A death row inmate set to die tomorrow might be innocent, prosecutor says. Now a high court is considering his case

By Cindy Von Quednow and Holly Yan, CNN

(CNN) — One day before he’s scheduled to be executed, a Missouri death row inmate could learn whether his fate will change after the state’s Supreme Court heard arguments in his case Monday.

Marcellus Williams, 55, was convicted of killing Felicia Gayle, a former newspaper reporter found stabbed to death in her home in 1998. Williams has long insisted he is innocent. And in an unusual move, St. Louis County’s top prosecutor filed a motion in January to vacate Williams’ 2001 conviction and sentence.

But that motion was denied. Now, with new information about potential evidence contamination, Prosecuting Attorney Wesley Bell and Williams’ lawyers recently filed a joint brief asking the Missouri Supreme Court to send the case back to a lower court for a “more comprehensive hearing” of the January request by Bell, a Democrat now running for Congress.

Williams’ case raises the specter of a potentially innocent person being executed – an inherent risk of capital punishment. At least 200 people sentenced to death since 1973 were later exonerated, including four in Missouri, according to the Death Penalty Information Center.

Williams is scheduled to die by lethal injection around 6 p.m. CT Tuesday, unless the courts or Republican Gov. Michael Parson intervene.

The NAACP and the Council on American-Islamic Relations have called on Parson to halt Williams’ execution. The governor previously revoked a stay of execution in the case ordered by his predecessor, allowing plans to put Williams to death to proceed.

What the state Supreme Court must decide

It’s not clear when the state Supreme Court will make a decision about Williams’ appeal – and how shortly that might come before his scheduled execution. But the court must consider several questions, the state’s judicial branch said.

The first involves whether the prosecutor in Williams’ 2001 trial struck a potential juror from the jury “as a result of discriminatory intent.”

Williams’ attorneys have also asked the US Supreme Court to stay the execution, based on “newly-discovered evidence from the trial prosecutor’s testimony” last month.

During a motion-to-vacate hearing on August 28, a prosecutor from Williams’ trial “admitted that he had struck (a potential juror from the jury pool) because like Mr. Williams, (the potential juror) was Black,” Williams’ attorneys wrote in an emergency request for the US Supreme Court to intervene.

During Monday’s hearing in the Missouri Supreme Court, Williams attorney Jonathan Potts claimed the trial prosecutor nixed the potential juror “in part because he was a young Black man with glasses.”

“There was a racial component to this,” Potts said.

But the Missouri attorney general’s office disputed that notion, saying the trial prosecutor’s intent for striking the potential juror was not due to race.

“What did he say when asked directly, ‘Did you strike someone partially with part of the reason for striking someone because you’ve been Black?’ He said no, absolutely not,” Assistant Attorney General Michael Spillane said during Monday’s hearing. “And he explained that that would be a violation.”

Another question the court must consider involves whether there was sufficient evidence presented that the prosecutor’s office “engaged in the destruction of potentially favorable evidence in bad faith,” the state’s judicial branch said.

That includes “whether the prosecutor destroyed any DNA evidence on the murder weapon by handling it without gloves.”

Why attorneys on both sides teamed up

In their joint brief, Bell and Williams’ attorneys argue the St. Louis County Circuit Court failed to credit newly disclosed evidence that contradicts representations by the prosecutor in Williams’ 2001 trial and in his prior appeals.

The Prosecuting Attorney’s Office, which handled that trial against Williams, said in its January motion that DNA testing of the murder weapon could exclude Williams as Gayle’s killer. But the argument fell apart last month after new DNA testing revealed the murder weapon had been mishandled, contaminating the evidence meant to exonerate Williams and complicating his quest to prove his innocence.

Attorneys on both sides “received a report indicating the DNA on the murder weapon belonged to an assistant prosecuting attorney and an investigator who had handled the murder weapon without gloves prior to trial,” according to a docket summary of the case.

However, “the circuit court concluded there was no new evidence sufficient to set aside the conviction or to establish Williams’ innocence.”

Williams’ attorneys said the prosecution’s contamination of the DNA evidence before Williams’ trial violated his due process rights. They joined the county’s current top prosecutor in asking the Missouri Supreme Court to cancel the circuit court’s decision and send the case back to give both sides time to present evidence and the court enough time to carefully consider the case.

Why a judge denied the prosecutor’s request

Bell and Williams’ attorneys are trying to get the conviction overturned due to “overwhelming evidence” showing Williams’ trial was unfair, said one of his attorneys, Tricia Rojo Bushnell.

The prosecutor’s office has raised other concerns about Williams’ conviction, including claims he was convicted on the testimony of two unreliable informants facing their own legal troubles and further incentivized by $10,000 in reward money.

But ultimately, a state judge ruled against Bell’s motion to vacate Williams’ conviction and sentencing.

“There is no basis for a court to find that Williams is innocent,” Judge Bruce F. Hilton wrote in his judgment, “and no court has made such a finding. Williams is guilty of first-degree murder, and has been sentenced to death.”

The case has pitted Bell, who assumed the office in 2018, against Republican state Attorney General Andrew Bailey, who is seeking reelection. Bailey had fought Bell’s January motion, saying new DNA test results indicated the evidence would not exonerate Williams.

Last month, Bell’s office announced it had reached an agreement with Williams. Under the consent judgment approved by the court and Gayle’s family, the inmate would have entered an Alford plea of guilty to first-degree murder and be resentenced to life in prison.

But the state attorney general’s office opposed the deal and appealed to the state Supreme Court, which blocked the agreement.

A GOP governor halted Williams’ execution – but the new governor reversed that decision

Former GOP Gov. Eric Greitens previously halted Williams’ execution indefinitely and formed a board to investigate his case and decide whether he should be granted clemency.

But after Parson took office, he dissolved the board investigating Williams’ case and revoked Williams’ stay of execution in 2023.

“This Board was established nearly six years ago, and it is time to move forward,” Parson said last summer. “We could stall and delay for another six years, deferring justice, leaving a victim’s family in limbo, and solving nothing. This administration won’t do that.”

The move effectively denied Williams his right to due process, Williams’ lawyers said.

“The Governor’s actions have violated Williams’ constitutional rights and created an exceptionally urgent need for the Court’s attention,” court documents state.

But Parson’s decision to dissolve the Williams’ board of inquiry does not mean the governor has decided Williams should or should not be executed, spokesperson Johnathan Shiflett wrote in an email to CNN Monday.

“That is for the Courts to decide.”

CNN’s Dakin Andone and Lauren Mascarenhas contributed to this report.

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