryan and Erickson. (Exhibit 6, ¶¶14, 17). Crane and/or Haws told Trump that “they felt they had the right people in custody and they told me the names of the men they had in custody, which were Chuck Erickson and Ryan Ferguson.” (Exhibit 7, ¶15).
In his second affidavit, Trump explains that it was Crane who produced the newspaper article with pictures of Ryan and Erickson when they met at Crane’s office. (Exhibit 7, ¶14). Crane advised Trump that “it would be helpful to [Crane]” if Trump would identify Ryan as being in the parking lot the night of the murder. (Exhibit 7, ¶16). Crane actually told Trump that Trump needed to testify he saw the pictures of Ryan and Erickson when he opened the envelope in prison containing the newspaper article, and recognized the two of them before he saw the headline. (Exhibit 7, ¶17).
Trump concludes his second affidavit by unequivocally stating that although he testified at Ryan’s trial that no one from law enforcement showed him the newspaper article, that testimony was false. He states, “The truth is that Crane had showed me the newspaper article prior to trial at the first meeting we had in his office.” (Exhibit 7, ¶21).
Obviously, Trump’s affidavits demonstrate that his trial testimony is materially false. Trump testified at trial he was able to identify Ryan after seeing Ryan’s photo in an article in the newspaper; his affidavit establishes he did not see the article until Crane showed it to him. Accordingly, Trump’s testimony that nobody from the prosecution’s office ever showed him a photo of Ryan is false. Finally, Trump testified that the first and only time he saw a photo of Ryan was when he saw the article during his incarceration; the affidavit establishes that the first time he saw such a photo was at Crane’s office.
Crane’s Alleged Misrepresentations to the Court
Crane represented to the court that no photographs had ever been shown to Trump by any government agent. (Exhibit 4, Tr. 992-93). According to Trump, that is untrue. (Exhibit 7, ¶¶14-17). Crane further informed the court that he was unaware whether Trump would be able to identify Ryan because nobody from Crane’s office had ever asked Trump to make an identification. (Exhibit 4, Tr. 992-93). According to Trump, that statement is untrue. (Exhibit 7, ¶¶16-17, 21).
In summary, Trump claims in his affidavits that the true facts are: (1) Trump cannot identify or describe the individuals he saw by Heitholt’s car; (2) Trump never saw an article with Ryan and Erickson’s photos while he was incarcerated; (3) the first time Trump saw any photos of Ryan or Erickson was when he met with Crane; (4) Crane and/or Haws showed Trump several photos, including photos of Ryan and Erickson; and (5) Crane and/or Haws told Trump they felt they had the right people in custody, and their names were Charles Erickson and Ryan Ferguson.
his affidavit, Trump explains that he cannot “positively identify the two
people [he] saw in the parking lot” (Exhibit 7, ¶5) and that he “cannot testify with certainty that [he] saw
Clearly, Trump’s affidavits destroy his credibility as one of only two witnesses who placed Ryan at the crime scene.
Additional New Evidence of Trump’s False Testimony Provided by the Attorney General
On January 3, 2011, the Attorney
General’s Office alerted undersigned counsel about new evidence supplied by
Mary Groves (“
I read in the newspaper that Jerry Trump positively identified Defendant Ryan Ferguson during his testimony in the trial. I felt an obligation to report the contradiction between the information he told me and his court testimony. (Exhibit 9, p. 2).
Charles Erickson’s False Testimony
At Ryan’s trial, Erickson related a story filled with factual errors implicating Ryan. At trial, Erickson explained that he and Ryan, two young men with no violence in their history, ran out of money for drinks and decided to rob and murder, of all potential victims, the vastly physically superior Heitholt. Both boys were about 5 feet 6 inches to 5 feet 7 inches tall and weighed 140-150 pounds. Heitholt was 6 feet 4 inches tall and weighed 315 pounds. No money was taken from Heitholt and his wallet was left at the crime scene. After the murder, at approximately 2:30 to 2:45 a.m., Erickson testified they returned to the bar to continue drinking. The unrefuted trial testimony was that the bar closed at 1:30 a.m. (Tr. 1730) and the murder occurred sometime between 2:10-2:26 a.m. Then, Erickson simply forgot about the murder, for over two years, until he read a lengthy and detailed newspaper article published on the second anniversary of the crime. Inexplicably, memories only came back when he got drunk and talked to his friends. Erickson’s initial recollections were vague and inaccurate until he was given the police reports. The memories “repressed” by Erickson have all been shown to be false. (See Erickson’s trial testimony, attached and incorporated herein as Exhibit “10”). Erickson testified that he supposedly asked Ryan if he had ever heard of repressed memories. (Exhibit 10, Tr. 588). Ironically, that is exactly Crane’s theory at trial. Erickson had “repressed memories” that came back in little snippets as he read hundreds of pages of police reports. Crane presented no expert testimony to validate his memory theory because no experts exist that could do so without risking their own credibility.
But now, like Trump, Erickson explains that, in fact, he can provide no evidence of Ryan’s guilt. In his affidavit, Erickson states, “In the trial of State v. Ryan Ferguson, Case No. 04 CR 165368-01, I testified that Ryan Ferguson robbed and strangled Kent Heitholt. This testimony is false. I have no knowledge that Ryan Ferguson robbed and strangled Kent Heitholt.” (See Erickson’s affidavit, attached and incorporated herein as Exhibit “11”).
Erickson also admits that every assertion in his testimony that implicates Ryan is false. Erickson’s testimony that Ryan proposed they rob someone to get money for more drinks is false. (Exhibit 11, ¶19). Erickson’s testimony that the two decided to go downtown to commit a robbery is false. (Exhibit 11, ¶20). Erickson’s testimony that Ryan said they may need a weapon for protection and that weapon was a tire tool Ryan grabbed from the trunk of his car is false. (Exhibit 11, ¶21). Erickson’s testimony that Ryan hid behind a dumpster in the parking lot is false. (Exhibit 11, ¶22). Erickson’s testimony that Ryan urged him to attack Heitholt is false. (Exhibit 11, ¶23).
Erickson further admits that completely untrue were his allegations at trial i) that he saw Ryan stand over Heitholt (Exhibit 11, ¶24); ii) that he saw Ryan with Heitholt’s belt (Exhibit 11, ¶24); iii) that he saw Ryan strangling Heitholt (Exhibit 11, ¶24); iv) that he saw Ryan going through Heitholt’s pockets (Exhibit 11, ¶25); v) that Ryan told him not to touch anything (Exhibit 11, ¶26); vi) that he asked Ryan about a tire tool and saw Ryan in possession of a tire tool that night (Exhibit 11, ¶27); vii) that he saw Ryan put a tire tool in a plastic bag (Exhibit 11, ¶28); viii) that he put a belt in a plastic bag provided by Ryan (Exhibit 11, ¶29); ix) that Ryan said he wanted to kill someone before he was sixty (Exhibit 11, ¶30); x) that Ryan said he would dispose of the items in his trunk (Exhibit 11, ¶30); xi) that Ryan’s father found Heitholt’s wallet (Exhibit 11, ¶31); and xii) that he witnessed Ryan commit the robbery and murder (Exhibit 11, ¶32). Finally, Erickson admitted that he has no memory of ever telling anyone on November 1, 2001, to “get help” and no memory of ever telling anyone after November 1, 2001 that he had done so. (Exhibit 11, ¶33).
