In mid-December, according to documents obtained by The Intercept, Ted Hunt, a senior policy adviser to the FBI crime lab, approached the president of the American Academy of Forensic Sciences — the nation’s premiere umbrella organization for scientists, academics, and attorneys practicing, researching, and litigating forensic science issues — with complaints and a demand.

According to the documents, Hunt argued that the AAFS should excise certain references to the FBI from two workshops scheduled for the organization’s annual conference, to be held later this month in Baltimore. One of the apparently offensive presentations was titled, “Taking on the FBI.”

In an email memo addressed to the AAFS Board of Directors, the chair of the conference workshops wrote that Hunt also complained about one of the workshop presenters, a former DNA analyst turned defense expert named Tiffany Roy who regularly challenges the work of front-line DNA practitioners working in government labs across the country, including at the FBI. According to the memo, Hunt told AAFS representatives, including its board president, that the agency was upset that Roy would be given any platform at the conference.

If the AAFS failed to take action, sources told The Intercept, Hunt told the Academy brass that the FBI, whose forensics leaders and front-line practitioners regularly attend the gathering, would boycott the organization’s famed annual meeting.

Hunt did not respond to a request for comment. In a statement, the FBI said that the agency “did not make any threats nor consequences” and that it “did not seek to censure any speaker nor have them deplatformed.”

The FBI said that it merely “brought to the attention” of the AAFS material mentioning the FBI that “seemingly violated AAFS’s own bylaws.” Specifically, the agency pointed to a section of the Academy’s Code of Ethics and Conduct that states that no member or affiliate of the Academy “shall issue public statements that appear to represent the position of the Academy” without first obtaining permission from the AAFS board.

It is hard to see, however, how that section could apply to conference materials. The Academy routinely issues disclaimers about the content of conference presentations as not necessarily representing the Academy itself. Moreover, the FBI statement elided the first section of the Code of Ethics and Conduct, which says that every member of the Academy “shall refrain from exercising professional or personal conduct adverse to the best interests and objectives of the Academy,” including to “improve the practice, elevate the standards, and advance the cause of the forensic sciences.”

The workshops at issue had been fully vetted by the Academy as part of its rigorous conference-program acceptance process, and the relevant details already published online. But documents obtained by The Intercept reveal that the AAFS Board of Directors — made up of influential members of the forensic science and legal communities — agreed that their organization should ask the presenters to scrub the offending references to the FBI and that if the presenters failed to do so, that their workshops should be canceled.

At least two members of the Academy leadership went so far as to suggest that the organization should apologize to the FBI for offending it. One opined that he didn’t think Roy, a full member of the Academy, should be allowed to present at all.

News of the incident spread quickly among AAFS’s large but tight-knit community. Some suggested parallels to Trump’s promises of retribution for his, and his administration’s, perceived enemies. The incident has also raised concerns that the Academy, whose vision and mission are to “promote justice for all” and to “elevate the standards and advance the cause of forensic sciences,” would seemingly abandon its critical focus in favor of a position of fealty to the FBI.

The AAFS’s current president, psychiatrist Christopher Thompson, did not respond to The Intercept’s repeated requests for comment.

Within the world of forensic science, the FBI’s laboratory has enjoyed an elevated status as a premiere facility — even though it has simultaneously endured criticism, as past practices in some forensic disciplines have been pilloried in the criminal legal system. In short, the FBI lab is not immune to the issues that have long plagued forensic science writ large. To date, false or misleading forensic evidence has been implicated in nearly 30 percent of the nation’s wrongful convictions.

Many consider standard forensic practices — like fingerprint examinations, ballistics and toolmarks comparisons, or blood pattern analysis — to be foolproof. But these practices were developed by law enforcement agencies for law enforcement, and not by scientists first subjecting them to standard, rigorous testing processes designed to ensure they stand on a solid scientific foundation.

That was the dirty little open secret of forensics in the criminal legal system until 2009, when a groundbreaking report from the National Academy of Sciences laid it bare: With the exception of standard DNA analysis, the report read, “no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”

These criticisms were reiterated, even more bluntly, in a 2016 report from the President’s Council of Advisors on Science and Technology, or PCAST, which concluded that so-called pattern-matching practices — where an analyst examines a piece of evidence, say a bloody fingerprint found at a crime scene, and tries to match it to a sample from a suspect — were lacking sufficient scientific foundation. “Without appropriate estimates of accuracy, an examiner’s statement that two samples are similar — or even distinguishable — is scientifically meaningless: It has no probative value and considerable potential for prejudicial impact.”

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These and other brutal assessments of long-standing forensic practices hit the community hard. Some practitioners took the findings to heart and quickly set themselves on a path to shore up the foundation of their disciplines. Still others dug in or pushed back — including in the Department of Justice. Shortly after the PCAST report was released, Loretta Lynch, who served as attorney general during Obama’s second term as president, publicly dismissed the concerns raised and recommendations outlined in the report.

A former front-line prosecutor in Kansas City, Missouri, Hunt served on the National Commission on Forensic Science, where he voted against even modest reforms, like reining in language that analysts use in their reports and court testimony to ensure they aren’t overstating the science or the significance of their findings. After assuming office in 2017, the first Trump administration essentially shuttered the NCFS, and instead Hunt was installed as the head of its quasi-successor, the vaguely named “forensic science working group.”

Hunt has remained inside the Justice Department since then. While he occasionally defended the forensics status quo quite staunchly during Trump’s first presidency, during Biden’s term in office he seemed to maintain a much lower profile — at least until the administration’s waning days, when he approached AAFS leadership about squelching negative mention of the FBI in conference materials.

There are two workshops that have apparently offended the oddly sensitive FBI. One, known as Workshop 19, is titled “Unmasking the Evidence: How Defense Experts Prevented Wrongful Convictions.” According to the workshop description, the point of the four-hour session is to “highlight the challenges faced by legal professionals who may lack the scientific background needed to assess forensic evidence accurately” and to highlight the “critical role that defense experts play in preventing wrongful convictions” by scrutinizing the work of the prosecution’s forensic experts.

Within that workshop was a scheduled 45-minute talk titled “Taking on the FBI.” Among the “educational objectives” outlined by the workshop organizers was to explore “the impact of prestigious institutions like the Federal Bureau of Investigation (FBI) on perceptions of evidence credibility.”

The second offending presentation, involving forensic document examination and known as Workshop 25, was titled “Death of an ‘Expert’ Witness: Discrediting Document Examiners Who Violate Acknowledged Standards or Binding Laboratory Policies or Who Express Handwriting Opinions With Low Levels of Certitude.” This workshop included an hourlong talk about how the work of a particular document examiner was discredited in a California civil case (the examiner at issue was not an FBI lab employee), along with a separate 20-minute talk titled “How the FBI Has Failed to Enforce Its Own Explicit Standards Applicable to Handwriting Comparison and Improperly Restricts the Use of Blind Verification in Handwriting Cases,” to be delivered by D. Michael Risinger, a veteran law school professor and expert in evidentiary matters.

According to an email memo to the AAFS board by Kevin Kulbacki, a document examiner and the chair of the Academy’s conference workshop committee, the FBI contacted the Academy after the workshop program was published to complain about “the content of these workshops and mentions explicitly of the FBI that were not made by FBI staff.” Kulbacki wrote that on December 16, 2024, he and other members of AAFS leadership took a 30-minute call with Hunt to hear the agency’s concerns.

Regarding the mentions of the FBI in Workshop 19, Kulbacki opined that they aren’t even disparaging of the FBI. “It is common sense that prestigious organizations like the FBI affect perceptions of evidence credibility,” he wrote. “This isn’t controversial, and it takes one look at past discredited methodologies and case failures to see this.” The mentions of the FBI in the workshop “are valid criticism that the Academy should welcome as promoting justice for all and integrity through forensic science, even if potentially uncomfortable conversations arise. This is how we, as a field, get better by acknowledging and addressing issues.”

Where Workshop 25 was concerned, Kulbacki acknowledged that the references to a particular document examiner and to the failures of the FBI’s questioned documents unit “are certainly more antagonistic,” and he suggested that perhaps the Academy should ask the workshop organizers to remove the examiner’s name and to retitle Risinger’s talk to omit direct reference to the FBI in favor of the more anodyne “How an organization has failed” to enforce its own handwriting comparison standards.

However, Kulbacki was also clear that “99% of the specific complaints raised by the FBI” were about Tiffany Roy, one of the organizers of and presenters in Workshop 19. Kulbacki recalled that Hunt complained about something Roy said during the 2024 AAFS conference in Denver — the gist of which was that real forensic science reform would begin once the old guard, so wedded to past ways of doing things, had passed on. Hunt also took issue with comments she’d posted on LinkedIn regarding the questionable testimony of an FBI DNA analyst in a case where she was serving as a defense expert. (The prosecution ultimately decided against having the FBI’s expert testify in court.)

Kulbacki also noted that the “FBI voiced displeasure at Mrs. Roy’s efforts to hold the FBI” to the standards detailed in a new report from the National Institute of Standards and Technology regarding DNA analysis that seek to mitigate the impact of human biases. Roy was a member of the working group that developed and authored the “Forensic DNA Interpretation and Human Factors” report.

The FBI’s specific grievances about Roy were unwarranted, Kulbacki opined. “The point is that the FBI’s primary concerns are not with the content of the Workshops but with one of the people associated with one of the Workshops,” he wrote. “That is not and should not be grounds for a threat by AAFS of content removal simply because they don’t like someone affiliated with the workshop.” (Emphasis in original.)

Kulbacki wrote that workshop vetting is designed as a blind process to keep such biases out of the mix. “By ensuring that reviewers are unaware of the authors’ backgrounds, blind reviews focus solely on the quality, relevance, and rigor of the content, leading to fairer and more objective evaluations.” Both workshops at issue went through this process, Kulbacki wrote. “I am not here to tell you, the Board of Directors, how you should act” on Hunt’s complaints, he wrote but said that he would be “remiss if I, as the Workshop Chair … did not firmly voice that this needs to be a far more nuanced decision than giving the FBI their wish carte blanche.”

On December 17, the AAFS board voted unanimously (with one member absent) to ask the organizers of the two workshops to censor their presentations or face cancellation. Two members of the board also suggested an apology to the FBI might be in order. “This will go a long way in mending fences,” one board member suggested in an email. Kulbacki’s memo — with all its context regarding Hunt’s complaints — was sent to the board in the wake of their vote. It is unclear whether the full board knew all the details before casting their votes, and minutes from the meeting are brief and spare. Still, it appears Kulbacki’s memo did not give the members any pause about carrying out their plan.

In a statement to The Intercept, the FBI denied that it acted to censor or deplatform anyone and said “there was no discussion” of the Human Factors report.

Kulbacki declined to comment. But sources have confirmed for The Intercept that at least one other Academy member on the call with Hunt verified the details of the conversation memorialized in Kulbacki’s email.

The situation infuriates Andrew Sulner, an attorney and document examiner who is one of the organizers of Workshop 25. He first caught wind that something peculiar was going on when he received an email from the Academy’s executive director a day after the board vote, letting him know that Christopher Thompson, the organization’s president, wanted to have a “short conversation” with him.

Sulner said Thompson told him that Hunt wanted mention of the FBI removed from Risinger’s presentation to “avoid having a title memorialized in print and online that disparages the FBI,” he recalled. Thompson also suggested that removing mention of the agency “would maintain ‘congeniality,’ but I informed him that congeniality has nothing to do with such a request,” Sulner said. Risinger’s presentation was solely about the questioned documents unit of the FBI lab “and not some other crime lab, and that’s why the FBI should be mentioned in the title,” Sulner said he told Thompson.

Sulner said he was appalled to see the organization “buckle under pressure from the FBI — but that’s what they do, and that’s the problem. They’re operating as a trade union for prosecutors and law enforcement,” he said, and less like the scientific organization they’re supposed to be. “It is unacceptable and violates the long-standing educational mission of the Academy, which is to improve forensic sciences by promoting good practices and exposing bad practices, period.”

Sulner and his co-organizer, who is also on the AAFS board, agreed to several small changes to their workshop language, but Risinger refused to remove the FBI from the title of his talk and instead opted to pull his presentation from the workshop. For his part, Risinger said that the incident underscores the main point of his presentation — and the underlying paper on the same topic that he intends to publish this year. Risinger said he’ll be using “the history of this development, that would not allow me to have the ‘FBI’ in the title, in the article that I’m writing as more evidence of the extreme nature of the cultural problem at the FBI laboratory.”

Sulner also takes issue with the complaints Hunt made about Roy. He said that he sees the effort to muzzle Roy as vindictive. “I see the requests to excise references to the FBI and to silence Tiffany Roy as raising two separate issues, both very troubling,” he said. “You’ve got censorship on the one hand and an unwarranted revenge campaign on the other.”

In response to the AAFS vote in favor of Hunt’s complaints, Roy and her fellow workshop organizer, also a former DNA analyst, removed the portion of the workshop titled “Taking on the FBI,” which her co-organizer was slated to present, and tweaked the workshop objectives to remove mention of the FBI.

Still, after learning about Hunt’s personal complaints about her, Roy penned a lengthy email of her own to the AAFS board accusing them, in part, of disparate treatment.

In the run-up to the 2024 conference, Roy had approached Academy leadership with technical concerns she had regarding a particular workshop. Specifically, she alleged that the workshop presenters would be providing inaccurate instruction on an emerging field of DNA analysis, but her concerns were summarily dismissed. In contrast, she noted the board appeared to jump through hoops to address Hunt’s concerns — without ever reaching out to her or her co-presenter. And she noted the irony in their actions regarding the decision to excise the “FBI” from the educational objective in Workshop 19 that references exploring the impact of institutions like the agency’s lab on the perceived credibility of forensic evidence. “You all are putting on a MASTERCLASS on exploring the impacts of prestigious institutions like the FBI and I cannot WAIT to present this series of events during our workshop,” she wrote.

In response to Roy’s email, the AAFS board has offered her 10 minutes to speak during one of its scheduled meetings during the Baltimore conference.

For Roy, the incident also points to another serious flaw in the way forensic sciences are deployed in the criminal legal system: Control over forensics and crime labs is largely left in the hands of law enforcement agencies — like the FBI — with little to no independence, which hinders efforts to ensure fidelity to science comes first. One of the as-yet unfulfilled recommendations of the 2009 NAS report was that labs should exist as independent government entities out from under the thumb of police or prosecutor oversight.

“The actions of the FBI in their effort to silence me as an advocate for oversight underscore the dangers of governmental control of the forensic sciences,” she wrote in an email to The Intercept. “Only when science is independent and objective can it serve truth or justice. Science beholden to an adversarial entity is a pawn in a game with no winners.”

The post Forensics Experts Challenged the FBI. So the FBI Tried to Censor Their Conference. appeared first on The Intercept.

As a teenager, Dr. Susan Walsh loved the TV show “The X-Files.” She was particularly drawn to the character of Dana Scully, a hyper-rational doctor-cum-FBI agent who brought a scientist’s skepticism to investigations of paranormal phenomena and deployed her medical training to determine cause of death for the show’s victims.

The fact that Scully used science to solve problems and pursue justice intrigued Walsh. She wanted to explore a career in forensics but was on the fence about how to do it. Should she go into law enforcement? Become a scientist? The show helped her to decide. She loved the science. “It did start with Scully, if I’m being honest,” she said.

Walsh studied biochemistry and, while working on her master’s degree in DNA profiling, she happened onto a research paper that caught her attention. Australian scientists had found DNA markers corresponding to eye color, and Walsh began to wonder whether those techniques could be applied to criminal investigations. If crime-scene DNA could be analyzed for markers that relate to physical appearance, Walsh suspected that could help investigators identify suspects — and take crime fighting to a new level.

“Oh wow, that’s so cool that we’ll one day be able to predict what people look like,” using DNA, she thought. “In an application of a forensic setting, that’s amazing.”

That was 2005. Today, Walsh is at the top of her field. An assistant professor in the School of Science at Indiana University Indianapolis, she runs a lab researching what is now known as forensic DNA phenotyping, or FDP. Walsh has worked on locating genes related to eye, hair, and skin color and has built an open-source tool for people, including in law enforcement, who want to use DNA to predict those traits. She has also investigated connections between DNA markers and the appearance of various facial features, known as facial morphology.

Through her research, she came to learn that FDP works as she imagined it could: An unknown DNA sample can be parsed for genetic markers related to various traits, like hair or eye color, offering criminal investigators a glimpse into what the owner of the DNA might look like. That, in turn, could be useful information for prioritizing suspects to investigate. If the DNA says a person is likely to have red hair, for example, detectives could bump redheads to the top of their suspect list.

Still, Walsh remains cautious about how she describes what DNA can and cannot tell us about what a person might look like. At present, the idea that DNA can be used to predict facial structure — for example, what a person’s chin might look like — is more science fiction, like her beloved “X-Files,” and less science fact. The human face is a complicated structure defined by both nature (so, DNA) and nurture (like, if you’ve had your nose broken). Like others in her field, Walsh is unsure that research into morphology will ever bear reliable fruit. “We can’t even do a nose right now,” she said.

Walsh is adamant: It’s scientifically premature to deploy these methods to predict a person’s face, especially when their life and liberty is at stake. Not everyone in the field has been as chary.

“The Science Isn’t There”

A private company based in Reston, Virginia, Parabon NanoLabs was founded in 2008 with the mission of creating “breakthrough products” using DNA, with an initial focus on developing cancer therapies. It has since evolved into a prominent purveyor of forensic products, including DNA phenotyping, to police agencies. Though it’s well known among forensic scientists, it maintains a fairly low public profile and publishes few details about its operation online.

According to Parabon, its Snapshot FDP System “accurately” predicts not only eye, hair, and skin color, but also face shape. For a fee, the company will provide law enforcement agencies with a rendering of its predictions in the form of a color composite sketch, along with a “corresponding measure of confidence” in the predicted traits. The company says it has worked with hundreds of police agencies in the nine years it’s been doing this work.

As Parabon’s foothold in the world of forensics deepened, so did the concern among scientists and legal experts, who warn that the company’s sketches are, at best, misleading. Leading experts agree the science has not evolved enough to accurately and reliably provide the kind of singular image Parabon produces for police investigations. Even a scientist who helped develop the technology says it’s not ready for real-world use.

Parabon’s methodology for generating its phenotype predictions is a closely guarded secret; its system has not faced independent scientific verification and validation — the gold standard among scientists for vetting the efficacy of computer-based programs — nor has it been peer reviewed. Still, Parabon insists that its phenotyping work is based on good science. While it acknowledges that its program has not gone through traditional scientific review processes, it says the proof of Snapshot’s ability and value is in the number of law enforcement agencies that use it and say it has helped them solve cases.

For years, Walsh privately pressed the company to explain its work and grew frustrated by Parabon’s refusal to engage with her questions. Her concerns were not just hypothetical: In a criminal legal system rife with wrongful convictions and racial bias, there are countless ways using an unproven tool to solve crimes can, and does, go wrong.

Those frustrations came to a head during a March 2024 workshop at the National Academy of Sciences covering the good and bad of several next-generation forensic tools used by law enforcement, where Walsh and others sharply criticized Parabon. Selling these singular images to police is “detrimental to the field and something we need to stop,” Walsh said.

Police pay hundreds per case for appearance prediction, yet “how these tools function remains shrouded in secrecy,” noted Rebecca Brown, the former policy director for the Innocence Project and the founder of Maat Strategies, a criminal legal policy consulting firm. Speaking at the workshop, Brown cautioned against the use of FDP and other novel disciplines absent robust validation and regulation. There are “too many examples of investigative tools that become runaway trains,” she said.

Parabon’s FDP service follows a predictable pattern in forensic science: Novel techniques are developed, often by private industry, and pressed into service for law enforcement purposes before their limitations have been fully assessed and addressed.

As with other forensic innovations, like forensic genetic genealogy or facial recognition, FDP is sold as an “investigative tool” — that is, a product not intended for use as evidence in a criminal proceeding, but as a behind-the-scenes aide to police searching for perpetrators. But selling a scientifically questionable product as a mere investigative tool can have real-world consequences.

For FDP in particular, experts warn that the composite images can reinforce racial stereotypes, encourage the over-surveillance of marginalized communities, and deny criminal defendants important information about how they became a target of an investigation, which raises serious implications for Fourth Amendment privacy rights. Composites like those Parabon sells could also inadvertently taint the memories of eyewitnesses to a crime, risking potentially valuable evidence.

Paula Armentrout, Parabon’s co-founder, provided written responses to questions from The Intercept about the company’s Snapshot program. In part, the company said that The Intercept “should not quote any of the presenters” at the NAS workshop, who it claims “made many false, uninformed, and misleading statements that were not based on evidence or facts, but on misinformation propagated by inaccurate media articles, hearsay, and their own personal and political agendas.”

Walsh insists her criticisms are motivated solely by her fidelity to the science and to ensuring the transparency and accuracy of forensic tools used in the criminal legal system. To that end, she was emphatic during the workshop: Law enforcement should not be allowed to purchase phenotyping composites. “The science isn’t there. We shouldn’t be doing it,” she said. At this juncture, she said, those sketches are about as scientific as “my son drawing them.”

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Marketing a DNA Blueprint

Parabon’s foray into forensics began in 2009, when the company secured the first of several contracts with the Pentagon’s Defense Threat Reduction Agency, which was looking for a way to identify individuals in combat zones responsible for building improvised explosive devices. Parabon proposed extracting physical traits from DNA collected from the weapons to get the job done, and a subsequent 2012 contract led to the development of the Snapshot system. “Traditional DNA analysis treats DNA like a fingerprint, useful for identification,” Parabon co-founder and CEO Steven Armentrout told the military’s Success Stories publication in 2022. “But Snapshot treats it like a blueprint for how to build a human.”

The company began marketing the service to police agencies in 2015, an effort that has been “extremely successful,” Ellen McRae Greytak, the company’s director of bioinformatics, said during a webinar for a military organization in 2020. In her presentation, Greytak briefly outlined Parabon’s work to create Snapshot: how researchers collected existing DNA information for individuals across the world to home in not only on markers for hair, skin and eye color, but also for specific geographic ancestry information; how they used machine learning to create the algorithm that generates predictions; and how, at the time, the company was developing a phone app to help gather three-dimensional images of faces to aid its morphology work. 

Once the software makes a phenotype prediction, a forensic artist steps in to shade the composite. Of course, the process has its limitations, Greytak acknowledged. It can’t predict hairstyle, for example, or any other form of non-genetic modification — like scarring, tattoos, or dyed hair — and it can’t discern a person’s weight. Parabon’s composites are developed for what a person would look like as “a young adult at a normal body weight,” she said, which the company defines as a body mass index of 22.

Parabon had already worked on “hundreds of cases,” Greytak said during the webinar, sharing a couple of alleged success stories. In 2016, Massachusetts police investigating the 24-year-old cold-case murder of Lisa Ziegert used crime-scene DNA to obtain a Parabon sketch of her possible murderer.

Detectives used the composite information to narrow down the pool of “thousands” of people who, over the years, had been noted in the case file, Greytak said. There “were maybe five guys who closely matched the predictions we made,” she said, so the cops went knocking on their doors. Gary Schara wasn’t home when the police arrived at his place, so they told Schara’s roommate to pass on the message that “we’d like to speak to him,” Greytak explained. “When Gary hears that, he flees.” Police were eventually able to track Schara down and to match his DNA to the crime, she said, prompting him to confess. “They were finally able to close this homicide case.”

According to news reports, Schara was more than just a note in the case file. In fact, he had long been a suspect: His wife gave him up to police in 1993, and he was subsequently interviewed multiple times by investigators, including from the FBI.

After police received the Parabon phenotyping report and returned once again, talking to his roommate, Schara penned a confession and tried to kill himself. Police found him the next day in a Connecticut hospital. Schara ultimately pleaded guilty and was sentenced to life in prison.

It is unclear why detectives were unable to close the case years earlier. The Hampden district attorney’s office did not respond to The Intercept’s requests for comment, but in 2019, MassLive reported that District Attorney Anthony Gulluni said the “embrace of new technology” had helped to solve the case. Still, it appears the most Parabon can claim credit for is reminding cops of at least one of their top suspects.

A Singular Image

Susan Walsh had been working on FDP for nearly a decade when Parabon’s service debuted for law enforcement agencies. Back then, Walsh was mostly curious. She started asking Parabon questions. “I was saying, ‘Oh, what [DNA] markers are you using? And where’s your paper? Where can I read it? And what data set are you working with? And what’s your algorithm?’” she recalled. “And I was just getting nothing back.”

She approached company representatives at conferences and asked how the program worked. “They just didn’t answer my questions,” she said. “And then I was like, ‘OK. Well, I don’t think that you should be allowed in the field if you’re not going to answer the questions a scientist asks you.’” Scientists should be open to having their work scrutinized by peers, she said; they should be forthcoming about what parameters they’re using, about what their tool does well — and where it fails. “I was a bit curious at first and then kind of a little bit angry.” It felt to her like snake oil, selling hope in the form of a tool that could provide answers in cases that had long gone cold.

Walsh repeatedly tried to raise the alarm within the forensics community, but “it still wasn’t working.” By the time the NAS workshop rolled around in March, she did not mince words. Parabon’s sketches are “detrimental,” she said to the the scientists, legal scholars, academics, and advocates gathered at the National Academies’ headquarters in Washington, D.C., for the two-day event. “I was just sick of saying it all the time — that we need science,” she later told The Intercept. “We need publications. We need peer review.”

Walsh emphasized that she believes selling composite images is scientifically indefensible. Experts agree that the most accurate way to describe phenotypic predictions is individually — the likelihood of brown eyes or blonde hair, for example — which offers police solid and actionable intelligence without tipping into science fiction, she said. Currently, each of the three predictions available via Walsh’s tool, which has been validated and peer reviewed, are reported to be approximately 80 percent accurate.

Although Walsh’s tool is available to law enforcement agencies free of charge, she said she doesn’t get that many cases. She suspects that’s because she won’t offer the cops a composite. “They go off and they pay because they want that singular image.”

For that, they can turn to Parabon.

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Proprietary Methods

For Parabon, independent verification and peer review are superfluous pursuits. In response to a series of questions from The Intercept, the company said its program can’t be externally vetted because the code is “proprietary.” As for peer review, while it is a “valuable process for academic research because it allows researchers to contribute to the broader body of knowledge,” the company said, Parabon instead focuses on “delivering actionable results” to law enforcement customers.

“Unlike academics, whose primary goal is to contribute to scientific literature and educate, our priority is to serve the immediate needs of our clients,” the company wrote. Peer review can “sometimes become bogged down in theoretical debates,” it opined, noting that if Parabon had gone that route and hadn’t started selling its system to police, the service “would still not be available to them.”

The proof that Parabon’s system works is in the real-world validation the company has received from law enforcement agencies that have hired it to help solve cases. The 70 composites the company has posted online “from actual cases where identifications were later made,” it wrote, “represent the most stringent and authentic performance evaluation possible.” Many of those cases “would not have been solved without Snapshot phenotyping,” the company insists, “a fact to which the involved agencies can attest.”

The company sidestepped specific questions about how it is able to predict facial characteristics when other scientists say that isn’t currently possible. Instead, the company said it approaches things differently than the “academic literature,” using what’s known as principal component analysis — a statistical method that essentially sorts and makes sense of complex, noisy data — to fuel its predictions.

The company said its predictions are based on data collected from more than 1,000, mostly young-adult volunteers, 37 percent of whom “self-identify as White.” Although asked twice to do so, Parabon did not supply the total number of volunteers or a detailed breakdown of the population. Instead, it said the entire sample is “diverse and balanced,” including individuals from various ethnic backgrounds, “such as African, Asian, European, Hispanic/Latino, and Middle Eastern,” as well as individuals with mixed heritage. “This diversity helps ensure the robustness and applicability of our predictions.”

