07/18/2008

By ALAN SCHER ZAGIER  / Associated Press

A former prosecutor who is now a circuit judge defended his office's conduct in the 2005 trial of a Columbia man convicted of killing a local newspaper editor.

Kevin Crane, who spent 14 years as Boone County's elected prosecutor before he became a judge in 2007, testified Friday in Ryan Ferguson's post-conviction hearing. Ferguson was found guilty of second-degree murder for the 2001 death of Columbia Daily Tribune sports editor Kent Heitholt.

Ferguson's new lawyers say that Crane and his assistants withheld evidence from the defense team, including a witness' doubts about the two men she saw in the newspaper's parking lot. They hope to convince Judge Jodie Capshaw Asel — Crane's 13th Circuit colleague — that enough new evidence has emerged to warrant a new trial.

Crane replied that the witness, custodial worker Shawna Ornt, only said that she couldn't be certain that Ferguson and co-defendant Chuck Erickson were the same men she saw in the Tribune parking lot in the early morning of Nov. 1, 2001.

But Crane also acknowledged that before Ferguson's initial trial, two assistants in his office — including Dan Knight, his successor as top prosecutor — didn't forward to defense lawyers a pair of e-mails sent by a public defender who claimed his client in another case had information that could have cast doubt on Ferguson's guilt.

A prosecutor's failure to disclose potentially exculpatory information to defense lawyers is known as a Brady violation, and alone can be significant enough to warrant a retrial.

The e-mails were sent in November 2002 by public defender Rob Fleming to assistant Boone prosecutors Knight and Mark Morasch. Fleming told the two men that an acquaintance of Ronald Hudson — an inmate facing 15 years on a robbery charge — confessed involvement in Heitholt's death.

Hudson testified on Wednesday that two Columbia police detectives dismissed those statements by Clarence Mabon because Mabon is black. Tribune cleaning crew worker Ornt and her co-worker had already told police the suspects they saw in the parking lot were white.

Crane testified Friday that he never saw Fleming's e-mails and was not aware of Mabon's interviews with detectives.

Knight, who succeeded Crane in January 2007 after 14 years as an assistant Boone County prosecutor, did not respond to several requests for comment. Morasch left the prosecutor's office in 2003 to practice law in Texas and could not be reached for comment.

Crane said after his testimony he remains convinced that both Ferguson and Erickson committed murder when they were 17-year-old students at Rock Bridge High School. Erickson pleaded guilty to second-degree murder and received a 25-year sentence in exchange for his testimony.

"I've never prosecuted anybody I didn't think was guilty," Crane told The Associated Press. "If I didn't think that (Ferguson was guilty), I would say so."

Heitholt, a 48-year-old father, was strangled and beaten in the Tribune parking lot as he was leaving work.

A native of Lawrence, Kan. and University of Missouri-Columbia graduate, Heitholt also worked at newspapers in Nashville, Tenn.; Shreveport, La.; and Jackson, Miss.

Crane theorized that Ferguson and Erickson robbed Heitholt to get money for a post-Halloween night of underage drinking.

Erickson said he initially repressed his memory of the killing but began to recall details two years later after reading news accounts and traveling past the crime scene. Some of those details emerged in his dreams.

At the conclusion of the hearing, Asel gave Ferguson's new lawyer, a public defender, 60 days to submit additional legal motions related to the hearing.

Assistant Boone County prosecutor Stephanie Morrell sought a minimum of two weeks to respond to those motions, meaning a ruling on Ferguson's request for a new trial isn't likely until late September at the earliest.

Two state appeals courts have already upheld Ferguson's conviction.