A Summation of Erickson’s Inaccurate and Contradicting
· Erickson testified that he observed Heitholt exit the building, then another person came out later, spoke to Heitholt, got into his car and left the parking lot. (Exhibit 10, Tr. 522). This contradicts Police Report #18 wherein Michael Boyd (“Boyd”) states that he came out of the building first, followed by Heitholt. (Police Report #18 attached and incorporated herein as Exhibit “12”). It also contradicts Shawna Ornt’s and Russ Baer’s statements to Investigator Steve Kirby that Boyd left before Heitholt. (Affidavit of Investigator Steve Kirby attached and incorporated herein as Exhibit “13” and Affidavit of Shawna Ornt attached and incorporated herein as Exhibit “14”). Erickson also testified that the individual who came out of the building after Heitholt was a white man with a regular build. (Tr. 827). Michael Boyd, the individual described, is African American with a large build.
· Erickson testified that he and Ryan were hiding behind the dumpster enclosure. (Exhibit 10, Tr. 523). This contradicts the report of Investigator Haws, about his interview with Boyd. (Report of Haws attached and incorporated herein as Exhibit “15”). Boyd told Haws he saw “two white guys” standing near the dumpster. (Exhibit 15, p. 1). Boyd would not have seen Erickson and Ryan if they were “hiding behind [the] dumpster enclosure.” (Exhibit 10, Tr. 522).
· Erickson testified that he observed Heitholt from the moment Heitholt exited the building, but Erickson never mentioned observing Heitholt feed a stray cat after he exited the building. Crime scene photos verify that Heitholt fed the cat before he was attacked. (Tr. 1158).
· Erickson’s version of the attack is totally inconsistent with the crime scene photos (Tr. 1153-61), the autopsy findings and the blood spatter at the crime scene. Erickson claims he “crept up behind [Heitholt].” (Exhibit 10, Tr. 525). However, the dumpster was to Heitholt’s right, southwest of where he was standing. Erickson would have clearly been in Heitholt’s line of vision and would have had to walk past him first in order to circle back and creep up behind him. (Tr. 1093-95).
· Erickson claimed a tire tool was the murder weapon, but when presented with the tire tool from Ryan’s car (Trial Exhibit #90), Erickson denied that it was the tire tool used in the attack. (Exhibit 10, Tr. 538). A tire tool has been ruled out as the murder weapon by forensic pathologist Larry Blum, M.D. (Affidavit of Larry Blum attached and incorporated herein as Exhibit “16”, ¶6).
· Erickson claimed he hit Heitholt several times, by the open driver’s door and once when Heitholt was on his knees. (Exhibit 10, Tr. 540-41). This contradicts the testimony of Edward Adelstein, M.D., who performed the autopsy and testified that Heitholt was struck in the head 11 times. (Tr. 1414). In his first police interview, Erickson told police he had only hit Heitholt once. (Tr. 644).
· Although Erickson testified to the entire attack upon Heitholt, he never mentioned hitting Heitholt’s hands or arms. This contradicts the known fact that Heitholt had multiple defensive wounds on his hands. (Tr. 1422). Erickson never mentioned that most of the attack occurred by the driver’s side rear wheel. (Exhibit 10, Tr. 526). He testified most of the attack occurred by the driver’s door. (Exhibit 10, Tr. 526).
· Erickson admitted that he had told the police in his first interview that Heitholt kicked him in the testicles but at trial he said Heitholt had not kicked him in the testicles. (Tr. 644).
· Erickson told the police he thought he vomited at the scene. (Tr. 642). This contradicts the known fact that there was no vomit at the crime scene.
· Erickson testified that Ryan entered and searched Heitholt’s car. (Exhibit 10, Tr. 551). This contradicts the known fact that none of Ryan’s fingerprints were found in the car and Erickson did not testify that they were wearing gloves. (Exhibit 10, Tr. 518).
· Erickson admitted, at trial, that he first told police that he and Ryan had taken Heitholt’s wallet, but they had not. (Tr. 646). Heitholt’s wallet was found in the car after the murder. (Tr. 1178).
· Erickson testified that he yelled at the cleaning lady, “This man’s hurt. Go get help” (Exhibit 10, Tr. 553) and “Go get help. This man needs help.” (Exhibit 10, Tr. 554). This contradicts Erickson’s testimony during cross-examination, wherein Erickson testified that his information about what the cleaning lady heard came from the newspaper. Specifically, Erickson told Detective Nichols, “Look I’m just here trying to come up with something that I can – think I remember based on what I read.” (Tr. 714). Erickson also testified that when Detective Short asked him if he said anything to the cleaning lady, Erickson said he was not sure. (Tr. 813-14). Short told Erickson that the cleaning lady told the police that someone asked for help and then Erickson said that was him. (Tr. 815).
· Erickson testified that he did not take the tire tool from the scene and that he did not observe Ryan with it. (Exhibit 10, Tr. 558). A tire tool was not found at the scene. This supports Dr. Blum’s opinion that a tire tool was not the weapon used. (Exhibit 16, ¶6).
· Erickson testified that he only took the broken belt. He did not testify that he or Ryan took Heitholt’s keys or watch, nor could he explain what happened to these items. (Exhibit 10, Tr. 573). This contradicts the known fact that Heitholt’s keys and watch were taken from the scene and have never been found. (Tr. 419-20).
· Erickson admitted at trial that in his first police interview he told Detective Short that a shirt or a bungee cord was used to strangle Heitholt – then he admitted he was “just guessing.” (Tr. 668). Erickson never thought it was a belt and when Detective Short told him it was a belt, Erickson was incredulous. (Tr. 669). Erickson said “Oh really? A belt?” After Short told him it was a belt, Short asked Erickson, “Does that ring a bell?” to which Erickson responded, “Not at all.” (Tr. 669).
testified that when he and Ryan returned to By
Erickson’s police interview, he claimed that after the murder, he and Ryan
headed west to the northeast corner of
· Erickson admitted that he had first told the police that Heitholt was lying face up when Ryan strangled him, but the undisputed testimony is that Heitholt was face down when his body was discovered. (Tr. 672).
· During Erickson’s demonstration at trial with Crane, he never demonstrated Heitholt “being thrown to the ground” during the attack. (Tr. 670). Erickson admitted that in his first interview with police he stated either he or Ryan threw Heitholt to the ground. (Tr. 671).
· Erickson testified that he didn’t know whether the impressions he was having concerning the death of Heitholt were memories or a dream. (Tr. 627-28). He told his friends, Figueroa and Gilpin, of his confusion. (Tr. 627-28). Neither Crane nor the defense called either of them as witnesses at trial.
The Only Explanation For Ryan’s Conviction is the Jury’s Confusion about Erickson’s Plea Agreement
As a result of this false testimony, replete with inaccuracies and errors, it is hard to comprehend how the jury could have believed Erickson’s testimony was based upon the truth. There is only one explanation - the jury believed Erickson because of the plea deal to which he agreed. Crane misled the jury into thinking that Erickson had already been found credible by another court, in a prior proceeding.
Crane described the courtroom procedure that placed the plea agreement “upon the record” as if the veracity of Erickson’s accusation that Ryan was involved in the Heitholt murder had already been established before Ryan’s trial. He led Erickson as follows:
[Q] And you pled guilty to those three counts in this courtroom?