Parabon also provided two diagrams that purport to show how its Snapshot system sorts data to predict face shape, using DNA from Greytak and co-founder Paula Armentrout as an example. The first diagram features a star-like array of blank, gray faces, which Greytak said represent the five main face shapes deduced through principal component analysis. To the side is a heat map of those five faces, which supposedly shows which portions of each face is fueling the ultimate prediction. The second is a more sparse but similar diagram showing the two women’s faces alongside the face shapes the program predicted.

The company declined to say which DNA markers it uses in this process, saying the specific genetic markers were “chosen based on our proprietary analysis.”

Mark Shriver, a geneticist and professor of anthropology at Penn State University who is a leading expert on phenotyping, reviewed the diagrams and relevant portions of the responses that Parabon provided to The Intercept. He said they are fundamentally flawed. “If you want to study variation within a population, then you need a large sample from just that population,” he said. “If you want to distinguish the two white women like they were doing in their example figure … then you need 1,000 white people.”

Garbage In/Garbage Out

Shriver knows better than most how Parabon’s model works. More than a decade ago, Shriver collaborated with the company on its Pentagon contract. He and a colleague conducted the research that now underpins the Snapshot system, he said, including the information from the 1,000 or so volunteers. It was designed more as proof of concept, and in need of significantly more time, research, and work to transform into a truly predictive model. But Parabon was not interested in doing that work, Shriver said, which led him and his colleague to part ways with the company. “It became clear they just wanted to take it to market immediately,” he said.

In Parabon’s telling, its relationship with Shriver “ended without acrimony” at the conclusion of his subcontract. His “concerns … were never communicated to us,” Paula Armentrout wrote to The Intercept in an email.

Shriver told The Intercept that Parabon’s data set is far too small to support the kind of individualizing predictions the company sells to police. “And this was one of the points I made clear to them from the start,” Shriver said.

“One of the phrases that goes way back in computer science is ‘garbage in, garbage out,’” he said. “The input data is fundamental to any kind of analysis, any kind of conclusions, any kind of predictions you’re going to be able to do from it.” A thousand volunteers from one population could, “perhaps, start to get you some information about what’s going on within that population,” he said. But the sample Parabon is working with was selected to cover a “bunch of populations.” Meaning, the system is primed for drawing general conclusions, but not for making detailed predictions about individuals.

The company pursued an approach that differs from the “methods being explored in academia,” Armentrout reiterated in response to questions about Shriver. “Dr. Shriver was developing his own face prediction methods for casework, although we’re not aware if they have ever been used in a forensic case.”

Armentrout is right that Shriver hasn’t deployed his research forensically in the way Parabon has — with good reason. Though his research now includes data from tens of thousands of people — from both diverse populations and within closed groups, including families — he cautions that there is still more to be done to develop an effective, predictive tool. He won’t put it to work until it has been tested, validated, and peer reviewed.

“It really isn’t science until it’s been looked at by somebody who could understand what you did wrong and what you did right,” Shriver said. “And not just one person, but the whole community has to be able to review what you’ve done if you want to call it science.”

“Otherwise,” he said, “you’re just playing games in the closet.”

“That Could Be the Guy”

Investigators at the Edmonton Police Service in Alberta, Canada, were desperate to solve the violent rape of a young woman in March 2019. The man who attacked her was a stranger and had been bundled up against the cold, leaving her with few details about his appearance. There was no CCTV footage or other witnesses, save for DNA left behind.

Three years later, the department turned to Parabon for help. The company used the DNA to generate a sketch of a nondescript Black man. According to Parabon, the suspect is of East African descent — as well as part South and West African — and likely has dark skin, dark hair, dark eyes, and no freckles. The police department posted the generic image online, including to its social media accounts.

The backlash was fierce. The image did little more than implicate nearly every Black man in Edmonton, critics noted, essentially encouraging racial profiling and the continued over-surveillance of minority and other marginalized communities. “If they’re generating an image of a face of a Black person, like what happened in Canada, and then releasing that image to the general public … then you have a bunch of white people who are looking at Black people around them and thinking, ‘Oh, well, that could be the guy,’ and then they just report on that person,” Jennifer Lynch, general counsel at the Electronic Frontier Foundation, told The Intercept.

“It obviously doesn’t help the investigation in any sense,” Lynch continued, “because it’s not a real image of a person, certainly not the real image of the perpetrator, and it can only harm both the investigation and communities of color, because it puts them at greater risk of arrest for things that they didn’t do.”

Two days after posting the image, the Edmonton police pulled it offline and issued a statement. “The potential that a visual profile can provide far too broad a characterization from within a racialized community and in this case, Edmonton’s Black community, was not something I adequately considered,” Enyinnah Okere, the agency’s chief operating officer said.

Despite the police department’s actions, Parabon kept the image on its website. The sketch merely reported “what the signals in the DNA” indicated about the perpetrator’s “traits and biogeographic ancestry,” the company told The Intercept. It was “unfortunate the community misunderstood the purpose of the composite and reacted the way it did.” Besides, Parabon added, it had been told an arrest was made in the case and that “our prediction was accurate.”

That was news to the Edmonton police. In emails to The Intercept, spokesperson Sgt. Dan Tames said no suspect has been arrested in the case. He also said that after receiving The Intercept’s inquiry, the agency asked Parabon to remove the image from its website. Nearly two years after it was posted, the image was finally removed. Parabon did not respond to an additional request for comment.

The case is a potent example of the way that FDP, and Parabon’s composites in particular, can perpetuate other harmful practices within the criminal legal system. Faulty eyewitness identifications are a leading cause of wrongful convictions, and science has repeatedly demonstrated that people have a harder time correctly identifying people of a different race.

Research has also shown that introducing a composite image to a witness can reshape their memory, potentially corrupting their initial recollection. “The presentation of a single photograph explicitly to ask about whether or not that person is maybe who the witness saw commit the crime has been found to be really suggestive,” said Dr. Kara Moore, a professor of psychology at the University of Utah.

And if police were to tell a witness that a composite is based on DNA phenotyping, that could be even more suggestive, Moore said. “People find DNA evidence to be really persuasive. So this idea that this facial composite was based on DNA may have some implications for accuracy in the person’s mind,” she said. “People might truly believe this is really what the person who committed the crime looks like.”

“The accuracy of the composite is an interesting component too,” she added. “If it’s wrong, you’re negatively contaminating the eyewitness’s memory and really harming your eyewitness. But even if it’s right, you might be artificially inflating the person’s memory and confidence for the face.”

For Walsh, the potential conflating of ancestry with appearance is another cause for concern. While DNA can offer ancestral information, that intel cannot be cribbed into assumptions about what a person looks like, including about facial features and skin color. “Some individuals can be biased by skin pigmentation to infer ancestry, or ancestry to infer pigmentation,” she wrote in an email. “Unless you actually test for the specific trait … you cannot assume either.” Cautioning that she doesn’t know how Parabon’s system works, she said she worries that using ancestral data to produce an image could cause police to “focus on a particular population without foundation.”

In a January 2024 story in Wired, Greytak seemed to suggest that Parabon’s system does take ancestry into account when making some phenotypic predictions. “What we are predicting is more like — given this person’s sex and ancestry, will they have wider-set eyes than average,” she said. But, she said, “there’s no way you can get individual identifications from that.”

Parabon did not directly address The Intercept’s question about Greytak’s comments to Wired, but insisted that it does not use ancestry categories to inform its morphology predictions. “Categorical divisions are artificial and not reflective of the continuous nature of human genetic variation across the globe,” it said.

Either way, critics say current science does not support Parabon’s individualizing composites. As Rebecca Brown, the policy consultant at Maat Strategies, put it, the automated facial composites are “putting a veneer of science on an already problematic identification procedure.”

4

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Behind the Scenes

Parabon markets its Snapshot phenotyping service not as a tool for positive identification, but a tool to generate investigative leads. The company stressed this in its responses to The Intercept. “It’s crucial to understand that the DNA phenotyping information we provide to agencies is not used for definitive identification or conviction,” it wrote. That is, the phenotyping is only intended for use in developing suspects; from there, law enforcement agencies would try to use traditional forensic DNA testing to see if the suspect can be linked to crime-scene evidence. “Our work does not change this process in any way,” the company insisted.

But using such a program merely to generate leads is itself questionable. Parabon told The Intercept that it does “not have an exact count” of all the law enforcement agencies that have purchased its phenotyping services but said that “hundreds of agencies” have used Snapshot for casework. Of those, the company only posts to its website images that its client police agencies have already made public.

To date, Parabon has published only 70 composites. That means there are potentially hundreds of cases where law enforcement has used a composite behind the scenes to inform an investigation — information that almost certainly has not, or will not, be made available to the defense in a criminal prosecution, even if it did help to narrow the cops’ focus onto a particular individual.

That’s because the tools police use to generate investigative leads are generally not considered evidence in criminal cases, meaning the state is not required to share information about those tools or the leads they generate with defense lawyers. So, for example, if police use a Snapshot composite to lead them to a suspect who they then charge with a crime, the defense will likely never know unless the police choose to publicize it.

The lack of transparency is alarming to defense attorneys and civil libertarians. “I would say, if there’s a single biggest issue here, it’s that,” said Clare Garvie, a lawyer with the Fourth Amendment Center at the National Association of Criminal Defense Lawyers.

Garvie is an expert on the use of face recognition, another tool whose outputs are often hidden from scrutiny during criminal prosecutions. “The logic behind asserting that it’s an investigative lead only, is, in theory, to protect people from having adverse action taken against them based on unreliable methods,” she said. “But what it has functionally meant is that — in the face recognition context, but very, very likely in other investigative contexts — the defense never finds out that these searches are run.”

Back in 2016, for example, Garvie discovered that police in Pinellas County, Florida, who had been using facial recognition technology since 2001, were using it, “on average, 8,000 times a month.” But at the same time, she noted, the public defender’s office there “had never had a single case in which it had been disclosed.”

Ensnared in a Dragnet

Where FDP is concerned, there is at least one current case where police use of Parabon’s work to identify a suspect is being challenged in court. After the 2016 murder of Karina Vetrano, who was killed while jogging near her family home in Queens, the New York Police Department hired Parabon to do phenotyping. The results reportedly came back that the suspect was of African descent, which the NYPD apparently took to mean the person was Black, subsequently undertaking a vast DNA dragnet of hundreds of Black men in the area. Ultimately, the cops landed on a young, developmentally delayed man named Chanel Lewis, who could not be excluded as a source of a trace amount of DNA found at the crime scene.

The fact that the police had used Parabon’s service at all contradicted their public stance about the case — the official line was that a policeman’s hunch and shoe-leather investigation had cracked it — and the prosecution failed to tell Lewis’s defense the whole story. Eventually the fact that the NYPD had employed Parabon was leaked to Lewis’s trial attorneys by a department insider. After a hung jury during his first trial, Lewis was found guilty in 2019. He has appealed his conviction, which his lawyers argue was tainted by the state’s failure to disclose its questionable use of phenotyping to target their client.

At specific issue is whether police violated Lewis’s Fourth Amendment rights when they collected his DNA as part of the dragnet — a question that largely turns on what police had in mind when they approached Lewis. Did they have a reasonable and individualized suspicion that Lewis might be Vetrano’s killer? And, importantly, what was it that made them suspicious of him? Was it solely the phenotyping prediction that the killer was a Black male?

“If you’re getting a phenotyping conclusion that says, it was a Black man, and then you have an investigative strategy where you only take DNA samples from Black men,” then you are using the phenotyping not just to eliminate people, but to target them, said Rhidaya Trivedi, one of Lewis’s attorneys. “Then the scientific integrity of phenotyping enters that Fourth Amendment inquiry: Was it reasonable that they thought [the suspect] was a Black man?”

None of the questions about the scientific integrity of Parabon’s phenotyping have been answered in court. “It’s a huge question, an unanswered question: Can police use phenotyping to affirmatively generate suspicion?” Trivedi asks. “And if so, under what circumstances? Because I doubt that Chanel’s case is the only one where this happened.”

In an expert affidavit filed with Lewis’s appeal, Shriver, the Penn State geneticist, detailed at length the kinds of questions that law enforcement agencies and courts should be asking of any phenotyping service before it is deployed. That includes whether and how the program has been validated, how any results were explained to police, and whether a distinction between geographic ancestry and any facial trait predictions were “communicated and understood.”

Silencing Critics

Jeanna Matthews is something of an evangelist for verification and validation of computer programs used in the criminal legal system. A professor of computer science at Clarkson University, she is also the vice chair of the AI Policy Committee at the Institute of Electrical and Electronics Engineers, known as the IEEE, which has long promulgated standards for ensuring the scientific integrity of computer-based systems.

For Matthews, the issue is straightforward: Forensic tools like Parabon’s phenotyping program need to be independently verified and validated against accepted scientific standards, like those developed by the IEEE, if they’re going to be deployed in the criminal legal system. Put simply, the tools need to be fully reviewed from code to output to determine whether they are built and function as intended.

This kind of detailed, ground-up review is common in mission-critical fields — like with medical devices or air traffic control systems — but it has not been implemented in the criminal legal system. The verification and validation process, known as V&V, “is pretty much ubiquitous when we all agree that it’s important that the software be accurate,” Matthews said. “Why isn’t it done for criminal justice software? We don’t all seem to agree it’s important enough to do it carefully.”

In part, the problem is that many newer forensic tools are developed by private companies that, like Parabon, say their system is “proprietary” or make claims of trade secrets to keep outsiders from looking closely at the tools they’re selling. And that, experts say, should be unacceptable for a system that routinely locks people up or kills them.

“The idea that anyone is hiding behind trade secrets when life and liberty is at stake, we have to ask ourselves some serious questions about what we’re about,” said Rebecca Wexler, a professor at the University of California, Berkeley School of Law, “if we’re sort of like, ‘Nope, that profit motive must transcend this person’s ability to prove their innocence.’”

Parabon, it seems, is not only uninterested in having its phenotyping program externally vetted, but also is not too keen on hearing any criticisms of its work.

In addition to admonishing The Intercept not to quote from the NAS workshop in which its Snapshot system was discussed, Parabon said that it had approached the organization about the workshop and was “pleased to report that after an internal review,” the NAS had removed video recording of the event from its website.

An NAS spokesperson acknowledged that the videos were removed but did not respond to repeated questions about the specific reason. “Concerns were raised about comments made at the workshop,” the spokesperson said in a statement to The Intercept. “Although any statements made at the workshop solely reflect the personal opinions of individual presenters and not the views of all workshop participants or the National Academies, we decided to remove the videos of the workshop from our website.”

Though it may no longer be accessible online, the workshop had a lasting impact on Walsh. She said it helped her to think about her work — and its implications — in new ways. In particular, she more seriously ponders how her work could be misused, and about how she can counteract that possibility. She wants to be sure her predictions are made based on robust population samples and that her tools are described openly, and accurately, so that anyone can understand what they can and cannot do.

“I think along the lines of, ‘How can I protect people more?’” she said. “‘How can I make sure that there is no way this can be used badly?’”

The post A Forensics Company Tells Cops It Can Use DNA to Predict a Suspect’s Face. Scientists Worry the Tool Will Deepen Racial Bias. appeared first on The Intercept.

“The voters of Missouri have said, ‘enough,’” reads the suit filed by Comprehensive Health of Planned Parenthood Great Plains and Planned Parenthood Great Rivers, the state’s Planned Parenthood affiliates. “This amendment returns reproductive health care decisions back to where they belong: with individuals and their trusted health care providers, not Missouri politicians.”

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Missouri Voters Overturn Abortion Ban in Decisive Win for Reproductive Rights

While the measure, known as Amendment 3, provides a seemingly expansive view of reproductive rights, including abortion, the groups must take legal action to give it force and effect. In other words, the amendment will not do the job on its own; instead, lawsuits will be necessary to challenge statutes — including the abortion ban — that are currently on the books. The Wednesday lawsuit takes on more than a dozen state laws, which advocates argue now conflict with the state constitution’s explicit protection for reproductive rights. The amendment takes effect December 5; the providers are asking the courts to take action now so that abortion services can be restored promptly thereafter.

The office of Attorney General Andrew Bailey, which would be tasked with defending the state’s existing abortion laws in court, did not immediately respond to a request for comment.

During a Wednesday afternoon press conference, representatives of the state’s two Planned Parenthood affiliates, along with the American Civil Liberties Union of Missouri, said they are challenging laws that pose an immediate barrier to providing abortion and that three clinics in the state — in Kansas City, St. Louis, and Columbia, home to the University of Missouri’s flagship campus — will be ready to reopen their doors in a month. “If able, we plan to immediately restart services,” said Richard Muniz, Planned Parenthood Great Rivers interim president and CEO.

Along with the state’s abortion ban, the advocates are challenging several other laws that impose gestational age limits on abortion — including one that bars abortion after eight weeks of pregnancy, well before many people know they’re pregnant, and laws that prohibit abortion after 14, 18, and 20 weeks.

Amendment 3 allows for some regulation of abortion after the point of fetal viability — that is, the point at which a fetus can survive outside the womb absent “extraordinary” medical efforts. In a seeming effort to constrict the state’s Republican supermajority legislature from penning any one unilateral standard, the measure also tasks health care providers with defining viability on a case-by-case basis. Whether that works to stave off legislative attacks remains to be seen — and would likely prompt further litigation.

The advocates are also challenging state laws that place onerous and medically unnecessary restrictions on abortion providers — what are commonly known as targeted restrictions on abortion providers, or TRAP, laws. These are laws passed under the guise of ensuring patient health and safety but are imposed only on abortion providers and not on doctors or medical facilities providing any other kind of health care. This includes provisions that impose a hospital-admitting privileges requirement for abortion providers; the catch-22 is that admitting privileges are routinely only extended to doctors who regularly admit a certain number of patients to the hospital, but because abortion is incredibly safe, abortion providers often cannot meet such a requirement.

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The Missouri advocates are also challenging a 72-hour mandatory waiting period, which is purportedly meant to give patients time to reflect on their choices. Practically speaking, the provision does no more than to delay care and increase costs for patients attempting to access abortion by necessitating additional travel, time off work, and, often, child care.

In all, the current lawsuit targets 16 statutes that providers say now directly conflict with the state’s constitution. “There can be no doubt that the … bans, restrictions, and regulations, challenged herein, are presumptively unconstitutional because they deny, interfere with, delay, and otherwise restrict abortion access,” reads the lawsuit. “They also discriminate against pregnant Missourians who choose abortion and penalize and discriminate against abortion providers who assist Missourians exercising this fundamental right.”

Notably absent from the lawsuit, however, are at least two additional onerous restrictions: a ban on Medicaid funding for abortion and a statute that requires parental notification for minors seeking care. “We are moving as swiftly as possible to restart abortion services here in Missouri when Amendment 3 takes effect,” Muniz explained during the press conference. So the lawsuit asks the courts to block the “most immediate and direct barriers on abortion access for both our patients and our providers.” Still, he said, “to be clear, this is only the first step to fully implementing the protections of Amendment 3, it’s certainly not the last step.”

But the failure to challenge those restrictions, and to deem them not a pressing matter, leaves some of the state’s most vulnerable patients subject to likely unconstitutional mandates for the foreseeable future.

“Who decided which barriers are most immediate, and how?” asked Stephanie Kraft Sheley, a lawyer and the project director and founder of Right By You, which helps young Missourians navigate reproductive health care options in the state. “For people without a lot of money, the most immediate barrier is often inability to pay for their care.” Inability to cover the cost of care is the “most common reason” people seeking abortion care reach out to Right By You, she said.

“For teens, the most immediate barrier is often severe restrictions on their autonomy,” along with laws that block others from helping them to access that care, she said. “Those are immediate barriers worthy of addressing on day one.”

The post Missouri Advocates Sue to Overturn More Than a Dozen Laws on Abortion appeared first on The Intercept.

“The people of Missouri — be they Democrat, Republican, or independent — have resoundingly declared that they don’t want politicians involved in their private medical decisions,” said Rachel Sweet, campaign manager for Missourians for Constitutional Freedom, the umbrella organization for the Yes on 3 campaign.

Missouri was one of 10 states with abortion rights on the ballot this week. In Florida, voters narrowly rejected an amendment that would have restored abortion rights beyond the state’s current six-week ban — a prohibition on abortion that kicks in before nearly everyone knows they’re pregnant. The loss was a shining example of the power of minority rule: Florida’s Amendment 4 secured 57 percent of the vote, but failed because state law required a 60 percent vote to pass.

By late Tuesday night, measures to enshrine reproductive rights had easily passed in New York, Maryland, and Colorado and were winning by significant margins in Arizona. Meanwhile, Nebraska’s dueling measures — one that would ban abortion after the first trimester of pregnancy and one that would expand abortion rights far beyond the first trimester — were nearly tied, according to the New York Times. Measures in Montana and Nevada were still up in the air, while a measure to protect some abortion rights in South Dakota looked doomed to fail.

Missouri was the first state to officially outlaw abortion after the Dobbs decision, when then-Attorney General Eric Schmitt pulled the trigger on a 2019 law passed in anticipation of the overturning of Roe v. Wade. Missouri’s anti-abortion forces were gleeful, but the ban — which contains only a vague exception for medical emergencies and no protections for rape or incest survivors — almost immediately began wreaking havoc; some hospitals initially refused to dispense emergency contraceptives, worried that doing so would violate the ban, while others turned away people facing pregnancy emergencies.

Despite the ban’s draconian impact, conservative lawmakers and activists in the state claimed it was working just fine — under the ban, “women are safe in Missouri,” Cassidy Anderson with the Vote No on 3 campaign recently told Fox News digital — and fought tooth and nail to block Amendment 3 from ever appearing on the ballot. Those efforts began with the “Decline to Sign” campaign that sought to discourage voters from supporting a petition to get the measure on the ballot — including by claiming the petition drive was really a nefarious effort by “out-of-town strangers” angling to “collect your sensitive personal data for extremist groups.” Ultimately, nearly 400,000 people signed in favor of the putting the amendment on the ballot.

Secretary of State Jay Ashcroft played his part in the anti-amendment effort — first by penning an inflammatory ballot summary, ultimately rejected by the courts, claiming the proposed amendment would “allow for dangerous, unregulated, and unrestricted abortions” in the state. Later, Ashcroft attempted to decertify the measure — which would have yanked it from the ballot — a move that was also rejected by the courts.

Anti-abortion legislators and advocates mounted their own failed legal challenge in an effort to keep the amendment off the ballot.

The win for Amendment 3 also comes despite a last-minute push by groups campaigning against the measure. The Vote No on 3 political action committee received a seemingly much-needed, week-out $1 million cash infusion from the Concord Fund, a dark-money operation with strong ties to the conservative legal movement’s bespectacled, behind-the-curtain puppet master Leonard Leo. Even with the Leo-connected cash, the anti-amendment campaigns pulled a paltry sum in comparison to donations to Missourians for Constitutional Freedom, which was running the yes-on-3 campaign. Supporters of the amendment donated more than $30 million, dwarfing the roughly $3 million in donations made to Vote No on 3, according to filings with the Missouri Ethics Commission.

Spokespeople for the anti-amendment campaigns have described the consequences of approving the so-called Right to Reproductive Freedom Initiative in dire, if not unabashedly hyperbolic, terms. Among the favorite talking points is a claim that passing the amendment would necessarily topple the state’s ban on gender-affirming care for minors, which was signed into law in 2023. On Tuesday, signs invoking the amendment’s alleged power to rescind the anti-transgender legislation and urging a no-vote on the amendment popped up at polling places around Kansas City. “NO on 3,” one sign read. “NO TAX PAID CHILD SEX CHANGE SURGERY.”

“You would think in an initiative that is being advertised as a ‘women’s health care’ initiative … that it would say the word ‘woman’ somewhere in the ballot language, and it never says the word ‘woman,’” Anderson also told Fox News. “It refers to persons; it doesn’t define age, it doesn’t define sex, it doesn’t define anything.”

The measure is, on its face, expansive. It bars government infringement on a right to reproductive care and decision-making but allows for some state regulation of abortion after the point of fetal viability — a somewhat fluid concept, but generally the point at which a fetus can survive on its own, outside the womb and without extraordinary measures — but only as that is defined by health care providers on a case-specific basis.

Still, its practical impact will likely be determined through a series of legal challenges. For starters, advocates will have to sue, using the new constitutional language to challenge the abortion ban that is currently on the books. From there, the contours of the constitutional right would be further defined based on additional legal challenges to other statutory regulations covering abortion and reproductive health care. Similarly, any attempt to overturn the state’s ban on gender-affirming care would play out in the courts.

In other words, passage of the new constitutional amendment is just the first step on a long road to restoring real reproductive freedom in Missouri.

The post Missouri Voters Overturn Abortion Ban in Decisive Win for Reproductive Rights appeared first on The Intercept.

Iman Alsaden and Selina Sandoval, respectively the chief medical director and associate medical director of Planned Parenthood Great Plains, were among the 50 or so volunteers spread out across Kansas City on October 26 as part of a coordinated get-out-the-vote effort in support of the state’s proposed Amendment 3. The measure seeks to undo Missouri’s total abortion ban that took effect less than an hour after the U.S. Supreme Court issued its Dobbs v. Jackson Women’s Health Organization decision in June 2022. With just 10 days to go until Election Day, similar efforts were also underway in St. Louis and Columbia, home to the University of Missouri’s flagship campus.

Alsaden looked down at an app on her phone as the pair approached a tall brick home. A 56-year-old female voter named Mary lived there, according to the app, Alsaden reported, and she hadn’t yet voted. “Oh, I like this for us!” Sandoval said. Mary wasn’t home, and Sandoval slipped a flyer in support of the amendment on the doorknob.

Missouri is one of 10 states with abortion rights initiatives on the ballot this November. And, according to polls, support for Missouri’s amendment is strong: A September Emerson College Polling/The Hill survey of state voters, for example, revealed that 58 percent planned to vote for the measure.

The Yes on 3 campaign, backed by a coalition of groups under the banner Missourians for Constitutional Freedom, has been aggressive. The coalition has raised more than $30 million — far outpacing groups urging a “no” vote on the amendment. And while the campaign has received some large donations and in-kind support from individuals and organizations across the country, its campaign finance reports reflect that the effort has been fueled by thousands of small donations, a seeming testament to a vigorous text-messaging campaign. Its most recent quarterly finance report, for example, was nearly 1,700 pages long.

In contrast, groups advocating for keeping the ban in place — Vote No on 3 and Missouri Stands with Women — have struggled, despite the efforts of their political allies to keep the measure off the ballot, including a failed lawsuit to stop it. As of late October, those groups had raised about $2 million, which includes a more than $150,000 infusion of late cash from D. John Sauer, a former Missouri solicitor general and a member of Donald Trump’s legal team.

The energy of the campaign was palpable as Alsaden and Sandoval knocked on doors, even though there weren’t many voters home along their route. At one stop, Sandoval asked a man who opened the door whether he’d voted yet. “Yes,” he replied. “Did you vote ‘yes’ on Amendment 3 to get rid of the Missouri abortion ban?” she followed up. “Sure did!” he replied. “Ooh! Love it!” Sandoval said. “Wooo!” the man replied, taking a few stickers that signal support for the amendment.

The stakes couldn’t be more clear. If Yes on 3 can get voters to the polls, the campaign is likely to win — and Missouri would be the first state in the country to overturn a total abortion ban in the wake of Dobbs.

