DAVE DOR1'v1IRB,Warden, Jefferson City Correctional Center, Respondent.

No. 11 AC-CC00068

) )


Now Comes Petitioner, Ryan Ferguson, by and through his attorneys, and hereby moves this Court for leave to file his reply to Respondent's Proposed Findings of Fact


and Conclusions of Law, instanter, and in support thereof states as follows: 1. On June 15. 2012; both parties filed with the court their proposed findings

of fact and conclusions of law. 2. As Petitioner has the burden of proof to show that he is entitled to relief,

Petitioner respectfully requests leave to file a reply to the proposed findings of fact and
conclusions of law submitted by the Respondent consistent with Missouri Supreme Court

Rules. Stare ex rel. Nixon v. Jaynes) 73 S.W.3d 623 (Mo. bane 2.002). 3. Attached to this motion is Petitioner's proposed reply.

WHEREFORE) Petitioner respectfully requests leave to file his reply to the Respondent's Proposed Findings of Pact and Conclusions of Law, instanter.

Respectfully submitted,

Attorney for Petitioner AdmittedPra Hac Vice

Kathleen T. Zellner & Associates, P.C. 1901 Butterfield Road, Suite 650 Downers. Grove, lllinois 60515
(630) 955-1212


No. llAC-CC00068

DA VE DOlUv:tlRE, Warden, Respondent.


COMES No.W petitioner. by counsel. and states as follows in reply to Respondent's
Proposed Findings of Fact and Conclusions of Law: Rather than seeking justice, the Respondent is turning a blind eye towards Petitioner's innocence choosing instead toembrace a completely discredited prosecution theory, just as

Respondent has done in so marty other cases.' It is hard to imagine how this. exercise in

gamesmanship serves the best interest of the citizens of Missouri or promotes the integrity of the
judicial system ..It has been said, "When guilty men escape, the law has merely failed. When. an

innocent man is condemned, it creates the very evil it was to cure, and destroys the security it

was made to preserve.":?:
Respondent misunderstands Petitioner's reliance on Amrine. Petitioner, in his Proposed

Findings of Facts and Conclusions ofLaW(~'Fifidingsl'), is not claimingthat he is entitled to
"automatic" habeas relief because of'the Charles Erickson ("Erickson") and Jerry Trump

1 Amrine It.

Roper, l02S,W.3d 541 (Mo. bane 2003),. State ex rei, Kosterv. McElwaiu. 340 S,W.3d 221 [Mo,App. WD2011l.

State. ex rei. 1!~rwetre \/;Moore. 211 S.\\!', 3d 89 (1\10. bane 2007).

Adm.lnlsteft:d,in THE SPEECHES OF

Sir Samuel Rom.ll [y, Observations on the Cdm.l.n~lLaw as It Rel_ates to Capital PUnishmen.ts,and on tne Mode in It Is sm SAMUE;L ROMILLY IN THE. HOUSE OF COMMONS 166 (1820). 1

C'Trump") recantations.

Petitioner has presented meticulous detail about The evidence that (Pet. "Findings" 9-62).

corroborates the recantations.

This Court knows that Trump and Erickson lied under oath. Respondent proposes that
this Court simply find the recantation. are not credible.and therefore the trial testimony of Trump and Erickson was. credible. The Respondent's approach incorrectly applies the newly discovered

evidence standard which. assesses the evidence holistically and from the viewpoint of reasonable jurors. The-test is forward-Iooking; this Court must determine "whether the newly discovered evidence is

material that it is Hkeiy to produce a different result on retrial.'

State v. Stewart

3.l3S.'W.3.d 66L,666 (Mo. 2010).

Further, evidence which "does not exonerate" the prisoner may nevertheless satisfy if it "casts serious doubt on the validity of the conviction." . .

State v.Terry, .304 S.W.3d 105,. 109 (Mo. .
, .

2010). Viewed in this light, a. conviction such as Petitioner's or Mr. Armine's cannot be allowed to stand iIlt is clear fromthe record as. it now stands that the prosecution at retrial would not win twelve votes for conviction. The Missouri Supreme COUlt said as much:
In light. of the resulting lack of any remaining direct evidence of Amrine' s guil t from the

first trial, Amrine has already met the dear and convincing evidence standard, for our confidence in the outcome of the first trial is suffioiently undermined by the recantation of all the key witnesses against him in the first trial to require setting aside his conviction and sentence of death. There would be no purpose to a preliminary determination of credibility by this Court sitting as a habeas court, either directly or through a master,
Amrine v. Roper, supra~ at 544. In the rare circumstance that all of the witnesses implicating the

defendant recant their testimony, "if there Is a credibility detennlnatlon to be made, it will be made by a jury." Id., at550 (Wolff, J.~concurring) .. Upholding the ReUability of Erick_s:on and Trump's
Trial Testimony