[Q] Is that right?
[A] Sitting right here.
[Q] You were sitting right there in that chair.
[Q] And it wasn’t Judge Roper; it was another judge.
[Q] And your attorney was here.
[Q] And I was here.
[Q] And it was on the record; is that correct?
[A] That’s correct.
[Q] Sir, what – if you live up to the terms of the agreement, what is your sentence?
[A] 25 years.
[Q] 25 years –
[Q] -- in the department of corrections.
At Ryan’s trial, Erickson’s plea
agreement was entered into evidence as an exhibit. (
During his questioning of Erickson and through his argument to the jury, Crane repeatedly highlighted the condition of truthfulness upon which Erickson’s testimony was supposedly based as if it had been satisfied. For example, in his opening statement, Crane said “[a]s a part of this agreement, Erickson agreed to testify truthfully.” (Tr. 427). Crane repeated: “[a]s part of the agreement, the evidence will be that Chuck Erickson agreed to testify truthfully at this trial in which you’re jurors on today.” (Tr. 427-28).
The impact of Erickson’s plea deal as well as the manner in which it was presented cannot be underestimated. With no other evidence except Trump tying Ryan to the crime, Erickson’s deal was the most important piece of evidence presented to the jury. Indeed, at 11:05 p.m. on the night it rendered its verdict, the jury sent out a note that said, “Can you supply us a reminder of what Charles Erickson’s agreement was?” (Tr. 2228). Then, without an objection from defense counsel, the court sent the written agreement to the jury. (Tr. 2229). The agreement stated that Erickson got his 25 years “in return for … truthful and complete testimony.” (Exhibit 18, p. 1). At 11:42 p.m., only 37 minutes after requesting the agreement, the jury convicted Ryan.
Perhaps most devastating to Ryan was that the prosecutor was allowed to ask Erickson if he had pled guilty to “acting in concert with Ryan Ferguson” to which Erickson responded “that’s correct.” (Tr. 618). Erickson’s guilty plea was used to establish his truthfulness and Ryan’s guilt. In fact, Erickson had not been sentenced to his 25 years at the time of Ryan’s trial because the agreement required Erickson to testify truthfully at Ryan’s trial. This was never clearly explained to the jury.
No reasonable juror could have believed Erickson’s trial testimony because it was repeatedly contradicted. The jury must have convicted Ryan simply because of their belief that Erickson was deemed to be truthful by a prior court, that he gave the same testimony at Ryan’s trial, and that he had already received the 25 year sentence. Crane usurped the role of the jury as the fact finder and the final decision-maker about Erickson’s truthfulness.
The Reasons Erickson Testified Falsely
new information provided by Erickson sets forth the reasons Erickson believed
he had to testify falsely against Ryan. At the outset, Erickson explains that
his testimony at trial was the result of “pressure and coercion placed upon
[him] by the police and the
Now it is known that Erickson only agreed to the deal because of the false information provided to him by his attorney, Mark Kempton (“Kempton”), who received the information from Crane. Erickson was advised that Ryan had implicated himself in the murder when he spoke with both Meghan Arthur and Richard Walker. (Exhibit 11, ¶¶12-14). Then, Erickson was advised that Ryan was going to reach a deal with the police and prosecutors and testify against him. (Exhibit 11, ¶15). For that reason, Erickson felt he had no choice but to reach a plea agreement before Ryan did. (Exhibit 11, ¶17). Erickson did not testify truthfully to consummate his deal. He testified falsely as a result of pressure and trickery by law enforcement and the prosecutor. Erickson was in an alcoholic blackout the night of the murder. His memory was a blank into which police and prosecutors inserted a false script implicating Ryan in the crime.
Erickson’s Physical Condition at the Time of the
Murder and His Arrest
Erickson elaborates on his physical condition in his affidavit, which illustrates vulnerabilities that led him to be coerced to falsely implicate Ryan at trial. Erickson now, for the first time, provides details regarding his extensive drug and alcohol use before and after the murder and before his so-called “confession.” At the age of 14 until his arrest at age 17, he was a heavy drug and alcohol user. He used LSD, psychedelic mushrooms, peyote and cocaine and drank excessively. (Exhibit 11, ¶7).
fact, Erickson experienced his first alcoholic blackout that evening and was to
experience 10-20 more alcoholic blackouts up to the time of his arrest on March
10, 2004. (Exhibit 11, ¶7). None of this information was ever explored by
the prosecutor or Erickson’s attorney, Kempton, or Delaney Dean, Ph.D. before
Erickson pleaded. Now, one of the most
renowned experts in the
· Mr. Erickson’s testimony is consistent with having experienced an alcohol-induced blackout, as evidenced by the many episodic autobiographical facts he could not remember. (Exhibit 19, ¶11).
· I can say with a reasonable degree of psychological certainty, that Charles Erickson was experiencing alcohol-induced blackouts during the night of October 31 to November 1, 2001. (Exhibit 19, ¶14).
· Based on prevalence rates, it is far more likely that he experienced both fragmentary blackouts (whereby he remembered events only after being provided with information) and en bloc blackouts (whereby he never recalled certain aspects of the night) than that he suffered from Dissociative Amnesia or that Obsessive Compulsive Disorder led him to believe that he murdered Mr. Heitholt. (Exhibit 19, ¶14).
· If Mr. Erickson was experiencing fragmentary and en bloc blackouts during October 31 to November 1, 2001, his self report of events that transpired is unreliable. (Exhibit 19, ¶¶15). (See Affidavit of Dr. Kim Fromme, attached and incorporated herein as Exhibit “19”).
also suffered from memory deficiencies that were revealed through an extensive
assessment performed upon him on November 26, 2001, 2.5 years before his arrest
on March 10, 2004. That assessment,
performed at the
Delaney Dean, Ph.D. examined Erickson for competency prior to Ryan’s trial, first for defense attorney Kempton and later for Crane. (See Report of Delaney Dean, Ph.D.’s examination, attached and incorporated herein as Exhibit 20). Dean’s report establishes that all parties knew that Erickson suffered from potential “undetected brain injury … resulting in cognitive and memory impairments.” (Exhibit 20, p. 2). Dean never recommended neurological testing for Erickson as recommended in the assessment. Dean never explored Erickson’s alcohol use when she evaluated him for competency, which according to Dr. Fromme was a serious oversight. (Exhibit 19, ¶9; 14). Crane never called Dean to testify at Ryan’s trial.
For the first time, Erickson explains, under oath, that he was “high on marijuana when [he] was first taken into custody and questioned by police” and that “the statements [he] made during [his] interrogation were the result of being high on marijuana.” (Exhibit 11, ¶11). Erickson’s new evidence regarding his state of mind at the time of his arrest, interrogation and “confession” is consistent with testimony of John James (“James”) at Ryan’s post-conviction hearing. James had been in the Boone County Jail with Erickson prior to Ryan’s trial. James stated that Erickson had told him he “was high when he gave the statement to the police.” (See testimony of John James, attached and incorporated herein as Exhibit “21”, pp. 94-95). The probable cause for the arrest of Ryan and Erickson was based entirely on Erickson’s videotaped statements. Obviously, if he were known to be high on drugs at the time of making these statements, probable cause would never have been established for Ryan’s arrest. Ryan’s attorneys failed to present James to challenge the arrest of Ryan, despite being aware of his existence. 
