During his short tenure as Missouri’s attorney general, Andrew Bailey has spent a considerable amount of time fighting to cement dubious convictions — and, so far, he has been losing the battle.
On July 26, Bailey racked up another loss when the Missouri Supreme Court declined to scuttle a hearing in St. Louis County to determine whether Marcellus Williams was wrongfully convicted and sentenced to die in 2001. Bailey had implored the court to stop the August 21 hearing and to clear the way for Williams’s execution in September. While the Supreme Court has declined to delay Williams’s execution, it has at least rebuffed Bailey’s entreaty to grease the wheels.
Bailey’s defeat caps several weeks’ worth of legal volleying between the attorney general, Williams’s lawyers with the Midwest Innocence Project, and St. Louis County Prosecuting Attorney Wesley Bell, who is seeking to vacate Williams’s conviction because he believes it was wrongly obtained. In pushing back against Bailey’s efforts to block Williams’s innocence hearing, Bell and the Midwest Innocence Project argue that Bailey is attempting to rewrite Missouri law to give himself more power.
The flurry of legal activity also underscores Bailey’s apparent determination to fight off claims of wrongful conviction. In the last two months alone, he has not only tried to block Williams from airing his innocence claim at all, but has also sought to keep two recent exonerees, Christopher Dunn and Sandra Hemme, locked up despite court rulings concluding that they should be freed.
Bailey’s opposition to correcting miscarriages of justice is a feature of his tenure as attorney general, but his recent actions have earned new scrutiny and ire from activists, as well as from his rock-ribbed conservative opponent in the attorney general’s Republican primary race.
Speaking at the state Capitol on Thursday, death row exonerees with the nonprofit group Witness to Innocence called on Bailey to reverse course and support the vetting of innocence claims — starting with Williams’s case.
Bailey’s current position is that it is “acceptable to execute an innocent person,” said Herman Lindsey, the group’s executive director. “We’re here to ask for an honest search for the truth. That’s all.”
“This win-at-all-costs mentality does not serve the people of Missouri.”
Shifting Narratives
Felicia Anne Gayle Picus, a beloved former reporter for the St. Louis Post-Dispatch, was stabbed to death in her home in a gated community outside the city on August 11, 1998. When her husband Dan Picus found her, the murder weapon, a knife from the couple’s kitchen, was still lodged in her neck. The house was replete with potential forensic evidence, including bloody fingerprints on a wall and a trail of bloody shoeprints. The kitchen had been ransacked, and closets and drawers upstairs had been opened. Still, nothing of great value had been taken.
Despite extensive physical evidence, the investigation stalled. It wasn’t until months later, after her family posted a $10,000 reward for information leading to the conviction of her killer, that a jailhouse informant came forward with a story about his former cellmate, Marcellus Williams, whom he claimed had confessed to the crime. Police subsequently scored a second informant, Williams’s former girlfriend, who also claimed Williams was responsible.
There were ample reasons to distrust the informants’ accounts, including that both were facing prison time for unrelated crimes, and each had a history of ratting on others to save themselves. Many of the details they offered shifted across questioning and others simply did not match the murder. Nonetheless, Williams was tried and convicted in 2001 based primarily on their waffling and contradictory tales.
Williams has maintained his innocence and has twice come close to execution. His lawyers requested DNA testing of crime scene evidence prior to his trial, but the court denied it. It wasn’t until the eve of Williams’s execution in 2015 that the state Supreme Court issued a stay and ordered testing of the murder weapon, which ultimately revealed unknown male DNA and excluded Williams as a donor. Still, without considering what impact that evidence might have had on Williams’s conviction, the court reset his execution for August 2017. Again, the execution was halted, this time by then-Gov. Eric Greitens, a Republican, who issued an executive order triggering a little-used Missouri law that allows the governor to empanel a board of inquiry to review a case.
Passed in 1963, the law was designed to protect against wrongful executions. The board, made up of five retired judges, was not yet finished with its work the following year when Greitens left office amid scandal and Mike Parson assumed the job. Over the intervening years, the Midwest Innocence Project provided the board with a host of information to aid its inquiry. Then, in June 2023, Parson abruptly dissolved the board before it could report on the findings of its investigation, which by statute it was required to do. Parson said it was time to “move forward.”
The Midwest Innocence Project sued to block Parson from disbanding the board before it had fulfilled its statutory duty, yet the Missouri Supreme Court dismissed the suit earlier this summer. The court ruled on June 4 that the governor had the right to dissolve it as he saw fit.
Sweeping Arguments
While the litigation over the board played out, St. Louis County elected prosecutor Wesley Bell availed himself in January of a relatively new Missouri law that empowers prosecutors to move to vacate a conviction they believe was wrongly obtained. “Public confidence in the justice system is restored, not undermined, when a prosecutor is accountable for a wrongful or constitutionally infirm conviction,” Bell wrote.