The Trigger Ban

The ink had not yet dried on the Supreme Court’s Dobbs decision on June 24, 2022, when Missouri’s then-attorney general, Eric Schmitt, hit send on a four-page opinion addressed to the state’s Revisor of Statutes. Schmitt, who is now a U.S. senator, confirmed that the court had shredded the constitutional protection for abortion, freeing Missouri to end legal abortion in the state. “This opinion immediately restores Missouri’s deeply rooted history and proud tradition of respecting, protecting, and promoting the life of the unborn,” Schmitt wrote.

In a subsequent press release, Schmitt crowed that the state would go down as the first to officially, fully strip millions of residents of their reproductive autonomy. “My Office has been fighting to uphold the sanctity of life since I became attorney general,” he said, “culminating in today’s momentous court ruling.”

Practically speaking, the right to abortion in the state was already thin. The increasingly conservative legislature had spent more than a decade stripping away reproductive rights. By the time lawmakers passed the trigger bill in 2019 that would allow Schmitt to decree abortion rights dead, the state had just one clinic, a Planned Parenthood in St. Louis, left to provide services. Missouri’s draconian laws had already seen thousands of residents slip across the state’s borders for care, including to Illinois — separated from Missouri by a three-tenths-of-a-mile strip of the Mississippi River — where lawmakers, providers, and advocates had been diligently increasing access to reproductive care.

In 2010, for example, Missouri recorded 6,163 abortions performed in state; by 2021, that number had dwindled to just 150.

Still, the state’s abortion ban — which contains only a vague exception for medical emergencies and no exceptions for rape or incest victims — began wreaking havoc almost immediately. A hospital system based in Kansas City, citing ambiguity in the law, stopped providing emergency contraceptives just days after it took effect, causing widespread uproar and prompting both Schmitt and Gov. Mike Parson to claim the hospital system was in the wrong and that emergency contraceptives were not banned.

Then in August 2022, scary headlines raced across the state when a woman from Joplin named Mylissa Farmer was denied an emergency abortion at a Missouri hospital after her water had broken early. Although doctors determined that the chance of her fetus surviving was zero, hospital officials determined she simply wasn’t yet sick enough to qualify for the exception to the state’s abortion ban. Farmer finally got the abortion she needed in Illinois. 

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Across the country since the Dobbs decision, pregnant people with life-threatening emergencies have hit a statutory wall, highlighting the cruelty of abortion bans — and the fundamental nonsense of allowing politicians to play doctor via state statute. Since 2022, voters in six states have either fought off efforts to do away with abortion protections — the first such vote was in Kansas in August 2022 — or have passed laws to codify protections for reproductive health care, including in Ohio. There, nearly 60 percent of voters in 2023 approved adding a measure to the state’s constitution protecting the right to abortion.

Not Far Enough

The Missouri amendment is not without controversy — from inside the reproductive justice movement. Like most initiatives appearing on ballots this fall, Missouri’s abortion amendment essentially codifies the protections outlined in the Supreme Court’s 1973 decision in Roe v. Wade. The landmark case and its progeny protected individual freedom only to the point of fetal viability, at which point it allowed for restrictions on abortion access.

Fetal viability is typically described at the point at which a fetus can survive outside the womb, but it is a tricky thing to pin down, let alone to mandate, given that every pregnancy is different.

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For some advocates, the problem with Roe — and with the abortion initiatives that mimic its protections — is that it did not bar the government from intruding on individual rights, it only set up a scheme for when the government could stick its head into the examination room. And that, critics say, gives Missouri lawmakers who vehemently detest reproductive autonomy too much leeway to chip away at the amendment’s protections — just as they’ve done in the past.

Some have argued that Missourians should have held off collecting signatures to get the citizen-led amendment onto the ballot this year and instead come up with expansive language that does away with avenues for government interference in pregnancy-related decision-making to put before voters at a later date. By voting for Amendment 3, “you will actually be embedding a ban into the state’s constitution because of the viability language,” Justice Gatson, founder and director of the Reale Justice Network told Flatland, a nonprofit newsroom at Kansas City’s PBS station.

The amendment’s authors seemingly attempted to thread that needle carefully. While the ballot provision says that the state’s general assembly “may” enact laws that “regulate the provision of abortion” after viability, it also says that “under no circumstance” may the government “deny, interfere with, delay or otherwise restrict” an abortion deemed necessary by a “treating health care professional.” It also defines fetal viability as the point in a pregnancy when a “treating health care profession and based on the particular facts of the case” believes that there is a “significant likelihood” of a fetus’s “sustained survival outside the uterus without the application of extraordinary medical measures.” While it does not define what those extraordinary measures are, it does, at least on its face, define fetal viability on a case-by-case basis, presumably making it difficult for the legislature to unilaterally define it.

Should the amendment pass next week, it would take time to restore rights — and access — within the state, and advocates would likely have to sue to lift the ban currently in place. That is the way things have played out in Ohio; while voters passed the constitutional amendment in 2023, it wasn’t until October 24 of this year that a judge there permanently struck down the six-week ban on abortion that was still on the books.

In Missouri, it seems likely that each of the state’s myriad abortion restrictions would require separate legal challenges. “It will be frustrating that every single day, care is not restored,” Emily Wales, president and CEO of Planned Parenthood Great Plains, told the Kansas City Star. “Missourians’ lives are at risk, but we will be telling that to the courts who have to make these decisions, and we will do everything we can to restore access as quickly as possible.”

Meanwhile, anti-abortion lawmakers have signaled that they’re willing to fight to limit the scope of the amendment — and the will of voters — perhaps by penning a repeal measure that would appear on a future election ballot. “This is not the end all be all,” the rabidly anti-abortion Republican state Sen. Mary Elizabeth Coleman told the Missouri Independent. Coleman previously sought to pass a state law that would bar patients from traveling out of state for abortion care and fought to keep Amendment 3 off the ballot. “I think you will see efforts, win or lose, for Missourians to get another say in this.”

The post Missouri Could Become the First State to Overturn a Total Abortion Ban appeared first on The Intercept.

The state-sanctioned killing was not supported by the family of the victim, former newspaper reporter Felicia Anne Gayle Picus, who was stabbed to death in her suburban St. Louis home. In August, Picus’s husband Dan told court officials and representatives of state Attorney General Andrew Bailey’s office that while he believed Williams was guilty, he did not want to see Williams executed.

It was Bailey’s actions that cleared the way for Williams’s execution. In mid-August, a St. Louis County Circuit Court judge approved a deal between Williams and the county’s prosecuting attorney, Wesley Bell, that would have resentenced Williams to life in prison. Bailey scoffed at the deal and intervened to stop it.

On Monday evening, Gov. Mike Parson declined to offer Williams clemency, and, over the dissent from the court’s three more liberal justices, on Tuesday afternoon the U.S. Supreme Court declined to step in.

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Missouri’s execution of Williams puts the U.S. one step closer to a grim milestone: With four states slated to conduct four executions by the end of this week, the country will soon reach its 1,600th execution since the death penalty was reinstated in 1976. While public support for capital punishment continues to decline and juries are voting far less to impose capital punishment, officials in states like Missouri, Texas, and Oklahoma continue to schedule executions — including in cases like Williams, where questions about the underlying conviction and its fairness persist — Democrats scrubbed their long-standing goal of ending capital punishment from their platform this year. To date, 200 people on death row have been exonerated: a rate of 1 exoneration for every 8 executions carried out.

In the days leading up to Williams’s execution, more than 1 million people contacted Parson’s office asking that he spare Williams’s life, and billionaire abolitionist Richard Branson took out a full-page ad in the Kansas City Star asking readers to do the same. In denying to offer clemency, Parson criticized the media as biased and said that nothing from the “real facts” of the case lead him to believe Williams was innocent.

Rage at the execution bubbled up online Tuesday evening, with Williams’s last statement and pieces of his poetry going viral after he was killed. “All Praise Be To Allah In Every Situation!!!” Williams wrote.

Missouri killed Williams despite lingering questions about the fairness of his 2001 trial. In January, Bell filed a motion seeking to vacate Williams’s conviction, saying that the paucity of evidence against Williams had “cast inexorable doubt” on the case. 

Among the issues that Bell has cited was the handling of the murder weapon without protective gloves by the prosecutor who tried the case, which tainted the evidence and made it impossible to extract from it any potential DNA left by the killer. None of the crime scene evidence linked Williams to the killing. The prosecutor’s contamination of the evidence unconstitutionally deprived Williams of a fair trial, Bell argued.

During an evidentiary hearing in August, that now-retired prosecutor, Keith Larner, admitted to handling the weapon barehanded on at least five occasions before the trial, which he said was his normal practice. Larner said he thought it was acceptable to do so because he had decided, based on an investigator’s assertion, that whoever killed Picus had worn gloves during the attack. There is no evidence in the case to confirm this suspicion.

Bell also pointed to Larner’s striking of potential jurors at least in part because they were Black. Using race as a basis to strike jurors is unconstitutional, the U.S. Supreme Court has repeatedly said. Court records reveal that Larner struck six of the seven Black potential jurors from service. In explaining his decision to strike one of them, Larner testified last month that he did so because the man and Williams “looked like brothers, like familial brothers, not like Black people.”

At every step of the way, Bailey has intervened to argue that the conviction was righteous, that Larner had done nothing wrong, and that Williams should be executed. Williams’s ordeal is just the latest in a string of cases where Bailey has deployed the power of his office to defeat claims of wrongful conviction and even to keep court-exonerated people locked in prison.

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Missouri’s Attorney General Is Waging War to Keep the Wrongly Convicted Locked Up

Despite Bell’s concession that constitutional error had rendered Williams’s conviction unreliable, and despite Dan Picus’s desire that the state not go through with its plans, Bailey has insisted that his actions represent justice and that Williams and his lawyers have been on a crusade to mislead the public and free a murderer. “The public has been deceived every step of the way,” the attorney general said in an August press release. “That is why the truth of this matter must get out.”

On September 12, Circuit Court Judge Bruce Hilton ruled that there was no legal reason to vacate Williams’s conviction.

In a flurry of subsequent legal action, lawyers working with the Midwest Innocence Project, which represents Williams, along with attorneys representing Bell sought relief in a series of other courts, including the federal district court, the 8th U.S. Circuit Court of Appeals, and the Missouri Supreme Court, to no avail.

Although the federal appeals court denied Williams’s attempts to appeal a lower court decision based on procedural rules, Judge Jane Kelly wrote a concurring opinion, expressing concern that the underlying issues in the case “call into question the fundamental fairness of Williams’ proceedings.”

In a statement after Williams’s execution, attorney Larry Komp, with the Office of the Federal Public Defender in Kansas City, which also represented Williams, highlighted the ways the system failed to address serious issues raised in his case. 

“It is hard to explain how admitted racial discrimination is ignored and never meaningfully addressed. It is hard to explain how a prosecutor can admit that he contaminated evidence his entire legal career … but nothing is done,” Komp said. “The hardest thing to explain, and what we cannot understand, is how rote application of a process to protect finality outweighs finding truth and achieving fairness.”

The post Missouri Kills Marcellus Williams Over Objections From Prosecutor and Victim’s Family appeared first on The Intercept.

The ruling, issued on Thursday by Circuit Court Judge Bruce Hilton, dismantles Williams’s latest attempt to prove his innocence and paves the way for his execution on September 24. “There is no basis for a court to find that Williams is innocent,” Hilton wrote. “Williams is guilty of first-degree murder, and has been sentenced to death.”

The ruling comes three weeks after the judge had agreed to a deal between Williams and St. Louis County Prosecuting Attorney Wesley Bell’s office that would have spared Williams’s life. The agreement, which would have seen Williams sentenced to life in prison, was based on the recent discovery that prosecutors had failed to adequately preserve the murder weapon used to kill Felicia Anne Gayle Picus in 1998.

Lawyers representing Attorney General Andrew Bailey scoffed at the deal, arguing that Hilton didn’t have the right to resentence Williams. Bailey ran to the Missouri Supreme Court to stop the proceeding, which it did, ordering Hilton to hold an evidentiary hearing instead.

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During that hearing, on August 28, Bell and Williams’s attorneys maintained that the contamination of the murder weapon had violated Williams’s rights. Lawyers representing the attorney general meanwhile argued that handling evidence without protection was merely what the prosecutors did in St. Louis County at the time of Williams’s trial. Hilton has now agreed with that position.

In a statement following the ruling, Tricia Rojo Bushnell, executive director of the Midwest Innocence Project and one of Williams’s attorneys, emphasized how rare and meaningful it was for Bell’s office to seek to vacate Williams’s conviction. “The decision of a prosecutor to move to vacate a murder conviction and death sentence is not done lightly,” she said, but Bell had done so because “there is overwhelming evidence that Marcellus Williams’s trial was unconstitutionally unfair, including revelations that the State contaminated the most critical evidence in the case — the murder weapon.”

A Deal Undone

Keith Larner, a retired former prosecutor who handled Williams’s case, was a key witness during the evidentiary hearing. He admitted that, before Williams’s trial, he had repeatedly handled the butcher knife used to kill Picus without wearing gloves that would have preserved any biological material on it linking her killer to the murder.

Larner testified that after the local crime lab failed to find any fingerprints on the weapon and had matched blood found on it to Picus, he felt free to handle the knife without taking precautions because the testing was complete. Larner also said he had already concluded that Picus’s killer had worn gloves. There is no concrete evidence in the case record that Picus’s killer wore gloves. Nonetheless, Larner insisted that there “was nothing to link anybody to the crime on that knife.” Larner recalled touching the knife at least five times prior to the trial without wearing protective gloves.

Williams maintains his innocence in the killing. No crime scene evidence linked him to the murder inside Picus’s home, and Williams long argued that testing of the weapon used to kill Picus could prove he was innocent. The trial judge denied his attorneys’ request to test the knife for DNA before trial, and he was convicted in 2001 based on the questionable testimony of two informants. DNA testing done in 2016, however, revealed unknown genetic material on the knife’s handle.

Based in part on the unidentified DNA, Bell filed a motion in January to vacate Williams’s conviction, invoking a relatively new Missouri law that allows elected prosecutors in the state to undo convictions they believe their offices wrongly obtained. The court was scheduled to hold an evidentiary hearing on the case, where a special-appointed counsel was slated to argue that Williams should be freed. Yet additional testing on the knife revealed at the last minute that neither Larner nor his investigator could be excluded as the source of the unknown DNA. In other words, whatever crime scene DNA might have been on the knife was irrevocably lost by the prosecution team’s handling of it before Williams’s trial.

Because of those findings, Bell admitted that the road to exonerate Williams would be steep. In mid-August, Bell struck a deal with Williams and his attorneys: The prosecutor would take the death penalty off the table if Williams would enter a so-called Alford plea that would allow him to maintain his innocence while conceding the state had enough to convict him. In exchange, Williams would be resentenced to life in prison. Picus’s husband, Dan Picus, had also approved the deal; he believes Williams is guilty, but told the court he does not want to see Williams executed.

Yet that wasn’t enough for the attorney general’s office, whose appeal to the state’s high court scuttled the agreement and prompted the court to schedule the evidentiary hearing the following week.

“There Is Still Time”

In his ruling on Thursday, Hilton concluded that because Larner’s actions weren’t intentional, under U.S. Supreme Court precedent, Williams’s rights had not been violated. The handling of the knife had been part of the prosecution’s normal practices, Hilton found. Larner, the judge wrote, had a “good faith basis and reasons for handling the knife without gloves.”

Hilton also rejected Williams and Bell’s other claims, including that Williams’s previous attorneys were ineffective in representing him at trial, and that Larner had struck people from the pool of potential jurors on Williams’s case because they were Black, which is unconstitutional. During the hearing, Jonathan Potts, who is working with Williams’s attorneys at the Midwest Innocence Project, pressed Larner about his stated decision to strike one potential juror because the man “looked very similar” to Williams. Larner said that what he meant was that they looked like “brothers,” he said. “Like familial brothers, not like Black people.”

During his short tenure as attorney general, Bailey has spent a considerable amount of time fighting efforts to exonerate the wrongly convicted. Still, as of Thursday afternoon, his office had not released a statement regarding Hilton’s ruling.

Rojo Bushnell, of the Midwest Innocence Project, said Williams’s legal team would continue to seek relief via the courts and Gov. Mike Parsons, who could grant clemency. “We will continue pursuing every possible option to prevent Mr. Williams’s wrongful execution,” she said in her statement. “There is still time … to ensure that Missouri does not commit the irreparable injustice of executing an innocent person.”

The post A Prosecutor Wanted to Spare Marcellus Williams’s Life. Missouri’s Attorney General Got in the Way. appeared first on The Intercept.

On Wednesday, Larner testified in court that he had concluded there was no additional forensic testing that needed to be done on the murder weapon used in the 1998 killing. The knife handle had been analyzed for fingerprints, but none had been found; blood on the blade matched Picus.

Larner said he saw no problem with his repeated handling of the weapon without using gloves in the months leading up to the trial of Marcellus Williams, who Larner would prosecute and send to death row for the murder. Now, the retired prosecutor was defending his actions during a one-day hearing held as part of an effort to overturn Williams’s conviction.

“There was nothing to link anybody to the crime on that knife,” Larner insisted.

Williams, who is scheduled for execution in September, maintains his innocence. Until last week, the knife was central to proving his claim.

Williams sought testing of the weapon before his 2001 trial, but the judge denied his requests. DNA testing done in 2016 excluded Williams from handling the weapon. Instead, the results revealed unknown male DNA.

“This case is about contamination.”

Last week, a new round of analysis confirmed that Williams’s genetic material was not on the knife, but it could not exclude either Larner or his investigator as the source of the unknown DNA. Whatever DNA might have existed connecting the perpetrator to Picus’s murder was irretrievably lost — thanks to the prosecution’s handling of the evidence.

Now, the contamination itself would be at the center of current elected county prosecutor Wesley Bell’s efforts to overturn Williams’s conviction. According to Bell, the state’s willful mishandling of the evidence before trial had violated Williams’s rights, meaning his conviction and death sentence must be overturned.

“This case is about contamination,” Matthew Jacober, a special counsel appointed to represent Bell at the hearing, told Circuit Court Judge Bruce Hilton.

From the witness stand, Larner sparred with one of Williams’s lawyers, insisting that his handling of both the murder weapon and the case had been aboveboard. A five-lawyer contingent from Missouri Attorney General Andrew Bailey’s office — which had intervened to block a deal between Williams and prosecutors, leading to Wednesday’s hearing — was there to back the former prosecutor. Larner hadn’t mishandled the evidence at all, Assistant Attorney General Michael Spillane told Hilton. Larner’s handling of the evidence without gloves was routine.

To prove Larner’s actions constituted a constitutional error that would make Williams’s conviction untenable, Bell’s office would have to prove the evidence had been mishandled on purpose. And it wasn’t, Spillane said. Instead, it was Larner’s practice was to “not use evidence-saving techniques.”

“It wasn’t bad faith,” Spillane said of Larner’s actions. “It wasn’t even negligent.”

Now, Hilton is tasked with determining whose version of the truth — and of constitutional error — is correct. His decision on whether Williams’s conviction should be overturned is due by September 13, just two weeks before Williams is slated for execution. Should he adopt the attorney general’s reasoning, that execution will almost certainly go forward.

Dan Picus came home from work on August 11, 1998, to find his wife murdered. Despite a wealth of physical evidence found at the scene, including the knife, the investigation quickly stalled.

It wasn’t until months later, after Picus posted a $10,000 reward for information leading to a conviction, that a jailhouse informant came forward claiming his former cellmate, Marcellus Williams, confessed to the crime. Police later secured a second informant, a former girlfriend of Williams’s, who also claimed he’d confessed to the murder, though their stories shifted over time and often conflicted with one another.

Despite the informants’ accounts, none of the physical evidence at the scene tied Williams to the killing. Their testimony, however, was enough to secure a conviction against Williams.

With each of his appeals denied, Williams was twice on the brink of execution, including in 2015 when the Missouri Supreme Court stepped in and ordered DNA testing on the knife. Although the testing revealed the unknown DNA, the court dismissed the appeal. Ultimately, Williams’s execution was reset for September 24.

Meanwhile, Bell’s office had started looking at the case and in January 2024 filed a motion to vacate Williams’s conviction. In addition to the foreign DNA on the knife and the dubious informant testimony, Bell cited issues with the quality of Williams’s legal defense and misconduct by prosecutors whom he argued had struck qualified individuals from the jury pool because they were Black. These factors cast “inexorable doubt” on Williams’s guilt, he argued.

With Jacober, the special counsel, ready to argue the county’s position, the latest DNA analysis — revealing that neither Larner nor his investigator could be excluded from contributing DNA to the knife — had changed the calculation: The weapon, which had been key to proving a wrongful conviction, became useless for identifying the murderer.

Instead, Bell’s office struck a deal with Williams on August 21. The prosecutor would concede constitutional error and take the death penalty off the table if Williams agreed to enter a so-called Alford plea that lets Williams acknowledge a strong case against him while maintaining his innocence; the plea would let him to avoid the death penalty by accepting a life sentence, while retaining the right to challenge the arrangement if new evidence comes to light.

Hilton, the judge, agreed with the outcome, as did Dan Picus, who’d told the court he did not want Williams executed. Hilton was slated to resentence Williams the next day.

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The move sparked the attorney general’s intervention. Bailey’s office ran to the Missouri Supreme Court, arguing that Hilton didn’t have the power to agree to such a deal and, essentially, that Williams should face execution. The court sided with Bailey, ordering Hilton to hold a hearing on Bell’s motion to vacate the conviction as originally planned. Hilton set the hearing for August 28.

Sitting at the witness stand on Wednesday afternoon, Larner cut a familiar figure. Lanky with a long face and birdlike nose, he resembled actor Sam Waterston’s district attorney character Jack McCoy from the original “Law & Order” TV show. Under questioning, he was self-assured and insistent that his cause in prosecuting Williams was a righteous pursuit.

Jonathan Potts, a lawyer working with Williams’s attorneys at the Midwest Innocence Project, asked Larner about the motivations and credibility of the snitches he’d used to tie Williams to the murder.

Each had a history of repeated run-ins with the law, and each had collected $5,000 from Dan Picus in exchange for their testimony. Larner had even advocated for one, a man named Henry Cole, to receive the money months before he’d testified against Williams. Cole came forward “predominately for the reward,” Larner said, “and to tell the truth.”

Larner said he asked Picus to pay Cole in advance after it became clear the snitch’s commitment to testifying was wavering.

“We gave you the money,” Larner recalled Wednesday of his “promise” to Cole. “Please come back for trial.”  

Larner dismissed any notion that anything questionable had occurred. He said the informants were the “two strongest witnesses” he had produced in a murder case during his nearly 32-year career as a St. Louis County prosecutor.

Larner bristled when Potts pressed him about his reasons for striking Black people from the jury pool. Although Larner eliminated all but one Black person from the panel, he insisted he hadn’t run afoul of a U.S. Supreme Court ruling that rejecting jurors based on race is unconstitutional.

In his motion to vacate Williams’s conviction, Bell pointed to several instances where it appeared Larner did just that. In one case, Larner rejected a Black man he said “looked very similar” to Williams. Pressed on the instance, Larner doubled down. “They looked like brothers, like familial brothers, not like Black people,” Larner said. “They were both young Black men, but that’s not why they were similar.”

Much of Pott’s questioning focused on Larner’s handling of the murder weapon. Larner said the knife was collected from the medical examiner’s office, carefully packaged and processed for forensics, then repackaged and securely stored. The state then summarily concluded no additional testing would be conducted, Larner said.

Still, it would be more than a year before Williams was indicted for the crime and Larner was assigned to the case.

Larner said he readily concluded that the weapon was “irrelevant” because he was sure the killer had worn gloves. Larner testified that an investigator had told him about the gloves, and Cole, the informant, claimed Williams said he wore a pair during the killing.

Although Bailey’s office has parroted this line, there is nothing concrete to back it up. The second informant, Williams’s ex-girlfriend, said Williams told her that, after the murder, he washed blood off his hands.

Nobody bothered to pin any of it down. Instead, Larner admitted on Wednesday that in the months before Williams’s trial, he handled the knife on at least five occasions without wearing gloves of his own.

Larner’s repeated handling of the weapon before trial came as a surprise to one of Williams’s then-trial attorneys, Christopher McGraugh. Now a circuit judge in the city of St. Louis, McGraugh testified on Wednesday that, back in 2001, it was well known that handling forensic material without precautions could contaminate the evidence. He said that when he handled evidence related to Williams’s case, he’d been required to wear gloves.

Though Larner claimed there was no indication before trial that the defense wanted any additional testing on the knife, court records show otherwise. Williams’s other trial attorney, Joseph Green, who is also now a sitting circuit court judge, testified that when the lawyers learned another piece of physical evidence had been destroyed, they filed a motion to postpone the trial, in part so they could do forensic testing of the knife. The request was rejected.

Larner denied during the hearing that the defense ever sought DNA testing. “Wrong, wrong!” he exclaimed. He said he opposed the defense’s motion to postpone the trial because his case was ready to go.

Judge Hilton had a question of his own for Larner: Could the prosecutor have consented to the defense request? Not without the approval of his boss, Larner said. Besides, there was “no additional evidence” anyone was going to obtain that would prove anything.

Under cross-examination, Spillane, from the attorney general’s office, did his best to prop up Larner’s testimony. In how many of the cases he prosecuted over his nearly 32-year career had Larner handled the evidence after initial forensic testing was done, Spillane asked. Larner replied, “Probably all of them.”

“No one fathomed that the prosecutors would have such disregard.”

Spillane told Hilton that there was no reason to vacate Williams’s conviction. His claims about the racist jury selection and deficient defense lawyering had been previously considered by the Missouri Supreme Court and denied.

The only thing that was new was Bell’s claim that the evidence had been mishandled, he argued, but even that was nonsense — since Bell couldn’t prove the prosecution had contaminated the knife on purpose.

In his closing remarks, Potts recalled how eager Williams was for the knife to be tested. Just as Bell had seen it as a key to exoneration, Williams viewed the knife as an opportunity to definitively prove he hadn’t been at the crime scene.

“No one fathomed that the prosecutors would have such disregard,” Potts said. “For 23 years, the reasonable people in this room thought that was impossible.”

The post His Best Chance to Get Off Death Row Was DNA on the Murder Weapon, but Prosecutors “Contaminated” the Evidence appeared first on The Intercept.

Because prosecutors had mishandled and improperly stored the weapon, Jacober said, county prosecutor Wesley Bell had concluded that Williams’s rights had been violated. His conviction — and death sentence — could not stand. “The murder weapon was handled without the proper procedures then in place,” Jacober told Judge Bruce Hilton. “The St. Louis County Prosecuting Attorney’s Office regrets its failure to maintain proper protocols surrounding key physical evidence in this heinous crime.”

It was a stunning admission on the day that Jacober had been slated to present the state’s case that Williams had been wrongly convicted of killing Picus. The fact that the state had so tragically mishandled the murder weapon, which had traces of unknown male DNA, meant that a key piece of evidence that would support Williams’s exoneration was no longer usable.

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It was a bitter pill. The judge overseeing Williams’s 2001 trial had denied his request for DNA testing. It wasn’t until 2016 that testing ordered by the Missouri Supreme Court excluded Williams as the source of DNA found on the knife. In other words, he could not be linked to the weapon. Now, Jacober admitted, a new round of testing revealed that a prosecutor’s investigator could not be excluded as the source. Nor could the prosecutor who handled Williams’s trial. Whatever DNA evidence there was connecting the perpetrator to the murder had been irretrievably lost.

While Jacober conceded that Williams’s conviction could not stand, neither could the office point to the unknown DNA on the murder weapon to exonerate him. Instead, after hours negotiating behind closed doors with Williams’s attorneys as spectators waited in the courtroom, the county prosecutors offered Williams a deal: agree to a plea that would take the specter of execution off the table, replaced by a sentence of life without the possibility of parole.