In his new affidavit (Exhibit 11), Erickson describes his alcoholic blackouts and drug use, memory problems and inability to recall Ryan having anything to do with the murder of Heitholt as set forth in the preceding section of this petition. (Exhibit 11). Erickson also sets forth his extensive and frequent interaction with the prosecution in preparing his testimony.
From the outset, an investigation of Erickson’s alcoholic blackouts and drug use by the police, prosecutors or the defense would have demonstrated any memories he claimed to have of the events of November 1, 2001 were completely unreliable.
Steven Abern, M.D., a board
certified pediatric neurologist, has reviewed the aforementioned assessment as
well as the trial testimony of Delaney Dean, Ph.D and Elizabeth Loftus, Ph.D. (
Erickson Was Manipulated by False Police Reports and False Information From the Prosecutor
In the first steps towards convincing Erickson to testify against Ryan and plead guilty in return for a reduced sentence, Erickson was led to believe that Ryan had confessed to participating in the murder. The coercion by Crane of Erickson was subtle. Crane conveyed certain messages to Erickson’s attorney Kempton that Erickson interpreted as threatening. Specifically, Erickson was provided with a police report by his attorney Kempton that reflected a statement by Richard Walker that Ryan was negotiating a deal with prosecutors. (Exhibit 11, ¶¶12, 15). Then, Kempton provided Erickson with the police report of an interview with Meghan Arthur (“Arthur”). (Exhibit 11, ¶13). That police report set forth a version of events wherein Arthur described how she had heard Ryan make statements implicating both him and Erickson in the murder. (Exhibit 11, ¶13).
Both reports were untrue, but Erickson was never advised by his attorney or Crane that Walker recanted his claims about Ryan’s negotiations. (Exhibit 11, ¶12). Moreover, when Arthur spoke with Investigator Miller on February 18, 2005, she stated that the report did not reflect what she had told the police. (See Affidavit and Report of Investigator Miller, attached and incorporated herein as Group Exhibit “24” ¶¶6-24, Exhibit 11, ¶13).
Still, Erickson had been misled about Ryan negotiating a deal with prosecutors. Thus, even though Erickson was in an alcoholic blackout and did not remember any details about how the crime took place during his interrogation, the reports of Walker and Arthur’s statements led Erickson to believe Ryan must be involved in the murder because he was negotiating a plea with the prosecutors. (Exhibit 11, ¶14). Then, Erickson was advised that Ryan was going to accept a plea agreement and testify against him. (Exhibit 11, ¶15). Erickson was told that he would have to implicate Ryan in the crime or the prosecutors would charge him with first degree murder and possibly sentence him to death. As a result, Erickson believed he had no choice but to testify falsely against Ryan. (Exhibit 11, ¶17). Crane told Kempton that Erickson had to come up with “more detail to secure the deal” than he had provided in his videotaped interrogation. Towards that goal, Kempton provided Erickson with all of the police reports, which Erickson used to construct his false testimony.
Multiple meetings were held between Erickson and Crane to rehearse and review his testimony. Erickson rendered the false testimony as described above to avoid a first degree murder charge and possibly the death penalty. (Exhibit 11, ¶¶18-34).
Shawna Ornt’s Misleading Testimony Contrived by Prosecutor Crane
Shawna Ornt was the first eyewitness to view the parking lot and the two individuals in the vicinity of Heitholt’s body. However, she was never able to identify Erickson or Ryan as being present at that time. Still, the prosecution successfully elicited false testimony from her.
On November 1, 2001, Ornt advised the police as to what she saw and heard when she looked into the parking lot around the time Heitholt was killed. (See Police Report 1, attached and incorporated herein as Exhibit “25”). Ornt told police that she saw two individuals in the vicinity of Heitholt’s body and “the individuals stood up on the driver’s side of the vehicle, and that one of them stated, ‘Somebody’s hurt, man.’” (Exhibit 25, p. 2). This initial statement by Ornt is identical to Trump’s first statement to police. Trump told the police exactly the same thing as Ornt the night of the murder. He said that one of the individuals said only, “Someone is hurt man.” (Exhibit 7, ¶7). Ornt was unable to describe the individuals with any specificity.
At the trial, Ornt was not asked to identify Ryan or Erickson as the individuals she saw that night in the parking lot. Accordingly, she offered no testimony tying Ryan or Erickson to the crime. However, because of pressure from Crane, Ornt did change her testimony from her initial statement of what she had reported the night of the murder. Instead of advising the jury that she had heard one of the individuals in the parking lot yell, “Somebody’s hurt, man,” as she did in her first police interview, in response to a leading question by Crane she testified the individual said, “Someone get help.” (Exhibit 25, p. 2, See Affidavit of Shawna Ornt, attached and incorporated herein as Exhibit “26”, ¶19). This seemingly inconsequential testimony actually played a significant role in Ryan’s conviction.
The testimony is very important because the prosecutor argued that Erickson’s testimony should be believed because Erickson had advised his friends prior to his arrest that he yelled “get help” to the cleaning woman on the night of the murder. (Tr. 425). This statement, Crane argued, was something that Erickson had volunteered to his friends prior to any contact with police. Because Ornt testified consistently with Erickson, the prosecutor had corroboration of its key accuser and was able to rebut defense accusations that all of the key evidence in the case was fed to Erickson by the police.
However, in his initial interview with police, Erickson did not tell them he told anyone to “get help” until Detective Short told Erickson that the cleaning lady had been told by one of the two individuals by Heitholt’s car to “get help.” (See Police Report Number 254, attached and incorporated herein as Exhibit “27”, page 5). Erickson did testify at trial that he told the cleaning lady to “get help.” However, in his new affidavit, Erickson explains that he has no memory of asking anyone to “get help” at the murder scene, or telling anyone at any point in time that he had done so. (Exhibit 11, ¶33). Clearly this testimony was fabricated by the police and prosecution to refute the defense claim that Erickson was fed all of the crime scene information by the police.
In her new affidavit, Ornt explains that her initial statement was truthful and accurate. (Exhibit 26, ¶11). That is, Ornt confirms that the individual in the lot said, “Somebody’s hurt man,” but not that the individual told her to go “get help.” (Exhibit 26, ¶¶10; 18-19). Therefore, Erickson did not have details of the crime other than those provided to him by the police and prosecution.
Kimberly Bennett – More Evidence of Actual Innocence
Bennett did not testify at the trial,
but new evidence, recently discovered, reveals that she possesses valuable
information that demonstrates Ryan’s actual innocence. The prosecutor used Erickson to testify that when
Ryan ran out of money, they left By
Recently, Bennett, now a nursing
student, saw coverage of Ryan’s case on the news. On December 28, 2010, Bennett provided an
affidavit wherein she stated that she knew both Ryan and Erickson for years
prior to the night of October 31, 2001.
(Exhibit “17”). She spoke to Ryan and Erickson at By
This affidavit completely contradicts
Erickson’s trial testimony that he and Ryan left the bar at 1:00 a.m.,
proceeded to Ryan’s car, took a tire tool from the trunk of Ryan’s car and proceeded
to the Tribune building on foot, where they murdered and robbed Heitholt, then returned
Michael Boyd is the Only Viable Suspect in the Murder of Kent Heitholt Who has Never Been Eliminated
Michael Boyd was an employee of the Tribune who worked for Heitholt. He was 28 years old at the time of the murder, twenty years younger than Heitholt. At the time of the murder, he was 5 feet 9 inches and weighed about 230 pounds. Heitholt and Boyd were of comparable size. Heitholt had given Boyd some of his shirts to wear because Boyd did not have any money. (Tr. 2207). Boyd is African American.