Respondent asks this Court to perform the impossible task 0ffinding the trial testimony of Ericksen and Trump to be credible and their current recantations to be false. In doing

Respondent ignores (entirely) the 20to Western District Court of Appeals opinion which
extensively reviewed the same trial transcripts that the. Respondent is vouching for but reached

the opposite conclusion about Erickson's credibility. The Court stated as follows:
On cross-examination •.Erickson was subjected toa lengthy and extensive.crossexamination, wherein Ferguson's trial counsel was successful in illustrating that

the following: "I don't. even remember" the murder; that he 'might be "confusing [memories] with dreams"; that he was "notsure that he had been involved in the death of Mr. Heitholt"; "Like; I could just be sitting here and fabricating all of it ·and not know, Like, I don't know. I don't," Ferguson v. State,325 S.W.3d 400,

nurse in the jail, that he was uncertain whether he and Ferguson had murdered the victim. Oil. cross-examinetion, Erickson acknowledged that he had stated at one time. or another, as it pertained whether he and Ferguson murdered the victim,

Erickson had made various prior statements that seriously undenllintld Erickson's 9redihilii;I. Specifically, Ericksen admitted on cross-examination that from November 2,2001, until spring of 2003, he did not have any conscious memory that he was involved in the death 'Of Kent Heitholt, Erickson conceded on crossexamination that for a period of many months after he was first investigated by the. police fbr the murder, he stated to friends, the police, his parents andeven a


417 (Mo. App, W.D.201 0) (emphasis added).

This Court, in order to find Erickson's trlal testimony was credible, would have to reject the Western District finding and hold that Erickson's trial testimony, with all of its contradictions, is credible .. (Pet. "Findings" 27-37)~ Trump's Recantation

At the outset; it is critically important to nate that Petitioner's actual innocence claim is

TIns meal1~ that Petitioner's innocence claim. does not require this Court to find knowingly used perlured testimony or knowingly presented falseevidence. 102 S.W..3d 541 (Mo. bane 2003). Respondent has expended a great deal of

that theprosecution


'Y. Roper;

effort arguing that Judge Crane ("Crane") did not suborn.perjury when he presented Trump' s

trial testimony. CRespo Findings pg. 51-58). This

argument has no relevance to Petitioner's

innocence claim. It is not necessary for this Court to determine whether or not

Crane suborned perjury when hepresented

Trump's trial testimony. The only issue for this

Court to determine on 1he~ifreestanding" claim is whether or not Trump srecantation is credible,

This Court had the opportunity to observe Trump's demeanor when he testified. This Court even asked Trump the ultimate question stating as tallows: Q'.'""'In. the middle.' of the p' aoe '[1'0'06'] .~ the . que ..tie n was presen te .'t0 . you 'N' OW,lVLL -,--- ed . .. -, .1< ,t., .. . '--';;V' -." 1 - .. -Trump, do you see in the courtroom here. today one of the. individuals that you saw at Mr. Heitholr's vehicle in the early illuming hours of November 1, 2001, and you' an· wer 1'·S· Yes,.,. I d o.-c- OIIec-t? ~ --"- ,. __ __1 __ _ s _ • A: Yes, Q: Was that a U~'?
A· Yes. it W1IS
,'" ,.~ ___ ' __• •

(HH Tru ,n',p 2.6'2-2·63) (empl 1asis a '. e . TIl 1 'de ct, sd)
__ _ __ _ _ . __ ,A ,_ _ ' •

Trump acknowledged that he understands that he could be charged with perjury based on his testimony before this Court. (HH Trump 234). He also testified that he is not receiving anything in exchange for his habeas testimony and has not been promised

(HH Trump 234). Asked if he anticipates or wants anythiua; for testifying;

Trump testified he- would like to have f~i'giveness from Petitioner and his family, Trump 234).

Factual Impossibility of Trump's. Ideatlfleathm Respondentnever addresses. the pivotal issue of whether it was factually possible

for Trump to have seen anyone clearly enough from the distance of 75-80 feet with
nighttime lighting to make a positive identificaticn. Petitioner has presented unrefuted
It must be kept in mind. that

pro-of that it was factually- impossible for Trump to

have. identified anyone at 75-80 feet with the lighting conditions that existed at night. (HH Trump 211). Crane admitted at the habeas hearing. that when he visited the. scene he
did not request or take any measurements from the loading dock to the location of



car. (HH Crane 611).

