St. Louis City Criminal Justice Blog

Last Friday the governor chose Gabe Gore to be the new Circuit Attorney. I’m not certain when exactly he will take the helm of the CAO. He has announced that he will be resigning from his partnership at Dowd Bennett at the end of this week. He will then need to be formally sworn in. Until that time, the interim Circuit Attorney appointed by the governor will stay in charge of the CAO and run things “with the assistance, not help,” (the Governor’s distinction) of numerous assistants from the Attorney General’s Office.

I am not happy with the governor’s pick. Certainly Gore is a very smart, hard-working, ambitious lawyer. He has an impressive resume: an ex-Assistant U.S. Attorney who rose to partnership positions with two silk stocking law firms, Lewis Rice and Dowd Bennett. Yet when his name was first floated as a candidate to replace Gardner, I didn’t take that suggestion as a serious possibility (same with many of the eighteen candidates) because I didn’t think he was particularly qualified to run the CAO.

What concerns me is what he doesn’t bring to the job. He hasn’t really practiced in state court: he has never tried a state case, he has never practiced state criminal law, and he has never been a state prosecutor (federal prosecution is very different). He isn’t even familiar with the 22nd Judicial Circuit (at least I’ve never even seen him in the City courthouses, and I’m there almost every day): he doesn’t know the people he will be dealing with on a daily basis, he hasn’t had to live with the problems he will be facing, and he isn’t intimately familiar with the systems in place in the City (especially compared with some of the other candidates). He has — just look at his resume — been in an ivory tower quite removed from state criminal practice his entire legal career.

It’s as if a teacher who had previously worked at Priory, MICDS, and John Borroughs — the elite, private suburban high schools — then took a job at a failing St. Louis city public school as principal. Certainly that resume proves that the person is an extremely competent teacher, but experience at Priory, MICDS, and John Borroughs will not acquaint them with the issues, problems, and situations they will find at a failing public high school. Those are two different educational worlds. Gore has spent his career in an entirely different legal world than the one he is about to take on.

That’s not to say he can’t succeed. I hope he does. He is by all accounts a very capable individual, and people like that more often than not rise to the occasion. And, he certainly can’t do worse than Gardner. It’s just that there were persons better suited and prepared for fixing the CAO than Gore — persons that had the experience he is lacking. They would have hit the ground running and had a better chance of making a significant difference more quickly.

So, while I’m not happy with the selection of Gabe Gore, I am hopeful that he is up to the Herculean task of saving the CAO.

It must really be embarrassing to assemble a team of your assistant prosecuting attorneys, provide them each in advance with specific circuit attorney office duties they will be responsible for, load them into two black SUVs, drive with them from Clayton to the City, and show up at the Circuit Attorney’s Office — with your press spokesman — expecting cameras and the press to record your heroic taking over of the CAO, only to find representatives from the Attorney General’s Office asking you what the hell you think you’re doing.

Then — after you sputter out that Kim and you had met several times the proceeding week and worked out a plan for you to take over for her, and that she had given the presiding judge a proposed order (illegally) transferring all her powers to you, only to be told that Judge Hogan had (properly) refused to sign the order, that the constitution and statutes of Missouri provide no authority for Gardner to transfer her powers to anyone, and that you needed to leave, only then do you realize what a fool you have been.

The rumor mill at the Carnahan Courthouse reports that the list of persons the governor is considering to replace Kim Gardner is now down to two: Judge Michael Noble and Gabrial Gore (currently with Dowd Bennett). An announcement is expected by tomorrow.

Yesterday Kim Gardner unexpectedly resigned effective immediately. My guess is that she really didn’t want records of her activities related to her pursuit of an advanced nursing degree to come to light. The Attorney General (AG) had subpoenaed records from St. Louis University’s nursing program to use in his quo warranto suit to remove her from office. She had also just been caught by an AG investigator doing nursing clinicals while a show-cause hearing was underway to determine whether to proceed on indirect contempt of court charges for her failure to appear at a scheduled trial date. When she resigned, the quo warranto suit became moot and will be dismissed (you can’t remove someone from office who is no longer there), and the subpoenas will be voided.

