The Missouri Supreme Court building in Jefferson City on April 4, 2024 (Jason Hancock/Missouri Independent).

The execution of Marcellus Williams will proceed Tuesday, the Missouri Supreme Court ruled in a decision rejecting efforts to show  a potential juror in his murder trial was excluded based on race.

After hearing arguments Monday morning in an expedited appeal, the court unanimously ruled that St. Louis County Prosecuting Attorney Wesley Bell had not proven Williams’ innocence or that there was a violation of his constitutional right to a fair trial.

Williams is scheduled to be put to death Tuesday for the 1998 murder of Felicia Gayle in St. Louis County. On Sept. 12, Circuit Judge Bruce Hilton rejected claims that DNA evidence had been destroyed and the exclusion of Black jurors raised doubts about the integrity of his 2001 conviction.

The decision written by Judge Zel Fischer noted that Bell was no longer claiming innocence for Williams based on the DNA evidence. His arguments that Black people were stricken from the jury pool for racial reasons have been argued in past appeals, Fischer wrote, and the case argued Monday presents nothing new except mischaracterizations of statements made during the Aug. 28 hearing conducted by Hilton.

Bell “failed to demonstrate by clear and convincing evidence Williams’ actual innocence or constitutional error at the original criminal trial that undermines the confidence in the judgment of the original criminal trial,” Fischer wrote.

With its decision, the court rejected the effort by Williams’ attorneys to obtain a stay of execution. Gov. Mike Parson issued a statement that he would not intervene in the case.

“Capital punishment cases are some of the hardest issues we have to address in the Governor’s Office, but when it comes down to it, I follow the law and trust the integrity of our judicial system, Parson said. “Mr. Williams has exhausted due process and every judicial avenue, including over 15 hearings attempting to argue his innocence and overturn his conviction. No jury nor court, including at the trial, appellate, and Supreme Court levels, have ever found merit in Mr. Williams’ innocence claims.”

Bell promised to continue efforts to prevent Tuesday’s execution.

“Even for those who disagree on the death penalty, when there is a shadow of a doubt of any defendant’s guilt, the irreversible punishment of execution should not be an option,” Bell said. “As the St. Louis County prosecutor, our office has questions about Mr. Williams guilt, but also about the integrity of his conviction. For those reasons we will continue to do everything in our power to save his life.”

If Williams is put to death Tuesday, he will be the 100th person executed in Missouri since 1989.

During the hearing Monday morning, attorney Jonathan Potts asked the judges to find that testimony from the trial prosecutor, Keith Larner, proved that race played a role in removing potential jurors. 

“He said the quiet part out loud,” Potts said. “He admitted there was a racial component and that is unconstitutional.”

The court should uphold Hilton’s decision and allow Williams’ execution to proceed, Michael Spillane, an assistant attorney general, argued Monday. Larner’s statement about his reason for excluding a juror — that he looked like he could be a brother of Williams — was not a sufficient reason because he also testified that race played no role in his decisions.

“He did not admit he struck a Black juror simply because he was Black,” Spillane said.

In the opinion, Fischer wrote that the statement wasn’t the clear-cut admission of a constitutional error, as Potts portrayed it.

Instead, Fischer wrote, the argument “cherry-picks the record, ignores the circuit court’s factual findings, and offers no persuasive justifications for reversing this Court’s previous merits determination of this claim.”

Spillane also asked the court to reject the appeal because it lacks jurisdiction. The Sept. 12 decision won’t be appealable for 30 days under procedural rules, he noted.

“This is a judgment that is not yet final,” he said.

Gayle, a reporter for the St. Louis Post-Dispatch, was stabbed more than 40 times. Police investigators found an abundance of physical evidence at the crime scene including fingerprints, bloodied shoe prints and hairs. 

None of it, however, was tied to Williams by investigators. He was arrested based on the testimony of a jailhouse informant, who said Williams confessed the murder. 

During testimony at his murder trial, Williams’ then-girlfriend also said he confessed to the killing. Williams picked her up the day of Gayle’s slaying wearing a jacket over a bloody shirt and with scratches on his neck. She saw a laptop in his car – later shown to have been stolen from Gayle’s apartment – and a purse in the trunk, with Gayle’s identification card.

The execution set for Tuesday is the third time the Missouri Supreme Court has set a date for Williams to die.

In 2015, the Court stayed Williams’s execution and appointed a special master to review DNA testing of potentially exculpatory evidence. Two years later, without conducting a hearing, the court rescheduled Williams’ execution. 

Later that year, however, former Gov. Eric Greitens issued the second stay and appointed a board of inquiry to look into the case. Parson lifted the stay and dissolved the board in June 2023, and the state Supreme Court issued the execution warrant last month, setting a Sept. 24 execution date.

The current appeal is the first time a 2021 state law allowing prosecutors to bring new evidence to the courts has been used in a death penalty case. Bell filed the case in January, arguing there was “clear and convincing evidence” that potential jurors had been excluded based on race.

The 2021 law has been used to free Lamar Johnnson, who was in prison for almost 30 years on a murder conviction before he was freed in February 2023, and Christpher Dunn, who was held for 34 years for a murder before he was released in August.

One argument raised by Bell in the January filing was that new DNA analysis of the murder weapon excluded Williams. But Hilton ruled that at the Aug. 28 hearing, testimony showed the DNA found on the knife — of Larner and a detective who handled the knife without gloves after initial tests were done — did not support the conclusion they deliberately destroyed evidence. 

During arguments Monday, Spillane said Larner’s testimony showed he wasn’t aware of the potential risk of contamination before the 2001 trial and didn’t learn that skin cells that remain on a surface could be tested until 2015.

“He wasn’t trying to contaminate anything,” Spillane said.

Under questioning from the judges, Potts said Hilton’s decision should be overturned or the case should be sent back to his court for more fact-finding.

The last-minute nature of the case should not be an impediment to finding the truth, Potts said. The questions raised about racial exclusion of jurors during the Aug. 28 hearing needs to be fully examined, he said.

“Just because we are hearing about it a month before an execution date doesn’t mean it is too late,” he said.

Fischer, in the introduction to the opinion, notes that there has been nearly 25 years of court battles over Williams’ guilt.

“Despite nearly a quarter century of litigation in both state and federal courts,” Fischer wrote, “there is no credible evidence of actual innocence or any showing of a constitutional error undermining confidence in the original judgment.”