Crane also admitted he visited the scene d·uring the

daytime.and not at night. (HH Crane .610).
Trump vs, Crane It does not matter what motivated Trump to testify falsely at trial; the fact is he did. It does not matter who came up with the newspaper story; the fact is it is false. No document the

size of the Columbia Tribune would be allowed to be received by

an inmate incarcerated

in the

Missouri Department of Corrections', (Pet. Exh. Ill).
Petitioner's conviction should not be allowed to stand becausethe COUlt decides that it
believes Crane and not Trump's story about the newspaper identification. That issue is beside

the point, The fact is that Trump lied when he ide.ntiiled Petitioner in court and only one person in .. the './orld can ._.

teo .,.._ to that_.lie a-d' ~tit;'y·.. __ _.0.

t·ll"'t·' P I ··Il- 105.erry T" .. ,- T .. '.' rump. "'. eerso

Respondent highlights Trump's reluctance tocome forward by reviewing the evolution of his admissions .. Rather than discredit the recantation Respondent's argument merely strengthens

it. It has taken 'Irump S years to come to a courtroom and admit, under oath,

to ajudge

tba,t his

trialtestimony Was false. The Respondent conceded In his closing argument, before. this Court, that there is no discernible motive for Trump to falsely recant his identification. 742). Given. that the Respondent is unable. to identify any possible motive for Trump to lie and every reason exists for him to keep quiet to avoid perjury charges, combined with the factual
impossibility of Trump's identification, this Court should find Trump's recantation is reliable. (I-II-I Bruce


Reliability of the Recantations Respondent; s argument that the recanraticnsare false is dlsingeauous because it .
' '

never addresses the undisputed fact that Trump and Erickson both face perjury cherges
for their false trial testimony. In Missouri the penalty for perjury is as. follows:
J .' _

575.040(7)(1); RSMo. lOOD.. Perjury committed in any proceeding involving a felony charge isa class C felony unless [iJt is committed during a criminal trial for the purpose of securing. the. conviction of an accused for murder, in which case it is a class A felony]']

The possible range of punishment for a Class A felony is not less than ten years and not
exceed thirty years, or life imprisonment, 558.0.11(1), RSMo. 20.0.0..


Even more ·significant for Erickson is.that by recanting his trial testimony, he has,

arguably, violated his plea agreement. and complete testimony.

The plea agreement is conditioned on Erickson; s truthful

Failure to abide by the terms of the. agreement renders it null and void.

Ii the event the :1LO'reem· is breached by Erick SO·" the Statemav ,. ··"0·;' .," nda d···$.~e,'e.·n: 1 ,. .. . ., .. .." ,,_, ,.,. -'.... ent e ,. u~ . may reo I1llllen 1111.r,~ .. punishment on the charges he pled guilty to or may proceed to trial against him, possibly proceeding on first degree murder charges. (Resp.Exh, B3). Erickson testified that he was well aware that the State could deem his recantations of'his trial testimony as a violation of his plea

agreemen; (HH Erickson 31 7). All ofRespondent's recantation cases can be easily distinguished and actually offer
strong support for Petitioner's posltlon that because Trump and Erickson have given sworn
testimony before this Court subjecting themselves to perjury charges their recantations are

reliable. The Respondent completely avoids addressing this argument,

In Newman

VS~ United

States, 238 F..2d 861! 8.62 (5th Cir.19515) only ail affidavit of fhe recanting witness was
presented. The witness was not subjected to perjill"y charges because he took the. Fifth


The court held as follows:

The affidavit of recantation stood thus in naked isolation- opposed not only to sworn and detailed testimony of this witness on the original trial- but lacking as well a present vouchsafing for its current truth. Was the Judge required to accept that? Not to be forgotten is the decisive factor that reliefbeing pursued was a request for a new trial because injustice had been done. That presented a solemn) serious matter} the solution of which was the very act of adjudication, the full exercise of the judicial function. This called for considerate deliberation and decision as a Judge, weighing carefully all that would indicate whether justice or injustice had been the result. The very nature of the process negatived, therefore, the basis for the claim that a paper- the recanting affidavitcompelled automatically the grant of a new trial. To honor such a claim- to test right by paper form, not substance-would be abdication of constitutional duty, frequently to persons who, as participants, co-conspirators, or actors in the criminal activity initially charged, might from a variety of base motives, or importunities, be impelled, by recantation, to come to the aid of a person whose conviction has been brought about by their testimony, confident, as experienced criminal litigants, that the unusual difficulties in successful prosecution for perjury would expose them to no real peril.
In Haouari v. United States, 510 F.3d 350 (Znd Cir. 2007) the new evidence was presented by a letter that was unsworn and conclusory. The Haouari court held as follows:

