All across this country, prisoners who have been falsely convicted dream about being exonerated. That dream sustains them.
While the path to exoneration is not easy even for the innocent, according to the National Registry of Exonerations, that dream has come true for 3,568 people in the past 35 years.
The falsely convicted dream of exoneration because they assume that it will lead to their release from prison, a return to their families, and a life of freedom. That is what should happen, and often does.
But, two Missouri cases remind us that there and elsewhere, being innocent does not necessarily result in freedom.
Just ask Christopher Dunn and Sandra Hemme.
In both cases, Missouri’s Attorney General Andrew Bailey intervened to delay their release even after judges had found them to be the victims of serious miscarriages of justice. They had been exonerated in courts that carefully considered their cases.
But that was not enough for Bailey, who, as the New York Times reported, intervened against the exonerated to help himself in his tough race for reelection. On Tuesday, he won that contested Republican primary.
The Missouri cases should spur reform efforts in that state and elsewhere to prevent prosecutors from following Bailey’s example. Prosecutors who make frivolous claims or keep someone whom the government knows to be innocent behind bars should be disciplined by the state bar authority. And their authority to do so should be curbed by appropriate legislation.
Consider the conduct of Bailey in the case of Christopher Dunn, who was convicted of first-degree murder in the 1990 shooting of 15-year-old Ricco Rogers. As an Associated Press story describes:
Rogers was shot May 18, 1990, when a gunman opened fire while he was with a group of other teenage boys outside a home. DeMorris Stepp, 14, and Michael Davis Jr., 12, both initially identified Dunn as the shooter.
Davis later admitted that he lied about Dunn “because he thought Dunn was affiliated with a rival gang. Stepp’s story has changed a few times over the years. … Most recently, he has said he did not see Dunn as the shooter.”
On July 22, Missouri Circuit Judge Jason Sengheiser overturned Dunn’s conviction. After a three-day hearing, he found a “clear and convincing showing of ‘actual innocence’ that undermines the basis for Dunn’s convictions because in light of new evidence, no juror, acting reasonably, would have voted to find Dunn guilty of these crimes beyond a reasonable doubt.”
But that was not enough for Bailey.
As the Washington Post reported, “Within hours of that court’s ruling, [Bailey] appealed to the state’s top court to keep Dunn in prison.” Bailey claimed that he wanted to ensure the jury’s verdict was “respected.”
At first, Bailey got his way, and the state Supreme Court halted Dunn’s release. The Post says that the call stopping his release came as Dunn was dressed in civilian clothes and was “50 feet” from the prison parking lot. It quotes Dunn: “To hear the decision of the judge and then get prepared to leave on Wednesday, only to be brought back into the prison, it was torture.”
On July 30, Dunn was finally released when the Missouri state Supreme Court “lifted its stay, and the St. Louis prosecutor dismissed Dunn’s charges.”
But even one extra week of such torture is a form of cruel and unusual punishment.
The second recent example of Bailey’s misconduct occurred in the case of Sandra Hemme, who was convicted and sentenced to prison for the 1980 murder of Patricia Jeschke in St. Joseph, Missouri.
As the Innocence Project observes:
No witnesses linked Ms. Hemme to the murder, the victim, or the crime scene. She had no motive to harm Ms. Jeschke, nor was there any evidence that the two had ever met. Neither did any physical or forensic evidence link Ms. Hemme to the killing. …
The only evidence that ever connected Ms. Hemme to the crime was her own unreliable and false confessions: statements taken from her while she was being treated at the state psychiatric hospital and forcibly given medication literally designed to overpower her will. …
At the same time, the St. Joseph Police Department hid evidence implicating one of their own: fellow police officer Michael Holman….
On June 14, Judge Ryan Horsman overturned Hemme’s conviction. He found that she had provided convincing evidence of her actual innocence.
Meanwhile, the judge found that evidence implicating Holman was so significant, “it would be difficult to imagine that the State could prove Ms. Hemme’s guilt beyond a reasonable doubt based on the weight of the evidence now available that ties Holman to this victim and crime and excludes Ms. Hemme.”
Again, that wasn’t enough for the overzealous Bailey, and he fought Hemme’s release in the courts. He lost at every turn.
Over the course of a month, as the Associated Press reports, “a circuit judge, an appellate court, and the Missouri Supreme Court all agreed Hemme should be released, but she was still held behind bars.” By July 19, Judge Horsman had had enough.
He ordered Hemme’s release and “threatened to hold the attorney general’s office in contempt. He also scolded Bailey’s office for calling the warden and telling prison officials not to release Hemme after he ordered her to be freed in her own recognizance.”
Hemme was released soon after the judge delivered his warning. But, like Dunn, she was kept behind bars by an attorney general seemingly indifferent to the difference between innocence and guilt and for whom exoneration was not enough.
And, as if needed more evidence of his warped sense of what it means to be his state’s chief law enforcement officer, this week Bailey opposed a motion by the St. Louis County prosecuting attorney to vacate the conviction of Marcellus Williams, who is currently on death row and is another victim of a glaring miscarriage of justice.
However, this is not just a story of one rogue prosecutor.
As law professor Lara Bazelon has shown, prosecutors like Bailey are not unique. Many prosecutors are what she calls “innocence deniers.”
As Bazelon puts it, they “delay justice and in some cases actively work against it. … Some prosecutors are so committed to adhering to the original mistake that they fail to prosecute the actual perpetrators, even when there is evidence to convict them.”
Innocence deniers, Bazelon writes, “are a diverse group: male and female, young and old, white and people of color. They are Democrats and Republicans from red, blue, and purple states. What they have in common is their insistence—in the face of all evidence to the contrary—that wrongfully convicted people are in fact guilty.”
Ultimately, we cannot ensure that people like Andrew Bailey will do what the Supreme Court calls their duty as prosecutors, namely act as “the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.” But we can call them out and institute changes that will deny them the ability to prevent the exoneration dream from leading to the quick release of people like Christopher Dunn and Sandra Hemme.
Correction, Aug. 12, 2024: Due to a production error, the caption of this article’s photo originally misidentified Bailey as being second from left.
