Why St. Louis Circuit Attorney Kim Gardner Must Be Investigated—and Stopped

St. Louis Circuit Attorney Kim Gardner is conducting herself in ways that violate both the spirit and letter of the law. YouTube/Screenshot

The great strength of our nation is that no person is above the law. Not even those who enforce the law.

That’s why it’s imperative that the state of Missouri begin investigating the St. Louis Circuit Attorney Kim Gardner. Anyone following the twists and turns of the prosecution of Missouri Governor Eric Greitens won’t need much persuading. In that case, the St. Louis Circuit Attorney Kim Gardner has clearly, repeatedly and consistently violated the ethics of her profession and brought disgrace upon the Circuit Attorney’s office. She has skirted and flouted the law in ways that are truly unimaginable. And she needs to be removed from office in order to send a message to prosecutors around the nation: you abuse your offices power at your own peril.

Many have focused on her mishandling of the Governor’s felony indictment. But that’s just the tip of the iceberg. Kim Gardner’s other prosecutions, and the day-to-day mismanagement of her office, share the same shameful pattern. She has ignored cases that were easy wins, prosecuted cops with what looks like outright malice, and lost staff and personnel at an alarming rate.

Former prosecutors who worked with her have done what former prosecutors almost never do: open up to the public and tell people what they think about how she’s handling cases. And here’s the real kicker: Almost half of all felony cases from 2018 have had to be delayed because the Circuit Attorney’s office has failed to share evidence with the court and the defense. To repeat: almost half of all St. Louis felony cases have been bungled by Kim Gardner.

If they aren’t careful, prosecutors can get drunk on power. Elected to office, they can begin to believe they are above the law, that the pursuit of justice may even require them to commit injustice. That is what is happening at the St. Louis Circuit Attorney’s office, and those of us who have spent a lifetime in law enforcement need to bring these abuses to light. The Courts and the state of Missouri need to take swift action.

Here are some key points that establish the basis for such an investigation and, potentially, her removal from office:

1) The inappropriate contact between Kim Gardner, the lead witness in this case, and members of the Democratic leadership in the Missouri House of Representatives

In a filing made public on Friday, we have the most egregious example of prosecutorial misconduct I’ve seen in my decades in law enforcement. The St. Louis Circuit Attorney, Kim Gardner, was engaging active contact with the lead witness in the case and Democratic members of the Missouri House of Representatives—prior to an investigation and without disclosing those interactions.

In text messages obtained from the phone of the lead witness in this case, Democratic Rep. Stacey Newman texted the lead witness Kim Gardner’s phone number and name and says: “STL Circuit Attorney Kim Gardner, she said you can have your attorney call her.” (Earlier, Rep. Newman had texted the lead witness in this case the following: “my House Dem leadership insist you need a lawyer fast.” That means, of course, that the Missouri House Democratic leadership were actively conspiring with the lead witness in this case to bring a prosecution. That is also reprehensible—but it is not this piece’s focus.)

What is deeply problematic is Kim Gardner 1) getting in touched with Missouri Democratic elected officials who had political reasons to bring a case against a Governor and 2) getting in touch with the lead witness, and then never disclosing those interactions to the court.  The first taints the prosecution, because it makes clear that it’s driven by politics. Gardner didn’t receive a police report and pursue a case, the way a normal prosecution is done. She spoke with the Governor’s political opponents, who, it appears, threaded the needle for her case and put her in touch with the lead witness.

That’s wrong. Gardner’s subsequent contacts with the lead witness, though, are true violations of court rules. A prosecutor knows not to meet with a witness alone. It’s simply not done: it opens up the prosecutor to too much risk and raises too many questions. Meetings between prosecutors and witnesses are carefully reported. That’s just how prosecutors are supposed to behave, and if they have a meeting with a witness that isn’t disclosed, that’s known as a violation of Brady rules.

In this case, Kim Gardner and the lead witness went to an Illinois hotel together. Gardner did not disclose the meeting’s existence or what was said at the meeting. She briefed her lead investigator about that meeting—and then he turned around and lied to the court and said that meeting never happened.

The lawyers for the Governor, in their filing, called this whole series of things “unorthodox.” That’s soft-pedaling it. It’s un-American and the court and the state of Missouri need to wake up to how galling this prosecutor’s behavior is.