The statute directs a circuit judge to hold a hearing and determine whether there is “clear and convincing evidence” of a wrongful conviction. Notably, the law also allows — but does not require — the attorney general’s office to appear at the hearing and question witnesses. To date, three people have been exonerated under the statute, which was enacted in 2021. In each case, the state’s top prosecutor has taken an adversarial stance — and lost. In Williams’s case, Bailey filed a notice in early February that he would be opposing Bell’s motion.
Bell had asked the state Supreme Court to hold off on setting a new execution date until the circuit court has had the opportunity to consider the case. Instead, in June, the court set Williams’s execution for September 24. The attorney general waited until just after the Supreme Court set the execution date to file a motion urging the circuit court judge to dismiss Bell’s motion without a hearing.
Bailey argued that because the state Supreme Court has rejected all of Williams’s previous appeals and has set an execution date, the lower court can’t review the case at all. To do so would “challenge” the authority of the Supreme Court, whose decisions, according to the state constitution, “shall be controlling in all other courts.” Bailey continued, “this Court has no authority to reverse, overrule, or otherwise decline to follow” the high court’s previous rulings, concluding that Bell’s “futile” efforts should be dismissed.
Both Bell and the Midwest Innocence Project responded with briefs arguing that Bailey’s position is absurd. For starters, the law that allows Bell to seek to vacate Williams’s conviction operates separately from the normal appeals process. Importantly, it also doesn’t allow for the attorney general to jump in ahead of a hearing to try and block it from ever taking place. Bailey’s argument is merely an attempt to prevent a hearing before Williams’s execution date, Bell wrote —“an absurd and unnecessary position for the Attorney General to take under the circumstances as a representative of the State of Missouri with a duty as a ‘minister of justice and not simply that of an advocate.’”
Williams’s lawyers took aim at Bailey’s attempt to nullify the statute so that it doesn’t apply to people who have appealed their capital conviction and have been denied (which, practically speaking, is most death row defendants) and have subsequently had an execution date set. “The AG’s arguments are as surprising as they are sweeping,” the Midwest Innocence Project argued in court filings.
If accepted, Bailey’s argument could allow the attorney general to seek an execution date as soon as possible after an appeal is denied, foreclosing any potential future relief from a wrongful conviction.
On July 2, St. Louis County Circuit Court Judge Bruce Hilton declined to take up Bailey’s motion to dismiss the case and instead set the hearing for August 21. Bailey asked the Supreme Court to intervene; it too declined.
“Shock to the Conscience”
Bailey took over as attorney general in 2023, when his predecessor, Eric Schmitt, was elected to the U.S. Senate. Since then, Bailey has aggressively sought to block prosecutors — and judges — from taking action to right wrongful convictions.
He is far from the first top prosecutor in Missouri to try to block a potential exoneration; for at least 30 years the reflexive position of the attorney general’s office has been to oppose innocence claims. And after the law giving the state’s elected prosecutors the right to seek to throw out a tainted conviction passed in 2021, Schmitt was seemingly all-too-eager to oppose the process. Still, as Bailey has been running in a hotly contested Republican primary seeking to secure his first full term in office, he has put those efforts into overdrive.
Sandra Hemme spent 43 years in prison for a murder she did not commit before a state judge in June vacated her conviction and cleared her for release. In response, Bailey launched a monthlong campaign to keep her locked up — including by having an underling call the Department of Corrections and tell the prison warden not to release her, all in violation of a court order. Hemme was finally released on July 19, after Judge Ryan Horsman said that if she was not freed within hours Bailey would have to personally appear in court or face a charge of contempt.
In May, a pair of lawyers from Bailey’s office fought St. Louis City Circuit Attorney Gabriel Gore’s efforts to exonerate Christopher Dunn for a 1990 murder he has long sworn he did not commit. The attorney general’s office lost the fight, and the circuit judge vacated Dunn’s conviction last month. Bailey then deployed the same tactics he had in Hemme’s case — including calling the DOC — in an effort to keep Dunn from being released from prison. After the Missouri Supreme Court’s intervention, Dunn was finally released on July 30.
Bailey’s decision to make opposing innocence claims a feature of his office is a bold, if not questionable, choice. Advocates across the state have decried his actions. Peter Joy, a law professor at the Washington University School of Law in St. Louis, told CBS News that Bailey’s efforts to keep Hemme locked up were “a shock to the conscience of any decent human being.”
And it appears that Bailey’s stance is also confounding to fellow conservative MAGA Republican Will Scharf, Bailey’s opponent in the state’s GOP primary on August 6. Practically speaking, there isn’t much daylight between Bailey and Scharf. Still, Scharf — a former federal prosecutor who was part of the team representing Donald Trump in his immunity case before the U.S. Supreme Court — told St. Louis’s Spectrum News that he wouldn’t try to block the release of a person who’d demonstrated their innocence in court. “It’s a clear and convincing evidence standard for someone to essentially prove that they’ve been wrongly convicted,” Scharf said. “I think that’s an appropriately high bar.”
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