From the inception of their investigation, the police created their own theory of the Heitholt murder. All of the evidence was molded and shaped to fit this theory by Crane. Evidence that did not fit this theory was ignored, manipulated or discarded. The theory created was that Heitholt was robbed and murdered by the two young white men. This theory evolved from the interviews with Ornt and Trump describing two young white men by Heitholt’s car.
Timeline of Murder
Heitholt logged off of his computer at 2:08 a.m. and exited the building about 2:10 a.m. to 2:12 a.m. He went to his car, retrieved a bag of cat food, walked over to the wall by the dumpsters, placed the cat food on top of the wall, and then returned to his car. All of these activities most likely would have placed him back at his car at about 2:12 to 2:15 a.m. The attack occurred from about 2:15 to 2:22 a.m., and took approximately 5 to 7 minutes. This precisely fits with forensic pathologist Larry Blum, M.D.’s timeline of events as well as that of Professor Ann Burgess. (See Exhibit 16 and the report of Anne Burgess, Ph.D., attached and incorporated herein as Exhibit “31”).
Ornt claimed that on November 1, 2001, at approximately 2:21 to 2:22 a.m., she exited the Tribune building to smoke a cigarette. Trump corroborated this time. As she stood on the dock area, she saw a “shadow” duck down by the driver’s side door of Heitholt’s car. Ornt stated she became frightened, so she went back into the building and told Trump what she had observed. She and Trump proceeded immediately to the same dock area and Trump called out, “Who’s there?” A young white male stood up and called back, “Somebody’s hurt, man,” and proceeded with another white male to walk towards Ornt and Trump (south) and then walked east down the alley. (Exhibit 25). Neither individual chose to run north (in the opposite direction) out of the parking lot to avoid being seen by Ornt and Trump. Ornt and Trump did not observe that either individual had blood on their clothing or a weapon or belt in their hands.
Boyd also claimed he saw these two individuals by the dumpster as he exited the parking lot at 2:20 a.m. (Exhibit 15 and Police Report 25, attached and incorporated herein as Exhibit “32”).
Timeline of Witness’ Statements Eliminates Two White Males as Perpetrators
Ornt was at the scene at 2:21-2:22 a.m. and Ornt and Trump were at the scene together between 2:22-2:23 a.m., before getting help. Heitholt had already been attacked and was on the ground when Ornt first arrived on the scene at 2:21-2:22 a.m. Other Tribune employees were at the scene by 2:24 a.m. and attempted to give CPR to Heitholt. Ornt called 911 at 2:26 a.m. There was not time for these two unidentified males to have killed Heitholt. At most, these two men were only at the scene 1 to 2 minutes between Boyd’s departure at 2:20 a.m. and Ornt’s arrival at 2:21-2:22 a.m. Boyd described the two individuals as approaching the scene at 2:20 a.m. so they were not yet at Heitholt’s car. The beating and strangulation of Heitholt took a minimum of 5 to 10 minutes, not 1 to 2 minutes.
Boyd was the last person with Heitholt before he was beaten and strangled. Boyd, in his first interview, described standing and talking to Heitholt in the exact location where the attack occurred. However, rather than investigating the only person with the opportunity to murder Heitholt, the Columbia Police Department focused all of its efforts on finding the two young white males described by Ornt and Trump.
If the Columbia Police Department had merely constructed a timeline from the reports of the witnesses at the scene, it would have been obvious that the white males arrived after the completion of the crime and were merely passers-by who saw an injured man and stopped to investigate. Their actions are inconsistent with guilt because the two young men walked south towards Ornt and Trump, under the building spotlights, risking identification. One of the two spoke to Ornt and Trump risking that his voice could later be identified. He reported to Ornt and Trump that Heitholt was injured, thereby expediting the 911 call at 2:26 a.m. Neither of the young men ran from the scene. (Tr. 978).
It is likely that the two young men observed
by janitor Mike Henry earlier in the evening, entering the Tribune building at
10:30 p.m. to use the computer and bathroom, were the two young men observed by
Ornt and Trump by Heitholt’s car after he was attacked. One had blond hair. Henry had talked to these two young men on
previous occasions and knew they were college students working part-time at the
Since Boyd was the last known person to see Heitholt alive, a reasonable avenue of investigation would have been to attempt to eliminate him as a suspect. However, Boyd was never investigated in any way and was merely referenced in passing at the trial by the prosecutor. (Tr. 917). The police only interviewed him twice, and the first interview was by telephone. Boyd’s conduct and statements, from his first interview the night of the murder through his most recent interview, have done nothing but increase suspicion that he was involved in the crime.
Recent Investigation of Boyd
Private Investigator Steven Kirby has interviewed over 10,000 persons in his career and investigated all types of serious crimes. He interviewed Boyd on four separate occasions between August 2010 and January 2011. (Exhibit 13). Kirby has also reviewed other memorialized interviews of Boyd by other investigators. Upon his review, Kirby has concluded that there are serious discrepancies in Boyd’s statements about the events of November 1, 2001.
Boyd’s Departure from
Boyd’s statement as to when
he left the Tribune building on November 1, 2001, significantly contradicts
evidence from other witnesses. Boyd told
the police he left the
Boyd’s Contradictory Statements About Talking to Heitholt in Tribune Parking Lot and Exiting Parking Lot
According to Kirby, Boyd has repeatedly contradicted himself as to the circumstances surrounding his conversation with Heitholt immediately prior to Heitholt’s murder. In Boyd’s first interview with Detective Short on November 1, 2001, Boyd stated that he talked to Heitholt by Heitholt’s car and then proceeded to his own car. Short reported that Boyd said he was “standing there talking with Heitholt” and that after the conversation “Boyd stated that he went to his vehicle.” (Exhibit 12, p. 2). However, in subsequent interviews, Boyd maintained that he remained in his vehicle and drove to Heitholt and spoke to Heitholt from his car. (Exhibit 32, p. 2; Exhibit 13, ¶9c).
Boyd’s Exit From the Tribune Parking Lot
Police report 25 reflects that Boyd sat in his car for a couple of minutes adjusting the radio and observed Heitholt exit the back door of the Tribune. (Exhibit 32). He started his car, backed up, headed south towards the building, rolled down his driver’s window and spoke to Heitholt, then turned west in the alley and exited going northbound onto Providence.
Boyd was interviewed by Investigator Jim Miller on February 14,
2005, and Boyd said he went to his vehicle, listened to a cassette tape of
music, saw Heitholt exit the Tribune building, pulled his car out, headed south
towards the building, made a U-turn in the parking lot, pulled up next to
Heitholt and spoke to him through the passenger window. Boyd also stated that he “observed Heitholt’s
car tail lights come on.” Boyd stated “
Boyd’s Contradictory Statements about Seeing Two Caucasian Males as He Exited the Parking Lot
Boyd has also contradicted himself as to whether he ever saw two individuals in the parking lot as he left that morning. Police report number 18 reflects that on November 1, 2001, Boyd specifically told the police that “he did not see anybody around the parking lot or anybody who was suspicious.” (Exhibit 12, p. 2). Police report number 25 reflects that Boyd told police on November 2, 2001, that “he did not see anything suspicious” as he left the lot. (Exhibit 32 and Exhibit 13, ¶9g).
