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

Wearing a crisp gray suit, Christopher Dunn walked into the Division 18 courtroom just blocks west from the famed Gateway Arch in downtown St. Louis, Missouri, on May 21. He took his seat at a long table crowded with binders of legal exhibits and surrounded by a half-dozen lawyers working to free him from prison.

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.

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.”

“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.