When Innocence Isn’t Enough

Wilson testified that, a few days before the crime, he, Recco Rogers, and others had badly beaten a man who’d assaulted Rogers’s mother. (In an interview with Speck, the investigator, Davis had said that Rogers had shot the man.) A month or two after Rogers’s death, Wilson said, Recco’s younger brother was murdered, too. Wilson confirmed that Dunn had no motive to shoot Recco Rogers: “Christopher Dunn don’t even know Recco…. Recco didn’t know Christopher Dunn from a can of paint.” The idea that Dunn would attack him or Tolliver appeared to strike Wilson as preposterous. “He would never shoot at me,” he said. “We grew up together.”

Until Grothaus tracked him down, in 2016, Wilson had never been formally interviewed about the murder. When Crane, the young assistant attorney general, pressed him about why he hadn’t come forward earlier, Wilson told him, “We didn’t do that on the Westside. We don’t help the police.”

In September 2020, more than two years after the hearing, Hickle released his judgment, writing that “new evidence has emerged, in addition to the recantations, which make it likely that reasonable, properly instructed jurors would find [Dunn] not guilty.” He continued, “This Court does not believe that any jury would now convict Christopher Dunn.” And yet, Missouri law prevented him from granting Dunn’s petition. Innocence alone, Hickle wrote, is grounds for relief only for a prisoner “sentenced to death, and is unavailable for cases in which the death penalty has not been imposed.” In other words: Dunn might have gone free, if only he’d been condemned to die.

The standard emerged from a 2016 Missouri Court of Appeals decision, Lincoln v. Cassady. In 1983, Rodney Lincoln, then in his thirties, was convicted of manslaughter and two counts of assault, and sentenced to life. Subsequent investigations, by the Midwest Innocence Project and others, found numerous problems with his case. False DNA evidence was presented at trial, and a key witness, a child, received secret coaching from the prosecution. Prosecutors withheld exculpatory evidence from Lincoln’s defense team. In a 2003 death penalty case, the Missouri Supreme Court had found that the “imprisonment and eventual execution of an innocent person is a manifest injustice.” The defendant in that case, Joseph Amrine, went free. But the Court of Appeals declared the Amrine decision irrelevant to Lincoln. “To avoid unending challenges to final judgments,” the court ruled, it could not grant a new trial in a noncapital case based on a prisoner’s actual innocence.

“Because the Constitution doesn’t literally say that we can’t kill or incarcerate you if you are innocent, then those events don’t qualify as a ‘manifest injustice’ within Missouri’s legal tradition,” said O’Brien, the Kansas City attorney, who represented both Amrine and Lincoln. No other state makes it harder for a person with a life sentence to get out of prison than for one sentenced to die. But the Kafkaesque logic at work in Missouri has deep roots in federal law. In 1993, the U.S. Supreme Court ruled in Herrera v. Collins that absent constitutional violations, new evidence of innocence does not entitle a prisoner to further judicial proceedings. In 2021, following Hickle’s decision, Dunn filed a habeas corpus petition at the Missouri Supreme Court, and Assistant Attorney General Crane leaned heavily on Herrera to argue against him.

Quoting Herrera, Crane wrote, “‘Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.’” That framework, he continued, “‘would all but paralyze our system for enforcement of the criminal law.’” Last August, the state Supreme Court refused to review Dunn’s case, seemingly confirming its support for the Lincoln decision.

Michael Wolff, a former Missouri Supreme Court judge who heard the Amrine case, believes that the Lincoln court misinterpreted the ruling. “If there is a remedy in a death case for somebody who’s actually innocent, then it strikes me logically that it ought to be available in cases where they got less than the death penalty,” he said. Still, Wolff acknowledged, the U.S. legal system often prizes finality over fairness. “Which value do you hold higher? The value of holding an accurate judgment, or a final judgment? The law has been fairly clear. In most instances, what we’re most interested in is finality.” O’Brien recalled a particularly dissonant exchange during the Amrine case. A Missouri Supreme Court judge asked Frank Jung, an assistant attorney general, “Are you suggesting … even if we find that Mr. Amrine is actually innocent, he should be executed?”

Jung replied, “That is correct, your honor.”

Dunn’s defense team recently filed yet another federal habeas corpus petition, but Gipson, his lawyer, told me that his best hope for release is now the St. Louis circuit attorney’s office. Last summer, the Missouri Senate passed legislation to allow local prosecutors to challenge past convictions, a mechanism long absent from Missouri law. In November 2021, Jean Peters Baker, the prosecutor for Jackson County, which includes most of Kansas City, used the law to overturn the murder conviction of Kevin Strickland, a Black man who had spent more than 40 years in prison. But that success came only after an exhausting battle with Attorney General Schmitt, who filed a series of motions that delayed Strickland’s exoneration and resulted in the recusal of all Jackson County judges from the case. Schmitt said that he was merely assuming his proper adversarial role. Despite the recantation of the sole living eyewitness and a lack of physical evidence, Schmitt insisted on Strickland’s guilt and accused Baker of misrepresenting the interests of the state.