On June 25, 2005, after the arrest of Ryan and Erickson, Boyd suddenly remembered the two white males by the dumpster. (Exhibit 13, ¶9g). During the four interviews, when Kirby asked Boyd about what he saw, Boyd stated that he saw two people walking by the dumpster but could not identify their race or sex. Boyd told Kirby in each of the four different interviews that he almost hit the two individuals as he exited the parking lot. (Exhibit 13, ¶9h). It is reasonable to infer that Boyd feared his license plate number had been noted by the two males because his attack on Heitholt had been witnessed.
Boyd’s Admission of Providing False Information to
State Investigator Haws
Boyd has admitted to Kirby that he provided Haws with false
information when he told Haws that he could hear music from “
Boyd’s Contradictory Statement About the Car he was Driving on November 1, 2001
Kirby notes in his affidavit that Boyd has changed his story
about which of his two cars he drove the evening of the murder. On February 14, 2005, Boyd initially told Investigator
Miller that he was driving his blue Oldsmobile Cutlass Ciera that night. (Group Exhibit 24; Exhibit 13, ¶9j).
He told Miller that he still owned that car as of that date. (Group Exhibit 24; Exhibit 13, ¶9j).
Then, on July 24, 2005, Boyd told Haws that he was driving his wife’s red
Plymouth Acclaim the night of the murder.
(Exhibit 15, p. 1). Subsequently,
Boyd advised Kirby that he traded in the Blue Oldsmobile in 2004. (Exhibit 13, ¶9j). Prior to relating that
story, Mr. Boyd had claimed in an interview with Investigator Matthew Allen that
he traded in the blue Oldsmobile as part of a lease deal with Enterprise Car
Kirby, by his own investigation, has established that the
blue Oldsmobile is still registered to Boyd and his wife and was never sold or
traded as Boyd claimed. (See Official
Documentation reflecting car registration, attached and incorporated herein as
Exhibit “35” and Exhibit 13, ¶9k). In November 2010, Kirby received official
documentation from Missouri Department of Revenue that the blue Oldsmobile in
question, VIN 1G3AL54R4M6310284, was still listed as registered to Michael and
Dawn Boyd as of November 26, 2010.
(Exhibit 35). Further, Investigator
Allen reports that on May 1, 2006, Fred Price from
Boyd’s False Statement about his Relationship With Heitholt
Boyd’s claim that he and Heitholt had a good relationship is false.
Boyd claimed to all of the prior investigators and Kirby, on several occasions, that he had a good relationship with Heitholt. (Exhibit 13, ¶9l). However, Ornt, in her most recent affidavit, states that Boyd repeatedly complained to her about how disrespectfully Heitholt treated him. (Exhibit 13, ¶9l; Exhibit 14, ¶¶11-12). A co-worker of both Heitholt and Boyd advised Kirby that Boyd was a poor reporter and writer and not held in high regard by other co-workers. (Exhibit 13, ¶9l).
Boyd’s Concealment of his Return to the Crime Scene
In his initial interviews, Boyd never told the police that he had returned to the crime scene. (Exhibit 12; Exhibit 32). However, Boyd admitted to Kirby that he returned to the scene after the murder and he watched the crime scene being processed. (Exhibit 13, ¶9m). Boyd told Kirby Heitholt’s body was face down when he returned to the crime scene at about 3:30-3:45 a.m. (Exhibit 13, ¶9m). This cannot be true, as it is undisputed that employees turned Heitholt face up prior to calling 911 at 2:26 a.m. Only the killer and the witnesses at the scene, before the 911 call, knew the body was originally face down. Someone coming on the scene at 3:30-3:45 a.m. would not have known that several Tribune employees turned the body face up to render CPR before the call was made to 911 at 2:26 a.m.
Failure of Police, Prosecutors and Ryan’s Defense Attorneys to Investigate Boyd
All of the above make it clear that considering Boyd as a suspect was a reasonable avenue of investigation. It is undisputed that Boyd was the last person who saw the victim alive. However, his car, clothing, and shoes were never checked for blood or hair. (Exhibit 13, ¶11). He was never fingerprinted, notwithstanding that there were unknown fingerprints at the crime scene. (Exhibit 13, ¶11). Samples of his hair were not taken despite the fact that Heitholt had hair in his hand that was tested by the FBI with mitochondrial DNA testing. Dozens of other suspects were eliminated by the FBI’s mitochondrial profile of the hair in Heitholt’s hand.
Boyd is the only person with the opportunity to kill Heitholt that night who was never eliminated by the police as a possible suspect.
New Expert Reviews Demonstrate Actual Innocence
Larry Blum, M.D.
Dr. Larry Blum, a board certified forensic pathologist, who has testified in numerous criminal prosecutions for the State, has reviewed the autopsy report, crime scene photographs, autopsy photographs and the testimony of pathologist, Edward Adelstein, M.D. who performed the autopsy and testified about his findings at Ryan’s trial. (Exhibit 16). In his affidavit, Dr. Blum explains that “fractures of the hyoid bone are likely to occur with direct, concentrated force to the upper neck area which might consist of a blow with a hand or fist, a kick, a stomp, or bilateral compression with the hands as in manual strangulation.” (Exhibit 16, ¶3). He adds that “it is highly improbable that the victim, Kent Heitholt’s hyoid bone was fractured by the strangulation with his belt” finding it “more likely the fracture was caused by a blow with a hand … fist … stomp, or bilateral compression with the hands.” (Exhibit 16, ¶4).
Dr. Blum concludes that the entire attack took at least 5 to 10 minutes. (Exhibit 16, ¶7). He opines within a reasonable degree of medical certainty that Heitholt was “brought down to the ground by pressure on the neck resulting in a hyoid bone fracture with associated multiple blunt trauma. He was then struck repeatedly on the head, by the rear wheel on the driver’s side of the car, and then strangled with his own belt.” (Exhibit 16, ¶7).
Dr. Blum’s new testimony contradicts Erickson’s trial testimony as to how the murder took place. Dr. Blum’s affidavit supports Ryan’s actual innocence for many reasons.
At trial, Dr. Adelstein, who is not a forensic pathologist, testified that there were eleven separate blows struck to the head of Heitholt. (See trial testimony of Dr. Adelstein, attached and incorporated herein as Exhibit Group Exhibit “36”, Tr. 1415). However, Heitholt’s skull was not fractured, and there was no evidence of injury to the brain. (Exhibit 36, Tr. 1416). Additionally, the victim’s hyoid bone was fractured. (Exhibit 36, Tr. 1425). Dr. Adelstein, as well as Dr. Blum, determined the cause of death to be asphyxia due to compression of the neck by strangulation. (Exhibit 36, Tr. 1431). Dr. Adelstein offered no opinion as to how the hyoid bone was fractured.
Erickson testified that he “crept up behind” Heitholt with the tire tool in his hand. (Exhibit 10, Tr. 525). According to Erickson, Heitholt started to turn towards him and Erickson hit him on top of the head. (Exhibit 10, Tr. 525). Thus, according to Erickson, the initial blow came from behind while Heitholt was standing at the open driver’s side door. (Exhibit 10, Tr. 526). Erickson hit Heitholt one time causing him to fall to the ground, and then Erickson hit him twice more and dropped the tire tool. (Exhibit 10, Tr. 526). Following the blows, “there was blood everywhere.” (Exhibit 10, Tr. 526).