Williams would have to accept the arrangement to avoid being executed for a crime he insists he did not commit. Wearing a silvery gray thobe and white skull cap, his beard flecked with white, the 55-year-old Williams was still as Jacober spoke. The judge asked Williams if he had agreed to the terms. “Yes,” he said.

Hilton said he agreed with the outcome, as did Picus’s husband, Dan Picus. The judge would formally re-sentence Williams to life in prison the following day.

Everyone, it seemed, was on the same page. Everyone, that is, except Missouri Attorney General Andrew Bailey. By Wednesday night, his office had successfully appealed to the state’s Supreme Court to block the deal. But Bell’s office was determined not to let Bailey have the final word.

“Inexorable Doubt”

Dan Picus came home from work on August 11, 1998, to find his wife dead. The former St. Louis Post-Dispatch reporter had been stabbed repeatedly and the murder weapon, a knife from the couple’s kitchen, had been left lodged in her neck. Additionally, there were hairs found near Picus’s body, bloody fingerprints on a wall, and a trail of bloody shoeprints. Despite the wealth of physical evidence, the investigation stalled. It wasn’t until months later, after Picus’s family posted a $10,000 reward for information leading to the arrest and conviction of her killer, that a jailhouse informant came forward claiming his former cellmate, Marcellus Williams, had confessed to the murder. Police later secured a second informant, a former girlfriend of Williams’s, who also claimed he’d taken responsibility.

Notably, none of the physical evidence at the scene tied Williams to the killing. And there was good reason to question the accounts provided by the informants; both were facing prison time for unrelated crimes, and each had a history of ratting out others to save themselves from trouble. Many of the details they offered police shifted over time, while others did not match the murder. Nonetheless, Williams was tried and sentenced to death.

Each of Williams’s appeals were denied. He was on the eve of execution in January 2015 when the Missouri Supreme Court stepped in and ordered DNA testing on the murder weapon, which ultimately revealed unknown DNA. The court summarily dismissed Williams’s claims without considering those results and reset his execution for August 2017.

The Midwest Innocence Project, which represents Williams, turned to Missouri’s then-Gov. Eric Greitens, asking him to halt the execution and to convene what’s known as a board of inquiry to investigate the case. On the day Williams was set to die, Greitens issued an executive order convening a five-member board of retired judges to “assess the credibility and weight of all the evidence” in the case. The board was given subpoena power and, per state law, tasked with reporting back to the governor whether or not Williams should be executed or his sentence commuted.

That process was ongoing when the current governor, Mike Parson, issued his own executive order in June 2023, disbanding the board. It was time to “move forward,” he said. The Midwest Innocence Project sued, arguing that Parson had overstepped his authority by dissolving the panel before it had issued a report as the statute required it to do. The Missouri Supreme Court disagreed, ruling in June 2024 that Parson could do as he wished. The court reset Williams’s execution for September 24.

Meanwhile, the county court was considering a motion that Bell filed in January, seeking to vacate Williams’s conviction. In addition to the foreign DNA on the knife and the sketchiness of the snitch testimony, Bell cited poor defense lawyering at Williams’s trial and misconduct by prosecutors who struck qualified individuals from the jury pool because they were Black. These factors combined cast “inexorable doubt on Mr. Williams’s conviction and sentence,” the prosecutor argued.

Fast forward to this week: A court was finally slated to consider evidence of Williams’s innocence.

An Unexpected Twist

The rows of wooden benches inside the Division 13 courtroom were full by 8:30 a.m. on Wednesday, when the hearing was slated to begin. Forty-five minutes later, Hilton stepped into the room without his robes. He was there to explain the delay. The parties were talking, he said, discussing a way to “resolve” the case. Hilton joked that he wanted everyone to know they weren’t waiting around because the judge was late.

It wasn’t until after 1 p.m. that Hilton finally took to the bench and announced that Bell’s office and Williams’s lawyers had come to an agreement. There would be no hearing as had been planned. Instead, Jacober, the special prosecutor, admitted that the state had so mishandled the murder weapon that the physical evidence was no longer probative of Williams’s innocence — or of anyone else’s guilt.

While the state’s incompetence had violated Williams’s rights — prompting the prosecutors to say his current conviction and death sentence couldn’t stand — it also cut off the most tangible path to his exoneration.

Without the DNA evidence, what remains of the case against Williams is the questionable testimony of two snitches, who have both since died. Williams had previously raised the issue of their dubious credibility but was dismissed by the courts. The same is true of his claims about his defense lawyers’ failures at trial and about the prosecution’s striking of Black people from the jury pool. At each turn the courts have shrugged their shoulders. Still, Jacober indicated that Bell’s efforts to make a case for Williams’s innocence were hamstrung without the exculpatory DNA.

Jacober announced that the prosecutors’ office would admit that it had bungled the job and take the death penalty off the table. In exchange, Williams would enter what is known as an Alford plea, accepting a charge of first-degree murder.  

Named for the U.S. Supreme Court case North Carolina v. Alford, it is a plea where a defendant maintains their innocence but agrees that the state has enough to convict them and thus pleads guilty to avoid a harsher sentence — in Williams’s case (as in Alford’s), the death penalty.

As part of the deal, Williams would have the right to appeal his sentence if new evidence of his innocence comes to light.

“Marcellus Williams is an innocent man, and nothing about today’s plea agreement changes that fact,” Tricia Rojo Bushnell, Williams’s lawyer and executive director of the Midwest Innocence Project, said in a statement. “The fact that there is DNA on the knife matching members of the trial prosecution team proves the State of Missouri disregarded critical protocols in the investigation of this case, including mishandling pivotal evidence.”

“That Is Not Justice”

During the hours of negotiations on Wednesday morning, Hilton had spoken to Dan Picus, who affirmed that he does not support the death penalty for Williams. Picus would be in court the following morning to testify at the sentencing hearing, the judge said.

Lawyers with the attorney general’s office were displeased. Andrew Clarke, an assistant attorney general, lodged an objection to the agreement, which Hilton overruled. Bailey, Missouri’s attorney general, then appealed to the state’s high court to intervene.

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Missouri’s Attorney General Is Waging War to Keep the Wrongly Convicted Locked Up

Since being appointed to his post in 2023, Bailey has spent a considerable amount of time attempting to thwart state courts from exonerating the wrongly convicted — or even from considering their claims. Bailey sought to block Williams from ever receiving a hearing, arguing to the state Supreme Court that, by granting a hearing, Hilton was challenging its authority as the highest court in the state. Last month, the court denied Bailey’s motion to scuttle the hearing and clear the way for Williams’s execution.

In a Wednesday evening court filing, the attorney general’s office again argued to the state’s high court that Hilton had overstepped his role by vacating Williams’s conviction and asked it to halt the planned resentencing. The court did just that, issuing an order requiring Hilton to hold the innocence hearing as planned and to issue a ruling by September 13, or to respond to the court explaining why he would not do so.

Picus joined the court session on Thursday morning via video call, but instead of attending Williams’s resentencing, he listened as Hilton responded to the high court’s order. The judge and attorneys had decided to move forward with a hearing on August 28, despite the lack of definitively exonerating DNA. Bell’s office indicated that it would seek to show, without the benefit of dispositive DNA evidence, that Williams’s case was too flawed to withstand scrutiny.

Rojo Bushnell of the Midwest Innocence Project said that evidence presented at next week’s hearing would affirm Hilton’s decision to accept the prosecutor’s confession that constitutional error had poisoned Williams’s case.

She also questioned the attorney general’s continued meddling, noting in a statement that the agreement to overturn Williams’s death sentence and to accept the Alford plea was made after careful consideration and with the support of Picus’s family.

“Yet in spite of this, the Attorney General has fought to invalidate that agreement. It is impossible to understand who this decision serves or what justice it provides,” she said. “This decision directly contradicts the will of a duly elected prosecutor and the community he represents, and the wishes of a family who has already lost so much. That is not justice.”

The post A Prosecutor Admits His Office’s Incompetence Cut Off an Innocent Man’s Path to Exoneration appeared first on The Intercept.

“We need to put into law the protections of Roe v. Wade,” Harris told Politico. “And that is about going back to where we were before the Dobbs decision.”

That vision is not exactly visionary. A growing number of abortion advocates say that codifying Roe only guarantees government interference in reproductive health care — the very thing Harris has said she opposes.

Calling to “restore Roe is a call to continue banning abortion and to continue criminalizing pregnant people,” said Dr. Jenni Villavicencio, an OB-GYN and complex family planning specialist who provides all-trimester abortion care. “It is an outdated call that in reality threatens, harms, and punishes abortion seekers and their providers.”

Ahead of the Democratic National Convention in Chicago next week, dozens of advocates are calling for an expansive vision of abortion rights that they hope Harris and other politicians will embrace to create equitable reproductive health policy. They are pointing to a memo titled “Abortion Justice, Now” of which Villavicencio is a primary co-author, that lays out a vision of reproductive freedom that expands far beyond the reaches of Roe.

The memo calls on elected officials to instead enact protections for patients and doctors throughout pregnancy that center the needs of the most vulnerable, and it points to federal legislation filed last year as a first step in that direction. “We can and should invest in bold policies, not restoring Roe,” the 17-page memo reads. “Given that past is prologue, a return to a Roe-era status quo squanders a once in a generation opportunity to reimagine reproductive rights, health, and justice.”

Abortion Rights With an Asterisk

The right to abortion guaranteed by Roe (carried through and refined under later Supreme Court decisions) was always considered a floor and not a ceiling. In other words, Roe provided a base level of reproductive freedom but did not constrain states from going further to protect reproductive rights.

Functionally speaking, however, Roe provided anti-abortion activists and politicians the framework to begin restricting access even as the opinion’s ink was drying. Roe and its progeny ultimately enshrined limits on abortion rights, allowing states to restrict abortion after a certain point in pregnancy, when the government’s so-called interests in protecting fetal life give it the green light to impose limits on care.

The new abortion policy memo tackles these limitations head on. In addition to Villavicencio, the memo’s authors include Dr. Colleen McNicholas, an OB-GYN who provides all-trimester abortion; Pamela Merritt, the executive director of Medical Students for Choice; and Garin Marschall and Erika Christensen, directors of Patient Forward, which advocates for all-trimester abortion care. (Villavicencio and McNicholas recently co-founded the reproductive justice policy group Raven Lab for Reproductive Liberation, for which Merritt serves as a senior adviser.)

In the memo, they note that “states were not required to ban abortion after viability,” but Roe’s framework allowed them to do so. As a pregnancy advanced under Roe, it was subject to increased surveillance while abortion was subject to increased restriction. The Roe framework and its generous caveats also encouraged a slew of other restrictions on access, such as waiting periods, that were ostensibly aimed at shoring up patient health and safety, but were mostly based on junk science. Thousands of such proposals have been filed in legislatures throughout the country, and since the early 2010s, well over 1,000 have made it onto the books.

By the time the Supreme Court toppled Roe in its 2022 Dobbs decision, 43 states had banned abortion after some point in pregnancy. Since then, 14 states have banned abortion entirely, while 27 others imposed a gestational limit, many of them well before viability, which is generally considered to begin around 24 weeks. Limited exceptions, many of which are purposely vague, have seen pregnant people scrambling for care, increasingly across state lines.

The patchwork abortion rights system created under Roe, where socioeconomic status and ZIP code often determined whether a person was able to exercise their constitutional right to abortion, has also worsened exponentially over the last two years; in each case the most vulnerable and marginalized communities are largely left out of the fold.

But the Dobbs decision has also sparked sustained activism. Kansans were the first to speak at the ballot box when, less than two months after the Dobbs decision, voters fought back an effort to overturn the state’s constitutional protection for abortion. Since then, every state that has taken up abortion has either voted to protect access or to fend off anti-abortion measures. So far, abortion measures in eight states have been certified for the ballot in November, with similar efforts underway in another three states.

In most of those states, voters will be asked to codify measures designed in Roe’s image — in other words, abortion rights with an asterisk.

A New Framework

Villavicencio belongs to an oft-vilified group of physicians that provide abortion care later in pregnancy, a fluid concept that can begin around 21 weeks. She lamented during a recent press conference that she has “watched advocates, both elected and unelected, specifically use us and our patients as bargaining chips in their quests for political wins.”

While abortion later in pregnancy is uncommon, it is vital for those who need it. Still, political jockeying has for decades put a target on patients who seek such care, as well as their providers — even though the gestational and viability limits imposed on abortion care make little, if any, medical sense.

The advocates’ new memo lays out the case for doing away with this framework altogether. Not only does the Roe paradigm cut off patients from care, but it also does the work of anti-abortion activists, Villavicencio said, helping them to “enshrine a place for the government in pregnancy decisions.”

The memo calls for federal, statutory protection for abortion that eliminates the incentive for governments to interfere with reproductive choices. Even though the notion of viability is fluid and can vary from pregnancy to pregnancy, the memo notes, gestational and viability limits encourage the policing of pregnancy — and have fueled a rise in its criminalization.

For the government to impose these artificial lines would reinforce the “underlying logic” of the fetal personhood movement, which argues that fetuses enjoy the same constitutional rights as actual people and is the end game for far-right anti-abortion activists and a goal laid out in the 2024 Republican Party platform. “Enshrining a viability standard in federal law is not an incremental step toward expansive rights,” reads the memo. “On the contrary, viability and gestational duration limits are an incremental step toward establishing fetal personhood.”

Ahead of the DNC, more than 200 organizations and individuals have signed on in support of the new policy memo. They point, in part, to the Abortion Justice Act, introduced in June 2023 by Rep. Ayanna Pressley, D-Mass., as a model for abortion protection going forward. The bill would eliminate government intrusion in individual reproductive health decisions and expand access to care, in part through federal grants to support the training of abortion providers, the construction of clinics, and the direct support of individuals seeking care.

The policy memo builds on a foundation that is readily available and advocates for a more inclusive vision of reproductive freedom and equality, Merritt, Raven Lab’s senior adviser, said. “The Abortion Justice Now position is an incredibly necessary tool,” she said. “We have created a tool that we really do want the movement to use to combat not just the anti-abortion movement’s playbook, but also to combat the fear of organizing toward justice.”

Enshrining Roe just won’t cut it, she said. “We have spent 49 years in a defensive posture, protecting Roe, because it’s what we got. … It is simply not the framework we need in 2024 and moving forward.”

The post By Vowing to Codify Roe, Kamala Harris Ensures Continued Government Meddling in Abortion Care appeared first on The Intercept.

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.

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Crime Scene DNA Didn’t Match Marcellus Williams. Missouri May Fast-Track His Execution Anyway.

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.

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Missouri’s Attorney General Is Waging War to Keep the Wrongly Convicted Locked Up

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.”

The post Despite Missouri AG’s Best Efforts, Man Condemned to Die Will Get Hearing On His Innocence Claim appeared first on The Intercept.

Their differences immediately reemerge, however, as to why. For Alito, the answer is that there is apparently no federal law that protects abortion access, and the court should have said so. For Jackson, the reason is opposite: Federal law clearly protects patients who need abortion care, and failing to say so puts people in harm’s way.

“How long must pregnant patients wait for an answer?” Jackson wrote in a fiery dissent. “Today’s decision is not a victory for pregnant patients in Idaho. It is delay.”

At issue is the scope of the federal Emergency Medical Treatment and Active Labor Act, or EMTALA, which was passed in the 1980s in response to an epidemic of risky patient transfer practices, known as “patient dumping.” The law requires all hospitals that receive Medicare funds to evaluate every patient who shows up to the emergency room and, in a medical emergency, to provide necessary stabilizing treatment. The law defers to medical professionals to determine when an emergency exists and what stabilizing treatments are needed.

As states rushed to ban abortion in the wake of the Dobbs ruling, some, like Idaho, enacted laws with only vague exceptions for care, including to save the “life of the mother.” The federal government quickly sued to block Idaho’s ban, arguing that EMTALA preempted it. In other words, the Biden administration argued that because federal law guarantees every emergency room patient access to stabilizing treatment, Idaho can’t prevent pregnant people from accessing abortions during a medical emergency. Idaho, of course, disagreed.

While the court’s decision to sidestep a ruling means that, for now at least, emergency abortions are still allowed in Idaho, it also leaves open current and future challenges to EMTALA. Meanwhile, opinions by Alito and Justice Amy Coney Barrett, joined by other members of the court’s conservative supermajority, offer a clear legal road map for anti-abortion lawmakers and activists who are plotting for a nationwide abortion ban.

As Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project, put it, the “opinions just provide building blocks” for extremists to “reach their ultimate goal.”

An Incomplete Victory

After some preliminary jockeying in the federal courts that saw Idaho’s ban enjoined as it related to emergency care — but well before the case had played out through the normal course of litigation — Idaho ran to the Supreme Court for intervention. The state claimed that it would be irreparably harmed if it wasn’t allowed to deny abortion care in emergency situations protected by EMTALA. The Supreme Court obliged, lifting the injunction and allowing the state’s ban to override EMTALA protections while the case was pending before the court.

On Thursday, however, in an unsigned, one-sentence order, the court concluded it had waded into the dispute too soon. It sent the case back to the lower federal courts to resume the litigation and allowed the injunction to go back into effect.

A similar situation is ongoing in Texas, where the state sued to block EMTALA’s enforcement against its own abortion ban. There, the 5th U.S. Circuit Court of Appeals last year co-signed Texas’s efforts, barring EMTALA’s protections in the state while the litigation is pending. The federal government has appealed to the Supreme Court, which still has not said whether it will hear the case.

For people in Idaho, the court’s decision to punt looks like a win for pregnant patients and medical providers who face harsh penalties for disobeying the near-total abortion ban. But as the Texas litigation shows, it is cold comfort in a landscape where anti-abortion zealots are determined to force all people to carry their pregnancies to term, regardless of their viability or the threats pregnancy may pose to the person’s life or future fertility. Nor has the court done anything to ensure that pregnant people aren’t considered second-class citizens in the emergency room and dumped to other jurisdictions for care — the problem the law was designed to prevent.

“The Supreme Court’s failure to clearly and unequivocally affirm the right of every pregnant person to emergency care,” Kolbi-Molinas said, means that “the chaos and confusion caused by abortion bans across the country, including in states like Texas, will continue to prevent providers from providing appropriate medical care to their patients when they need it most.”

“Alarm Bells”

In addition to the court’s unsigned order, several justices penned opinions either concurring with the decision or dissenting from it. Notable among those opinions, primarily for its fictitious content, is the dissent authored by Justice Samuel Alito, which was joined by colleagues Clarence Thomas and Neil Gorsuch.

Like Jackson, Alito disagrees with the court’s decision not to issue an opinion in the case, but for reasons other than the disservice that does to patients. Where Jackson is concerned about leaving patients and providers in limbo, Alito fully adopts Idaho’s position to argue that EMTALA never protected pregnant patients in need of abortion in the first place.

His argument rests on four central claims: that since there’s no mention of abortion in EMTALA, it could not have covered abortion; that since noted anti-abortion lawmakers voted for EMTALA in the 1980s, the law couldn’t have conceivably protected abortion; that since the law contains four references to the “unborn child,” medical professionals are bound to consider the fetus as a separate and equal patient for whom abortion is never treatment; and that to allow EMTALA to preempt a corner of Idaho’s ban would be to unleash a wave of “elective” abortions inside the nation’s emergency rooms.

To make that case, Alito drafted a wholesale rewrite of legislative and legal history.

For starters, EMTALA doesn’t contain the word “abortion” because, at the urging of medical professionals, Congress left the menu of stabilizing treatments to their discretion. Moreover, at the time of EMTALA’s passage, abortion was constitutionally protected care meaning no state had criminalized — or could legally criminalize — it. In other words, at passage, that was a non-issue among the bipartisan majority who voted for the law.

Alito is “using this strawman argument to try to sound like he’s reasoning through the legislative history, but he is making things up,” said Nicole Huberfeld, a professor at Boston University’s schools of law and public health. “And the reason he’s doing that is that the actual legislative history does not support his position.”

“The actual legislative history is that Congress created a national rule that made it so that it doesn’t matter who you are, the color of your skin, whether you can pay, what state you live in,” she said. “It is the single universal access to care rule that we have in the United States. And Justice Alito doesn’t get to just make up the history of this rule.”

Similarly, Alito has taken the “unborn child” references in the statute entirely out of context to claim that the law treats the fetus as a separate individual entity afforded equal protection under EMTALA. It’s a full-throated endorsement of the concept of “fetal personhood,” which is the aim of many anti-abortion activists and politicians.

The problem for the justice, however, is that the history of EMTALA and its actual language clearly say otherwise. Three of the four mentions of an “unborn child” in the statute relate directly to the duty of medical professionals to consider the risks to the fetus during labor when transferring a patient to another hospital. The fourth is meant to ensure that a pregnant person in the ER will receive care for a pregnancy-related problem that is not currently placing their own life at risk.

Kolbi-Molinas of the ACLU said that “there should be alarm bells” going off about Alito’s dissent, “because we know there are extremists out there pushing a strategy to give legal rights to embryos and fetuses that would override the rights of the pregnant person.” While “fetal personhood” was not an actual question in the EMTALA case, she stressed, Alito’s opinion signals conservative justices’ appetite for endorsing it. “If a majority of the court were to endorse that theory, that would mean a nationwide abortion ban — and not only that, it would mean bans on IVF and birth control.”

In a separate concurring opinion, Barrett, joined by Chief Justice John Roberts and Justice Brett Kavanaugh gave credence to another troubling argument: that Congress may have overstepped its spending power by tying EMTALA to the receipt of Medicare dollars.

During oral arguments in April, an attorney for Idaho argued that because abortion is not specified in the text of the statute, the state can’t be forced to allow abortions as a condition for receiving Medicare funds — let alone to accept that EMTALA preempts the state’s criminalization of abortion.

“Petitioners have raised a difficult and consequential argument,” Barrett wrote, “about whether Congress, in reliance on the Spending Clause, can obligate recipients of federal funds to violate state criminal laws.” Put differently, the courts should decide whether Congress could use the power of the purse to force hospitals to provide abortion care in violation of the state abortion ban. (In his dissent, Alito also addresses the issue, concluding, on notion alone, that EMTALA would fall to such concerns.)

It’s a technical point, but one with vast implications. If the court’s majority eventually takes the opinion that Congress overstepped, said Huberfeld, they would allow states to nullify laws like EMTALA. Medicare, Medicaid, the Children’s Health Insurance Program, cash welfare, and food and housing programs would also be vulnerable.

“All of our major health laws rely on the spending power, at least in some degree,” she said. “If states didn’t have to comply with these federal laws, then we would have even more chaos and conflict over social programs.”

Health Care Denied

In his dissent, Alito also claims — without a bare hint of evidence to back it up — that upholding EMTALA’s protection for pregnant people somehow means opening hospital emergency rooms to “abortion on demand.” He appears to believe that many pregnant people in distress who wind up in the emergency room are actually there solely to access abortion — and, presumably, that doctors are fine to just wink and go along. 

The reality is that since the Dobb’s decision (also a product of Alito’s fanciful pen), the proliferation of abortion bans like the one in Idaho have led to distressingly common stories of patients being denied abortions amid medical crises, including in Idaho. As Justice Elena Kagan notes in a concurrence joined by Justice Sonia Sotomayor — and, in part, by Jackson — while EMTALA was blocked in Idaho (at the court’s direction), “the State’s largest provider of emergency services had to airlift pregnant women out of Idaho roughly every other week.” Over the course of the previous year, while EMTALA’s protections were in effect, they’d done so just once.

Still, Kagan agreed that sending the case back to the lower courts for further litigation was the right call. Jackson was not so sanguine. 

The court should not have intervened when it did, dismantling EMTALA’s protections in Idaho, Jackson argued, but neither should it have failed to rule when it had the opportunity to that the federal law preempts Idaho’s ban — and by extension the others like it. “As a practical matter, this Court’s intervention meant that Idaho physicians were forced to step back and watch as their patients suffered, or arrange for their patients to be airlifted out of Idaho,” she wrote. “This months-long catastrophe was completely unnecessary. More to the point, it directly violated federal law, which in our system of government is supreme.”

To Jackson’s mind, the case is clear: “Idaho law prohibits what federal law requires, so to that extent, under the Supremacy Clause, Idaho’s law is pre-empted.”

“We cannot simply wind back the clock to how things were before the Court injected itself into this matter,” she wrote. “It is too little, too late for the Court to take a mulligan and just tell the lower courts to carry on as if none of this has happened.”

The post Alito’s Dissent in Emergency Abortion Case Provides “Building Blocks” for More Extreme Bans appeared first on The Intercept.

Under the Constitution, a plaintiff must be suffering some concrete injury to bring a federal lawsuit. In the mifepristone case — FDA v. Alliance for Hippocratic Medicine — the suit was brought by a collection of anti-abortion advocates, some of them doctors, who neither provide abortion care nor prescribe mifepristone. Nonetheless, they claimed that somehow, someday they may be forced to treat a patient suffering complications from taking mifepristone, which they said granted them the right to sue.

The Supreme Court didn’t buy it. “The plaintiffs do not prescribe or use mifepristone,” and the FDA approval doesn’t require them to do so, Justice Brett Kavanaugh wrote for the court. “Rather, the plaintiffs want FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain.” Their desire to make the drug “less available for others does not establish standing to sue.”

The plaintiffs have long made the demonstrably false claim that mifepristone is frighteningly unsafe — indeed, research making this claim was recently retracted by its publisher. Kavanaugh’s opinion seems to acknowledge what mainstream medicine and science have said about those claims: that mifepristone is safe, and there is no evidence that the FDA’s actions have led to increased safety issues or drug complications.

Although the court made quick work of dismantling the Alliance’s claims, the future legal status of mifepristone is most certainly still in the crosshairs.

In January, the states of Missouri, Kansas, and Idaho sought to intervene in the Alliance lawsuit, arguing that they have standing to sue because of their “quasi-sovereign interest” in protecting the “health and welfare of women and girls in their states” against the dangers of mifepristone so recklessly ignored by the FDA. Their effort to join in the legal action before the Supreme Court was denied, but their efforts at intervention are still alive in the lower courts.

In statements just after the Supreme Court’s Thursday morning ruling, the attorneys general of Kansas and Missouri vowed to press their case. “We are moving forward undeterred with our litigation to protect both women and their unborn children,” Missouri Attorney General Andrew Bailey said.

And Idaho is fighting to roll back abortion access in other ways as well. Still outstanding from the Supreme Court this term is a ruling in another consequential case — Idaho v. United States — where the state is challenging long-standing federal law that requires hospitals to provide whatever emergency medical treatment is necessary to stabilize a patient, including abortion. That opinion is expected later this month.

A Cynical Endeavor

Mifepristone is the first drug in the standard two-medication abortion protocol. The FDA approved the drug in 2000 for use in early pregnancy termination. Mifepristone, which blocks the hormone progesterone (needed to maintain pregnancy) and softens the uterine lining, is taken first. The second drug, misoprostol, is taken 24 to 48 hours later and causes the uterus to contract, expelling the pregnancy. Medication abortion accounted for just 5 percent of abortions in 2001 and has since grown — particularly in the wake of the Supreme Court’s 2022 Dobbs decision — and now accounts for more than 60 percent of all abortions in the U.S. The protocol is also commonly used in miscarriage management.

Over the years, the FDA has loosened restrictions around mifepristone — including increasing the window for its use up to 10 weeks into pregnancy and doing away with a requirement that doctors dispense the drug in person (after all, there is no such requirement for dispensing misoprostol, which actually causes the abortion, and is taken later, at the time and place of the patient’s choosing). The FDA subsequently expanded access by allowing mail-order and brick-and-mortar pharmacies to dispense mifepristone to patients with a prescription in states where abortion is legal.