Haouari's new "evidence" is aletter from co-conspirator Ressam to the U ..S. Attorney's Office that. is general; unsworn. and conclusory, Haouari has not brought to our attention any case in which an unswornletter of a co-conspirator recanting sworn trial testimony was found to satisfy *354 AEDPA's prima facie standard. And we have been unable to find such a case. On the other hand) cases involving different stages of habeas review and cases outside the habeas context amply support the view that a general, unsworn recantation of the sort presented here is insufficient to contradict sworn trial testimony. For instance, the Tenth Circuit) reviewing the denial of a motion for new trial based on the. discovery of new evidence, held that an unsworn recantation is insufficient to warrant anew trial, See United States v. Pearson, 2.03 FJ.d 1243,-1274-76 (10th Cir..2000). The court found "it significant that [the] recantation was not made under oath" and noted that "[s]wom trial testimony is generally not refuted by unsworn repudiation of that testimony." Id. at 1275. Similarly, the Eighth Circuit has indicated "that a failure to produce or explain the absence of an affidavit of a recanting witness will result in the denial of a motion for new trial," United States v. Ward, 544 F .2d 975, 976 n. 2 (8th

Respondent presents two cases where the court found undue influence was exerted by the. defendant. Oil the recanting witness. InState v. Cook, 339 S.W.3d 523 (Mo. App, B.D. 2011) the

defendant was convicted of molesting his stepdaughter.

Prior to the recantation, the defendant

told his wife to not let the victim see her siblings until she recanted. He also told his wife to


prompt the victim's siblings totell her how much they missed the defendant. Tbe victim refused to change her trial testimony, Then the defendant told his wife to have her family "jump. on [the victim's] ass." Again, the defendant told his wife that the victim needed to see how sad her siblings were that the defendant was incarcerated. ld. at 530~31 .. The appellate court held that

the victim's eventual recantation was made only after months of undue influence exerted by the
defendant and his wife. Id. at 532.
Cook is obviously completely dissimilar and has no applicability to this case. Cook

applies to the all toecommon situation in which a family member tries to persuade a minor victim to recant.allegations of sexual abuse against a parent so that the parent can be released.
Cook has no hearing on a murder case where two adultwitnesses

admit that theyfalsely

implicated the defendant. No threats were made. against either Trump or Erickson. unlike the

victim in Cook.s Respondent's conspicuous avoidance ofthe perjury issue, and the presentation to this

Court of recantation oases that have only an affidavit of a. witness who takes the Fifth
Amendment and all unswom letter, severely undermine Respondent's argument that the Trump and Erickson recantations are not reliable. This is especially true since their trial testimony
providesvthe sale evidence tying [Petitioner] to the crimewas the testimony of Erickson and the Trump:'


Ferguson v, State, 325 400,419

(Mo. App.

W .. . 2010). D

The cnly case m.MissQuri where the sole witnesses have recanted. is Amrine. Clearly, this Court
has to weigh the effect of the only two witnesses recanting when comparing this 'to other

a Respondent cites the dIssent by Justice Brennan in Dobber: v; Wail1w1'Ight.468 U.S. 1231 (1984) which also supports Petitloner's positiQn, as Justice Brennan dlssented .ftom the Court's denlalof certierar! on the basis of II witness rccarrtation that discredited the only evidence against the defendant Trump and Erickson tec!l:tlted their false testimony ngainst because neither CQuldlive wltn the tact Ihii.t, they m1,u·setIaninnocent person be sentenced to prison, because of undue influence- TnSWle. \/; Gamer, 976 S.W.2d 57, .60, the Court found the.recan[ation wasnot crcdiblebe.i:ii.tise It would not have completely e:>ioneI'!lIc;d defendant who was found with J shotgun shells In his the




Missouri cases. Unlike the case at bar Respondent's of guilt. Petitioner's case. has Brady Vinlations In ccnsideringa

cases have

an abundance

of other evidence

other evidence but these two witnesses.

Brady claim, courts must determine whether the cumulativeeffect

of all

evidence. suppressed by the government raises a reasonable probability that

disclosure of the evidence would have produced 419; 421 (1995).

a different

result. Kyle« v. Whitley, 514 U. S.

