Defense attorney Jason E. Silverstein used the prior statements to impeach all of the witnesses who changed their stories. But Rasin said his questions - along the lines of "But isn't it true that just yesterday you said ..." - were not enough.
Rasin concluded that the jury couldn't grasp the gravity of the inconsistencies without seeing the witness' body language on the DVD.
"In terms of a fair trial, the jury should have had an opportunity to see that," Rasin said.
When Wherley asked for an opportunity to object to the judge's order for a new trial, Rasin declared her comments "gratitutous." Wherley replied that it was better to raise them in court than "on the courthouse steps."
Wherley told Rasin that all Silverstein had to do was "walk down the hall" to the court reporter's office to obtain a DVD of the earlier hearing and air it for the jury. Rasin cut her off, arguing that obtaining recordings of court proceedings was not as easy for defense attorneys as it was for prosecutors and judges.
In her written opposition to a new trial request, Wherley pointed out that Ferguson, 41, had lied about his whereabouts on the day of the murder.
Wherley wrote that the three eyewitnesses "testified to the same course of events, from the initial approach of the victim and killer trying to sell them some sort of power tool, to an argument near the fence to the railroad tracks, and the victim being pinned against a vehicle in the lot, shielding himself while the killer appeared to punch him about the head, neck, and upper chest area ... Inconsistencies about what happened ... were virtually nonexistent."
The problems arose when the witnesses were asked to identify who did it.
One witness - the one who left the judge's "head spinning" - gave three conflicting accounts of his treatment for manic depression and whether he was high when he witnessed the murder. That witness couldn't identify Ferguson at the pretrial hearing or in front of the jury.
Another witness said during both hearings that "he never got a look at the face of the person who committed the crime," according to Silverstein's written argument. The third provided the "Perry Mason"-style theatrics and switched his identification of Ferguson in 24 hours.
The judge also noted that the photo of Ferguson that detectives showed the witnesses during the investigation was old and looked nothing like him.
Finally, Silverstein noted that Ferguson's DNA was not found on the victim's nail clippings, blood evidence or a tile cutter recovered from the murder scene.