Related

The Shadow Medical Community Behind the Attempt to Ban Medication Abortion

The anti-abortion groups at the heart of the Alliance lawsuit didn’t like any of these developments and have long claimed — devoid of any scientific backing — that mifepristone is a uniquely dangerous drug and instead of being liberalized should be banned altogether.

From the jump, the Alliance suit was a cynical, propagandistic endeavor. The Alliance is an umbrella organization made up of the American Association of Pro-Life Obstetricians and Gynecologists, the Christian Medical & Dental Association, the American College of Pediatricians, the Catholic Medical Association, and the Coptic Medical Association of North America. The members of these five well-known affinity groups have long been vocal about their anti-abortion views.

The Alliance itself, however, is new: It incorporated in Texas’s Panhandle just three months before filing its lawsuit there — an obvious ploy to draw federal Judge Matthew Kacsmaryk, a far-right darling, who is the lone judge in Amarillo tasked with hearing cases filed in the area. Kacsmaryk did not disappoint: In a raving opinion lifted from the pages of an anti-abortion talking-point glossary, he said the groups and their individual plaintiff doctors had the right to sue, and he issued a sweeping nationwide injunction that would block anyone, anywhere from using mifepristone for any reason. 

The federal government appealed to the 5th U.S. Circuit Court of Appeals, which ultimately disagreed that mifepristone should be banned altogether, but did block the FDA’s more recent moves to increase its availability. In other words, the appeals court ruled that mifepristone could only be available under the most stringent of rules, rolling back the widely accepted medical standard of care. The FDA again appealed to the Supreme Court, which heard oral arguments in the case in March.

Dubious Arguments

Before the court, Erin Hawley, a lawyer with the far-right Alliance Defending Freedom, which represents the Alliance for Hippocratic Medicine, struggled to present a cogent argument for why her clients had standing to sue. The gist of it went something like this: Mifepristone is so wildly dangerous that patients suffering complications are going to be flooding medical facilities and inundating providers. Eventually one of those patients will maybe — probably? — come to a member of one of the Alliance’s organizations, forcing the doctor to participate in providing an abortion, even if only tangentially.

The organizations themselves were also directly harmed by the FDA’s approval of mifepristone, she argued, because they were forced to divert resources from their other anti-abortion priorities and to instead channel them into fighting against the FDA and commissioning studies claiming mifepristone is a deadly drug. 

Hawley also leaned into the argument that the zombie law from 1873 known as the Comstock Act, which forbids the mailing of “every article or thing” that could be used for abortion, bars the freer distribution of mifepristone. Mifepristone, she noted, certainly fits in the category of banned items.

In its 9-0 opinion, the court was mum on the Comstock question. Somewhat surprisingly, Justice Clarence Thomas did not mention it in his concurring opinion either, after having referenced it during oral arguments, as did Justice Samuel Alito.

Instead, the court focused on Alliance’s standing arguments — and dismissed the case on those grounds. The organizations that make up the Alliance had not shown any concrete injury from the FDA’s approval, and it “cannot spend its way into standing simply by expending money to gather information and advocate against the defendant’s action,” Kavanaugh wrote. “An organization cannot manufacture its own standing in that way.”

The court also readily dismissed the notion that any of the individual doctors had standing to sue. Their arguments were too speculative and tenuous to hit the mark. “Because the plaintiffs do not prescribe, manufacture, sell, or advertise mifepristone or sponsor a competing drug, the plaintiffs suffer no directly monetary injuries from the FDA’s actions relaxing regulation of mifepristone,” Kavanaugh wrote. “Because the plaintiffs do not use mifepristone, they obviously can suffer no physical injuries from FDA’s actions relaxing regulation of mifepristone.”

Notably, the court’s opinion nodded to mifepristone’s safety by acknowledging that the plaintiffs presented no evidence suggesting that the FDA’s actions both increased the number of patients seeking them out for treatment and caused them to divert attention from other patients. Nor have they identified “any instances” from the past where they were sued or where their insurance costs increased because they’d treated pregnant patients “suffering mifepristone complications,” he wrote. “Nor have the plaintiffs offered any persuasive evidence or reason to believe that the future will be different.”

The case now goes back to the 5th Circuit, with a mandate to follow the high court’s ruling.

The post GOP States Double Down on Fighting Medication Abortion After Supreme Court Keeps It Legal appeared first on The Intercept.

It was the same courthouse where Dunn, now 52, was convicted in July 1991 and sentenced to life in prison for the murder of 15-year-old Recco Rogers. According to the state, under the cover of darkness Dunn opened fire on Rogers and two other boys while they were sitting on the front steps of a friend’s home.

There was no physical evidence linking Dunn to the murder; he has always maintained his innocence and says that on the night of the shooting he was at home with family watching TV and talking to a friend on the phone until after midnight. The state’s case against Dunn was built solely on the testimony of the two boys sitting with Rogers: 12-year-old Michael Davis and 14-year-old DeMorris Stepp. During truncated police interviews, each boy named Dunn as the shooter. At Dunn’s trial, the prosecutor boldly leaned into the lack of physical evidence: The boys’ testimony was “all the evidence in the case,” he told the jury.

As such, when Davis and Stepp later recanted their stories about Dunn being the assailant, there was nothing left to prop up the prosecution’s case. Although the situation was about as straightforward as they come, thanks to quirks of Missouri law, Dunn found himself in a legal quagmire. He had no way to effectively challenge his conviction. And so it was — until 2021, when a new law offered prosecutors an avenue to overturn convictions they believe were wrongly obtained by their office. In February, Gabriel Gore, St. Louis’ appointed circuit attorney, asked a court to exonerate Dunn. “Both witnesses … now state that it was too dark to see any shooter on May 18, 1990,” Gore wrote in a motion to vacate the conviction. “The recantations alone are enough to show clear and convincing evidence of actual innocence.”

In court last month, Gore argued for the release of the man his office condemned to life in prison decades ago. On the other side of the courtroom, meanwhile, there was an adversary arguing that Dunn’s conviction was righteous and should be maintained: the office of Missouri Attorney General Andrew Bailey.

“A jury deliberated and found Dunn guilty,” said Assistant Attorney General Tristin Estep during the two-day hearing. “Now, this court is being asked to disturb that jury verdict and to set a convicted murderer free.”

Dunn’s is the third case since the change in state law where an elected prosecutor has sought to vacate a wrongful conviction. It is also the third time the attorney general’s office has popped up to question the prosecutor’s judgment. To date, the office has failed in its efforts. By interjecting itself in the Dunn case, Bailey’s team appears to be angling for a three-peat.

Such obstinance is on brand for the Missouri attorney general’s office, which for decades has fought to maintain even the most tainted of convictions. (The attorney general’s office did not respond to The Intercept’s request for comment.) The office has evinced a self-righteous political energy that has intensified during the Biden administration as it has increasingly carried water for MAGA-nation culture war priorities. That strategy has continued apace under Bailey, who was appointed to the office in 2023 and is running for a full term this year.

“Proven Liars”

It was nearing midnight on May 18, 1990, and Recco Rogers, Michael Davis, and DeMorris Stepp were hanging out on the front porch steps of their friend Marvin Tolliver’s house. (In some court records, Rogers’s name is spelled “Ricco.”) They were dancing and talking, Stepp told police, when shots rang out. The three boys jumped up, breaking east into the front yard as they fled. As Davis moved away from the sound of the gun, he saw Rogers fall forward into the grass. Davis mimicked his friend, dropping to the ground and playing dead while Stepp jumped a short chain-link fence and tore off down the street. When the shooting was over, Davis realized Rogers hadn’t been playing; he’d been shot once through the back of the head and was now bleeding out in the grass. Minutes later the police arrived.

Back at the police station hours later, during back-to-back 10-minute interviews that ended at 3:14 a.m., Stepp and then Davis gave confusing, and at times contradictory, accounts of what happened. It was dark and, they told police, neither was sure where the shots had come from. They then said that Dunn was the shooter. Neither of the boys really knew Dunn, who had only recently been released after doing a short stint for cocaine possession, yet each said they’d recognized him as he shot at them from the neighbor’s darkened yard. According to Stepp, Dunn was wearing a white T-shirt and a blue baseball cap; Davis said Dunn was wearing a white T-shirt and wire-framed sunglasses.

With that, police arrested Dunn and charged him with murder. During a one-and-a-half-day trial in July 1991, Stepp and Davis carried the day for the state, while Dunn’s defense attorney called no witnesses. Jurors deliberated just 42 minutes before finding Dunn guilty. He was sentenced to life without parole.

On appeal, Dunn complained about his lawyer’s failure to call any witnesses, including those who could have testified about his alibi. At the time of the murder, Dunn said, he was home watching the TV show “Hunter” with family and talking on the phone with his good friend Nicole Bailey (no relation to Andrew Bailey), who was in the hospital after giving birth to her daughter. Dunn’s appeals were denied.

Things began to change in 2005, when Stepp came forward and recanted his testimony. From prison, where he was doing life for murdering his girlfriend, he said that it was too dark to see who had been shooting at them that night. Ten years later, Davis too changed his tune. He hadn’t seen Dunn that evening, he said; in fact, he had no idea who shot at him and his friends. “It was like a sniper,” he said.

The new evidence helped land Dunn back in court in 2018, where his attorney argued the recantations proved Dunn was innocent. Judge William Hickle agreed. “This Court does not believe that any jury would now convict Christopher Dunn under these facts,” he opined in 2020. The only witnesses who implicated Dunn in the crime, he wrote, “are proven liars.”

Still, Hickle’s hands were tied. Under Missouri law, only defendants sentenced to death could raise free-standing claims of innocence — that is, an innocence claim untethered to a cognizable violation of a constitutional right, such as an illegal search or the state’s failure to turn over evidence. So, although Hickle had concluded Dunn should be freed, there was no way for the judge to make it happen.

A Legal Hurdle

Back in 2003, the Missouri Supreme Court took up the case of Joseph Amrine, who was on death row for a murder that he did not commit. The case was strikingly similar to Dunn’s: The only evidence that Amrine killed a fellow prisoner was the eyewitness testimony of three other incarcerated people, all of whom later recanted. The question before the court was whether Amrine’s actual innocence claim alone was enough to set him free. The attorney general’s office argued that it was not: Even if the court thought Amrine was innocent, it couldn’t do anything about it if Amrine’s trial had been free of constitutional error. As such, the attorney general concluded, Amrine should be executed.

The state Supreme Court did not agree: “The continued imprisonment and eventual execution of an innocent person is a manifest injustice,” the 4-3 majority opined. In the intervening years, however, the court has declined to endorse the idea that any wrongful conviction, regardless of the sentence, is similarly unjust and has failed to offer the same avenue of relief to people like Dunn, whose apparent misstep was avoiding the death penalty.

Related

Missouri Prosecutors Lack the Power to Right a Wrongful Conviction

This hole in the law has vexed innocent people incarcerated in Missouri, a problem later compounded by another ruling, wherein the court concluded that the state’s elected prosecutors lacked any meaningful way to challenge a conviction in their jurisdiction that they believed had been wrongly obtained. In 2021, state legislators passed a law to allow elected prosecutors to do just that.

With the new law in hand, St. Louis Circuit Attorney Kim Gardner filed a petition in 2023 seeking to overturn Dunn’s conviction. Although Gardner, the first Black person to hold that office, was popularly elected twice, she faced staunch opposition from supposed law-and-order types — including state Attorney General Andrew Bailey — who claimed she was failing to keep the city safe. Bailey demanded that Gardner resign, and when she didn’t, he filed a lawsuit seeking to oust her from office.

In her final official act before leaving her post, Gardner filed a motion to vacate Dunn’s conviction. “We have an ethical duty to work to correct this injustice,” Gardner said of Dunn’s case. “We are hopeful his wrongful conviction is set aside for the sake of Mr. Dunn, his family, and the people of the City of St. Louis.”

Gardner’s departure left Dunn’s defenders, including at the Midwest Innocence Project, waiting for the other shoe to drop. And it did when Gore, appointed by the governor to finish out Gardner’s term, assumed office and pulled Gardner’s petition. Gore wanted to review the case himself, he said. He appointed respected former appeals court judge Booker Shaw to conduct the review and advise him on whether to move forward with seeking to topple Dunn’s conviction. That process concluded in February, when Gore filed a new petition asking the court to free Dunn.

The Case for Freedom

Just after 10 a.m. on May 21, Shaw stepped to the lectern in a St. Louis courtroom wearing a natty blue suit, crisp white cuffs, and pocket square. Pointing to Hickle’s 2020 opinion in which he concluded that he couldn’t do anything about Dunn’s innocence, Shaw argued to Judge Jason Sengheiser that now, things are different. “Now judge,” Shaw said, “Missouri law gives you the opportunity to grant relief.” Once Sengheiser heard the evidence himself, Shaw predicted, it would “inevitably” lead him to agree that Dunn should be exonerated.

First to the stand was Eugene Wilson, Dunn’s childhood friend who was also outside Marvin Tolliver’s house on the night of the murder. Wilson had been hanging out on the steps too but had left with Tolliver to go pick up Chinese food a couple blocks away. They were walking back toward the house when the shots rang out, Wilson said.

In a deep, soft voice Wilson explained that, earlier in the evening Dunn, who lived nearby, had stopped by for a visit, but was long gone by the time the shooting began. Wilson saw the muzzle flash and noticed that whoever was holding it was clad in dark clothing, but otherwise he said it was too dark to see anything. “The flash showed a dark shadow,” he said. After the shooting the other boys suggested it might’ve been Dunn, Wilson said, but he disagreed.

Wilson’s mother had died several years earlier, and Wilson was living with Rogers and his mom at the time of the shooting. After Rogers was killed, Wilson did his best to console his mother. Wilson was on the scene when the cops arrived, he testified — he is listed as a witness in the police report — and yet no one ever talked to him about what he saw. If they had, they would’ve heard that just three days before Rogers was murdered, Rogers, Wilson, and Tolliver had been involved in an altercation with Rogers’s mother’s abusive boyfriend. As Wilson tells it, the boyfriend had been “putting his hands” on Rogers’s mom and Rogers wanted to teach the man a lesson. “We jumped him really badly,” Wilson recalled. After the shooting, Wilson noted, the man simply disappeared.

Not long after the murder, Wilson moved out of the neighborhood. More than two decades passed before he was contacted by a defense investigator who asked what he knew about the night of the shooting. When Wilson learned that Dunn had been locked up the whole time, “I was shocked,” he testified. “The truth is he never should’ve been convicted.”

The attorneys also played for the judge a recording of Michael Davis, who moved with his mother to California shortly after the shooting. Davis couldn’t be located to testify in person in St. Louis, but in a 2015 conversation with a defense investigator, Davis said that it was Stepp who initially suggested the boys name Dunn as the shooter.

The boys fancied themselves affiliates of the Bloods gang, Davis said, and they believed that while Dunn was incarcerated, he had aligned himself with the rival Crips — Dunn was always wearing blue, after all — and so they didn’t like him. “Out of animosity we said it was him,” Davis said.

Davis said he’d tried to walk back his identification in July 1991, when he was brought back to Missouri to testify at Dunn’s trial. Davis told investigators he wasn’t sure it was Dunn who’d shot at them, he recalled. Instead of listening, he said they showed him graphic photos of his dead friend and then got Rogers’s mom on the phone who pleaded with Davis to testify against Dunn, which he did.

Looking back, Davis regretted what he’d done, he told the defense investigator nine years ago, speaking from prison. Davis, who struggles with substance abuse, for years has been in and out of trouble with the law. Since he’d been incarcerated, Davis realized what it meant to send someone to prison for murder, he said. “I took a man’s life away and I didn’t even see him do it.”

The circuit attorney also called to the stand Nicole Bailey, Dunn’s friend who had given birth to her daughter just before the shooting. Bailey and Dunn were tight and talked on the phone constantly — sometimes through the night, Bailey testified. So it wasn’t odd that while she was recovering from a Caesarean section in the hospital, she got on the phone with Dunn around 11 p.m. on May 18, 1990. The two talked about the episode of cop drama “Hunter” that had just started and about the birth of Bailey’s daughter. They finally got off the phone when a nurse came in to check Bailey’s vital signs, she said. According to hospital records, that was at 1 a.m. — more than an hour after the shooting. Bailey said she tried to tell someone what she knew, “but I guess nobody wanted to hear what I had to say.”

Doubling Down

For the Missouri attorney general’s office, the hearing in St. Louis would mark the second time in recent years that its lawyers have showed up to argue against Dunn’s innocence. Assistant Attorney General Andrew Crane represented the office’s losing position at the hearing before Hickle. Later, Crane would also be on the team arguing in opposition to the exoneration of Kevin Strickland in 2021 and of Lamar Johnson, who was freed last year.

In the ongoing quest to keep Dunn locked up, Crane was joined by Estep — who was also on the team that opposed Johnson’s exoneration.

Estep argued to Sengheiser that the whole notion Dunn is innocent is a ruse, a fanciful story backed up by recantations and eyewitness evidence that Dunn somehow puppet-mastered with the help of people “either inside or outside prison.” The one thing that should be clear to the judge was that the “present-day version of events is a well-crafted story,” she said. “And who doesn’t love a good story?”

The state didn’t have much in the way of evidence to back up its claims. Estep questioned why Wilson didn’t approach the cops on his own and suggested he was standing somewhere other than when he claimed at the time of the shooting. Crane argued that Davis’s recording shouldn’t be allowed into evidence because Davis never confirmed that it was his voice on tape (even though Davis stated his name during the interview). Estep suggested that Bailey’s memory was tainted by all the meds she was on after delivering her child. To be fair, Bailey was on some drugs, but according to hospital records, the only ones she’d been administered anywhere remotely near in time to the call were a coagulant and a gas relief medicine. 

The AG’s lawyers called to the stand lead detective Gary Stittum, to confirm that he did a good job on the investigation. He testified that if Dunn had offered him evidence of innocence, he surely would’ve checked it out. “Nobody gave me anything to cause me to investigate anything,” he said. He also said he never would’ve shown Davis any photos of his dead friend or put his mother on the phone to try to coerce Davis into testifying about something that didn’t happen; the former prosecutor, now a retired judge, said the same. “No, no, no,” he said. “I’d never do that.”

(Notably, Stittum was also an investigator on the Johnson case, which was similarly based on the testimony of an eyewitness who later recanted and leveled an identical charge of coercion.)

And then there was Stepp, upon whose questionable credibility the attorney general’s office hung its case for keeping Dunn in prison.

Just over a decade after Stepp recanted his story, an investigator for the attorney general’s office visited him in prison and, according to an office memo, Stepp offered a new version of events. This time, he said he saw Dunn that night, but that Dunn was with another unknown individual and that was the person who shot at the boys. In 2018, when Stepp testified at the evidentiary hearing before Hickle, he said that his most recent story wasn’t accurate but confirmed that Dunn was not the person who shot at the boys in May 1990. The AG’s current take appears to be that Stepp has changed his story so many times that it only makes sense to trust his initial statements implicating Dunn.

Estep leaned into this idea, dismissing the notion there were any inconsistencies in Stepp and Davis’s initial stories about seeing Dunn. The two boys simply focused on different details of their assailant’s appearance: Stepp said Dunn was wearing a ball cap, Davis said it was a pair of sunglasses. “No two people experience everything the same,” she said.

To hear Estep tell it, there is no manner of inconsistency — let alone recantation — that could make the boys’ trial testimony unreliable. The boys’ identifications were “correct and accurate,” Estep said. The inconsistencies in their stories start with the recantations, she claimed. “This is where the lies begin.”

Throughout the hearing, Stepp remained in a holding cell behind the courtroom. The attorney general’s office never called him to testify.

Bombastic Arguments

When Kevin Strickland was exonerated in the fall of 2021 after spending 43 years behind bars, Sean O’Brien, a veteran lawyer and law professor at the University of Missouri–Kansas City, noted that the attorney general’s opposition had only increased the toll of Strickland’s wrongful conviction. Had the office not opposed Strickland’s release, he could have been out of prison in time to see his mother before she died. O’Brien has worked on numerous wrongful conviction cases over the years — including the Amrine case — and the attorney general’s office had reflexively opposed innocence claims “forever, for as long as I’ve been a lawyer,” he said. “I have never seen this office admit that a mistake was made.”

Yet the attorney general’s office doesn’t shy away from pointing out the alleged mistakes of others in its seemingly daily work of attacking the Biden administration and so-called blue-state policies.

Missouri’s Republican governor appointed Bailey as attorney general in 2023 to fill the seat of fellow culture warrior Eric Schmitt, who was elected to the U.S. Senate. Over the last year, Bailey has filed all manner of captious legal actions opposing “radical states” policies seeking to address the “alleged ‘climate crisis,’” demanding the construction of a border wall, and against “asinine” Title IX policy — as his office put it in an email subject line — that promotes a “radical transgender ideology.”

Bailey has taken up defense of Elon Musk, suing Media Matters for failing to turn over documents identifying the nonprofit’s Missouri donors who Bailey alleges were somehow defrauded by the company. Bailey says the media watchdog took donors’ money in order to “bully advertisers” on X, which Bailey unironically calls “the last social media platform dedicated to free speech in America.” He announced an investigation into the “radical” diversity, equity, and inclusion programs of St. Louis County’s Hazelwood School District, which, if they exist, he alleges somehow might’ve played a role in an off-campus student fight.

“I’m a combat veteran who has never backed down from a fight,” Bailey said last year when announcing his run, “and a prosecutor who has defended Missouri communities by putting violent criminals behind bars.”

In St. Louis, Bailey’s underlings adopted his bombastic posturing, arguing that Dunn was himself a violent criminal who deserved to be left behind bars to die.

A Judge’s Call

On the second day of the hearing, Dunn walked into the courtroom dressed in his same gray suit and, looking out at the gallery, stopped, cocked his head to the side and put his hand over his heart, a smile spreading across his face as he locked eyes with Kira, his wife of 10 years. Kira responded in kind.

Kira had driven to the hearing from California with her 19-year-old son. They’d packed a bag for Dunn, hoping that he would be making the cross-country journey home with them. That would not happen; heading off the possibility that the judge would make a same-day ruling, Estep asked that the lawyers be allowed to file post-hearing briefs arguing their position, meaning Sengheiser wouldn’t have an opportunity to make his decision until at least June 10.

Kira struggled during the hearing as Estep spun tales about Dunn orchestrating a grand deception to fool people into believing he is innocent. He is, she insisted, but the lies still hurt. She said she hopes Sengheiser can see past the distractions.

Gore also encouraged Sengheiser to see the case for what it is. “It’s undisputed — and it’s always been undisputed — that the only evidence supporting Mr. Dunn’s conviction” was the children’s testimony, he said. “And they have since recanted that testimony.”

Update: July 25, 2024
On July 22, St. Louis Judge Jason Sengheiser overturned Christopher Dunn’s conviction, finding there is “clear and convincing evidence” that Dunn is innocent of the 1990 murder of Recco Rogers. Sengheiser ordered Dunn’s immediate release from prison and noted that Attorney General Andrew Bailey’s office had not offered any evidence to support its contention that Dunn belonged there. Bailey appealed Sengheiser’s ruling, and on July 24, the state Supreme Court halted Dunn’s release while the appeal plays out.

The post Missouri’s Attorney General Is Waging War to Keep the Wrongly Convicted Locked Up appeared first on The Intercept.

Several years later, the New England Journal of Medicine published a study confirming that transfers had skyrocketed from roughly 1,300 in 1980 to nearly 7,000 in 1983. The study supported what doctors had observed, according to the Chicago Tribune: “that private hospitals in the area are shirking their duty to provide care to the needy.” Reviewing some 500 transfers from private medical facilities to the Cook County hospital over a one-month period, the study found that the vast majority of patients were unemployed, and many had been transferred because they lacked the means to pay for health care. Eighty-nine percent were Black or Hispanic, 24 percent were medically unstable, and just 6 percent had consented to transport.

The Chicago doctors weren’t alone. Across the country, the transfer practice, known as “patient dumping,” had become a serious problem, especially for those in labor. “This was a full-term baby who would have been alive right now if the system hadn’t shuffled the mother around,” one doctor told the San Francisco Examiner in 1985 about a patient in labor who arrived at an Oakland hospital after being turned away from two other facilities. The baby was stillborn. “When she walked in here, I knew immediately something was really wrong,” the obstetrician said. “She was doubled over, holding her belly.”

The problem became so grave that Congress stepped in, passing the Emergency Medical Treatment and Active Labor Act, known as EMTALA. Still in effect today, the law is straightforward: It requires all hospitals that receive certain federal funds to conduct a medical assessment of every patient who shows up at the ER and, in a medical emergency, provide necessary stabilizing treatment. The law defers to medical professionals to determine when a medical emergency exists and what stabilizing treatments are needed.

EMTALA operates as a “point of rescue,” said Nicole Huberfeld, a professor at Boston University’s schools of law and public health. “It is the one law that we have that makes it so that anyone can get access to care when they’re having a medical emergency.”

For nearly 40 years, necessary stabilizing treatment under EMTALA has included abortion care. In July 2022, weeks after the U.S. Supreme Court overturned the right to abortion in Dobbs v. Jackson Women’s Health Organization, the Department of Health and Human Services posted a memo reiterating hospitals’ obligations under EMTALA. When a state had banned abortion but abortion was the stabilizing treatment a patient needed, the memo stated, EMTALA preempted the state law.

In a letter accompanying the guidance, Health Secretary Xavier Becerra assured providers that EMTALA “protects your clinical judgment and the action that you take to provide stabilizing medical treatment to your pregnant patients, regardless of the restrictions in the state where you practice.”

“That’s the exact evil that Congress was trying to stop.”

But in a case pending before the Supreme Court, scheduled for oral arguments on April 24, Idaho claims that abortion is not protected under EMTALA, and that the federal government is interfering with state’s ability to ban the procedure. “The whole point of Dobbs was to restore to the states their authority to regulate abortion,” lawyers with the far-right Alliance Defending Freedom, who are representing Idaho, wrote in their brief. “Yet the administration seeks to thwart Idaho’s exercise of self-government on this important topic.” The claim that EMTALA covers abortion, they wrote, “is imaginary.”

If the court were to accept Idaho’s recasting of EMTALA, the safety-net law meant to eliminate discrimination in emergency medical care would be nullified, experts say, singling out pregnant people as a separate and unequal class of patients. Such a ruling would hobble the ability of medical professionals to respond appropriately to emergencies and encourage a new generation of patient dumping.

“Idaho’s arguments would make pregnant people second-class citizens in emergency rooms,” said Alexa Kolbi-Molinas, deputy director of the reproductive freedom project at the American Civil Liberties Union. “That’s the exact evil that Congress was trying to stop.”

In the wake of the Supreme Court’s decision to overturn Roe v. Wade, near-total abortion bans quickly took effect in several states, including Idaho, where the so-called Defense of Life Act bans all abortions save for those necessary to prevent the death of the pregnant person. During a legislative hearing on the measure in 2020, the law’s sponsor, state Sen. Todd Lakey, said the law included no exception for the broader health of the pregnant person because that was not as important as the life of the fetus. “I would say it weighs less, yes, then the life of the child,” he said.

“If we’re talking health of the mother, that’s a nuanced decision that could be something much less than life,” Lakey said. “If the decision was based solely on a question of some type of health, then you’re talking about taking the life of the unborn child, so that weighs more heavily than simply ‘health.’”

Idaho’s ban has placed health care providers in a precarious position. Violations of EMTALA’s mandate can result in hefty fines for doctors and hospitals and the loss of federal funding that facilities use to treat elderly patients and people with disabilities. Doctors who violate Idaho’s abortion ban, meanwhile, face criminal prosecution, two to five years in prison for each offense, and loss of their medical license.