Erickson testified that he later looked up and saw Ryan standing over the victim. (Exhibit 10, Tr. 548). Per Erickson, Ryan had a belt around the victim’s neck and had his foot on the victim’s back. (Exhibit 10, Tr. 548). According to Erickson, Ryan pulled up on the belt, strangling the victim while the victim was face down. (Exhibit 10, Tr. 548-50).
Based on Dr. Blum’s affidavit, Erickson’s story that he attacked the victim from behind, by hitting him on top of the head, is unsupported by the evidence. Specifically, Dr. Blum states that it is “highly improbable” that the victim’s hyoid bone was later fractured by strangulation with his belt. (Exhibit 16, ¶4). It would be “unusual” and “relatively rare” for such an injury to be caused by strangulation because the force is not sufficiently concentrated to cause the fracture. (Exhibit 16, ¶4). Instead, the most likely scenario is that the perpetrator approached the victim from the front (because he knew him and could get close to him) and hit him in the neck, which fractured the hyoid bone and caused Heitholt to fall to his knees. (Exhibit 16, ¶¶7-8).
Not only does Erickson’s trial testimony fail to account for the victim’s fractured hyoid bone, but his description of the murder weapon fails to match the evidence. Specifically, Dr. Blum opines that because there were eleven blows, but no skull fractures, a tire iron should be ruled out as the murder weapon. (Exhibit 16, ¶6). Based on the positioning of the body and the crime scene photos, these blows were struck when Heitholt was near the rear wheel of his vehicle, not where he was standing. (Exhibit 16, ¶7).
Finally, the duration of the attack established by Dr. Blum demonstrates that no person other than Boyd had the opportunity to kill Heitholt. Dr. Blum opines that given the victim’s injuries, the entire attack upon Heitholt took at least five to ten minutes. (Exhibit 16, ¶7).
Establishing the Motive for the Heitholt Murder
Professor Ann Burgess, DNSc,
Professor Ann Burgess, a crime classification expert who has assisted the FBI in classifying crimes, has reviewed crime scene photographs, the police investigation interviews, depositions of key witnesses and various media reports. She has provided her classification of the crime in a detailed report. (Exhibit 31). She concludes that no evidence points to Ryan as the killer of Heitholt.
In summary, Professor Burgess has classified the murder of Heitholt as a crime based upon the deep personal animosity of the killer towards Heitholt. (Exhibit 31, p. 5). Specifically, she concludes that the crime was a revenge killing. (Exhibit 31, p. 5). In Professor Burgess’ opinion, the intense beating and strangulation suggests the offender was well-known to Heitholt and intensely angry at him. (Exhibit 31, p. 2). A stranger would not attack such a large man in a well lit, populated area. (Exhibit 31, p. 2). Strangulation is a personal type of attack. (Exhibit 31, p. 2). The location of the murder, at Heitholt’s workplace, also suggests the offender was comfortable and knew Heitholt’s work schedule. (Exhibit 31, p. 2). There was no evidence that suggested more than one offender. (Exhibit 31, p. 3). The person knew Heitholt so that once he had been injured, the perpetrator had to kill Heitholt to avoid being identified.
Burgess sets forth numerous aspects of the crime that eliminate Ryan as the perpetrator. (Exhibit 31, pp. 6-7). Ryan had no motive to kill Heitholt in such a
personal way. (Exhibit 31, p. 6). He did not know Heitholt or have any
interaction with him before the crime. (Exhibit
31, p. 6). Ryan had been drinking at By
Professor Burgess agrees that the timeline, as established by the undisputed facts, does not provide enough time for Ryan to have committed this murder. Telephone records establish that Ryan made a series of calls between 1:41-2:10 a.m. (Exhibit 31, p. 7). Relying on police reports, Professor Burgess concluded that Heitholt logged off his computer at 2:08 a.m. He fed the cat in the parking lot and spoke to Boyd for 5 to 10 minutes. Ornt observed two men in the parking lot at 2:22 a.m. A 911 call was placed at 2:26 a.m. Considering Dr. Blum’s opinion that the attack would have lasted 5-10 minutes, there was simply no time for the two individuals (described by Ornt, Trump and Boyd) to approach Heitholt after Boyd’s exit, then beat and strangle Heitholt. The two young white males would have had only 1-2 minutes to commit the entire crime.
New Evidence of Actual Innocence Requires the Writ be Granted
habeas relief is limited in order to avoid unending challenges to final
judgments, the concerns of finality give way when the petitioner can
demonstrate that a “manifest injustice” would result unless habeas relief is
granted. Amrine, 102 S.W.3d at 546.
The continued incarceration of an innocent person constitutes such a
“manifest injustice” so as to warrant habeas relief, even in the absence of an
underlying constitutional claim.
an actual innocence claim necessarily implies a breakdown in the adversarial
process, the conviction is not entitled to the nearly irrefutable presumption
of validity afforded to a conviction on a direct appeal challenging the
sufficiency of the evidence.
Amrine, the defendant’s petition for
writ of habeas corpus based on newly discovered evidence of actual evidence was
granted based on evidence much weaker than the new evidence in Ryan’s
case. In Amrine, the prosecution’s case rested on the testimony of three
inmate witnesses. The victim was stabbed
to death in a recreation room at the
defendant filed a state habeas petition alleging a “freestanding” claim of
In the case at bar, the affidavits of Trump and Erickson demonstrate that their testimony about Ryan’s presence and involvement in the crime is false. The physical evidence excludes Ryan as the perpetrator. In short, there is no remaining evidence to support Ryan’s conviction.
Claim Number 2
Allegations of Knowing Perjury Require a Hearing
set forth above, Trump has made allegations that he was coached by Crane to
give false testimony. Then, he testified
falsely at Ryan’s trial. Under
order to show perjury entitling him to relief, a defendant must prove that the
witness’ trial testimony was false, the prosecution used the testimony knowing
it to be false, and the conviction was obtained because of the perjured
testimony. Williams v. State, 536 S.W.2d 190, 193 (Mo.App., 1976);
In DeClue v. State, 579 S.W.2d 158 (Mo.App., E.D. 1979) the defendant moved for an evidentiary hearing based on his claim that false testimony had resulted in his conviction. The defendant alleged that the victim had advised him that her trial testimony was false and explained why she had testified falsely. The victim provided a sworn statement that the prosecuting attorney had told her how to testify at the trial, coached her and rehearsed the proposed testimony with her. 579 S.W.2d at 159. The Appellate Court held that the allegation that the prosecutor knowingly used perjury to convict the defendant, entitled the defendant to an evidentiary hearing.
in its recent opinion denying Ryan’s motion for post conviction relief, the
Appellate Court directed that Ryan assert his new claims of knowing perjury in
this forum, explaining that “newly discovered evidence, if available, may
better serve [Ferguson] in a Petition for a Writ of Habeas Corpus under Rule
91.” (Exhibit 2, p. 6; citing Wilson v. State, 813 S.W.2d 833, 834-35
The same result is required here. Trump alleges that Crane fabricated the story of Trump’s identification of Ryan at the scene. Crane showed Trump the newspaper article and photos – Trump had not seen them while he was in jail. (Exhibit 7, ¶¶14-16, 21). Crane coached Trump to testify he saw the photographs of Ryan and Erickson before he saw the headline. (Exhibit 7, ¶17). They had personal meetings and spoke on the phone, with Crane describing Trump’s false testimony to him. (Exhibit 7, ¶¶18-19). Trump alleges that Crane knew the story was false because he had shown Trump the article himself and encouraged him to testify falsely about his identification of Ryan. (Exhibit 7, ¶¶16.21).
