A St Louis Circuit Court judge had ordered Christopher Dunn, now 52, to be released by 6pm CDT on Wednesday (9am today AEST) and threatened the prison warden with contempt if Dunn remained imprisoned.
But Republican Attorney General Andrew Bailey has been fighting Dunn’s release.
The situation was chaotic as the deadline set by the judge approached.
Corrections Department spokesperson Karen Pojmann told The Associated Press that Dunn was out of the prison facility and waiting for a ride.
His wife told the AP she was on her way to pick him up.
Minutes later, Pojmann corrected herself and said that while Dunn was signing paperwork to be released, the Missouri Supreme Court issued a ruling that put his freedom on hold.
St Louis Circuit Judge Jason Sengheiser overturned Dunn’s murder conviction on Monday, citing evidence of “actual innocence” in the 1990 killing.
He ordered Dunn’s immediate release then, but Bailey appealed, and the state Department of Corrections declined to release Dunn.
St Louis Circuit Attorney Gabe Gore had filed a motion on Wednesday urging the judge to immediately order Dunn’s freedom.
“The Attorney General cannot unilaterally decide to ignore this Court’s Order,” Gore wrote.
An attorney for the Department of Corrections told a lawyer in Gore’s office that Bailey advised the agency not to release Dunn until the appeal plays out, according to a court filing.
When told it was improper to ignore a court order, the Department of Corrections attorney “responded that the Attorney General’s Office is legal counsel to the DOC and the DOC would be following the advice of counsel”.
Dunn’s attorney, Tricia Rojo Bushnell, the executive director of the Midwest Innocence Project, expressed her frustration.
“What is this bringing to taxpayers in Missouri? What is this use of our resources and our state’s time getting us?” she said.
“All it’s doing is keeping innocent people in prison.”
Dunn’s wife said while driving to the prison that they were numb when he didn’t get out earlier this week.
“If you know a little about the story, you know we’ve had a lot of disappointments where we thought we’d finally get his freedom and it was snatched away,” Kira Dunn said.
“So we were just bracing ourselves.”
Dunn’s situation is similar to what happened to Sandra Hemme.
The 64-year-old woman spent 43 years in prison for the fatal stabbing of a woman in St Joseph in 1980.
A judge on June 14 cited evidence of “actual innocence” and overturned her conviction.
She had been the longest held wrongly incarcerated woman known in the US, according to the National Innocence Project, which worked to free Hemme.
Appeals by Bailey – all the way up to the Missouri Supreme Court – kept Hemme imprisoned at the Chillicothe Correctional Centre.
During a court hearing on Friday, Judge Ryan Horsman said that if Hemme wasn’t released within hours, Bailey himself would have to appear in court with contempt of court on the table.
Hemme was released later that day.
The judge also scolded Bailey’s office for calling the warden and telling prison officials not to release Hemme after he ordered her to be freed on her own recognizance.
Dunn, who is Black, was 18 in 1990 when 15-year-old Ricco Rogers was killed.
Among the key evidence used to convict him of first-degree murder was testimony from two boys who were at the scene of the shooting.
Both later recanted their testimony, saying they had been coerced by police and prosecutors.
At an evidentiary hearing in 2020, another judge agreed that a jury would likely find Dunn not guilty based on new evidence.
But that judge, William Hickle, declined to exonerate Dunn, citing a 2016 Missouri Supreme Court ruling that only death row inmates – not those like Dunn sentenced to life in prison without the possibility of parole – could make a “freestanding” claim of actual innocence.
A 2021 law now allows prosecutors to seek court hearings in cases with new evidence of a wrongful conviction.
Although Bailey’s office is not required to oppose such efforts, lawyers for his office said at the hearing that initial testimony from two boys at the scene who identified Dunn as the shooter was correct, even though they recanted as adults.
He also raised opposition at a hearing for Lamar Johnson, who spent 28 years in prison for murder.
Another St Louis judge ruled in February 2023 that Johnson was wrongfully convicted, and he was freed.
Another hearing begins on August 21 for death row inmate Marcellus Williams.
Bailey’s office is opposing the challenge to Williams’ conviction, too.
Timing is of the essence: Williams is scheduled to be executed on September 24.
Steven Puro, professor emeritus of political science at St Louis University, said Bailey is in a highly competitive race for the attorney general position with the primary quickly approaching on August 6.
“Bailey is trying to show that he is, quote, ‘tough on crime,’ which is a very important Republican conservative position,” he said.
“Clearly, he’s angering members of the judicial system that he will have to argue before in the future. But he’s making the strategic notion that he needs to get his name before the voters and try to use that to win the primary election.”
Michael Wolff, a former Missouri Supreme Court judge and chief justice, agreed, saying it seems this has become political for Bailey.
“But one of the things is that no matter what your beliefs are, if a court orders something to happen, it’s not your purview to say no,” he said.
“The court has to be obeyed.”