Petitioner's Brady claim is premised on the State's failure to disclose the following

exculpatory evidence:


Barbara Trump's statement that.she did not recall sending Jerry Trump a newspaper in prison. Michael Boyd's ("Boyd") statement to Detective Shortthat he saw two individuals walking in the alley as he left the. Tribune lot the night of the murder. Kimberly Bennett's ("Bennett))) statement that she saw Petitioner leave the bar when it closed at I :00, walk to his car, and immediately leave the area, without opening the trunk. of ills car .. Evidence that William Haws ("Haws") contacted Jerry Trump in prison prior to their in perso11- eeting, m

Petitioner has established that these Brady violations occurred and the cumulative effect of all the exculpatoryevidence suppressed by the government raises a reasonable probability that

disclosure of the evidence would have produced a different result. It should be noted that

Respondent is not denying
counsel. Instead.Respondent

that none of'these statements were disclosed to Petitioner's trial

claims, without basis, the; statements were not made and/or that

disclosure- of the statements Would not have affected the outcome of the trial. As to the latter argument, Respondent takes issue with the unreburted sworn statement from respected attorney Charles Rogers ("Rogers"), Petitioner's trial counsel. For the first time, Petitioner's trial counsel has come forward, having now been advised ofthe evidence-that was withheld from the defense.


As to the evidence that Barbara Trump e~MIS Trump") never sent the, newspaper, ..
explains that had he known of Mrs. Trump'sstatement, .


he would have-presented her testimony ,

and "attacked and rebutted the State's story that she sent Jerry Trump the newspaper article upon
W1 lch U ..

tl1. .... e State'

'de tiflcarior 0 of· S Lfl_lL _Jon

F erguscn an.d E nCKSOn.le Ie. .' C')' .. '-.1 , "1' d." .(P eet,. Exh 1'1"3" R··· .' Aff.), X,.. . agers .1 •..•

Faced with Haws' llme-bUtted testimony from the habeas hearing that Mrs. Trump told him she
did not recallsending

the newspaper and that the' prosecution did not disclose Mrs. Trump's

statement, Respondent is forced to attempt to discredit its own witness, (HI-I Haws 667-668).

Respondent tells this Court not to believe Haws, advising that the Court should have "serious reservations about
65). After taking issue with Haws' sworn testimony, which it chose

Mr. Haws' memory

regarding speaking with Mrs ..Trump .. (Resp, Findings. "

to pre$em~ Respondent

claims Haws' admission was "not crucial evidence ." (Resp, Findings 6:5), In what appears to be a desperate effort to minimize the substantial damage done by the Haws admissions, Respondent

argues that Haws' .statement _ .... ,. lU.; _ .. '.'

1'" "hea r... 's"'y" .

(.R·. p..FLd'" as .·65'). Resoo ide n. i it's . ..eso. In ,me. .. ,.p"n.

t 0" ition p ,,11.

'5' 1.

Il. tly a.

contradicted by Missouri case law which holds that, "Police reports may he admitted as evidence

impeach a witness With prior inconsistent statements, where said statements used for
Stelle V. Claypool, .

impeachment are not considered hearsay."

763 S.W .. d 313 (E.D. 19'8'8). As 2 .

Rogers explains ifhe bad known that Mrs. Trump's testimony contradicted her husband's he

could have called her as a witness arid Impeached her if she tried to change: her testimony.
The undisputed factsare that 1) Mrs ...Trump's statement wasexculpatory;


prosecution did not disclose it; and 3:) had it been disclosed, Mrs ..Trump's testimony would, have

been presented,


Respondent nextargues that proper disclosure would not "have altered the outcome of
Judge Roper's ruling on the admissibility of the identification or the jury'S assessment of

Trump's Identification."

CRespo Findings 66). Respondent does not support this eonclusory

statement, because there. is no support

it. Application of even the smallestamount

of logic,

reason and common sense should result in this Court reiecting.Respoudent's

argument. Haws

had an obvious interest in the prosecution's conviction of the. Petitioner. Had the defense been able. to. present evidence to the trialeourt that Haws admitted Barbara Trump told him "she didn't . . recall sending the article"


Haws 667~668) the court could only have concluded the

identification never happened. Ifthe.jury believed the newspaper was never sent, Trump never
received it and his entire identification would have been discredited, Just as Rogel's now states,

the outcome of the trial Would have been different if Trump' s identification ofPetitioner could have been rebutted by his own Wife.