Gardner was being paid by the City to do the work of the Circuit Attorney. And if it turns out that the City was paying her for the time she was attending classes or doing practicums she might face criminal liability. It’s very similar to all those police she charged for double-dipping (getting paid for secondary work while still on the clock with the City). It might be interesting if the new Circuit Attorney decides to take a look at that anyway.

The Post-Dispatch ran a story asking “Where did it all go wrong?” It all went wrong from the moment Kim Gardner was elected. As I told Chris Hinkley, the CAO warrant officer and one of her executive staff yesterday in the hallway outside Division 22, she is one of the worst things to ever happen to the City. She destroyed the best prosecuting attorney’s office in the state. She is a toxic manager, dishonest and unethical, a dreadful lawyer, and she had no idea how to run a prosecutor’s office. Kim Gardner could only recite reform prosecution talking points and claim all criticism of her actions and policy were the product of some vague racist and misogynistic conspiracy (remember her crazy federal lawsuit?). Everyone who supported her should hang their head in shame.

One of her last acts was apparently to work out some scheme for St. Louis County Prosecuting Attorney Wesley Bell to take over running the CAO until the governor could appoint a replacement. Bell, for his part, seemed complicit — “Bell spokesman Chris King revealed that Bell was given security access to Gardner’s office, two county attorneys were training in the city warrant office, and Bell’s office expected to begin charging cases in the city on Tuesday.” The only problem is that neither Gardner or Bell have any legal authority to do this! This is what happens when two great legal minds like Bell and Gardner get together.

Fortunately, the governor and AG are on the ball. The AG said in a statement Tuesday evening he would send ex-Judge William Corrigan, the attorney who led the lawsuit seeking Gardner’s removal, and several others to St. Louis to receive charging referrals from police and “start the process of clearing the backlog of cases.”

The morning of April 27, 2023, Judge Noble held a show cause hearing to determine whether or not to move forward on charges of indirect contempt of court against assistant circuit attorney Chris Desilets and Circuit Attorney Kim Gardner for failing to appear for a scheduled trial in his courtroom three days earlier — in other words, for not showing up to do her job. Ms. Gardner did not appear for the hearing; she sent her personal lawyer as her representative. She was too busy to attend the hearing. She spent that entire morning at the Family Care Health Center pursuing her nursing degree.

We know this because an investigator with the Attorney General’s Office was shadowing her.

The law of holes says that when you find yourself in a deep hole, the first thing to do is stop digging. Of course, this advice only works if you recognize that you’re the cause of your problems. Gardner has never had the ability to recognize that she is the cause of all the problems that surround her. I’m sure it never occurred to her that to not appear at a contempt hearing for her previous failure to appear was problematic. Nor do I believe that she considered it imprudent to take the morning off and work on her nursing degree while her office is on the brink of collapse and the Attorney General is trying to remove her from office for dereliction of her duties.

Here is a typical Gardner supporter explaining — just this past April — why the hole Gardner finds herself in isn’t her fault.

Rock Newman talks Kim Gardner & Racist Crackers on Freeman Bosley Jr. Show, St. Louis

Kim Gardner has resigned and Governor Parson has the responsibility of selecting someone to run the Circuit Attorney’s Office (CAO) until the next election. Rebuilding the CAO is not going to be an easy job. Judge Moriarty told me that seeing the present state of the CAO is like looking at a photo of the aftermath of a destructive earthquake. You can only imagine how difficult it will be to rebuild.

While I am happy the earthquake (Kim Gardner) is over, the hard work of rebuilding is before us. That rebuilding begins with the appointment of a new Circuit Attorney. Post-Dispatch gossip columnist Joe Holleman has provided lists (group 1 and group 2) of persons that he’s heard are being talked about as Gardner’s replacement. The majority on his lists aren’t serious contenders. Presently, there seems to be a very strong current favoring Judge Noble.