The narrowness of the exception to Idaho’s ban prompted the federal government to sue the state in August 2022, arguing that the law impermissibly conflicts with EMTALA’s requirement that providers treat “emergency medical conditions,” not only those that pose “risks to life,” but also conditions that place a person’s health in “serious jeopardy.” The text of EMTALA clearly states that where conflicts with state law exist, the federal law takes precedence.

The government asked a federal district court to immediately block Idaho’s law from taking effect while the lawsuit was ongoing. The court agreed, enjoining the Idaho ban “to the extent that statute conflicts with EMTALA-mandated care.”

Idaho appealed the ruling and lost, prompting the state to ask the Supreme Court to intervene, which it did in January, lifting the district court injunction and scheduling the case for oral arguments.

In legal filings, Idaho points out that the word “abortion” is not included in the EMTALA statute, claiming there was no understanding that Congress meant to include abortion care among potential stabilizing treatments required under the law. In contrast, the statute does include the phrase “unborn child,” which according to the state, means that the well-being of the fetus must be weighed in addressing medical emergencies.

Idaho law doesn’t conflict with EMTALA at all, the lawyers argue, because Idaho regulates the practice of medicine in the state. EMTALA only requires doctors to provide stabilizing treatments that are “available” at a given hospital, and since abortion is illegal, it is thus unavailable. And because abortion is unavailable in Idaho, a hospital could legally transfer a patient somewhere else for care, presumably without being accused of dumping. Practically speaking, that would mean coordinating a transfer to a facility out of state and hours away.

Idaho claims the Department of Health and Human Services’ 2022 guidance was merely an attempt to legalize all abortion in the state. “A patient who wanted, but was denied, an abortion cannot wield EMTALA to force an emergency room to perform one,” reads the lawyers’ Supreme Court brief.

Huberfeld, the health law expert, who along with several other legal scholars filed an amicus brief supporting the federal government’s position, says Idaho is misinterpreting the law. EMTALA doesn’t contain the word “abortion” because, at the urging of medical professionals, Congress left the menu of stabilizing treatments to their discretion. At the time of EMTALA’s passage, abortion was protected care, and even states that had banned the procedure later in pregnancy included exceptions for the life and health of the pregnant person. Physicians have long “acknowledged their statutory obligation to provide abortion care in those rare emergencies in which terminating a pregnancy is the necessary ‘stabilizing’ treatment,” Huberfeld and her colleagues wrote.

The reference to an “unborn child,” meanwhile, is defined in the EMTALA statute — just not in the way that Idaho claims. “Three of the four mentions are specifically about taking into account the risks to the unborn child during labor when transferring a patient to another hospital,” said Kolbi-Molinas of the ACLU, which also filed an amicus brief in support of the federal government. The fourth mention is meant to ensure that a pregnant person in the ER will receive care for a pregnancy-related problem that is not currently placing their own life at risk. “So the hospital couldn’t say, ‘Well, you’re fine, so we’re just going to let your baby die,’” Kolbi-Molinas explained.

Those references are important, according to Huberfeld, because before EMTALA, hospitals were abandoning pregnant people in alarming numbers. “There were so many instances of people in labor being turned away from emergency departments and they and/or their newborns dying,” she said. “It was specifically addressed because the circumstances of patient dumping for people in labor were so egregious.”

For Idaho to suggest that Congress actually meant to shield hospitals from having to address the medical needs of pregnant people in favor of protecting the fetus “is like gaslighting,” Kolbi-Molinas said.

And the argument that state hospitals don’t have to provide emergency abortion care because Idaho regulates the practice of medicine turns EMTALA on its head. Huberfeld thinks the argument is bait meant to attract justices inclined to embrace the notion of state sovereignty. But EMTALA is tied to Medicare funding, she said, which hospitals do not have to accept. If they do, the funds come with strings — including EMTALA’s nondiscrimination guarantee. The law was designed to create “a national standard” because states were routinely discriminating against patients, leaving a patchwork of unequal care, Huberfeld said. “It’s the state variability that predictably leads to worse health outcomes for certain populations.”

Since the fall of Roe, stories of women being denied abortions during medical emergencies have become distressingly common, making clear that the scant exceptions in state bans are not enough to keep pregnant patients safe.

Such cruelty has been on regular display in Texas, including in the case of Amanda Zurawski, who nearly died twice and whose future fertility has been imperiled because of the state’s abortion ban. Zurawski’s water broke early, and the demise of her fetus was inevitable, but because Texas’s ban contained only vague language regarding medical emergencies, doctors said they had to wait until she was on death’s door to provide the abortion she needed.

Zurawski is one of several women who have sued Texas seeking to clarify the ban’s exceptions. The state has resisted, claiming the language is clear and that it’s doctors who are confused. Zurawski and 16 other women also signed on to an amicus brief in the EMTALA case as “living proof of the inadequacy of state law, which endangered rather than protected their lives.”

ERs are “discharging pregnant patients in medical emergencies, telling them to wait elsewhere until their health deteriorates.”

Meanwhile, Texas has also been fighting the federal government to limit EMTALA’s protections. But instead of being sued by the government, as Idaho was, Texas sued first.

Just three days after HHS posted its 2022 guidance, the state filed suit in the Texas Panhandle, where the case was certain to wind up before a Trump-appointed judge thanks to the quirks of the federal court system. Texas argued that the guidance was a blatant effort to create new law out of whole cloth that would “transform every emergency room in the country into a walk-in abortion clinic.”

The EMTALA guidance was hardly new, the government responded, and did nothing more than reinforce provider obligations under the law as written. Arguing that the case should be thrown out, the government noted that the state’s post-Roe abortion ban had yet to take effect — meaning Texas had no grounds to sue. The state’s wild claims that the government was somehow trying to mandate elective abortions was “a patent misreading of the guidance that bears no resemblance to reality.”

Nonetheless, the federal district court sided with Texas, and the 5th U.S. Circuit Court of Appeals agreed, effectively blocking the full protection of EMTALA in the state. How the Supreme Court rules in the Idaho case could also determine the outcome in Texas.

Related

Anti-Abortion Doctors Struggle to Explain Mifepristone Harms Before Supreme Court

Texas was joined in the lawsuit by two groups of anti-abortion doctors who previously filed a federal suit in the Panhandle challenging the Food and Drug Administration’s approval of the abortion drug mifepristone. As in that case, the doctors in the EMTALA lawsuit alleged that the federal government’s guidance might at some point conscript them into participating in an abortion in violation of their conscience. The Supreme Court, which heard oral arguments in the mifepristone case last month, seemed to doubt that the doctors’ dubious claims offered them legal standing to sue.

In the meantime, as Zurawski and others argue in their Idaho case brief, by denying pregnant people EMTALA protections, states with abortion bans are creating the very kind of discriminatory care that the law was meant to eradicate: “Emergency rooms are discharging pregnant patients in medical emergencies, telling them to wait elsewhere until their health deteriorates.”

While the Idaho Supreme Court has blessed the state’s abortion ban, claiming that it provides wide latitude for doctors to exercise their judgment, the broader political climate in the state is sending a more menacing message, according to the Idaho Coalition for Safe Healthcare.

Lawmakers have tried to insert fetal personhood language into state law and threatened to withhold funding from Boise after city officials said they would not prioritize enforcement of the abortion ban. The state’s attorney general said medical professionals who “assist” in abortion — even by referring someone to out-of-state care — could be prosecuted under the ban. As the number of preventable maternal deaths rose, the state disbanded its Maternal Mortality Review Committee. A group of so-called Freedom Caucus lawmakers penned a threatening letter to hospitals demanding to see abortion records.

A “culture of fear” has settled over the state’s medical professionals, said Dr. Caitlin Gustafson, a family medicine doctor trained in obstetrics and a member of the Idaho coalition. “We have targets on our backs for providing care in the moment that somebody is going to second guess,” she said. “It’s just untenable.”

“We have targets on our backs for providing care.”

Idaho is losing doctors at an alarming rate. Nearly 60 obstetricians stopped providing care in the 15 months following the ban’s imposition, and five of the state’s nine maternal fetal medicine doctors have left the state. Two hospital obstetrics programs have closed, and another is on the brink of closure, because hospitals could not recruit enough doctors to staff them.

Practicing in a rural community, Gustafson feels the weight of the state’s abortion ban, not only as a conflict with her duty to care for pregnant patients, but also for its impact on patients in need of other services. She said she’d just gotten word that another OB-GYN who provided consultation for rural patients was leaving the state, meaning that patients in need of routine services — hysterectomies, for example, or consultation for a “cancer scare” — will be forced to travel hundreds of miles for care. “We’re losing everything,” she said.

Gustafson has always recommended that her pregnant patients in rural areas carry “life flight” insurance in case they need emergency transportation to Boise. Now, she said, doctors across the state are recommending that all pregnant patients carry such insurance in case an emergency arises and they need to be transported out of state. “‘You mean if X, Y, or Z happens, I would have to go to Utah?’” she said patients have asked her. “‘I have two children at home. I have no family there, and I’m going to fly to a city I don’t know, and to doctors I don’t know, and that’s what you’re telling me is my only option?’”

“The level of financial, personal strain and distress this is creating and the inequality by default is tremendous,” Gustafson said. “It feels very unfair.”

Health care providers are trained to intervene in emergencies “to head off the risk of injury, illness, and death,” Huberfeld said, not to “wait until some is on death’s door to help them.” Idaho’s interpretation of EMTALA “is the exact opposite of what the law is supposed to do.”

The post Idaho Goes to the Supreme Court to Argue That Pregnant People Are Second-Class Citizens appeared first on The Intercept.

The doctors are not claiming that they’ve been hurt by taking the drug or prescribing it, which none of them do. Instead, their theory goes something like this: Mifepristone is dangerous, and pregnant people who take the drug are bound to have serious complications. When they do, they’ll probably go to an emergency room, which could be in a hospital where one of the anti-abortion doctors works. As a result, the doctor could be pulled from regular patient duties to deal with the mifepristone-related emergency, forcing them to play some role in the provision of abortion and causing emotional trauma.

The claim is so tenuous that during oral arguments in the case on Tuesday, not even the anti-abortion majority of the U.S. Supreme Court seemed to buy it as a theory that would give the group standing to sue the FDA. The justices appeared disinclined to rule in a way that would narrow access to medication abortion, at least for now.

“FDA approved mifepristone based on the agency’s scientific judgment that the drug is safe and effective,” U.S. Solicitor General Elizabeth Prelogar told the court. “It’s maintained that judgment across five presidential administrations, and millions of Americans have used mifepristone to safely end their pregnancies.” The alliance “may not agree with that choice,” she continued, “but that doesn’t give them … a legal basis to upend the regulatory scheme.”

Mifepristone is the first in a two-drug protocol approved for early pregnancy termination. It blocks progesterone, a hormone needed to continue pregnancy, while the second drug, misoprostol, causes the uterus to contract, expelling the pregnancy. Mifepristone is among the most studied drugs in the country; it has been used in more than 600 published clinical trials, and at less than 1 percent, the risk of serious complications is low. Today, the two-drug regimen accounts for more than 60 percent of all abortions in the United States.

The FDA first approved mifepristone in 2000. In 2016 and 2021, the agency loosened restrictions on the drug that had long been challenged as medically unnecessary, extending its use through 10 weeks of pregnancy and lifting a requirement that it be dispensed in person.

The Alliance for Hippocratic Medicine, an umbrella organization for several groups of anti-abortion doctors, filed federal suit in Amarillo, Texas, in late 2022, challenging the FDA’s initial approval of mifepristone as reckless and the subsequent changes as hazardous. Filing the suit in Amarillo — where the group had only recently incorporated itself — offered a tactical advantage: It guaranteed that the case would be heard by Judge Matthew Kacsmaryk, a far-right Trump-appointed judge who hears all federal civil cases filed in the Texas Panhandle.

Kacsmaryk did not disappoint. In April 2023, he sided with the alliance, ruling that the FDA never should have approved mifepristone in the first place. To support his position that mifepristone was wildly unsafe, Kacsmaryk disengaged from science and instead cited an analysis of anonymous blog posts, a researcher whose work has been repeatedly called into question, and two studies sponsored by an anti-abortion organization that have since been retracted by the journal that published them.

The government appealed to the 5th U.S. Circuit Court of Appeals, which disagreed with Kacsmaryk’s conclusion regarding the 2000 approval of mifepristone but nonetheless said the FDA impermissibly loosened restrictions in 2016 and 2021.

In coming to their conclusions, both courts bought the alliance’s shaky theory of legal standing. On Tuesday, the justices on the Supreme Court seemed less convinced — even if Justice Samuel Alito was inclined to try to help his colleagues along. What if an anti-abortion doctor was the only person on duty in an emergency room when a “woman comes in with complications from having taken mifepristone … and as a result, in order to save her life, the doctor has to abort a viable fetus?” he asked the solicitor general.

The doctors “haven’t identified any incident in more than 20 years … that resembles that kind of hypothetical situation.”

If the doctor was forced into action, that could be a violation of longstanding laws that protect providers’ conscience rights, Prelogar responded, but that “situation has never come to pass.” The alliance and its doctors “haven’t identified any incident in more than 20 years that mifepristone has been available on the market that resembles that kind of hypothetical situation.”

Experts have worried that allowing legal standing on such a thin premise would lower the bar and permit nearly anyone to sue the FDA or any other agency for nearly anything they disagree with. Doctors who don’t think vaccinations are safe could sue to have their approval yanked; cardiologists could challenge a new heart medicine on the grounds that “some patients would no longer require their services,” as the FDA pointed out in a legal brief. Pharmaceutical companies have voiced concern that accepting the alliance’s premise would upend the system, encourage judges to second-guess scientists, chill drug development, and harm patients.

Even if the court were to accept that conscience rights had been violated, the doctors’ suggested remedy — making mifepristone illegal for everyone — was excessive, Justice Ketanji Brown Jackson observed. “I’m worried that there is a significant mismatch … between the claimed injury and the remedy that’s being sought.” Exempting the doctors from participating in abortion-related care seemed the logical solution, she said. Instead, “they’re saying because we object to having to be forced to participate in this procedure, we’re seeking an order preventing anyone from having access to these drugs at all.”

Erin Hawley, a lawyer with the far-right Alliance Defending Freedom, which represents the Alliance for Hippocratic Medicine, tried to push back, ignoring the fact that broad conscience objections can be raised with hospital administrators or other health care employers well before a particular situation arises. She argued that the doctors couldn’t afford to waste “precious moments scrubbing in, scrubbing out” of the ER to lodge an objection.

Justice Neil Gorsuch interrupted: There had been a “rash” of recent cases in which a lower court issued a nationwide ruling when the circumstances called for a more modest result. “This case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on … an FDA rule or any other federal government action,” he said.

If the court rejects the alliance’s theory of legal standing, the case is dead without the justices having to address the group’s baseless arguments about the dangers of mifepristone, and the drug will remain available, as it is now, under the FDA’s current regulations. The court is expected to issue a ruling later this year, likely near the end of its session, which concludes in June.

That doesn’t mean that the attacks on medication abortion will stop or that the court will stand in their way. Both Alito and Justice Clarence Thomas seemed open to discussing a revival of the Comstock Act, an 1873 law that outlawed mailing anything considered “obscene, lewd, lascivious, indecent, filthy, or vile” — which included contraception — as well as “every article or thing” that could be used for abortion.

The zombie law has been dormant for decades, but many anti-abortion activists see it as a means of enacting a de facto national medication abortion ban without having to confront mifepristone’s safety record — even if the law’s broad language would trigger the possibility that instruments and drugs used for routine gynecological procedures could also be subject to its provisions.

During oral arguments, Alito asked whether the FDA should have considered the Comstock Act before lifting the in-person dispensing requirement, which led to widespread mail order sales. No, the solicitor general responded. If the restriction wasn’t medically necessary, then the FDA was required to lift it, not consider a statute that was outside its scientific purview.

Thomas asked Hawley, the alliance lawyer, for her take on Comstock. “The Comstock Act says that drugs should not be mailed,” she said. “We think the plain text of that, your honor, is pretty clear.”

The post Anti-Abortion Doctors Struggle to Explain Mifepristone Harms Before Supreme Court appeared first on The Intercept.

He talked about Latorya Beasley, an Alabama woman in the audience whose plans to have a second child using in vitro fertilization were scuttled after the state’s Supreme Court announced that embryos created via IVF were “extrauterine children.” The ruling prompted IVF providers in the state to halt services.

Biden also talked about Kate Cox, a Dallas mother in attendance who asked a Texas court for permission to terminate a nonviable pregnancy. A district judge agreed that her situation met the medical exception to the state’s merciless abortion ban. But the attorney general and state Supreme Court balked, forcing Cox to flee Texas to receive care meant to protect her life and future fertility.

“Like most Americans, I believe Roe v. Wade got it right,” Biden said. He noted that the Supreme Court’s majority opinion overturning Roe referred glibly to women having electoral power — and thus the political ability to overcome the ruling. Indeed, Biden said, state ballot measures enshrining reproductive rights won handily in 2022 and 2023. “Those bragging about overturning Roe v. Wade have no clue about the power of women,” Biden said to thunderous applause.

“If you, the American people, send me a Congress that supports the right to choose,” he said, “I promise you, I will restore Roe v. Wade as the law of the land again.”

While that might sound good, Roe was never enough to ensure reproductive autonomy in the first place. The ink was barely dry on the 1973 decision before its supposed protections came under attack. In 1976, Congress passed a measure that stripped government funding for abortion for low-income people. In the decades that followed, elected officials and the courts took a hammer to Roe — even as the Supreme Court repeatedly upheld its core ruling —passing and then blessing hundreds of restrictions, some targeting abortion facilities and doctors with excessive regulation, others erecting barriers between pregnant people and care, many of them based entirely on junk science.

Roe was always a paper-based right that depended on status and ZIP code.

Roe was never enough to guarantee that everyone in need of reproductive care could meaningfully access it. It was always a paper-based right that depended on status and ZIP code, leaving low-income people and other vulnerable groups out of the fold.

And that’s because Roe had a deep and unmalleable flaw: It was never about whether the government had a right to your body, only when it had a right to your body. Roe ensured that at some point, a pregnant person would lose the right to autonomy, which in turn guaranteed, if not wholly encouraged, the surveillance and criminalization of pregnant people.

Also present in the chamber for Biden’s state of the Union speech was a woman from Ohio named Brittany Watts. Her story is emblematic of Roe’s failures.

Watts had been to the hospital several times before she miscarried at her home southeast of Cleveland. She was nearly 22 weeks pregnant — the cutoff for abortion under Ohio law — and her water broke early. The fetus was not viable, and even though she was under the state’s gestational cutoff, the Catholic hospital she went to for help failed to intervene.

In September 2023, Watts miscarried the pregnancy in her bathroom. Back at the hospital later that day, Watts was soothed by a nurse who had already called the cops on her. Prosecutors charged Watts with “abuse of a corpse.” In justifying the charge, they vilified Watts, saying she put her “baby into the toilet” and then “went on” with her day. The truth was that she’d sought treatment, miscarried in the toilet, and then, scared, went to a scheduled appointment before diverting to the hospital.

The arrest caused a national uproar. Watts’s attorney argued that her client was being “demonized” for miscarrying, “something that goes on every day.” Nonetheless, a municipal court judge allowed the case to go to a grand jury: “There are better scholars that I am to determine the exact legal status of this fetus, corpse, body, birthing tissue, whatever it is.”

Ultimately, the grand jury declined to indict Watts, and she was cleared. But the bottom line is this: Roe did not save her. While the ruling had been overturned by the time Watts came under the scrutiny of the criminal legal system and its proxies in health care, Ohio’s remaining legal protections were based on Roe’s structure, including the gestational limit of 22 weeks.

The judge sent the matter to a grand jury precisely because the miscarried fetus might have had some legal rights, leaving Watts’s personal medical circumstances open to judgment by the government.

In contemplating a role for the government in a person’s reproductive life, Roe and its progeny deemed that outside intervention was acceptable later in pregnancy, when the fetus could be viable outside the womb. Generally speaking, this is accepted to occur around 24 weeks. But it is also a fluid concept. Anti-abortion activists had long advocated for pushing up the viability line, arguing that medical advancements meant a fetus could be supported outside the womb even sooner — thus encouraging greater governmental oversight of pregnancy.

While the notion that there is some government interest in protecting a fetus later in pregnancy might seem reasonable, pregnancy is a highly individualized experience and complications or circumstances that arise cannot be generalized or fairly conscripted to government control. The entire term of a pregnancy depends on the person carrying it, and the right to intervene in that pregnancy should lie with the individual.

In the years before Roe fell, near-total bans on abortion had become commonplace, passing in a number of states under the notion that legal personhood should begin before the person exists. It was the framework of Roe that allowed these power grabs, regardless of whether they were blocked by various courts before the Supreme Court said otherwise. Since the fall of Roe, several states have sought to codify its protections, as Biden said he would do given the chance. But that just reimagines the same inadequate framework. In November, Ohio became the seventh state to enshrine reproductive rights post-Roe when voters overwhelmingly approved an amendment to the state constitution that guarantees access to abortion free from government intervention — before viability.

Opting to hew to the line Roe cast is seen as politically safe. But recent research suggests the electorate isn’t so sure.

In June 2023, research firm PerryUndem conducted an experiment involving more than 4,000 registered voters and two reproductive rights amendments. The first amendment was the exact language passed by Michigan voters in 2022, which allows the government to regulate abortion after fetal viability. The second amendment mirrored the first but stripped out any role for the government.

Which amendment did voters prefer? By a large margin — 15 points — participants preferred the clean amendment, free of government control. “Which is it?” one voter said when asked about concerns with the first amendment. “Do we have individual freedoms or is the state controlling us?”

Bonyen Lee-Gilmore, vice president of communications for the National Institute for Reproductive Health, put it bluntly: The voters are out ahead of the government, she said, and even ahead of many reproductive rights organizations. People see that government involvement is a trap. And yet there is disagreement among reproductive rights organizations when it comes to the path forward, with many hedging, believing a Roe-like framework might pull us more quickly out of the current, hideous abyss. But that only takes us backward to days that were never all that great.

As we move forward, we need to think about what we really want — and what we can do to guarantee fully autonomous reproductive lives for all. Among those pushing for a holistic and inclusive approach is the NIRH’s Learning and Accountability Project.

“The public has never been more with us, more willing to reject government interference in our reproductive lives and futures,” the organization and its partners wrote on Medium. In each election since Roe was overturned, “we’ve won. But voters can only vote for what we put in front of them. It’s time to offer something more.”

The post Roe Was Never Enough to Ensure Reproductive Freedom appeared first on The Intercept.

Forensic testing of the knife used to murder Felicia Anne Gayle Picus, a beloved former newspaper reporter, revealed male DNA that did not belong to Williams. That evidence, which supports Williams’s innocence claim, has never been reviewed by any court, Bell noted in a newly filed motion. “This never-before-considered evidence, when paired with the relative paucity of other, credible evidence supporting guilt … casts inexorable doubt on Mr. Williams’s conviction and sentence,” the motion reads.

Bell is invoking a relatively new provision of Missouri law that allows prosecutors to intervene in cases when they have “information that the convicted person may be innocent.” Bell asked the St. Louis County Circuit Court, where Williams was convicted, to set a hearing to consider the DNA evidence and other serious flaws in the case against Williams, including poor defense lawyering at trial and misconduct by prosecutors, who stuck qualified individuals from the jury pool because they were Black.

Bell’s office is also reviewing the police investigation of Williams to determine if it was “intentionally or recklessly deficient” and is conducting a probe into an “alternate perpetrator.” That inquiry involves forensic testing, which will take time, the motion notes. Still, Bell believes it is his duty now to ask the court to “correct this manifest injustice by seeking a hearing on the newfound evidence and the integrity of Mr. Williams’s conviction.” The request is all the more urgent because Missouri’s attorney general has asked the state Supreme Court to set a date for Williams’s execution.

Picus’s husband, Dan, came home from work on August 11, 1998, to find his wife dead. The former St. Louis Post-Dispatch reporter had been stabbed repeatedly, and the murder weapon, a knife from the couple’s kitchen, was left lodged in her neck. The house was full of forensic evidence: There were pubic hairs found near the body, bloody fingerprints on a wall, and a trail of bloody shoeprints. The kitchen had been ransacked, and closets and drawers upstairs had been opened. Not much of value was taken; Picus’s wedding ring and $400 in cash were still in her walk-in closet. But a few items were missing, among them Picus’s wallet and Dan’s old Apple laptop computer.

Despite the wealth of physical evidence, the case quickly stalled out. It wasn’t until months later, after Picus’s family posted a $10,000 reward for information leading to the arrest and conviction of her killer, that a jailhouse informant named Henry Cole came forward with a story about his former cellmate, Marcellus Williams, whom he said had confessed to the murder. Police subsequently secured a second informant, Laura Asaro, Williams’s former girlfriend, who also claimed Williams was responsible.

There was ample reason for police and prosecutors to be wary of the accounts: The informants were both facing prison time for unrelated crimes and had a history of ratting on others to save themselves. Many of the details Cole and Asaro offered shifted over the course of questioning, while others did not match the crime. Nonetheless, Williams was charged with Picus’s murder. When Cole’s support for the endeavor appeared to flag before trial, prosecutors encouraged Dan to pay him $5,000 to secure his testimony.

Although Cole and Asaro were the foundation of the state’s case against Williams, painting him as a ruthless killer, their stories contradicted the physical evidence. Asaro claimed Williams had scratches on his face the day of the murder, yet no foreign DNA was recovered from under Picus’s fingernails. The bloody shoeprints in the house were a different size than Williams’s feet, and the pubic hairs found near Picus’s body didn’t belong to Williams. In his trial testimony, Cole claimed that Williams bragged about wearing gloves during the murder, despite the bloody fingerprints left behind. The fingerprints lifted by investigators were deemed unusable by the state and destroyed before the defense had a chance to analyze them.

The Apple computer, however, was eventually recovered by police. According to Asaro, Williams had given his grandfather’s neighbor the computer in exchange for crack cocaine. At trial, the neighbor denied that account, saying he’d paid Williams cash for the laptop. What the jury didn’t know was that the man also said Williams was pawning the computer for Asaro.

According to Bell’s motion, Williams’s trial attorneys provided him with ineffective representation by failing to call witnesses who could have undercut the credibility of Cole and Asaro. Among those witnesses was Cole’s son, Johnifer, who said that while Cole was locked up with Williams, he’d written Johnifer a letter to report that he had a “caper” going on and “something big” was coming.

Williams’s conviction was also tarnished by the prosecutors, who illegally struck several potential Black jurors from service. In one instance, a prosecutor said they hadn’t rejected the juror because he was Black, but because he “looked very similar” to the defendant. (The prosecutor also claimed he struck the juror because he was a mail processing supervisor for the postal service, and postal employees are “very liberal.” He did not use the same logic to disqualify a white postal employee.) 

The St. Louis County Prosecuting Attorney’s Office has a well-documented history of striking Black jurors from serving on death penalty cases, Bell noted in his motion. The prosecutors who handled Williams’s case have had at least two other death penalty convictions reversed by the Missouri Supreme Court based on such violations.

Williams’s lawyers requested DNA testing of crime scene evidence prior to his trial, but the court denied it. It wasn’t until 2015 — on the eve of Williams’s first execution date — that the Missouri Supreme Court stayed the case and ordered testing of the murder weapon, which ultimately revealed unknown male DNA. The court reset Williams’s execution for August 2017 without considering the impact of the DNA results on his conviction.

The Midwest Innocence Project, which represents Williams, turned to Missouri’s then-Gov. Eric Greitens, asking that he halt the execution and convene what’s known as a board of inquiry to investigate the case. On the day Williams was set to die, Greitens issued an executive order granting the request.