In fact) with Mrs. Trump

rebutting her husband's

newspaper story the prosecution may have decided not to call Trump.
Factual and Legal Misrepresentations The Respondent's Findings contain many additional legal and faetualerrora Those

errors are as follows: 1. Death Penaltr
In an effort to demonstrate to this Court that Erickson ~s recantation is not credible, the

Respondent in p()tagraph 34 ofits HFindings" asserts that Erickson claims that one ofthe reasons
he testified falsely at Petitioner's trial is because he believed he. Was eligible for ~he death penalty

and this is not true. Respondent then relies on the August 2003~ Missouri Supreme Court

opinion which held that the execution of individuals under 18 years of age at the time of their
capital crimes is prohibited by the Eighth Amendment, State ex rel. Simmons v. Roper, 112


S.W.3d 397 (1\10. bane 2003). However, what Respondent failed to mention at the habeas
hearing is that the Missouri Attomey General appealed that decisionto the United States

Supreme Court. Roper v. Simmons, 125 S.Ct. 1183 (ZOOS). (I-I.Exh. 114) .. It was not until
March 0[2005, four months after Erickson entered into his plea agreement on November 4, 2004 that the United States Supreme Court likewise held that the Eighth Amendment


execution of individuals who were under 18 at the time they committed their crime. Id. Crane
could have sought the death penalty up until the United States Supreme Court decision in March of2005 and he admitted at the habeas hearing that it was a "discretionary decision" and he

"could have" sought the deathpenalty,

(HH Crane 559). By this testimony, Crane himself Petitioner has presented other evidence that

refutes the Respondent' s death penaltymgtlnlent.

Crane's media statements about the death penalty could have led Erickson. a: 17 year old with legal education; to believe the death penalty was a possibility. 2. Dr. Blum Dr. Blum's opinions are new in light. ofErickson's recantation. Blum was able to
discredit the trial testimony of Erickson as to all aspects of the. attack


Heitholt. Dr. Blum's

testimony corroborates Ericksen' g recantation by demonstrating that Erickson's version of events

presented at trial was false.
Dr. Blum re-examined the autopsy photos and offered the opinion that based on his

evaluation of the injury patternand other factors that the instrument inflict the blunt force trauma on the victim was a nail puller. (HH Blum 148) .. This directly contradicts the trial testimony of Erickson that he used a tire tool from Petitioner's trunk to inflict the blows on the.
victim. (TT 474);. Blum explained howthe three injury patterns on the victim were consistent with a nail puller. This testimony supports Erickson's recantation that his trial testimony was


false when he testified he used a. tire tool from Petitioner's trunk to strike the victim on the head. (TT 519, 525). Erickson's recantation is further corroborated by the fact that at trial he could not identify the tire tool from Petitioner's car as being the murder weapon .. (IT 538). The tire tool aile gedh Il ed t 0 c··"·" iit tho_.- e_rIme - .• never ".c- id and E nco·k" c C-"·"- was " .- Loun all " sen .'., .... ... _ys _ . _omn11 authorities to the tire tool. car keys; 01' belt taken from the victim.
Dr. Blum was able to rule out a tire. tool as being the instrument used to strike Heitholt
W as no t ""

ible 0 ad a . to Ie.·.

because of its weight and shape. (fill Blum. 144). Heitholt sustained no skull fractures, which Dr. Blum opined would have occurred with repeated blows with a tire tool, (HB Blum 149). Dr. Blum also testified that it was Crane and not Or. Adelstein who. identified a tire tool as the weapon used to strike Heitholt at Petitioner's trial. (HI":! Blum 186). 3. Joseph Buckley Joseph Buckley's ("Buckley") testimony corroborated Erickson's recantation that at trial he was simply regurgitating details that he had Ieamed through media accounts and police reports of the Heitholt murder, The detectives disclosed to Erickson the only other pieces Of
information notcontained in media accounts that only the perpetrator would know ~ that the

victim was strangled. with his own belt and his keys and watch were stolen, (!IH Buckley 81). Due to their improper interview techniques, the detectives were unable to corroborate Erickson's presence at the scene. (HI-I Buckley 85). Buckley opined that Erickson' s admission that he had been drlnkihS that nisht should have caused the detectives to explore his use of alcohol and drugs to determine ifhis 1l1.emory was affected by such use, The detectives never made such an evaluation. (HR Buckley83~~4).

Buckley testified that Erickson's putative statement that he told the cleaning lady to get help


does not make any sense, because a murderer, who has just killed somebody, does not call out

for help so that the authorities get to the scene faster. (HlI Buckley 85). Buckley testified that he is not aware of any details that Brickaon provided to pcllce-taat were not known to police. prior to their first interviews with Erickson. (HH Buckley 85). The detectives provided Erickson with the details ofthe murder that were not revealed by the media.
(HH Buckley 85) .. This prevented police from corroborating Erickson's statement confirming the authenticity of thatadmlsslon.