2) The destruction of evidence and the failure to disclose evidence, time and time again. 

Earlier coverage focused on the fact that the alleged victim in the Greitens case said, in a deposition, that she might have dreamed about the photograph at the center of the case. That was a bombshell, and it understandably had some people wondering if they rushed to judgment too quickly.

But what’s been missed in all the coverage is an even bigger point: it looks like the prosecutor has falsified and destroyed evidence in this case. The Circuit Attorney says that she took the lead witness to Illinois, interviewed her for two hours on videotape—and then reported that the recording had malfunctioned or wasn’t available for some reason. Then, magically, the videotape reemerged, with the first ten minutes of audio missing.

Huh? This is 2018. I can pull out my iPhone and record a crystal-clear video without any issues. And yet, a public prosecutor—and office of the court—actually said to a judge that she lost a video, then found it, and then claimed that the first ten minutes of audio being missing was a result of a malfunction.

It’s unbelievable—in the sense that it actually shouldn’t be believed. Here’s something else that the court and the state of Missouri need to press Kim Gardner on: why were payments to one of the key witnesses in this case not disclosed? That’s right: one of the lead witnesses in this case—the ex-husband of the woman the Governor had an affair with—was paid for his testimony and participation, by forces unknown. The prosecutor knew this information. They didn’t tell the court; they didn’t tell the defense.

Holy moly. That’s not just bizarre; it’s illegal. Again, it’s a violation of Brady rules, the set of rules that govern how evidence is supposed to be handled in a case. It’s why, in late April, the judge actually had to say the following words from the bench: “I hope I don’t have to sit up in here and tell anyone not to destroy evidence. I want that to be abundantly clear not to destroy anything related to the case.”

I submit the judge’s own quotation to you as something to reflect on. But these specific instances are important in the aggregate, because they get to the beating heart of the matter of this case: the destruction and falsification of evidence has polluted any potential outcome in the trial. There’s no way to give someone a fair trial when the prosecution has withheld, concealed, fudged, destroyed, and fabricated so much information in the case. What other evidence has been conveniently “lost”? What other information is not known to the judge? What else are they hiding?

Those questions demand immediate answers.

3) The hiring of out-of-state private investigators who engaged in dubious record-keeping and questionable personal behavior 

No need to belabor this point, but it’s worth making in the context of prosecutorial misbehavior: the private investigator who is working with the Circuit Attorney on the Greitens case, William Tisaby, is a troubling addition to a problematic case.

To be frank, there was no reason for a private investigator in this case. There was no reason to hire them from out-of-state. And there was no reason to hire a private investigator with a criminal record.

Let’s keep going. There was no reason for William Tisaby to not take notes during interviews with witnesses. There was no reason for him to lie and say he hadn’t taken notes. There was no reason for the private investigator to perjure himself in court. There was no reason for him to have to plead the 5th dozens of times.

There was no reason for the notes to then suddenly reappear—and include information and quotes and characterizations that were flatly false. William Tisaby spun the notes of his transcript with the lead witness to paint her as a victim; he added words like “violated” and “traumatic,” even though the witness never said either word.

That’s not done. It’s not done by police officers, private investigators, attorneys, or officers of the court. And that behavior—and the Circuit Attorney’s enabling of it—needs to be investigated by the state of Missouri and the courts.

4) The lack of any charges brought in the stabbing of Trent Brewer

I wish it was only one case that this prosecutor had badly bungled. But in March 2018, a 23-year-old was stabbed in front of a bar. The police put out an alert, the suspect was identified. There were photos. And yet, in the face of all that, no charges were brought.

Within certain circles, this case has aroused intense interest and anger. The victim has reportedly cooperated every step of the way, and still hasn’t gotten justice. Cases are always complex, and this alone isn’t reason enough for the state of Missouri to investigate Kim Gardner, but it’s a peculiar case that deserves more scrutiny than it’s received.

 

5) The issues in Kim Gardner’s office management

The St. Louis Post-Dispatch wrote a scathing profile of how many staff from the Circuit Attorney’s office had been fired, demoted, or simply left the office when Kim Gardner took over. It’s worth looking at that piece in full, because on its own, it paints a picture of a manager and leader who has lost the faith of those she is supposed to lead. My sources tell me that this behavior hasn’t stopped; if anything, the Greitens prosecution has made it worse.

