CHARLESTON – Dreu Ferguson Jr. of Spencer, serving 15 years for killing neighbor William Freas with a shot to the chest, has won a new trial.

The West Virginia Supreme Court of Appeals decided Feb. 28 that Circuit Judge David Nibert ruined Ferguson's trial by striking testimony of Timothy Saar, a psychologist.

Saar told Mason County jurors that Ferguson suffered from mental illness and did not intend to kill Freas, but Nibert instructed the jury to disregard Saar's testimony.

The jury convicted Ferguson of voluntary manslaughter, and Nibert imposed the maximum sentence.

If Nibert had allowed jurors to consider Saar's explanation, they could have convicted Ferguson of a lesser offense.

Nibert spoiled the trial so thoroughly that on appeal, West Virginia Attorney General Darrell McGraw confessed error for the state and chose not to oppose a new trial.

Freas died on a June morning, five years ago, in front of his home on Beauty Street.

Ferguson had told Freas twice that he suspected Freas broke into his house and stole his property, and twice Freas had denied it.

Ferguson, seeing Freas on his porch with a friend, decided to bring up the burglary again. This time, he took a rifle.

At the foot of the porch stairs, Ferguson pointed the rifle up and fired into the sky. Freas's friend jumped from the porch.

Moments later, Ferguson pointed the rifle at Freas and fired.

Ferguson drove away. Two days later, at an Indiana truck stop, he turned himself in.

Roane County prosecutor Mark Sergent charged murder in the first degree.

Nibert moved the trial to Mason County "due to difficulties in obtaining an unbiased jury in Roane County," as the Justices described it in their unsigned opinion.

The transfer backfired when juror misconduct forced Nibert to declare a mistrial.

Nibert started trial again in 2006.

For Ferguson, Teresa Monk and Drew Patton of Spencer presented a defense of diminished capacity, which renders a defendant not guilty of the crime charged.

A diminished capacity defense does not preclude conviction for a lesser offense.

Diminished capacity, according to the Justices, means that at the time of the crime a defendant is incapable of forming a mental state that is an element of the crime.

At trial, Sergent presented two experts who said Ferguson intended to kill Freas.

Ferguson took the stand and said he reached a breaking point. He said Freas flirted with his wife. He said he and his wife felt violated and preyed upon.

He said he felt confined to his home, fearing Freas would break in if he left.

He said that after the first shot, Freas told him it didn't scare him. He said Freas told him, "I've been blasted before. If you're going to blast me, blast me."

He said Freas came at him, "throwing his arms." He said, "That's when the second shot went off."

Psychologist Saar testified that Ferguson suffered from schizo affective disorder. "It is manic or bipolar and schizophrenic," he said.

"We know his faith in the police system because of some of his delusions was minimal at best," he said. "He didn't see the police as an option for help."

He said, "His thinking at the time, my belief is, I'll present myself with significant force or to avoid conflict and that's not as unusual as it sounds."

He said, "Mr. Ferguson grabbed a gun with the idea of getting the stuff back and confronting the individual and also trying to avoid physical altercation."

He said, "I think that he wanted his stuff back and felt the need to protect his family."

He said, "His thinking was impaired at the time and that would drastically affect his intent. I don't think he had the intent to kill."

At the close of evidence, the attorneys joined Nibert to write jury instructions.

When Nibert proposed an instruction on diminished capacity, Sergent objected and moved to strike Saar's testimony.

Nibert granted the motion.

Monk and Patton objected, moved to strike the testimony of Sergent's experts, and asked Nibert to reopen the trial so Saar could clarify his testimony.

Nibert struck all psychological testimony and did not reopen the trial.

He told jurors to disregard the testimony and put it out of their minds.

Monk moved for a mistrial. Nibert denied it and submitted the case to the jury.

Jurors, declining to convict for murder in the first or second degree, convicted Ferguson of voluntary manslaughter.

Monk moved for a new trial. Nibert denied it and imposed a 15 year sentence.

Monk appealed, and Ferguson won a new trial after all.

Assistant attorney general Christopher Smith made the decision easy for the Justices by confessing error.

"The Court is not obligated to accept the State's confession of error in a criminal case," the Justices wrote, but in this case they accepted it.

They declared Nibert clearly wrong in striking Saar's testimony and agreed that he abused his discretion in denying Ferguson a new trial.

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