A Spencer man, Dreu Ferguson Jr., currently serving 15 years for killing his neighbor William Freas with a shot to the chest, has won a new trial.

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

The West Virginia Supreme Court of Appeals says Circuit Judge David Nibert ruined Ferguson's trial by striking testimony of Timothy Saar, a psychologist, according to a report in the WV Record.

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

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

The public defenders said if Nibert had allowed jurors to consider Saar's explanation, they could have convicted Ferguson of a lesser offense.

According to the WV Record, West Virginia Attorney General Darrell McGraw confessed error for the state and chose not to oppose a new trial.

Freas was shot in front of his home on Beauty Street in 2003.

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

At the foot of the porch stairs, Ferguson pointed a rifle up in the air fired, after which Freas's friend jumped from the porch.

Ferguson then pointed the rifle at Freas and fired, driving away. After going to Indiana, he turned himself in.

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

Nibert moved the trial to Mason County, but juror misconduct forced Nibert to declare a mistrial and the trial started again in 2006.

Defense attorney's Teresa Monk and Drew Patton 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 means that at the time of the crime a defendant is incapable of forming a mental state that is an element of the crime.

Prosecutor Sergent presented two experts who said Ferguson intended to kill Freas, but Ferguson claimed he reached a breaking point, saying Freas flirted with his wife.

Ferguson said he and his wife felt violated and preyed upon, sitting in his house fearing Freas would break in.

Ferguson 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 then claimed 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 - "manic or bipolar and schizophrenic."

The psychologist 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."

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

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

Nibert then granted the motion.

Monk and Patton heavily objected.

They 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.

Monk then moved for a mistrial.

Nibert denied it and submitted the case to the jury.

Jurors then declined to convict for murder in the first or second degree and convicted Ferguson of voluntary manslaughter.

Monk then moved for a new trial, after which Nibert denied it and imposed a 15 year sentence.

Monk appealed the verdict, and now Ferguson has won a new trial.

Read original Herald story about sooting using search for FREAS

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