Thus, Ryan is entitled to an evidentiary hearing on this issue. In the event these allegations are shown to be true at a hearing and a constitutional deprivation exists, a new trial or other relief will be warranted.
Claim Number 3
Ryan Ferguson was denied Due Process of Law Where the Requirements of Brady v. Maryland were Violated.
Kimberly Bennett Interview Withheld from Defense
As previously discussed, Bennett has provided a sworn statement that completely refutes Erickson’s trial testimony. Her statement sheds light on the tactics employed by law enforcement in this case.
sworn statement exonerates Ryan in two ways.
First, she saw Ryan and Erickson leave in Ryan’s car at about 1:15 a.m.
(Exhibit 17, ¶11), not on foot as Erickson testified. Second, when she left By
There is a duty under Missouri law to
disclose “[a]ny material or information, within the possession or control of
the state, which tends to negate the guilt of the defendant as to the offense
charged, mitigate the degree of the offense charged, or reduce the
punishment.” Rule 25.03(A)(9). A Brady
violation occurs and due process is violated if: (1) the prosecution did
not disclose evidence that is favorable to the accused which is either
exculpatory or impeaching; (2) the prosecuting attorney has suppressed the
evidence, either intentionally or inadvertently; and (3) the undisclosed
evidence is material. Strickler v. Greene, 527
The police interviewed Bennett shortly after Ryan and Erickson were arrested. (Exhibit 17, ¶16). She told them that she saw Ryan and Erickson exit the bar at 1:15 a.m., walk to Ryan’s car and depart the area northbound. (Exhibit 17, ¶¶11, 14). The information supplied by Bennett negates Ryan’s guilt and is obviously very favorable to him. However, the information was not provided to Ryan’s defense attorneys by Crane and no report of her interview with the police was ever disclosed. A Brady violation has been established because the Bennett interview was not disclosed.
Truth of Trump’s Identification Withheld from Defense
Trump explains in his new sworn statement that he did not receive any newspaper articles about the case while he was in jail. Crane showed the article to Trump and told him how to testify about the identification. (Exhibit 7, ¶¶17,21). The details of how Crane directed Trump to make the identification were not disclosed to the defense.
prosecution has a duty to disclose evidence affecting the credibility of a
witness when the reliability of the witness may be determinative of guilt or
innocence. State v. Denmon, 635 S.W.2d 345 (
Ryan has established a second Brady violation because Crane’s manipulation of Trump was not disclosed.
Claim Number 4
Court’s 2010 Decision in People v. Preston Requires that Ryan Be Granted Habeas Relief Because Statutory Jury Selection
Requirements Were Violated
In his 29.15 motion, Ryan argued that
he was denied his right to have his jury selected in conformity with statutory
jury selection requirements. Ryan is
raising this issue here because of People
v. Preston, 325 S.W.3d 420 (Mo. App., E.D. 2010) (See copy of the opinion,
attached and incorporated herein as Exhibit “37”). In
jury selection process which was held to violate due process in Preston was
Office of the State Public Defender did not discover
Honorable Richard Callahan considered Ryan’s claim and denied relief for two
reasons. The court determined that Ryan
had procedurally defaulted on his claim because he had not raised it at trial
or on direct appeal. Noting that Ryan
had not presented a claim of actual innocence, the court held that Ryan could
not show the necessary “cause” to overcome his default. In addressing the merits, the court further
Ryan’s claim is now cognizable for two reasons. First, an intervening clarification and change in the law prevents the application of res judicata and related doctrines to Ryan’s claim. Second, Ryan has presented new evidence that was not presented in the previous habeas petition that demonstrates his actual innocence. Ryan’s showing of actual innocence permits this court to consider his jury selection claim.
An Intervening Clarification and/or Change in the Law Allows this Court to Consider Ryan’s Claim
The doctrine of law of the case
provides that a previous holding in a case constitutes the law of the case and
precludes subsequent re-litigation of the issue. State
v. Graham, 13 S.W.3d 290, 293 (
the denial of Ryan’s petition there has been a change and/or clarification of
the law that avoids the preclusive effect of the previous judgment. Specifically, two of the precise issues
considered in the previous habeas petition were addressed by the Eastern
District Appellate Court in the
the State in
previous judgment, entered without the benefit of the Preston decision, directly contradicts
the State argued in Preston, as it
argued in opposition to Ryan’s previous habeas petition, that
Though the community service opt-out practice...does
not directly impinge on the concept of random
previous judgment again directly contradicts the
intervening change and/or clarification of the law allows this Court to
consider Ryan’s claim that the method of jury selection used at trial failed to
substantially comply with statutory requirements. Ryan has a constitutional right to have a
jury selected consistent with due process and in compliance with the statutory
scheme. To refuse to consider this
claim, particularly in light of the
Ryan has Provided Clear and Convincing Evidence of His Actual Innocence, Which Allows this Court to Consider a Claim Otherwise Procedurally Barred
this Court decide that
As previously discussed, Ryan has presented clear and convincing evidence of his actual innocence. Given the weaknesses demonstrated in the prosecution’s case against Ryan, no reasonable juror would again convict Ryan. Because Ryan has made the requisite showing of innocence, this Court may consider his constitutional claim that the method of jury selection in his case constituted a substantial failure to comply with statutory requirements and provide relief
WHEREFORE, because Ryan Ferguson has presented clear and convincing evidence of his actual innocence and for all of the foregoing reasons, Petitioner prays this Court to allow reasonable discovery, conduct an evidentiary hearing, issue the Writ of Habeas Corpus discharging him from his conviction and sentence, and grant such further relief as the Court deems just and equitable.
Kathleen T. Zellner Samuel Henderson
Douglas H. Johnson
Attorney For Petitioner Attorney For Petitioner
Kathleen T. Zellner & Associates, P.C. Greensfelder, Hemker & Gale
(630) 955-1212 (314) 345-4796
(admitted Pro Hac Vice, (MBE 56330)
 Inmates Eric Gathings, Keith Fletcher and John James testified at the 29.15 hearing that Erickson repeatedly told them he could not remember committing the murder. (See witnesses’ testimony, attached and incorporated herein as Group Exhibit “22”).
 At the 29.15 hearing, Ornt testified that Crane scared and intimidated her when she met with him prior to trial. (See Ornt Testimony, attached and incorporated herein as Exhibit “28”, p. 119). Dallas Mallory also testified at the 29.15 hearing that the police screamed at him, yelled at him, told him he was a liar and caused him to cry hysterically when he did not tell them what they wanted to hear. (See Mallory Testimony, attached and incorporated herein as Exhibit “29”, p. 27).
 Bennett provided this information to the
police early in the investigation as set forth later in Petitioner’s argument
pursuant to Brady v.
 It is noteworthy that the prosecutor never provided an
explanation of what Erickson and Ryan did in the one hour and fifteen minutes
from the time they left By
 The Supreme Court denied the State’s request to review the decision.