Missouri Attorney General Clashes with Prosecutor Trying to Exonerate Man on Death Row 

In Missouri, the appeal of a death penalty case has caused a divide between St. Louis’s elected prosecutor and the state attorney general — highlighting the troubling trend of state-wide officials across the country undermining the discretion of local prosecutors.

As a reaction to the devastating and racially disparate impact of mass incarceration, reform-minded elected prosecutors have emerged in a variety of localities over the last decade. They have pledged to use their power to reduce damage from the carceral system by declining to prosecute or diverting low-level charges, instituting accountability for police and prosecutorial misconduct, and establishing conviction review units. This has all been done without meaningfully compromising public safety in the communities they serve.

However, this movement has also been met with serious resistance: rank-and-file employees have refused to follow reform directives, opponents have pushed for impeachment inquiries and recall elections, and some state legislatures are working to limit the district attorneys’ discretion statutorily. Florida Gov. Ron DeSantis has even suspended prosecutors when their version of justice conflicts with his own.

This ongoing tension between reform-minded prosecutors and those resistant to change is starkly illustrated by a case in Missouri. There, the prosecuting attorney of St. Louis County, Wesley Bell, is clashing with the state attorney general as he fights to rectify a wrongful conviction obtained by his office more than 25 years ago.

On June 4, the Missouri Supreme Court set an execution date for Marcellus Williams. This is despite the fact that the office that originally prosecuted Williams now possesses evidence that he is innocent. Williams’s 1998 homicide conviction rests on the testimony of two paid police informants whose testimony conflicted not only with the physical evidence, but with each other’s. Police recovered a wealth of evidence from the crime scene — bloody fingerprints, shoe prints, hair, and fibers — that could not be linked to Williams. DNA testing was not available at the time of his trial, but in 2016, the Innocence Project obtained a court order to test the knife used in the fatal stabbing of the victim, Felicia Gayle. The DNA evidence was analyzed by three separate DNA analysts, who all concluded the same thing: the male DNA on the knife did not belong to Williams.

Based on this new evidence, the St. Louis County Prosecutor’s Conviction Review Unit reinvestigated the case against Williams. As a result of that review, Bell filed a motion to vacate the conviction in January 2024.

But the attorney general of Missouri, Andrew Bailey, opposes any relief for Williams, arguing that Williams’s claims are barred by res judicata, a doctrine that prevents parties from raising claims or defenses that have already been decided. Bailey’s opposition is not surprising, as the Missouri Attorney General’s Office has a history of opposing relief in wrongful conviction cases. .

A hearing to consider Bell’s motion is set for argument on August 21 in the trial court. Bailey has filed a writ of prohibition asking the Missouri Supreme Court to block the lower court from hearing Bell’s motion at all. The Missouri Supreme Court has yet to rule on the writ. Absent intervention by the courts or the governor, who has the power to commute Williams’s sentence under the state constitution, he will be executed on September 24.

The statute that allowed Bell to file a motion to overturn the conviction authorizes a prosecutor to file such a motion if they have evidence that a person convicted by their office may be innocent or the conviction was obtained in violation of a defendant’s constitutional rights. The statute was enacted in 2021 as a reaction to another case, Missouri v. Lamar Johnson. There, a prosecutor filed a motion for a new trial 15 years after the conviction, when newly discovered evidence raised doubts about the integrity of defendant Lamar Johnson’s conviction. The Missouri Supreme Court declined to comment on the merits of Johnson’s innocence claim, instead finding the motion was untimely and the prosecutor lacked jurisdiction. Two months after the opinion in Missouri v. Johnson, the state legislature passed a bill expressly designating the prosecuting or circuit attorney as the only party who can bring a motion to vacate on behalf of the state. Johnson was eventually exonerated under this statute.

The law has been used sparingly. Only four other cases have been brought under this statute. The Missouri attorney general’s office has opposed all of them.

Two cases, those of Lamar Johnson and Kevin Strickland, led to exoneration. Michael Politte’s case was thrown out on procedural grounds because, the high court said, he filed in the incorrect jurisdiction. The prosecutor’s motion in Kevin Johnson’s case was denied on the grounds that there was insufficient evidence to support it — without the benefit of a hearing. The U.S. Supreme Court, in its denial of Johnson’s application to stay his execution, declined to comment on whether a hearing was required by the plain language of the statute. Justices Ketanji Brown Jackson and Sonia Sotomayor dissented, arguing that the statute required a hearing and that the execution should have been stayed.

A core component of any functioning democracy is a fair and impartial system of justice, one that can recognize and remedy past errors. This includes the obligations of the state to admit when a mistake was made in a criminal proceeding and to rectify a wrongful conviction. The Missouri Supreme Court in 2003 underscored the importance of fixing past mistakes when it ruled a person sentenced to death can obtain habeas relief based on a claim of actual innocence even where the trial and sentencing were otherwise constitutionally adequate. “The continued imprisonment and eventual execution of an innocent person,” the court wrote, is “a manifest injustice.” (By contrast, the U.S. Supreme Court has held that actual innocence based on newly discovered evidence is not grounds for federal habeas relief absent an accompanying federal constitutional violation.)

A local prosecutor like Bell is best suited to evaluate Williams’s claim of innocence — he has unfettered access to the evidence, the witnesses, and police documents used to convict Williams. The infrequency that cases have been brought under Missouri’s statute allowing prosecutors to move to vacate convictions suggests that prosecutors do not take these decisions lightly. If we are to trust local prosecutors with decisions to charge and convict criminal defendants, then we should have equal trust in them when they come forward and say their office got it wrong.

Conflict between prosecutors and other state actors is not unique to Missouri. The U.S. Supreme Court is set to hear Glossip v. Oklahoma next term. In that case, the attorney general of Oklahoma conceded that the prosecution of Richard Glossip was so infected with misconduct, errors, and omissions that reversal of his conviction is required. But the Oklahoma Court of Criminal Appeals — the state’s highest court on criminal matters — refused to vacate Glossip’s conviction and death sentence, ruling that the prosecutor’s actions in this case did not rise to the level of misconduct that warranted reversal. Glossip’s appeal is supported by amicus briefs from more than 30 current former state and federal prosecutors in politically diverse jurisdictions ranging from West Virginia to California.

Opposition to relief for Glossip and Williams demonstrates a conflict familiar to capital litigators: finality in a conviction is often incompatible with principles of fundamental fairness. Some prosecutors have begun to recognize the role they can play in preventing such tragedies, harnessing the discretion embedded in their offices to reinvestigate and undo convictions for which there is an inadequate basis. Attacks on these prosecutors demonstrate an inherent distrust that some officials have of nontraditional solutions to crime despite decades of research and evidence which shows that high levels of incarceration are not necessary to protect communities.

Williams’s case is emblematic of the pushback some local prosecutors are facing in exercising their statutorily proscribed authority. As reform-minded prosecutors continue to be elected across the country, these clashes are likely to continue. Looking ahead, some conservative advocates have gone so far as to advise that the U.S. Department of Justice should remove local district attorneys who “deny American citizens the ‘equal protection of the laws’ by refusing to prosecute criminal offenses in their jurisdictions” or even bring federal charges against the elected prosecutor. This would be a radical departure from the deference afforded to localities in the area of public safety.

Prosecutorial independence is a touchstone in the criminal legal system, but it seems some officials only honor that independence when it is used to effectuate a punitive vision of criminal justice — with disastrous implications for innocent people behind bars.

Brianna Seid is a counsel at the Brennan Center for Justice.

Catherine Negroni is a student at Cardozo School of Law and an intern at the Brennan Center for Justice.