“When the mistake does happen, even absent any kind of evil intent, it is our obligation to correct—the public needs to know we’ll do that,” Baker told me. “It’s the only restoration of the system.” She said the Strickland case shows Schmitt can be beaten.

But in the St. Louis area, Gardner’s CIU remains scoreless; Wesley Bell’s unit, too, boasts no exonerations. Recently, the U.S. Supreme Court appeared to affirm the mantra of “finality over fairness”: In a 6–3 decision in May, it ruled that state prisoners may not present new evidence in federal court in support of a claim that their post-conviction counsel in state court was ineffective and violated their constitutional rights.

When I spoke to her this spring, Gardner acknowledged that even in cases like Dunn’s, in which defense teams have developed convincing evidence of innocence, significant challenges remain. “We have to make an educated, independent investigation from the prosecutor’s standpoint,” she told me. “The stakes are high, not only for the integrity of the whole criminal justice system, but for the accused. We have to make sure we get it right.”

Sean O’Brien was more blunt. “Any prosecutor who invokes this statute is gonna have a fight on his or her hands,” he said. (Rodney Lincoln, who is white, received clemency, without being exonerated, in 2018.) In response to interview requests, a spokesperson for Schmitt’s office said in a statement: “The Attorney General was elected to do his job on behalf of the people of Missouri, and that includes upholding convictions obtained by prosecutors across the state.”

On a cold, sunny afternoon this past January, I rang the doorbell of a comfortable home in a leafy St. Louis suburb. Detective Gary Stittum, who retired in 2011, answered the door in a black tracksuit, his white-gray hair pulled into a ponytail. He said he didn’t remember the Dunn case but invited me in. In his living room, he squinted and frowned as I described the case. The details didn’t jog his memory—he estimated that he investigated 575 murders in his 18 years as a homicide detective—but Stittum seemed skeptical about the notion of wrongful convictions. “I guess killers want to be choirboys all of a sudden,” he said.

For two hours, as the sun went down, Stittum spoke about his time as a homicide detective. “The Wells-Goodfellow neighborhood was kill city back then,” he said, a locus of violence he attributed to lack of character. “Nobody had any perseverance—you look at the education level, the level of discipline of those households.” To illustrate, he pulled up an old crime-scene photo on his phone showing a mangled body and a bloody baseball bat.

I wondered what challenges working there had presented. But Stittum declined to name any. “You have to have a calling,” he said. “I had a true feeling about bringing closure, tracing a person’s last steps: What happened? Why did it happen?” He went on, “A good homicide detective has to do a profile of the deceased. What is the moment between the before and after? The moment between before and after is the truth.”

Yet in the Dunn investigation, the facts suggest that Stittum did none of the things he was describing. As I prepared to leave, he returned to the matter at hand. “[Dunn] can say whatever he wants,” Stittum said. “I don’t care. It seems like he had a weak-ass defense attorney. That’s not on me. My facts are the true facts.”

The visiting room at South Central Correctional Center resembles a public school cafeteria: unflattering overhead lighting, linoleum floors, banks of vending machines. One morning this past winter, I waited there for Dunn. Colorful murals depicting cartoon characters covered some walls. Off to one side stood a false backdrop of a rustic flagstone fireplace. I had seen the backdrop at Arnetta’s house a few weeks earlier, in a photograph of her, Dunn, and their mother taken over the holidays.

Dunn entered the room wearing short-sleeved prison grays, silver-rimmed glasses, bright white sneakers, and a cloth mask. Clipped to his collar was a plastic holder containing an ID stamped OFFENDER and a purple visiting pass. He was softer, less rangy than the young man I had seen in photographs, and he had lost some hair. Since being incarcerated, Dunn, now 50, has suffered three heart attacks, and the ID holder also contained a small bottle of nitroglycerin. We shook hands and sat down in green plastic chairs at a round wooden table. A stout, pleasant correctional officer in a black polo and gray chinos stationed himself nearby.

Kevin Strickland’s exoneration was celebrated in the national press. But Dunn sees Senate Bill 53, the law that enabled Strickland’s release, as a “Trojan horse”—a mechanism that allows the Missouri Supreme Court to avoid reversing the Lincoln decision. Gipson told me, “I’ve been taking cases up to the Missouri Supreme Court to get them to overturn that for four to five years. For whatever reason, they don’t want to address this issue.”

Ironically, in his opposition to Dunn’s 2021 state Supreme Court petition, Assistant Attorney General Crane cited Senate Bill 53 as a reason the court should deny Dunn’s habeas corpus petition—an arguably cynical maneuver, given the reflexive opposition of the attorney general’s office to the work of conviction integrity units. Gardner told me that she plans to take on Dunn’s case, but Dunn has little faith in a favorable outcome. “Senate Bill 53 doesn’t say anything about a claim of actual innocence, so they can still bypass us,” he said.

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