(BH Buckley 85) 90).

Finally, Buckley testified that Erickson provided false facts to police during his
confession. For example, Erickson told detectives he and Petitioner had stolen, the victim's wallet When, in fact; it was found at the scene. (HH Buckley 94). Erickson told detectives. he

and Petitioner went back to the By George after the murder had occurred at 2.:20 a.m, when it is undisputed that the bar had to close by law b~ 1.:30 a.m, (HI-! Buckley 94). Erickson. stated that
Petitioner entered the. victim' s oar to steal something, yet Petitioner's fingerprints were not found

in the vehicle. (Hl-lBuckley 94). Erickson also stated he vomited at the scene but there was no
vomit discovered ill the Tribune parking lot (HE Buckley 94-95).

4. ,Edckson~sMemory
As the2010Westel'll District Appellate Court discussed in the previously cited quote,

Erickson has always maintained that he "did not reme-mbert"might

be confusing [memories]

with dreams," andt'couldjust b~ sitting here and fabricating all of it I just don't know,';
Erickson has consistently claimed that he suffered a blackout in the early morning hours of

November l, 2001. (TT 727-728). Respondent's

argument that he remembered things from

earlier that evening is unpersuasive because Erickson did not blaokout until he had consumed all

of his drinks at the By George .. (TT 127).


5 ..Tlmeline of the Murder
Respondent does 110tseem to realize that the prosecution, created the timeline Petitioner

relied upon at the hearing, In his closing argument Crane arg·1,led the victimlogged off Ius that
computer at 2.:.08 a.m. and "obviously left a few minutes after that." (TT 2121) .. Crane asserted that Petitioner made a phone can at 2:09 a.m, from the vicinity of the By George bar then walked
to the Tribune building, taking 3 minutesand 20 seconds to do so.which placed the Petitioner and Erickson at the crime scene at approximately 2: 12 a.m .. CTT 2121), Erickson testifiedthat

he and Petitioner hid behind the dumpster and waited until a white man exited the lot before
attacking the victim. (TT 522). Boyd testified at the habeas hearing that hesaw two individuals walking in the alley at 2:2.0 a.m. when he exited the lot in his car. (HH Boyd. 514~ 51.5, 538). Boyd was sure of the time because he had a clock in his car and the. time on his cellphone.

(H.Dep. Boyd 66) (pet. Exh. 108.). Shawna Omt ("Ornf'), a janitor in the building} told the police, in her first interview, she came out on the parklng let (after Boyd had left) at about 2:20

a.m, and realizedsomeone was next to Heitholt' scarand re-entered the building to tell Trump.
(H.Dep. Baxley Group Exhibit A 15) (pet. Exh ..105). Boyd'stestimony, atthe habeas hearing,

refutes theprosecution's timeline, which had placed the two individualsat the crime scene
attacking Heitholt between 2:12 and 2:20 a.m, Petitioner does. agree that the attack occurred between 2: 12 and 2:20 a.m. when the only two individuals in the parking lot were Heitholt and

Boyd. According to Boyd he was interacting with Heitholt from 2: 13 a.m. until he drove off the
lot at 2:·20 a.m. (liB Boyd 509, 512).. There is no question that at 2:20 a.m., Ornt comes out on

the parking lot) Heitholt was dead and Boyd was gone. Respondent does not seem to
comprehend that all of this testimony conclusively establishes that the two individuals, described

by Boyd, Trump and Ornt, came on the, scene after Heitholt bad been murdered.


Erlekson did not pessess unique facts about the murder ..
Respondent has changed the list ofunique facts that were supposedly not part of the

public record and revealed by Erickson. Unfortunatel~; this argument Is easily defeated by the failure of Respondent to present-any proof by way of newspaper articles or police. reports to substantiate its claim that these "unique" facts were

not reported

in the newspapers or police

reports, Petitioner explains the list of unique facts presented at the habeas hearing and demonstrates that these facts were in the police reports and news articles reviewed by Erickson.

(Pet. Findings 60-62).

Kiln Denudes Teatlmouy
At the hearing, the Respondent assertedthat Bennett was incorreet about precisely where
Petitioner'S car was parked. The. Respondent claimed Petltioner had testified at trial that Petitioner's car was parked at First Street and Ash Street, north of where Bennett had testified

she saw Petitioner'S car parked the night of the murder. (HH Bennett 490) .. However, Oil redirect examlnatlon.Benaett testified that she placed Petitinner's car on First Street and that

placement was completely consistent with Petitioner' s trial testimony that he had parked
"somewhere on First Street," (HE Bennett 498:).