Greitens empaneled a five-member board of retired judges to “assess the credibility and weight of all the evidence.” The board was given subpoena power and tasked with making a final report to the governor “as to whether or not Williams should be executed or his sentenced of death commuted.”

Over the intervening years, the Midwest Innocence Project provided the board with a host of information and suggestions for lines of inquiry. Then, last June, Greitens’s successor, Gov. Mike Parson, abruptly dissolved the board of inquiry before it could report the findings of its investigation. It was time to move on, Parson said. The following day, Attorney General Andrew Bailey asked the Missouri Supreme Court to set an execution date for Williams.

The Midwest Innocence Project has sued to block the governor from disbanding the board. Parson’s order violated state statute, the lawyers argued, which requires a board of inquiry to issue a final report to the governor’s office. The dispute is pending before the Missouri Supreme Court.

In the meantime, Bell’s office and lawyers for Williams have asked the Missouri Supreme Court to hold off on setting an execution date while the St. Louis County Circuit Court considers Bell’s motion.

Until recently, what Bell is asking — for a judge to overturn a faulty conviction — would have been impossible. Prior to 2021, state law precluded local prosecutors from taking action to overturn wrongful convictions perpetrated by their predecessors.

The Missouri Attorney General’s Office has long expressed a perverse hostility to the plight of the wrongfully convicted. Back in 2003, the state Supreme Court considered the case of Joseph Amrine, who was on death row for a murder he did not commit. Amrine, who had exhausted his normal course of appeals, sought to press his innocence claim. The attorney general’s office argued that the court could not consider such a claim and Amrine’s execution was warranted. Was the office suggesting that “if we find that Mr. Amrine is actually innocent, he should be executed?” Judge Laura Denvir Stith asked. “That’s correct, your honor,” the assistant attorney general replied. The court later ruled in Amrine’s favor.

The office also fought back in the case of Lamar Johnson, who was sent to prison in 1994 for a murder he swore he didn’t commit. Kim Gardner, former elected prosecutor for the city of St. Louis, concluded that Johnson was innocent, but Attorney General Eric Schmitt, now a U.S. senator, insisted Gardner lacked the power to do anything about it. Gardner persisted in her efforts, landing the case before the Missouri Supreme Court in 2020, where the attorney general argued that giving a local prosecutor the power to right a wrongful conviction had “the potential to undermine public confidence” in the criminal legal system.

It took nearly two decades after the Amrine decision for the state legislature to pass the statute that allows prosecutors like Gardner and Bell to intervene in wrongful convictions. The first test of the new law came in late 2021, when Kansas City elected prosecutor Jean Peters Baker sought to overturn the more than 40-year-old wrongful conviction of Kevin Strickland. Baker’s efforts were ultimately successful, but not without a fight. During a court hearing on the case, lawyers for the attorney general’s office threw out myriad reasons Strickland should remain locked up. None were persuasive and the presiding judge freed Strickland just before Thanksgiving.

In one of her final acts before being ousted amid a political feud with the attorney general’s office, Gardner invoked the new law in Johnson’s case; he was exonerated last February.

If history is any guide, the attorney general’s office will oppose Bell and fight to keep Williams locked up despite the crumbling nature of the state’s case. The office has yet to issue a public response to Bell’s motion.

The “indirect evidence used to convict Mr. Williams has become increasingly unreliable,” Bell’s motion reads. “This, when considered alongside the new DNA expert testimony, undermines confidence in Mr. Williams’s conviction and accompanying death sentence.”

While the attorney general’s office has argued that challenging the righteousness of a conviction somehow tarnishes confidence in the system, Bell’s motion takes the opposite stance: “Public confidence in the justice system is restored, not undermined, when a prosecutor is accountable for a wrongful or constitutionally infirm conviction.”

The post St. Louis County Prosecutor Seeks to Vacate Death Penalty Conviction of Marcellus Williams appeared first on The Intercept.

That detail caught the medical examiner’s attention. Weeks earlier, another woman had been stabbed to death just a couple of miles away, and the weapon was left in the victim’s body. Days after Picus’s murder, the University City police chief told the St. Louis Post-Dispatch that investigators had identified a “prime suspect,” someone they said had been spotted in the area “in recent weeks,” whom they believed had killed before.

But whatever became of that lead is unclear. After Picus’s family posted a $10,000 reward for information leading to the arrest and conviction of her killer, a jailhouse informant named Henry Cole came forward with a story about how his former cellmate, Marcellus Williams, had confessed to murdering Picus. Soon, police secured a second informant: Laura Asaro, Williams’s former girlfriend, also told the cops that Williams was responsible for the killing. There were reasons to be wary of their stories. Both informants were facing prison time for unrelated crimes and stood to benefit. Many of the details they offered shifted over the course of questioning, while others did not match the crime. Nonetheless, Williams was charged with Picus’s murder, convicted, and sentenced to death.

Questions about the investigation and Williams’s guilt have only mounted in the years since the August 1998 crime. DNA testing on the murder weapon done years after his conviction revealed a partial male profile that could not have come from Williams. On the eve of Williams’s scheduled execution in 2017, then-Missouri Gov. Eric Greitens intervened. He issued an executive order that triggered a rarely used provision of Missouri law, empaneling a board to review the evidence, including DNA, that jurors never heard about at trial.

While that review was ongoing for most of the last six years, the board never submitted a final report or recommendation to the governor, as the law requires. Instead, last June, Gov. Mike Parson announced that he was rescinding his predecessor’s order, effectively dissolving the panel that had been reinvestigating the case.

The question now is whether Missouri law allows the governor to simply disappear an ongoing investigation. Because the law has so rarely been used, its contours have never been fully litigated, prompting the Midwest Innocence Project, which represents Williams, to file a civil lawsuit seeking to invalidate Parson’s order. The state’s attorney general balked, arguing that Williams was trying to usurp the governor’s independent clemency powers. The AG has asked the Missouri Supreme Court to toss the lawsuit — and clear the way for Williams’s execution.

Picus spent a decade as a reporter for the St. Louis Post-Dispatch, including on the crime beat, before leaving to focus on philanthropic endeavors. She was an ardent environmentalist and feminist: She persuaded the newspaper to adopt its first recycling program, and a former colleague recalled how she’d advocated for using the term “personhole” instead of “manhole” in stories.

Diminutive in stature with long hair and a reported fondness for Birkenstocks, Picus was also a dedicated friend. She wrote hundreds of birthday and holiday cards each year — the day she was killed, she had more than 30 handmade cards ready to mail. “She was like a central switching system on the telephone company of life,” a childhood friend and fellow journalist wrote in the Chicago Tribune.

The Post-Dispatch covered the search for Picus’s killer as the months without an arrest wore on, publishing a detailed list of items police said had been stolen from her home, among them an old Apple laptop belonging to Picus’s husband, Dan. But it wasn’t until the $10,000 reward was posted that police secured statements from the informants, Cole and Asaro, claiming that Williams had confessed to the murder. Although the reward was supposed to be paid upon conviction, prosecutors encouraged Dan to pay Cole $5,000 upfront when it appeared that his cooperation might be flagging.

Cole and Asaro were the backbone of the prosecution’s case at Williams’s trial in the summer of 2001. The state painted a harrowing picture of the attack on Picus and cast Williams as a ruthless killer. There was no physical evidence, however, to back up the informants’ claims. Asaro claimed that Williams had scratches on his face the day of the murder, yet no foreign DNA was recovered from under Picus’s fingernails. Cole said Williams’s clothes were bloody and that he’d stolen a shirt to cover the stains when he left Picus’s house, yet no clothes were missing from the home. Bloody shoeprints found at the scene were a different size than Williams’s feet. Fingerprints lifted by investigators were deemed unusable by the state and then destroyed before the defense had a chance to analyze them.

There was, however, the Apple laptop, which police ultimately recovered. According to Asaro, Williams gave his grandfather’s neighbor the computer in exchange for crack cocaine. At trial, the man denied that account. He’d paid Williams for the laptop, he said. Williams told him that he’d gotten the computer from Asaro and was selling it for her. Prosecutors objected to this testimony, so the jury never heard it. Asaro and the man who received the computer have since died.

Like Cole and Asaro, Williams had a rap sheet. He’d been sentenced to decades in prison for robbery and burglary by the time of the murder trial. According to the Post-Dispatch, the jury deliberated for less than 90 minutes, “including lunch,” before deciding that Williams should be sentenced to die for Picus’s murder.

Attorneys for Williams sought to conduct DNA testing prior to his trial, but the circuit court judge refused. It wasn’t until 2015 that Williams was granted permission to test the murder weapon, which revealed a male DNA profile that did not match Williams. Nonetheless, the Missouri Supreme Court dismissed the new evidence and set Williams’s execution for August 22, 2017.

The Midwest Innocence Project turned to Greitens, asking that he halt the execution and convene a board of inquiry to investigate the case. On the day Williams was set to die, Greitens issued an executive order granting the request.

A five-member board would be set up to “assess the credibility and weight of all evidence” in the case, Greitens’s order read. The board was given subpoena power and tasked with keeping the information it collected in “strict confidence.” The order required the board to make a final report and recommendation to the governor “as to whether or not Williams should be executed or his sentence of death commuted.”

Greitens appointed five retired judges to the investigation, and they got to work. In the years that followed, the Midwest Innocence Project provided the board with a host of information and suggestions for lines of inquiry — continuing well after Greitens resigned amid a swirl of controversies the following year and Parson assumed office.

That is until Parson issued his own executive order on June 29, 2023, rescinding Greitens’s order. While Parson acknowledged that his predecessor had required a report from the board of inquiry regarding its investigation, the governor made no mention of any findings.

“This board was established nearly six years ago, and it is time to move forward,” he said. “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.”

In 1963, the Missouri legislature passed several criminal justice reforms, including one aimed at avoiding wrongful executions. The state’s constitution already empowered the governor to grant reprieves, commutations, and pardons, but lawmakers added new authorities, allowing the governor, “in his discretion,” to appoint a board of inquiry tasked with gathering information bearing on whether a person “condemned to death” should in fact be executed. Lawmakers set several specific parameters, including that the board “shall” issue a final report. The law passed that summer and has never been amended.

Although it has been on the books for 60 years, the provision has only been invoked three times, including in the Marcellus Williams case. In 1997, then-Gov. Mel Carnahan stayed the execution of William Boliek, who had been sentenced to die for murdering a witness to a robbery in Kansas City, and ordered a board of inquiry to look into the case. The board submitted its report to Carnahan, but the governor did not act on it before he was killed in a plane crash — meaning the case was never resolved. The Missouri Supreme Court subsequently ruled that Carnahan was the only one who could lift the stay, meaning Boliek could never be executed. He remains on Missouri’s death row.

In an August 2023 civil lawsuit filed in Cole County, where the state capital is located, the Midwest Innocence Project drew on this history to argue that Parson had violated the law by dissolving Greitens’s board before it had fulfilled its statutory duty to provide a report and recommendation in Williams’s case.

Once the statute was triggered, the governor was bound to uphold its provisions. Parson’s order prematurely dissolving the board exceeded the power granted to his office by the legislature some 60 years ago, the lawyers argued. “All Mr. Williams is asking is for the board of inquiry to be able to complete its work and issue a report and recommendation, ensuring that at least one government entity finally hears all the evidence of his innocence,” said Tricia Rojo Bushnell, the Midwest Innocence Project’s executive director. Once the process is complete, Parson can do what he wants, she added. “But until that time, Mr. Williams has a right to this process that was started by Gov. Greitens precisely out of the concern that Missouri may execute an innocent person.”

Attorney General Andrew Bailey sought to have the lawsuit dismissed outright, but in November, Circuit Court Judge S. Cotton Walker concluded that it should proceed. The statute didn’t expressly give Parson the authority to dissolve the board, and Williams had an interest in the process playing out according to the law, he wrote. “There is a fundamental difference between the governor’s authority to appoint a board in his discretion and the board’s ongoing existence being discretionary.”

Bailey appealed to the Missouri Supreme Court, arguing that the circuit court couldn’t tell the governor what to do in matters of clemency. Since the board of inquiry statute references the governor’s constitutional powers over clemency, Bailey argued, interfering with his ability to dissolve the board was the same as interfering with his clemency powers. Williams was trying to use the court to “hijack” Parson’s authority, he wrote.

The Midwest Innocence Project argued that Bailey’s position was a red herring: Williams was not looking to interfere with Parson’s authority on matters of clemency; he was merely asking that the governor be required to follow the statute in his decision-making. To find otherwise would be violating the separation of powers in the other direction: allowing the governor to rewrite a decades-old act of the legislature. The governor’s position, the lawyers wrote, “has it backward.”

“The governor’s clemency power exists for the public good, not his own,” the defense brief reads. “As a result, a board of inquiry serves the public, not the governor, and that board ‘shall’ make a report and recommendation for the governor’s consideration before he makes a final clemency decision.”

There is no timeline for the Missouri Supreme Court to rule.

Meanwhile, the Conviction and Incident Review Unit at the St. Louis County Prosecuting Attorney’s Office has also reached out to the court, asking that it refrain from setting a date for Williams’s execution for “an initial period of six months.” The office has also been investigating Williams’s case and needs more time to decide whether it will seek to vacate his sentence on its own — a power granted to state prosecutors under a newer, but also rarely used, Missouri law.

Marcellus Williams remains grateful to Greitens for staying his execution and invoking the board of inquiry statute. He told the Kansas City Star that he grew up “basically like a typical misguided” youth, bouncing in and out of juvenile detention. He had just started serving a 20-year sentence for robbing a doughnut shop when he was charged with Picus’s killing. He knew he hadn’t done it and said that despite his experience with the criminal justice system, he thought the mistake would be discovered and corrected. “You still have this naivete right there that you’re not really recognizing who you’re up against.”

The post Crime Scene DNA Didn’t Match Marcellus Williams. Missouri May Fast-Track His Execution Anyway. appeared first on The Intercept.

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Rat’s in the Trap

The day before Michael Beckcom was arrested for murder, a Texas Ranger spotted his red Ford Explorer parked in a small town not far from the Gulf Coast. On its tailpipe was a silver substance that looked like the remnants of melted duct tape. It was evidence that would link Beckcom to the grisly killing of a federal witness.

On June 4, 1996, Beckcom was jailed on a $10 million bond for his role in the slaying of George “Nick” Brueggen. Brueggen had been cooperating with federal authorities to build a fraud and tax evasion case against Beckcom and his associates, who fancied themselves a sort of South Texas Mafia. Beckcom and several others, including Mark Crawford, the former mayor of sleepy Ingleside, Texas, locked Brueggen in a large metal storage box. Using duct tape, they attached one end of a garden hose to the box and the other end to the tailpipe of Beckcom’s SUV. According to the Texas Rangers’ report, Beckcom then revved the engine, asphyxiating Brueggen.

Facing a capital murder charge, Beckcom cut a deal with prosecutors, becoming the government’s key witness against Crawford, the mastermind behind the murder.

Beckcom’s testimony was vivid. “Nick was kicking the box and making noise; he was panicking,” he testified in federal court, recalling one of his associates offering a pithy aside: “The rat’s in the trap.” When it was all over, his friends were eager to open the box, Beckcom said, while he “looked from the distance” as fumes wafted from its lid. Brueggen’s “eyes were open, and he had a blank stare. He was frozen there.”

Beckcom was critical to convicting Crawford, and while a federal district judge ultimately signed off on his plea deal, he also made clear that Beckcom had lied under oath. “The court believed you in part,” the judge said at Beckcom’s sentencing hearing. “But there were certainly areas where you gave false statements either to the investigating officers or your testimony on the witness stand was false.”

Despite the apparent perjury, Beckcom went on to play an equally crucial role in convicting Jeffrey Prible, who was sent to death row for the murder of his friends Steve Herrera and Nilda Tirado, along with their three kids. The family was found dead in their Houston home on April 24, 1999. Two years later, Prible was indicted for the killings while serving a five-year sentence at the federal correctional institution in Beaumont for a string of bank robberies.

There was no direct evidence tying Prible to the murders. Instead, Harris County prosecutor Kelly Siegler’s case was based on the thinnest of circumstantial evidence, which made Beckcom’s testimony indispensable even if his credibility was questionable: He was the only witness who could connect Prible to the crime.

Beckcom said that he and his cellmate, Nathan Foreman, had befriended Prible while imprisoned at Beaumont. One evening, according to Beckcom, the three men were sitting in a field on the rec yard when Prible confessed to the killings.

Once again, Beckcom’s testimony was cinematic. He described Prible as a modern-day ninja who boasted about his ability to carry out the murders undetected. “Anybody that can go in a house and take out a whole family and get out without being seen is a bad motherfucker,” Beckcom recalled Prible saying. “And I’m that motherfucker.”

The information Beckcom provided also sewed up the gaping holes in Siegler’s case. Prible lacked a motive — until Beckcom said he was angry with Herrera for hoarding cash from the bank robberies. Beckcom explained away the missing murder weapon by implying that Prible had buried it under some newly poured concrete. “Asphalt’s good sometimes for hiding things,” he said Prible told him. And he countered Prible’s alibi witness — a neighbor who saw Prible dropped off at home hours before the murders — by suggesting that Prible had snuck back into his friend’s house to kill the family.

In early 2017, Prible’s defense lawyers, James Rytting and Gretchen Scardino, sought Beckcom out to learn more about the deal he’d cut with Siegler. The first time he was scheduled to be deposed, Beckcom didn’t show up. Perhaps it shouldn’t have come as a surprise; when a defense investigator went to serve him with a subpoena, Beckcom was outwardly hostile to the notion of having to answer any questions.

The investigator persuaded Beckcom to meet him at a Starbucks outside a gated community in Florida. Beckcom rolled up on a Harley Davidson. Still fit, with his dark hair now graying around the temples, he was furious to learn about the subpoena. “If I have to,” the investigator recalled Beckcom saying, “I’ll kill the son-of-a-bitch lawyer and go back to prison, but I’m not going to get involved in this case anymore.”

The threat unnerved Scardino. She hired a retired federal marshal to sit outside the room when they finally got Beckcom in for his deposition. Scardino steadied her nerves as the questioning began, but it was Beckcom who broke the ice. Was he on anything that might impair his memory? Scardino asked. “Just age,” Beckcom joked.

For his role in the Crawford prosecution, Beckcom had been handsomely rewarded: just 11 years for a slaying that could have netted him the death penalty. Still, as he served his time at Beaumont, he hoped that his cooperation in the Prible case would swing the prison doors wide open. He expected as much from Siegler, he told Scardino. Instead, he got a year shaved off his sentence. Nearly two decades later, he was still vexed.

“You thought you’d be walking out the door?” Scardino asked.

“For a house full of bodies? Yeah,” he replied, crossing his arms. “Children? Sure.”

Still, Scardino could see why Beckcom made an effective witness; he remained unflappable and calm over more than five hours of questioning. He said he’d gotten Siegler’s name from Foreman but couldn’t recall how he knew that Prible was coming to the unit before he arrived. “Someone would have had to tell you that he was coming, right?” Scardino asked. “Yeah, I would assume so,” Beckcom replied. Nor could he recall whether Siegler had shared details about Prible’s case, like the problem of the alibi witness.

At some point, Beckcom said, he realized there were multiple men vying to inform on Prible, “like fricking 10 guys,” but “somehow I ended up with the information.”

“The details Jeff Prible gave me he gave completely and explicitly to me and Nathan Foreman one night,” he said. “He just rolled it out.”

At trial, Siegler had introduced a photo of Beckcom, Foreman, and Prible alongside their parents in the Beaumont visitation room. During his deposition, Beckcom acknowledged that the photo was staged to corroborate his story that the men were so close that Prible would confess. But while the photo was dated the same day as the alleged confession, it was taken hours earlier, before Prible had said anything. “You had nothing to corroborate yet,” Rytting said. “No,” Beckcom agreed.

Rytting asked Beckcom about the affidavit Foreman had provided in 2016, which characterized Beckcom as one of the men looking to sink Prible in exchange for a time cut. Foreman said that Prible never confessed in his presence, contrary to Beckcom’s trial testimony. “In fact, I never heard Prible say anything bad about the victims,” Foreman said. “When he talked about Herrera, he talked about him like he was a friend he had lost.”

“Wow,” Beckcom remarked. “I mean, it makes no sense. Why would he be trying to gather information and then say, ‘I didn’t get the information, no, that’s not true’? He either heard these things or he didn’t hear them, so he can’t have it both ways.”

“That’s correct,” Rytting replied. “And he states he didn’t hear them.”

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Underground Market

Kelly Siegler sat in a leather office chair, a bottle of Diet Coke in hand, staring down a videographer’s camera. Throughout more than nine hours of questioning, her expressions traversed a spectrum of impassive to dismissive to haughty as she repeatedly denied doing anything wrong.

In her decades at the Harris County District Attorney’s Office, Siegler had been the one asking questions. Now, during a sworn deposition in October 2017, Prible’s lawyers had the chance to confront her about the measures she took to convict their client.

It was a significant turn of events for the hot shot prosecutor-turned-reality TV star, but not unprecedented. A few years earlier, she’d spent five bruising days on the witness stand answering questions about her prosecution of David Temple, the high school football coach sentenced to life in prison for murdering his pregnant wife, Belinda. Temple’s conviction, based on circumstantial evidence, was Siegler’s final cold case victory at the DA’s office. Months later, in the wake of her failed campaign to become the next DA, she resigned.

More than just a personal defeat, Siegler’s election loss signaled the start of Harris County’s ongoing shift away from the lock-them-all-up politics of her mentors. And while it ultimately fed the narrative of Siegler’s phoenix-like ascent to a larger stage, the loss also seemed to animate her with the notion that subsequent allegations of prosecutorial misconduct were some sort of political payback.

In challenging his conviction, Temple argued that Siegler had withheld a raft of records from the defense, including those related to an alternate suspect. Confronted with the alleged improprieties in court, Siegler was pugnacious. She was only required to turn over evidence related to “truly, truly” alternate suspects, she said, not “ridiculous” information that came from sources she deemed “kooky.”

She intimated that the questions swirling around Temple’s conviction were all thanks to her opponent in the DA’s race years earlier, whom Siegler claimed had made a deal with Temple’s trial attorney to reopen the case, presumably as part of a plot to besmirch her reputation.

Siegler’s testimony did not sit well with the district court, which concluded that her actions had deprived Temple of a fair trial. The notoriously conservative Texas Court of Criminal Appeals agreed, vacating the conviction. While Temple would eventually be retried and convicted, the public rebuke was still fresh when Siegler sat down to answer questions about the Prible case.

Siegler insisted that the lawyers’ petition challenging Prible’s conviction was full of lies.

Can you name one of the allegations that “stands out as being false?” Rytting asked.

“Well, the overarching lie is that I orchestrated a ring of informants from the Beaumont federal prison,” she said. “That is a lie … that you made up.”

Siegler also denied hiding anything from Prible’s lawyers at trial. All the evidence the state had developed was in a file that was open to the defense, she said, including any notes.

It was an odd position given that federal District Judge Keith Ellison had only recently unearthed notes from Siegler’s files documenting her meetings with Nathan Foreman, who positioned himself early on as an informant against Prible and was later described as the ringleader of the Beaumont snitches. The notes also showed that she had consulted a forensic expert who undermined her assertion at trial that the sperm found in Nilda Tirado’s mouth could only have been deposited moments before she was shot.

Siegler’s colleagues, meanwhile, had different takes on her willingness to turn over evidence. “Kelly didn’t give up anything she didn’t have to,” Johnny Bonds, the DA investigator who went on to become Siegler’s “Cold Justice” co-star, said in a deposition. Vic Wisner, her co-counsel on the Prible case, said the DA’s office “always had an open file policy unless there was some extraordinary need not to,” but that it didn’t include notes.

There were other contradictions. Siegler denied that Beckcom played a “vital role” at Prible’s trial, even though that was the precise language she used to describe his participation. In a Rule 35 letter, Siegler had implored the federal prosecutor who handled the Brueggen murder case to advocate for a time cut for Beckcom. The prosecutor was reluctant; Beckcom’s plea deal was generous, he told Siegler. But her case “involved the vicious murder of FIVE people,” she wrote in a second letter. And Beckcom had “played a vital role in obtaining a conviction.”

Siegler conceded at her deposition that she and Bonds first met with Foreman to discuss Prible’s case in August 2001, long before the casual rec yard encounter presented at trial. Foreman offered dubious details of Prible’s alleged crime, which Siegler and Bonds memorialized on several sheets of lined paper. Still, Siegler insisted that Foreman played no role in the case, becoming increasingly hostile each time his name was brought up. “Mr. Foreman was not involved in Jeffrey Prible’s case,” she told the lawyers. “I know you want him to be, but he was not.”

Siegler claimed, for the first time, that she and Bonds left the meeting convinced that Foreman was not credible. “We walked out of there saying we didn’t believe a word he had to say.” This echoed what Bonds said in his deposition; as he recalled, Foreman could not even describe what Prible looked like. Siegler did not explain why she continued to meet with Foreman, who introduced her to his cellmate, Beckcom, the man she decided was credible enough to put on the witness stand.

As it turns out, Siegler had been talking about Prible with a Beaumont informant even earlier than her notes reflected. At the deposition, she revealed that in July 2001 she had discussed Prible’s case with Jesse Moreno, the informant who gave her Foreman’s name and later served as her star witness against Hermilo Herrero. The admission suggested it was Siegler who set in motion the high-stakes competition to inform on Prible. And all of it started before Prible had even been charged with murder or transferred to the unit where the snitch ring operated.

There was also the matter of the letters Siegler had received from three other men at Beaumont volunteering accounts of Prible’s jailhouse confession. Like Siegler’s notes, the letters were only disclosed via judicial intervention years after Prible’s trial. They would never have come to light without Carl Walker, one of the would-be informants who withdrew from the scheme after a crisis of conscience and prompted the lawyers to seek a review of Siegler’s records. Nevertheless, Siegler said that the letters would also have been in her “open” file.

She dismissed their significance, seemingly unfazed by the idea that so many people angling to inform on Prible might cast doubt on any confession narrative coming out of Beaumont. “Federal inmates audition for any role … on any case they can think of with any information they might hear to try to get a time cut,” she said. “That’s what federal inmates do all day long 24 hours a day.”

“So you knew that they were doing this before Mr. Prible’s trial?” Scardino asked.

“I’m not stupid,” Siegler replied.

Rytting questioned whether Siegler had engaged with the Beaumont informants in an effort to gin up evidence. Siegler was having none of it. “Your witnesses’ affidavits were lies,” she stated. “You have not one shred or iota or piece of credible evidence from a credible witness that supports any of these allegations.”

“And these are the type of witnesses that you used to put people on death row?” Rytting asked.

“I’m calling you a liar, sir,” she replied.

“And I’m calling you one.”

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A Mark

In 2018, Scardino and Rytting filed an amended petition in federal court challenging Prible’s conviction. “For over 15 years, the state has denied any conspiracy to frame Prible for the murders of the Herrera/Tirado family through the use of false jailhouse informant testimony,” it began. “Now, lead prosecutor Kelly Siegler’s own handwritten notes … confirm that this was in fact the case.”

“Prible’s trial was a master class in obfuscation by omission,” the lawyers wrote. Had jurors been privy to the extent of Siegler’s interactions with the Beaumont informants, they would have seen the state’s case for what it was. “The jury would have figured out that the whole thing was a set-up.”

A year later, Ellison granted their request for a hearing to consider the evidence. For so long, Prible’s suspicions about the Beaumont informants had been dismissed as paranoid speculation. Now a federal judge was giving them a chance to prove their case. “We knew we had a story to tell,” Scardino said.

A few days before the evidentiary hearing was scheduled to begin in downtown Houston, Ellison convened a conference call with the lawyers for each side. The topic: Kelly Siegler.

“I am concerned with the fact that Ms. Siegler seems to be unavailable,” he said.