None of that would matter if this was mere office gossip. It’s not. It’s the prosecuting office for Missouri’s largest city, a city that has struggled with crime and violence for years. 2018 has been particularly bad for St. Louis, and while crime has been rising, Circuit Attorney Gardner has been losing good people. It’s something the Attorney General needs to get to the bottom of.

6) The hiring of an out-of-state prosecutor in the Greitens case

In what must have been a slap in the face to the capable attorneys in her office, Gardner hired an out-of-state lawyer to assist on the prosecution in the Greitens case. Professor Ronald Sullivan worked the Michael Brown case, for the defense, so he’s not new to Missouri. But it is a little strange to bring in someone so pricey for a case the office could have, presumably, prosecuted itself. It also invited the defense to file a motion to dismiss him from the case. Why? Because in bringing him aboard, Gardner apparently violated a Missouri law that forbids anyone working as a criminal defense attorney from also working as a prosecutor.

7) The disqualification of her office in the Wendell Davis case

Earlier this year, a St. Louis judge disqualified Kim Gardner’s office from prosecuting a man shot by police while at the same time investigating the police for using that level of force. The judge’s decision here makes sense: a prosecutor shouldn’t be on all sides of a case like that.

This is a specific instance that Attorney General Hawley should look into, but it is also a broader pattern that he needs to investigate. No prosecutor in my memory has clashed as much with police as Kim Gardner. Partly that’s because she seems to be soft-pedaling cases that involve suspects shot by police. Police officers have been reluctant to testify in cases her office brings—something that should concern anyone who lives in and around the city of St. Louis.

8) The hiring of a lawyer whose law license was suspended to advise on her transition team

No need to say much more here: a classmate of Gardner’s from St. Louis University law school was hired to help on her transition. Just one problem: his law license was suspended in 2015 for unpaid income taxes. Rumor has it that he was a big player in her early days, making significant decisions about the direction of the office. Whether or not that rumor is true, what is indisputable is that someone was playing a big role in a legal office—even though he couldn’t technically practice the law.

9) A judge forcing Kim Gardner’s office to recuse itself in the 2014 Bevo Mill hammer attack case

Again, this is a pattern in her office: a judge disqualified her entire office from the prosecution of the 2014 Bevo Mill hammer attack case because one of her assistant prosecutors, Robert Steele, consulted with the public defender of the suspect. Public lawyers do everything they can to avoid these appearances of impropriety. It looks like Kim Gardner didn’t use due diligence, which is why the Attorney General ought to do so.

10) Her interaction with a police officer to obtain information about guests at the Chase Park Plaza hotel

In one of my earlier pieces about the Greitens case, I mentioned a source who shared an astonishing encounter: Kim Gardner invited an old high-school friend to her office. He happens to be a police officer and earns extra money working at the Chase Park Plaza. That’s the hotel where woman at the center of the case used to work. Gardner didn’t tell the police officer she was inviting him over to talk about the case, she said it was a friendly visit. Right away, that friendly visit turned into a grilling session, with Gardner asking if there was any way to get guest records and videotape of people coming and going from the hotel. The controversial, unlicensed private investigator in this case, William Tisaby, was present as well.

The cop didn’t say a word and used the best defense a person in his position can use in that moment: “Should I bring in my department representation?”

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Let us conclude by saying what needs to be said: this is not the behavior of a normal prosecutor. It isn’t even the behavior of a below-average prosecutor. It’s the behavior of someone who is running her office without any regard for the public trust, the law, or the basic integrity of officers of the court.

The State of Missouri must investigate this misbehavior immediately. Too many people have been killed in St. Louis this year, and too many clear crimes are not being prosecuted. The person responsible for justice in St. Louis is the Circuit Attorney, and she appears to have consistently failed in the execution of her responsibilities.

I don’t think it will take an investigating authority to find clear evidence of wrongdoing. Unlike the Greitens investigation, the case against Circuit Attorney Kim Gardner is as plain as day.

Lt. Col. Dave Grossman (US Army, ret.) is author of the books, On Killing, On Combat and Assassination Generation.

Why St. Louis Circuit Attorney Kim Gardner Must Be Investigated—and Stopped