Bennett's habeas testimony is furthersupported

by Erickson's testimonyprior

to trial. At

his deposition, Erickson testified that Petitioner parked "on the right side of the road" "down First Street past Georges." (PT Dep, Erickson 167) (Pet. Exh. 109). Then Erickson testified as
follows: ,.

[Question] As you go north on First Street a block north of George's, is that where the dirty book store place is; the Olde Un? [Answer]
It wasn't quite that far.

(PT D·ep. Erickson. 168) (Pet. Exh. 109).

At the habeas hearing. Bennett was shown pictures that were introduced into evidence at
the proceeding to illustrate the. exact location of'Petitioner'a car the night of the murder. Relying on Petitioner's Exhibit 4.6A, a photograph, Bennett pointed precisely to where Petitioner's cal' was parked when she saw Petitioner and Erickson enter it. (HH Bennett 468). Also depicted in

that picture is the OIde Un Bookstore .. (Pet Exh. 4f3A). Bennett placed Petitioner's car precisely where Erickson did ill his deposition testimony prior to tria1~north or the By George, Oil the. right side. of First Street,

quite as far as the Olde Un Bookstorejust

south of the comer of First and

Walnut, Bennett placed Petitioner's

car a block south of First and Ash, the location described to

the jury by the prosecution at trial. (TT 516). Respondent argues that Bennett may have talked to defense investigators and not
Columbia Police, However, this position is refuted by the record .. Bennett testified that she

spoke to members. of the Columbia Police Department ("CPD"). (I-U-IBennett 502).

Petitj_oner's Exbibit III
Respondent misses the point about the significance of the Polier and Procedure of the Missouri Department of Corrections exhibit. The. exhibit was presented to this Court to illustrate
that np document is allowed to be mailed to the Missouri Department of Corrections that exceeds

the size of 8-114 by 11.inches. Additionally. the Missouri Department of Corrections prohibit
mail to an inmate ofoffender pictures. Therefore, the size of the Columbia Tribune newspaper

(22 by 12 inches) and the pictures of two offenders would never-have been allowed into the
prison pursuant to this policy.

Penttoner's Exlfihit 112, 122a
Respondent £ail$ to understand the sigrtifl cance of Crane's KOMU and newspaper
interviews about the death penalty. Crane also testified at the habeas. hearing that the death

penalty was never in play in the case. (HH Crane 558). Specifically, Crane testified~"in terms of the death penalty with, respect to either of these cc-defendants, that was never in play." eHH Crane 558).
Conclus.ion In conclusion, for all the foregoing reasons, the Petitioner has established by clear and convincing evidence that he is innocent of the crimes for which he wasconvicted

and sentenced,

and that his constitutional rights were violated at his trial in the manner described. above. As stated in Amrine v. Roper, 102 S.W.3d 541 (Mo. 2003), Petitioner having met his burden of
establishing his actual innocence, the evidence supporting the conviction must


assessed in

light of all the evidence now available. There WaS no physical evidence linking Petitioner to the murder. In fact, not only was there no link; but the physical evidence was actuallyexculpatory ..

The Western District Appe;jlate Court has already determined that the only evidence at trial
against Petitioner was the testimony of Trump and Erickson and that Erickson ~s trial testimony was not credible. That evidence no longer exists as both men have recanted. This case presents


in which no credible evidence remains from the first trial to support the

conviction. Petitioner has established, based on the record; that under these rare circumstances, there is clear and convincing evidence ofPetitioner's innocence. As such his convictions and

sentences cannot stand and must be set aside.
Petitioner has also established error of constitutional magnitude in. that his right to due process. pursuant to Brjadx tI. Maiyhmd was violated. Materials that were required to be

disclosed 'to Petitioner prior to trial under Brq,dy were withheld from him. The prosecution's
failure to disclose the Brady materials prejudiced Petitioner as the materials were exculpatory and impeaching and further, would have reasonably led to the discovery of other important


defense related evidence. The Petitioner has established that the Brady violations undermine

confidence in the guilty verdicts at Petitioner's trial.
\\THEREFORE,. for the foregoing reasons, counsel for Petitioner respectfully suggests that he has satisfied his burden to prove his entitlement to the Writ of Habeas Corpus discharging him from his. conviction and sentence, and moves this Court to issue the writ and to grant such

further relief as the Court deems justand equitable.

Respectfully submitted,

Kathleen T. Zellner
Admitted Pro Hac Vice Kathleen T.Zellner & Associates, p.e. 1901 Butterfield Road Suite #650 Downers Grove, Illinois 60505

(630) 955~1212



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