For months, Scardino and Rytting had been trying to serve Siegler with a subpoena to appear at the hearing. They tried her at her office and at home. She never responded.

Tina Miranda, the Texas assistant attorney general tasked with defending Prible’s conviction, spoke up: Siegler had contacted her to say that she “travels a lot for her taping of her show” and would be unavailable. The judge was irritated. “That’s the kind of thing that a witness avoiding appearing would say,” Ellison said. “I really would have expected much more from an officer of the court.”

On the morning of the hearing, Prible sat in a high-backed chair in Ellison’s courtroom. He turned to smile at his family, which was out in force. His three grown children were there, along with his mother, sister, and other relatives. Scardino had two witnesses waiting to testify: Nathan Foreman and Carl Walker. The judge assumed the bench at 10 a.m. There was just one problem. “Has anybody heard from Ms. Siegler?” Ellison asked.

Miranda had: Siegler was still out of town. “I wish she would cover this case on her TV show and explain to the nation why she couldn’t be present,” Ellison quipped. The hearing would start without her.

Scardino launched into Prible’s case. Prosecutors had declined to indict anyone for the Herrera and Tirado murders based on the limited evidence collected by the summer of 1999, she said. Yet, without uncovering anything new, Siegler asked a grand jury to indict Prible two years later. By the time she took the case to trial, there was only one additional element: Michael Beckcom.

To believe Beckcom’s story about Prible’s confession, Scardino told the judge, you’d have to place faith in Foreman, whom Beckcom said was by his side when Prible owned up to the crime. Siegler had met with Foreman at least twice in connection with Prible’s case, although she failed to inform the defense. Despite this, Siegler claimed Foreman was irrelevant and untrustworthy.

Siegler’s files showed that she’d heard from at least five men at Beaumont jockeying for informant status in the hopes of securing time cuts, which should have raised red flags. Yet Siegler simply buried the communications.

The “sordid backstory” of the prosecutor and the informants would never have come to light, Scardino said, if “one of the informants that Siegler decided not to use,” Carl Walker, hadn’t come forward and “spilled the beans on the ring of snitches.”

“There’s only one reason she would avoid being here in person today to clear her name,” Scardino said. “That is because her name can’t be cleared.”

Miranda conceded that “at face value,” it was “disturbing” that so many people were trying to snitch on Prible, but she said there was no proof that Siegler put them up to it or even understood what was going on.

The judge seemed skeptical of Miranda’s take. “What was the alternative thesis?” he asked. “Why would these inmates become so enthusiastic about trying to pin a capital crime on Mr. Prible?”

That’s just what they do, Miranda responded. If that were the case, Ellison said, “Wouldn’t that cause a seasoned prosecutor to be especially wary about this kind of evidence?”

Miranda insisted that Siegler was attuned to the problem. After all, she only put Beckcom on the stand as a witness against Prible — not the four others who also supposedly heard him confess.

After being released from Beaumont, Foreman had landed in legal trouble again with a conviction for aggravated kidnapping and robbery. When he took the stand at the evidentiary hearing, he was out on bond as his case made its way through the appeals process. Although he’d played an outsize role behind bars in the scheme to snitch on Prible, in court Foreman was almost timid; he spoke so quietly that the court reporter asked him to pull the microphone closer.

At Beaumont, Foreman had every incentive to offer up incriminating information about his neighbors, true or not. Now he was facing 50 years in state prison — the rest of his life — and no amount of self-dealing would change the sentence.

Foreman testified that he’d first heard the names Kelly Siegler and Jeffrey Prible from Jesse Moreno, the informant who met with Siegler about Prible’s case and became her star witness against Hermilo Herrero. It was Herrero who first alerted Prible that the same band of informants was behind their convictions. Two months before Prible’s trial started, Siegler traveled to Louisiana to testify in favor of a drastic time cut for Moreno, whose sentence was reduced from 78 months in prison to just one.

While incarcerated in Beaumont, Foreman and Moreno both wound up in the Special Housing Unit, where Foreman was working as a janitor and orderly, delivering meals. It was there that Moreno told him about Prible — before Prible had even arrived. Moreno suggested that he reach out to Siegler about becoming an informant. Foreman testified that what he knew about Prible’s case came not only from Moreno, but also from Siegler, who told him that Prible’s DNA had been found in Tirado’s mouth.

Foreman said he never heard Prible confess to the murders of Herrera, Tirado, and their kids. And since he was eager for a time cut, he’d remember a confession. Beckcom’s statement at trial sounded scripted, he added. “All I could say is that he should have been a book writer or something.” When Rytting read aloud Beckcom’s line about Prible being trained in the Marines for “high-intensity, low-drag” maneuvers, Foreman laughed. “I’ve never heard that one,” he said. “It really sounds like he got it off television.”

The judge wanted to know if men at Beaumont regularly discussed the crimes they had committed. Wouldn’t that be risky business? “That is correct,” Foreman replied. People might talk about past crimes — if they were of little consequence — but never about pending charges and certainly not about murdering children. That could get you killed.

As Prible recalled, Foreman winked at him on his way out of the courtroom. Prible took it as a conciliatory gesture, as if to admit he’d done wrong but tried to make it right. “So he’s OK with me.”

In contrast to Foreman, Carl Walker had created a prosperous new life for himself after leaving federal prison, becoming a tech entrepreneur in Houston. He was, Scardino thought, the moral center of their case, sharing what he knew about the ring of informants even when doing so might have put him in jeopardy. “He struck me as someone who has a very clear understanding of right and wrong,” she said.

“He was going to be a scapegoat for several individuals to have an opportunity to get out of prison sooner than later.”

The courtroom was silent as Walker testified. He’d been recruited as one of a handful of snitches who would inform on Prible, he said, and was told details of the alleged offense before Prible was transferred to the prison unit.

“It was already mapped out” by the time Prible arrived, Walker said. Beckcom and Foreman were the ones corralling things on the inside, but there was clearly someone pulling the strings on the outside: “The details they knew … was so vivid or so in depth that, like I say, I knew before he got there, and they knew even more than I knew.”

“Was Mr. Prible a mark?” Rytting asked.

“In every sense of the word,” Walker replied. “He was going to be a scapegoat for several individuals to have an opportunity to get out of prison sooner than later.”

Did Walker know anyone else at Beaumont who was the target of a similar plot? Yes, Walker said: Hermilo Herrero. A bunch of guys who tried to get a piece of the Prible case had eyed Herrero as well. “Some of them were working on the twofer aspect.”

By the time Terry Gaiser appeared at the hearing, he had nearly 50 years of criminal defense experience in Harris County under his belt. Gaiser represented Prible at his 2002 trial. Back then, he told the court, what was shared with the defense was “what they put in the file.” The whole discovery process relied on a foundation of trust, and jailhouse informants were “fundamentally unreliable,” Gaiser said. Had he known Siegler was communicating with a network of men competing to inform on Prible, as the undisclosed letters and meeting notes revealed, he could have used these items to dismantle the basis of the state’s case.

By the time the hearing convened again, arrangements had been made for Siegler to appear via video. It was a less-than-ideal setup. There were transmission delays, and Siegler was positioned so that part of her face was out of the frame, making it hard to read her expressions. At one point, the connection was lost altogether. “She do it intentionally?” Ellison asked. “Can we tell?”

Cheryl Peterson, Prible’s aunt, recalled this as the one moment Ellison seemed close to losing his cool. “He was so restrained,” she said. She had watched with growing disbelief as Siegler tested his patience in the run-up to the hearing. “Like, how the hell does she thumb her nose at a federal judge?”

Siegler was unapologetic about her failure to appear in court. Miranda hadn’t told her where to be or when, she said. And she claimed to have no idea that Prible’s team had repeatedly attempted to serve her with a subpoena.

Pressed about her failure to disclose her dealings with Foreman to Prible’s defense, Siegler again insisted that Foreman was not connected to the case. But he was her original snitch, Scardino said, and according to Beckcom, he was there when Prible confessed, which made him a corroborating witness even if he didn’t take the stand. “Because he’s standing there, it doesn’t mean he’s credible,” Siegler snapped. “It doesn’t mean he has information.”

Siegler seemed invested in painting Foreman as a liar, not just in their previous interactions, when he was angling for a time cut, but also at the hearing, when he was undermining the basis of her case against Prible. When Ellison suggested that Foreman’s testimony struck him as sincere, Siegler assured him she knew better. “Of all the inmates I’ve ever dealt with, he’s at the top of the list for not being credible.”

On cross-examination, Miranda pitched a series of softball questions: When Siegler got the case in 2001, there was already enough evidence to take it to trial, right? Was she even looking for an informant? “No, ma’am,” Siegler replied.

If her case was already solid, the judge asked, why did she use Beckcom at all? “There are five victims here,” Siegler said. While she believed her case was “strong enough for a jury to convict,” she worried that some of the jurors might not see it that way. “I wanted to be sure.”

Scardino pounced on Siegler’s statement as an admission that the case was too weak to prosecute without Beckcom. “Siegler didn’t just use Beckcom to testify that he heard a confession,” Scardino told the judge. She used his “highly scripted and choreographed” testimony to “explain away all of the problematic aspects of the state’s case.” Beckcom, she said, was Siegler’s case.

4

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Ethical Duties

A year after the evidentiary hearing, Ellison vacated Prible’s conviction. The prosecution had engaged in a “pattern of deceptive behavior and active concealment” that could have changed the outcome of Prible’s trial, he wrote. The evidence Siegler withheld revealed an “orchestrated effort by a ring of informants to fabricate a confession from Prible in return for sentence reductions.”

Ellison concluded that Beckcom had acted as an agent of the state in working with Siegler to elicit a confession from Prible, implicating the prosecution in a violation of Prible’s Sixth Amendment right to counsel.

And while the evidence did not prove that Siegler knew Beckcom was lying nor “completely” verify Prible’s argument that she was running a snitch scheme, Ellison nonetheless found that Siegler had hidden the full extent of her dealings with the informants and “was far from credible in her federal court testimony.”

“This court does not endorse the cavalier attitude Siegler has displayed regarding her constitutional duty to preserve the fundamental fairness of the trial proceedings,” Ellison wrote.

Scardino was elated. She felt confident that the judge would rule in their favor, but she didn’t anticipate how powerful the ruling would be. “It really vindicated Jeff,” she said.

News of the order came in the early months of the pandemic. “We were all just stumbling into one of our first of many covid lockdowns when I heard the news about Jeff’s reversal,” Thomas Whitaker, the incarcerated writer who investigated Prible’s case, wrote. “I remember standing at my door, paper in hand, arms raised in triumph.”

Prible’s sense of vindication was bittersweet. His father, who suffered bouts of depression over his son’s wrongful conviction, had died without seeing the legal victory. Prible’s own son, 27-year-old Ronald Jeffrey Prible III, whom he called “Little Jeff,” was struck by a train and killed six months after attending the evidentiary hearing. For Prible, who had seen hundreds of neighbors taken to the execution chamber, there was no court order that could restore what he had lost.

Still, he began to imagine a life outside prison walls. Peterson, his aunt, used to send him photos of the sunsets from her waterfront property on Lake Conroe, north of Houston. Prible dreamed of working the grounds and watching the sun go down over the water. From his colorless death row cell, the images of future sunsets sustained him. But just when it started to feel like freedom might be within reach, a whole new nightmare began.

Ellison ordered the state to retry or release Prible within six months. Instead, Texas balked at the ruling and asked the 5th U.S. Circuit Court of Appeals to overturn it.

According to Texas Assistant Solicitor General Ari Cuenin, the allegations of the snitch ring were “incoherent and unproven,” and federal law barred the judge from even allowing Prible’s lawyers to present them in court. In the state’s reading, any argument Prible wanted to pursue about the Beaumont informants should have been made by his state post-conviction attorney, Roland Moore, back in 2004. At the time, Prible was only aware that a Black man named Walker might have some information about how he was framed for a crime he didn’t commit.

To Rytting and Scardino, this was absurd. Prible had no proof precisely because Siegler failed to disclose evidence of her communication with the Beaumont informants. After all, the state knew where the elusive Carl Walker was all along: His full name and inmate number were included on the letter he’d signed, which was sequestered in Siegler’s file.

It was the state’s actions that prevented Prible from raising the claims earlier, the lawyers maintained. If Prible’s trial attorneys had known there was a band of informants scheming to set him up — and that Siegler deemed Foreman unreliable, even as Beckcom testified that Foreman could corroborate his account of Prible’s confession — then they could have gutted Beckcom’s testimony, leaving Siegler’s otherwise circumstantial case in tatters.

In late 2021, the lawyers for each side traveled from Texas to New Orleans, where the 5th Circuit is based, for oral arguments. Presiding over the panel was Judge James Dennis. Now 87 and on senior status, he is one of a handful of judges appointed by a Democratic president left on the ultra-conservative court. Dennis, participating remotely amid the pandemic, asked no questions of either side; all queries would come from a pair of Republican-appointed judges who appeared to see the case in radically different terms.

A former Texas assistant solicitor general and Trump appointee known for his far-right views, Judge Kyle Duncan leaned into Cuenin’s position that Prible should have raised the informant issues years earlier. Duncan asked whether the defense had sent anyone to Beaumont to look for a man named Walker, prompting a long pause from Rytting: “That is not how the Bureau of Prisons works,” he said. “What, the investigator goes in and says, ‘You got a guy named Walker here?’”

Prible did what he could with the scant information available behind bars, Rytting said. But it all amounted to rumor and hunch, which was not enough to raise a concrete legal claim back in 2004.

Jennifer Elrod, who was a civil court judge in Houston before being appointed to the bench by George W. Bush, appeared to understand Prible’s dilemma.

She took issue with the state’s dismissal of Siegler’s note about the DNA, which Cuenin said had no bearing on the case given Prible had admitted to having sex with Tirado early on the morning of her murder. The note would have to say more than it did — “Pamela McInnis — semen lives up to 72 hours” — to be relevant to Prible’s defense, Cuenin argued.

“It is very relevant whether it happened on the edge of the killing or whether it happened several hours before,” Elrod said. At trial, Siegler asserted that the amount of semen on the swab proved that Prible had forced Tirado to perform oral sex moments before shooting her. The note showed that the director of a local crime lab she consulted would not have been willing to back up her argument. “That matters tremendously in inflaming the jury and … whether you get the death penalty because you’re such a monster that you have sex and then have just an overwhelming desire to kill,” Elrod said. “And that was ginned up to be very relevant.”

“Do we have any ethical duties if we believe that there’s unethical conduct?” Elrod asked Cuenin as the arguments came to a close.

“As lawyers we all have ethical duties,” he replied.

“I’m just wondering, has that been handled?” she pressed. “We don’t have any duty to report anything we learn in this case to the bar?”

“That’s not a part of this case,” Cuenin said.

Peterson remembers feeling encouraged by Elrod’s line of questioning. She was optimistic that the court might rule in Prible’s favor. Instead, nine months later, a unanimous panel ruled in favor of Texas, reinstating Prible’s death sentence. “That was devastating,” she said. “After that, we didn’t have much hope.”

Scardino and Rytting were dismayed. Elrod had expressed concern about unethical conduct on the part of the state. For her to join Duncan’s majority opinion, which fully embraced the state’s position, was confounding. The judges did not address whether Siegler had withheld evidence critical to Prible’s defense, ruling only that the lawyers had raised the claim too late.

“Jeff was gaslighted for years,” by Siegler, by the courts, by the attorney general’s office, Scardino said, “all of whom were saying, ‘This guy is delusional, this conspiracy is all a figment of his imagination.’” And once he was finally able to prove it, “the 5th Circuit says, ‘Too bad, it’s too late, he should’ve figured it out years earlier.’”

The lawyers asked the full court to reconsider the panel’s ruling, and when it declined, they asked the U.S. Supreme Court to intervene. In June, it too declined to get involved.

5

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Truth Will Come Out

If Siegler was paying attention to Prible’s case as it made its way through the courts, there was no sign of it on her Twitter feed. As Prible’s fate hung in the balance at the Supreme Court, Siegler posted a landscape photo taken from an airplane. “Hello America! First case, Season 7 we start working tomorrow,” she wrote. ““Wish us luck!”

The new season of “Cold Justice” is set to air next year. In the meantime, Siegler is promoting the inaugural season of “Prosecuting Evil.” At CrimeCon in Orlando, she was welcomed with uproarious cheers and a standing ovation. “When you’re not here you’re so missed,” said the Oxygen correspondent who introduced Siegler. “When you’re back here it feels like a reunion.”

Siegler took the stage with the showrunner from “Cold Justice” and the executive producer of “Prosecuting Evil.” They teased the new show’s premiere with a clip revisiting Siegler’s most notorious moment: straddling her colleague on a bloody mattress to reenact a defendant stabbing her husband to death.

“I can truly say that probably is what led to all this,” Siegler said of the bed stunt. It was the point where her real life as a hard-driving prosecutor produced the parallel life she would later inhabit, turning her into a reality TV star. There were members of the legal community who thought she went too far, she told the audience, but that didn’t bother her. “I care more about what people like you think.”

Asked about the advice she would give someone “passionate about a career in the legal system,” Siegler said it was all about ethics. “Every decision you make comes back to your own integrity.” From filing charges to “every time you talk to a witness,” she said, you’re “always really, really” trying to do the right thing. “And you don’t let your damn ego get in the way. And you don’t worry about winning or losing the trial, you just do what’s right. It’ll keep your reputation always intact.”

Five episodes in, “Prosecuting Evil” appears to be about fortifying Siegler’s reputation and ensuring her legacy as a prosecutor who pulled no punches in the pursuit of justice. The show prominently features the families of homicide victims, who show deep gratitude for the work done on behalf of their loved ones. In the episodes focused on her old cases, Siegler is more defiant than reflective, reveling in court victories and evincing scorn for defendants, defense attorneys, and attempts to overturn her convictions. “That’s inflammatory and that’s over the top and that’s grandstanding,” she said in the premiere, mocking her critics. “Gimme a break.”

To Prible’s supporters, Siegler’s continued celebrity is less disturbing than the lack of accountability she’s faced. Ward Larkin, the anti-death-penalty activist, has made it a point never to watch “Cold Justice.” “It’s obvious she’s extremely intelligent,” he said. “But she’s also a horrible person. … She has no compunction about the horrors she inflicts on people.”

Hermilo Herrero is now in his 50s. Despite Rytting’s efforts on his behalf, his appeals have been denied. He continues to insist on his innocence for the murder of Albert Guajardo in 1995. “Albert was a friend and never my enemy and I have been living with that lie they made up,” he wrote in a letter to The Intercept. He blames Siegler for her drive to win at all costs, even if it meant sending innocent people to die in prison and “stealing the justice from the victims or the victim’s families that they so much need and deserve.”

“It is not just Herrero and myself where the only evidence presented against us is a jailhouse snitch who says that we confessed to them,” Prible wrote in an open letter after his conviction was vacated. “There are others. … The truth will come out. It has already started.”

If the state wanted to reinvestigate Prible’s case, there are some obvious places to start. A man named Philip Brody shared recollections with The Intercept that could have been critical to law enforcement had there been a thorough investigation two decades ago. Brody was friends with both Prible and Steve Herrera in the years leading up to Herrera’s death. Some six months before the killings, Brody said, Herrera told him about a man in the “drug game” who owed him money. The man had been arrested before paying Herrera back. So “we took my truck and emptied out everything in his whole house,” Brody recalled. Then Herrera sold the man’s belongings.

The man was just one person who had a motive to kill Herrera. But there were others, Brody said. Shortly after that incident, Herrera asked Brody to do something that “kind of put the nail in the coffin for our friendship.” According to Brody, Herrera asked if he would be willing to arm himself with tactical gear and an assault weapon and break into a drug dealer’s house to steal money, drugs, and whatever else they could find. “And I was like, ‘Hell no.’”

To Brody, it seemed obvious that Herrera was making dangerous enemies. He believes this is what got him killed in the end. Murdering an entire family was something members of a drug cartel would do. Prible had children of his own. “I couldn’t see Jeff doing that to the innocent kids, you know?”

It should also have been obvious to police that Herrera’s drug dealing likely played a part in the murders. Among the documents the state failed to turn over to Prible’s defense before trial was an anonymous letter that Herrera’s parents received days after their son’s murder. “OK Fuckheads this is not a cordial greeting,” it began, before demanding that the couple get rid of the “thieves and drug dealers” living in a rental property they owned. The letter threatened to burn down 11 properties the Herreras maintained as rentals if the alleged drug dealing continued. “This is your only warning!!!!” the letter concluded.

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The letter did not include the house where Herrera and Tirado lived. Still, the threats dovetailed with the circumstances surrounding the murders and appeared to offer a viable lead. But contemporaneous reports suggest police did nothing with the letter aside from putting it in a manila envelope and marking it as evidence.

It isn’t clear when Prible’s attorneys received a copy of the letter. When Gaiser, Prible’s trial attorney, was shown a copy during the 2019 evidentiary hearing, he testified that he’d never seen it. He said he would have used it as a jumping off point for his own investigation. “That was extremely relevant to whether there was another motive,” he testified.

Bill Watson, the state’s DNA analyst at trial, told The Intercept that he would testify differently if called to the stand today. He has more experience now, he said, and some of his answers sounded more “definitive” than they should have. As the state’s expert witness, he didn’t intend to endorse the theory that the DNA could only have been deposited at the time of Tirado’s death, but that’s how the state used his testimony. During his closing argument, Vic Wisner, Siegler’s co-counsel, told the jury that there was “no way in the world that semen wasn’t deposited either moments before or seconds after Nilda died.” Watson called that an “overstatement.” “‘No way in the world’ is not something I would’ve said.”

In a phone call with The Intercept, Johnny Bonds, the DA investigator turned “Cold Justice” star, defended Siegler, saying his longtime friend and colleague is one of the most “upstanding” people he’s met. Bonds said he was reassured when he learned that Prible’s death sentence had been reinstated. “I can’t imagine her doing anything like [what] she’s accused of.” Upon reflection, he believes Nathan Foreman was behind the allegations that fueled Prible’s litigation. Foreman was indignant that Bonds and Siegler wouldn’t let him on the “bandwagon” of informants against Prible, Bonds said. “He wanted something out of it, and when he didn’t get anything out of it, he said, ‘Well, I’ll show you.’”

Scardino, meanwhile, is hard at work on a new state court appeal. While the 5th Circuit ruled against Prible, it didn’t disturb the district judge’s findings that Prible had been denied a fair trial. Scardino plans to take those findings and the wealth of evidence backing them up to the Texas Court of Criminal Appeals. “I really do believe that in the end, the system will correct the colossal miscarriage of justice that has taken place,” she said.

Michael Beckcom has been out of prison for nearly two decades and lives a quiet life. He rides a motorcycle, plays in a band, and loves dogs. He still carries himself with confidence, though years of bodybuilding have left significant aches and pains.

He doesn’t like to talk about his time in prison or his turn as a snitch for Kelly Siegler. Working with her put him in danger behind bars, he said, netting him several years of solitary confinement, which was meant to keep him safe. Beckcom is still angry with Siegler. He expected that his testimony against Prible would spring him from prison. He was counting on that. And he needed to get home to take care of his daughter and aging mother.

It was Siegler who screwed him over, he said over a cup of coffee at Dunkin’ Donuts, but it was Foreman who “roped me” into the whole mess to begin with. Foreman was working with Siegler on the Herrero case, he recalled, when he pulled Beckcom in on the Prible case. Foreman then told Siegler that Beckcom was the one who “knew the whole story,” he said. “And it all came to fruition.” Foreman did not respond to The Intercept’s requests for an interview.

Beckcom acknowledged that his testimony against Prible might have sounded fishy. He understands that it was the only new piece of evidence Siegler turned up after taking over the cold case. But he insists that Prible confessed to him. At least that’s how he remembers it. “It is what it is from my perspective, and that’s the way it happened to me,” he said. “Anybody can take that, do with it what they want.”

“Your ass is in a jam because she’s going to get 12 people to say you did it.”

At the same time, he believed Siegler provided him with a road map to the information she needed to convict Prible. “She may give you, I’m not going to say evidence, but she can give you certain things that he wouldn’t have given you,” Beckcom said. “It’s all in the framing.” She would say something like, “‘Did he mention anything about such and such’ and then maybe give you an idea. If you had more than one brain cell kicking, you could figure it out what she was talking about.”

“This was her forte,” he added. Which is “not good if you’re on the fucking receiving end. Your ass is in a jam because she’s going to get 12 people to say you did it.”

When asked if it was possible that his story of Prible’s confession wasn’t all above board — that it was embellished with information Siegler provided — Beckcom said no. But he also demurred, saying maybe Prible was just telling stories to make himself look tough behind bars. “If everything he said was a fabrication to make him look like a gangster because he was in prison, then that’s on him,” Beckcom said. “He shouldn’t have said anything.”

Prible has never stopped talking about his case. In correspondence, he often writes at a frenzied pace, joking frequently, alluding to literature and music, and peppering his emails with exclamation points.

Prible makes no excuses for his past. “I did drugs and was involved in criminal activity! I was a womanizer! I am not like that anymore!” He maintains his innocence and adamantly denies ever confessing to Beckcom, “an obvious fake” who carried himself like an Italian mobster, saying “stupid shit” like he knew who killed Jimmy Hoffa. Prible said he only tolerated Beckcom because he was friendly with Foreman. “I did not want to say ‘your friend’s full of shit.’”

Prible rejects the notion that the state never considered any other suspects in the murders, as Siegler emphasized to his jury. “They just got rid of anything that was useful to my defense!” While he’s eager to discuss aspects of his case that he feels have not been sufficiently investigated, he’s just as anxious to convey the urgency of his circumstances. Living on death row for 21 years has been a “rollercoaster ride through hell.”

Prible’s mental health has ebbed and flowed over his decades at Polunsky. During one period, Larkin said, “he was having episodes, mental health episodes, where it would just paralyze him.” Prible asked Larkin to research the impact of long-term solitary confinement — “he was convinced that there was something to that.” He was right. Solitary confinement has been shown to be psychologically devastating. Many experts consider it torture. The research became a survival tool for Prible, a way to recognize what was happening to his mind.

Prible’s earliest emails to The Intercept were strikingly upbeat. He was hopeful that the Supreme Court would take his case, even though it was a long shot, and seemed undeterred when it was rejected. “Jeff, in spite of all of this, is an eternal optimist,” Scardino said. “He’s able to recover from the repeated blows to his legal case — to his life.”

But more recently, Prible has struggled to ward off the torment of his surroundings. In early November, a series of panic attacks sent him spiraling. “You know I was fine until they locked me in a tiny cage for so fucking long and killed everyone around me I come to care for!” he wrote in one email. In another, he remembered a friend executed years ago, whom he believed was waiting for him “at the end of the Green Mile. … He comes to me in my dreams and always makes me smile like only he can!” In the wake of the panic attacks, Prible sent a letter asking the judge in his case for an execution date.

Legally, it would take more than such a letter to put Prible in imminent danger of execution. And he’s not actually ready to give up. “In the Marine Corps, they teach you contingency plans for everything,” he said in a recent phone call, discussing a possible hearing in state court. As Christmas approached, he shared recipes from a holiday-themed issue of Southern Living.

Despite bouts of rage and despair, Prible expresses constant gratitude for those who have helped him, whom he describes as heaven-sent. Though he does not consider himself religious, he takes comfort in passages from the Bible. One, from the book of Jeremiah, promises freedom from captivity: “For I know the plans I have for you, declares the Lord, plans to give you hope and a future. … I will gather you from all the nations and places where I have banished you … and will bring you back to the place from which I carried you into exile.”

The post What Happened When a Star Prosecutor Was Accused of Running a Jailhouse Snitch Scheme appeared first on The Intercept.