IN THE MISSOURI COURT OF APPEALS, WESTERN DISTRICT STATE OF MISSOURI, ex rel. RYAN FERGUSON, Petitioner, v. No. WD76058 DAVE DORMIRE, Superintendent, eIl'erson City Correctional Center, Respondent. MOTION FOR RELEASE PENDING FURTHER PROCEEDINGS Now Comes Petitioner, Ryan Ferguson, by and through his attorneys, Samuel Henderson and Kathleen T. and hereby moves this Court pursuant to Missouri Rule 91.14 to authorize his release from custody pending further proceedings. In support of this motion Petitioner states as tiollows: 1. On November 5, 20l3, this Court entered its order granting Petitioner's Petition for Writ of I-Iabeas Corpus. Specifically, this Court held that the State violated Brady Maryland, 373 U.S. 33 (1963) by withholding material, Favorable evidence of an interview with Barbara Trump. As a result, Petitioner's convictions have been vacated. 2. Based on the tmique circumstances of this case, Petitioner hereby moves this Court for an order authorizing his release from the Missouri Department of Corrections pending the State's decision to file any motions permitted by Rule 33 and 34.17, and/or its written election to retry him. 3. Missouri Rule 91.14 provides, "If the person for whose relief a writ of habeas corpus has been issued is charged with a bailable offense, the court in which the Wd 833 L0 SLOZ :lO a11swer is to be filed shall set conditions of release pursuant to Rule 33." This Court's order granting habeas corpus relie.f returns Petitioner to the status of a pretrial detainee who is eligible for release. Irvin v. Dowd_366 U.S. 717, 728 (1961). 4. Missouri Rule 33.0l(a) provides that "Any person charged with a bailable offense shall be entitled to be released pending trial." The Rule further establishes a presumption that "[t]he court shall in all cases release the accused upon his written promise to appear, unless the court determines that such release will not reasonably assure the appearance of the accused." In determining what conditions are appropriate in ordering release pending further proceedings herein, the Court may consider the following factors: the accused's family ties, employment, financial resources, character, mental condition, the length of his residence in the community, his 1'ecord of convictions, and his record of appearance at court proceedings or flight to avoid prosecution or failure to appear at court proceedings. Rule 5. These factors weigh heavily in favor of granting Petitioner his release. 6. The State's case against Petitioner is exceedingly weak. As noted in this Court's opinion, no physical evidence linked Petitioner to the murder; in fact, physical evidence at the scene was inconsistent with his guilt. DNA collected from the scene did not match either Petitioner or Charles Erickson. None of the numerous unidentified fingerprints matched Petitioner or Erickson. The bloody footwear impressions next to the victim's body did not match either Petitioner or Erickson's shoe size. Wd 833 L0 SLOZ :lO 7. Other evidence undermines the State's theory of Petitioner's involvement in the crime. Michael l3cyd's statements to police placed him in the parking lot or with the victim during the entire time frame within which the State alleged Petitioner and Erickson committed the murder. The State's suggested motive for the crime was a robbery, yet the victim's wallet was found in his car. Melissa Griggs testified at trial that the By George closed at 1:30, which would have foreclosed the possibility of Petitioner and Erickson returning to the bar for more drinks after the murder occurred. Additionally, Shawna Ornt, who had a good enough look at the individuals by the victim's body that she worked with police to generate a composite sketch, has definitively testified under oath that Petitioner and Erickson were not the individuals she saw in the parking lot that night. 3. Finally, the only two witnesses to implicate Petitioner in the murder - Charles Erickson and Jerry Trump -- have testified that they committed perjury at Petitioner's trial. 9. Petitioner has significant ties to the community with his immediate family, including both parents, residing in Boone County, Missouri. Petitioner's mother, father, and sister have supported Petitioner throughout his prosecution and wrongful incarceration. In the event of his release, Petitioner will seek employment with his father, who works as an independent contractor as a real estate broker in Columbia, Missouri. Petitioner would reside with his mother, Leslie Ferguson, at 4502 Hockaday Place, Columbia, Missouri. Wd 833 L0 SLOZ :lO 10. Apart from this case, Petitioner has no criminal history and is not a tlight risk. Moreover, Petitioner will abide by any terms and conditions on his release set by this Court. 11. Petitioner has demonstrated that he is not a danger to society throughout the length of his wrongful incarceration. Petitioner has an exemplary disciplinary history. Furthermore, despite being incarcerated for a crime he did not commit Petitioner has made the best of his situation. This includes taking part in Jefferson City Correctional Center's Intensive Therapeutic Community and tutoring other inmates taking part in the correctional eenter's GED program. See Group ExI1r'bz'tA. 12. Due to the expenses of litigating a trial and numerous appeals over the course of almost a decade, Petitioner is an indigent person and his lian1ily's financial resources have been largely exhausted. Petitioner therefore requests that the Court give serious consideration to the express language of the rule presuming that a person such as Petitioner who presents a low risk of flight be released on his own recognizance. ln the alternative, Petitioner respectfully requests that this Court set a reasonable bond, taking into account Petitioner's limited financial resources. FURTHER SUGGESTIONS IN SUPPORT OF MOTIDN FOR RELEASE The language of Missouri Rule 33.01 directing that the accused "shall be entitled to be released pending trial" creates a presumptive entitlement to release. Urriied .S'Icue.r ex rel. Barm-veil v. 461 F.2d 763. 