When Ryan Fergusonís defense attorneys go to court next week, they hope to clear their client of a first-degree murder charge by showing that human memory is not only unreliable but, in his case, wrong.
The defense contends that Ferguson, 20, had nothing to do with the slaying four years ago of Tribune Sports Editor Kent Heitholt. They hope to prove that the prosecutionís star witness, Charles Erickson, 21, is relying on false recollections that he and Ferguson bludgeoned and strangled Heitholt in the early morning hours of Nov. 1, 2001.
Boone County Prosecuting Attorney Kevin Crane has said that when opening statements begin Oct. 17 in Boone County Circuit Court, defense attorneys Charlie Rogers and Jeremy Weiss will argue that neither Erickson nor Ferguson, who were 17 at the time, were in the Tribune parking lot that fateful night.
In other words, they contend, itís all in Ericksonís mind.
“Their defense is this: The co-defendant thinks he did it, but he didnít, and he thinks he did it with Ryan Ferguson, but he didnít,” Crane said during a pretrial hearing in August.
Rogers agreed that day in court that Fergusonís is an unusual case.
Erickson and Ferguson were arrested in March 2004 after witnesses told police that Erickson had talked about the crime. Since then, Erickson has pleaded guilty to related charges of second-degree murder and first-degree robbery and has agreed to testify against Ferguson. Under his plea agreement, Erickson would be sentenced to 25 years in prison.
If found guilty, Ferguson could be sentenced to life in prison.
To help free his client, Kansas City attorney Rogers has commissioned the testimony of world-renowned cognitive psychologist Elizabeth Loftus of Orange County, Calif.
Loftus has testified on behalf of the defense in a number of high-profile trials, including cases involving Ted Bundy, O.J. Simpson, the Hillside Strangler and the Menendez brothers. Her controversial research has focused on how memories can be reshaped into events that never happened and that people not only forget, but they falsely remember.
Loftus and Rogers declined to discuss the Ferguson case until after the trial, but Rogers confirmed that Loftus was on the defense team witness list.
“I also cannot give Dr. Loftus permission to talk with you before the trial,” he wrote in an e-mail message.
In an interview three years ago published in the Orange County Register, Loftus admitted that sheís not even sure how often human memories are verifiably true.
“But most of the time,” she said in the interview, “it doesnít matter if theyíre true. Itís when you start putting people in jail on the strength of their accuracy that it does matter.”
A research professor at the University of California-Irvine, Loftus holds positions in the psychology and social behavior department, the criminology, law and society department and the cognitive science department.
Over the years, her study into how memory works has made her an expert witness in more than 250 court cases.
Loftus earned her masterís and doctoral degrees in psychology from Stanford University and her bachelorís degree in mathematics and psychology from the University of California-Los Angeles.
Loftus once told a reporter for “Frontline,” a public affairs series on PBS: “One of the things that we know about memory is that when you experience something extremely upsetting or traumatic, you donít just record the event like a videotape machine would work. Ö. Youíre storing some information about the experience, but itís not some indelible image that youíre going to be able to dig out and replay later on.”
Loftus wrote of her research interests on her universityís Web site, “My experiments reveal how memories can be changed by things that we are told. Fact, ideas, suggestions and other forms of post-event information can modify our memories. The legal field, so reliant on memories, has been a significant application of the memory research.”
Other psychologists in her field have expressed a range of opinions about her work.
“I have nothing good to say about Elizabeth Loftus,” Bessel van der Kolk, a Harvard University psychiatrist and expert in dissociative disorders, was quoted as saying in a 1996 Psychology Today article.
That same article also quoted Frederick Crews, former chairman of the English department at the University of California-Berkley and author of series of stories on the recovered-memory movement. Crews said of Loftus, “I have only the highest regard for Elizabeth Loftusís work.”
Court records show that among the 40 people subpoenaed to testify for the prosecution is Delaney Dean, a psychologist and attorney from Kansas City. Dean worked as an assistant prosecutor for 10 years before changing careers. She has since testified in a number of cases in Missouri.
Also on the prosecutionís list of witnesses is Jerry Trump, a janitor who was working at the Tribune the night of the murder.
Trump told police he saw two young men near Heitholtís car. He later identified Erickson and Ferguson as the men he saw in the parking lot that night after he saw pictures of them.
Rogers suggested in a pretrial hearing that photographs Trump saw of the suspects in the Tribune influenced Trumpís recollection.
“Mr. Trump did, in fact, give detailed descriptions of these individuals,” he told the court.