Updated at 6:30 p.m. Friday with information from court documents filed by lawyers from the Midwest Innocence Project objecting to Bailey's efforts to block Dunn's release.
Christopher Dunn will remain in prison after the Missouri Supreme Court entered an emergency stay Wednesday evening, essentially pausing a St. Louis circuit court ruling that overturned his conviction on Monday.
The ruling, made by St. Louis Circuit Judge Jason Sengheiser, was put on hold after Republican Missouri Attorney General Andrew Bailey on Wednesday obtained assistance from the higher court in halting Dunn’s release.
Dunn has been in custody for more than 33 years after he was convicted of murder and assault in 1991. In Sengheiser's ruling, he found the evidence was lacking and that Dunn was innocent of the charges, which were largely based on the testimony of two boys, ages 12 and 14, who later recanted their statements.
But Dunn remained in custody at the South Central Correctional Center in Licking two days after the circuit judge ordered his immediate release. In a virtual emergency hearing Wednesday afternoon, Sengheiser gave South Central's warden until 6 p.m. to release Dunn or face being held in contempt. He noted that defiance of a court order would not be tolerated.
Dunn's loved ones and legal team waited patiently as the clock ticked.
He was moments away from freedom when the supreme court order was made, his wife Kira Dunn said.
"Chris was literally feet from the door in his civilian clothes," she said. "The sheer and pointless cruelty is mind boggling."
Luke Nozicka, an investigator at the Midwest Innocence Project, which is representing Dunn, said the decision to keep him in custody doesn't make sense, as two courts have found that no jury would convict Dunn after reviewing the evidence.
"And yet, with no remaining conviction, an innocent person remains behind bars," Nozicka said. "That is not justice. We will continue to pursue every avenue to secure Mr. Dunn’s freedom."
Before Bailey sought assistance from the higher court by filing a writ on Wednesday, he had already expressed plans to appeal the circuit court ruling.
The supreme court gave Sengheiser until 5 p.m. Friday to respond to Bailey's motion.
In documents filed Thursday on behalf of Sengheiser, Dunn's lawyers at the Midwest Innocence Project told the court that Bailey has no legal right to block Dunn’s release from prison. Only the Circuit Attorney's Office has the right to file an appeal, they said.
Bailey has until 5 p.m. Monday to file suggestions in reply.
Layla Husen, an attorney at Thompson Coburn representing the St. Louis circuit attorney’s office, in court records testified Wednesday about a conversation she had with Matt Briesacher, chief counsel for the Missouri Department of Corrections.
In the affidavit, she said she called the South Central Correctional Center on Monday to enforce the circuit judge’s order for Dunn’s immediate release. She said Briesacher told her by phone that the attorney general’s office had directed the Department of Corrections not to release Dunn.
“Mr. Briesacher stated that the Department of Corrections had been instructed not to release Mr. Dunn because the Attorney General’s Office had filed an appeal and, because the motion to vacate proceeding was a civil action, the Attorney General’s Office needed further ‘clarity’ on whether Mr. Dunn should be released while the appeal is pending before the DOC would agree to release Mr. Dunn from DOC custody,” the affidavit reads.
Husen said she informed Briesacher that refusal to comply was improper. His response, she said, was that the attorney general’s office is legal counsel to the Department of Corrections, and that the department would follow advice of counsel.
According to Karen Pojmann, a spokesperson for the Missouri Department of Corrections, the department has 30 days to release an incarcerated person when a conviction is overturned. She said the department does not make decisions about whether or not someone is released from prison.
Such matters are decided by state statute, the courts or the Parole Board, she said.
The 30-day window allows prosecutors to let the department know if new charges will be filed, and also gives the Attorney General’s Office time to let the department know if they plan to appeal the court's decision, Pojmann said.
"[This also] gives our staff time to process the paperwork and ensure that the person has a home plan, transportation, etc.," she said. "Once we have written confirmation that no new charges or appeals will be filed and the release documents have been completed, the person is released."
Pojmann said this often occurs within 24-48 hours of a court decision, but the timeline varies from case to case.
St. Louis Circuit Attorney Gabe Gore in February asked the court to vacate Dunn’s conviction in the fatal shooting of 15-year-old Ricco Rogers. He said the evidence shows Dunn was innocent of the murder for which he was convicted.
Bailey opposed Gore’s motion, but Sengheiser on Monday ruled the St. Louis prosecutor “made a clear and convincing showing of actual innocence that undermines the basis for Dunn’s convictions, because in light of the new evidence, no juror, acting reasonably, would have voted to find Dunn guilty of these crimes beyond a reasonable doubt.”
Bailey similarly fought against the release of Sandra Hemme, who spent 43 years in prison for the fatal stabbing of a St. Joseph, Mo., woman in 1980. The judge in that case cited evidence of "actual innocence" on June 14 and ordered her release. Bailey's appeals all the way to the Missouri Supreme Court kept her imprisoned at the Chillicothe Correctional Center until last Friday.
St. Louis on the Air producer Danny Wicentowski contributed reporting to this story.