770 (3rd Cir. 1972) (construing the nearly identical language of Fed. R. Crirn. Pro. Justice Benjamin Cardozo has explained the rationale ofsuch a presumption: Wd 833 L0 SLOZ :lO It would be into.lerable that a custodian adjudged to be at fault, placed by thejudgment of the court in the position ofa wrongdoer, should automatically, by a mere notice of appeal prolong the term of iniprisonment, and l'n.1strate the operation of the historic writ of liberty. "The great purpose of the writ of habeas corpus is the immediate delivery of the party deprived of personal liberty." Certain it is, at least, that the writ may not be thwarted at the pleasure of the jailer. Little would be left of"this, the greatest of all writs" ifajailer were permitted to retain the body of his prisoner during all the wea1'y processes of an appeal People ex rel'. Sobcirino 158 N.E. 613 (1927). Though the State of Missouri may seek t'urther review of this Court's judgment, that "does not justify prolonging his imprisonment now that [the] Court has found that he was convicted in violation of his federal right to due process of law and must be tried again with due process, removing any presumption as of now that he is guilty as charged." Cfagle v. 520 F. Supp. 297, 312 (ND. Tenn. 1930). The import of this principle is clear: "Without this freedom, even those wrongly accused are punished by a period of imprisonment while awaiting trial and are handicapped in consulting counsel, searching for evidence, and preparing any available defense." Id. Were this a federal petition for writ of habeas corpus by a state prisoner, the Supreme Court acknowledges that "[t]here is presumption in favor of enlargement of the petitioner with or without surety" which may only be overcome "if the traditional stay factors tip the balance against it." Hiiron v. 481 US. 770, 777 (1987). That Wd 833 L0 SLOZ :lO presumption is not overcome where the record rellects "substantial evidence of [the petitioner's] actual innocence," and that the prisoner has already undergone trial and post--conviction proceedings." Scmders v. Rarelle, 21 F.3d 1446, 1461 (9th Cir. 1994) The '*substantial evidence" of Petitioner's actual innocence based on the record before this Court is clear. As detailed at length in this Court's opinion and in this motion. .rz.:pra. the notion of Petitioner's guilt has been wholly undermined by all of the available evidence. Thus, not only is the presumption of innocence not overcome, Petitionefs innocence based on the 1'eeord is manifest. Furthermore, Petitioner is not among the class of individuals proscribed by Missouri law from being conditionally released. Rule 91.14 -- not Rule 30.17 -- governs the instant motion. Rule 30.17 provides that an appeal by the state "shall not stay the operation of an order or judgment in favor of the defendant," but further provides that if the state appeals from a judgment in favor of a rnovant under Rules 24.035 or 29.15, the defendant "shall remain in custody during the pendency of tlte appeal." Petitioner is not a movant under Rule 24.035 or 29.15; unlike them, he could only obtain relief in these habeas proceedings by showing that he is the victim of a manifest injustice. .S'Icm=: ex ref." While. 866 443 (Mo. banc 1993). This Court's has acknowledged that a manifest injustice occurred by granting the writ. Missottri statute also prohibits a person convicted and sentenced to life imprisonment from posting an appeal bond while appealing from the conviction. 544.671 or 547.170. That statute does not apply to Petitioner because he is not an appellant challenging a presumptively conviction and life sentence. Unlike Wd 833 L0 SLOZ :lO prisoners governed by 544.671 or 547.170, Petitioner is the prevailing party and has demonstrated his right to be released. Thus, the issue of release is governed by Rule 91.14 which specifically refers to habeas corpus petitioners_. and not by Rule 30.17 or 544.671 or 547.170, which make no mention ol' habeas corpus petitioners. Aside from the express language of the applicable rules, there a1'e strongjurisprudential reasons Iior releasing a prisoner who has set forth compelling evidence of innocence. as Petitioner has done here. Counsel for Petitioner respectfully suggests that the issue of release in this case compares favorably with that in .'3'z'nrp.s'm1 v. Camper. 743 F. Supp. 1342, 1353 (WI). Mo. I990), where the district court found "that petitioner does not pose a substantial risk oil' flight and that a surety is not required," and released the haheas petitioner on her own recognizance. Ms. Simpson eventually prevailed in the Missouri courts. as is likely to be the case with Petitioner'. 974 F.2d 1030 (8th Cir. 1992). Like Ms. Simpson, Petitioner is on the verge of being restored to freedom because this Court"s order presents him an opportunity to prove his innocence and get back what is left of his life. He is not likely to squander that opportunity by fleeing. While this Court has ordered Petitioner' to be immediately discharged from custody if the State does not file a written election to re--try Petitioner within 15 days from the issuance of this Court's mandate, that mandate will not issue for at least an additional 2-3 months if the State elects to tile a motion for rehearing and an application for transfer to the Supreme Court. Petitioner has already spent nine--and--a--half years incarcerated for a crime he is presumed innocent of having committed. Petitioner therefore prays this Court grant the instant motion and set bond in a reasonable amount. Wd 83310 SLOZ :10 Conclusion W1-IEREFCJRE, for the f'o1'egoing 1'easons, counsel for Petitioner respectfully moves this Court to: A. Enter its order releasing him on his recognizance, or under such conditions as this Court deems appropriate to assure his appearance pending further proceedings, including his retrial, and, B. Grant such other reliel' as the Court. deemsjust and equitable. Respeetfiilly submitted, I-lenderson Samuel Henderson, #56330 2015 Bredell Avenue St. Louis, Missouri 63143 314-775-9798 Kathleen T. Zellner Kathleen T. Zellner, admitted pro hac vice Kathleen T. Zellner <_u_u_m>rm - Zo_u_u_m>rm - Zo_u_u_m>rm - Zo