The governor — in a politically savvy attempt to avoid claims of behind-closed-door deal-making (even though we all know that’s precisely how this will be done) — has asked for Circuit Attorney wannabes to directly apply. They had until noon today (5/15) to provide their application.

As Gardner is out on June 1st, I expect the governor to make a selection fairly quickly — perhaps as early as by the end of this week. I know that the governor has met with the mayor and with Presiding Judge Hogan to get their input.

Meanwhile, Chris Hinkley, who runs the city warrant office (and has done an excellent job of alienating police officers) and is on Gardner’s executive staff, has resigned from the CAO. St. Louis County Prosecuting Attorney Wesley Bell, fresh from being deposed in a sexual harassment complaint filed against him (I’m sure the area’s so-called journalists are already on this one — that’s sarcasm btw as local journalists for the most part seem oblivious to what goes on in the courthouses), offered Hinkley a job at the St. Louis County Prosecuting Attorney’s Office in a position specifically created for him (after Wesley and Kim had their recent make-up). He will be presenting cases to the grand jury there. Based on his past performance in the city, that should be interesting.

One of the things that hasn’t been mentioned in all the talk of recent offers to help the CAO prosecute cases is that Missouri statutes only authorize the CAO to have a maximum of seven special assistant prosecuting attorneys (lawyers who don’t work exclusively for the CAO). Since the CAO already has two “specials” (Sean O’Hagan and Rufus Tate), that means they can only hire five more. So loads of lawyers from other prosecuting attorney offices and/or private law firms can’t just come in and help. The CAO is going to have to fix itself.

I just read a brilliant letter to the editor on Stltoday written by Jay Unnerstall entitled “Aldermen should pass a resolution calling for Gardner’s resignation.”  Yes, of course they should. So too should Mayor Jones. And our congresswoman Cori Bush. All our civic leaders should stand up for the good of the City and call on Gardner to resign. But they don’t. And that raises an important question we should be asking: why aren’t they doing what’s right?

It is remarkable that civic leaders from all across the state, including the governor, the attorney general, the state legislature, and local municipal mayors, have called for Kim Gardner to resign – but the people closest to the problem remain silent. Why?

Are they all like newly elected Alderman Bret Narayan? He publicly called on Kim Gardner to resign as part of his campaign. However, as Unnerstall reports, now that Narayan is safely ensconced in office, he has apparently changed his mind.

In my view, their failure to act is simply political cowardice. They all know, just like Narayan knows, that Gardner has brought the Circuit Attorney’s Office to the brink of collapse. They just want to avoid any political fallout from taking a position that might jeopardize their popularity with those misguided voters who still support Gardner. Jones, Bush, the alderpersons, et al., want to remain silent and under political cover and let the bad guys, the Republicans from Jeff City, do the dirty work that they know needs to be done. They should all be ashamed of themselves.

I would like to remind our so-called leaders of Dr. King’s compelling words: “In the end, we will remember not the words of our enemies, but the silence of our friends.” 

The Circuit Attorney’s Office has a unit of its trial staff devoted specifically to handing violent street-crime offenses like murder, assault, and robbery. Presently it comprises five assistant prosecutors: Chris Desilets, Alex Polta, Natalia Ogurkiewicz, Nick Lake, and Sai Chigurupati.

Desilets recently blew out his knee and is on medical leave for the next month (and if he has any sense is spending that time looking for a new position). Polta is out on a combination vacation and medical leave — and cleaned out his office of personal belongings before he left (subtle, Alex!). Ogurkiewicz is leaving the office at the end of April and moving to Chicago. Lake has been hired by the U.S. Attorney’s Office and is awaiting the results of his background check. Chigurupati has had several significant medical issues recently that have caused him to go on and off the disabled list.

Kim Gardner has begun to assign murder cases to several of her assistant circuit attorneys who only have at most one prior jury trial under their belt.

Don’t ask yourself if it could get any worse. It can.

UPDATE: Being the trooper that he is, Desilets has gotten temporary relief and is back in slugging away. He has a trial scheduled next week.

I’m an optimist. I believe the situation with the Circuit Attorney’s Office (CAO) can get better. But I think for things to improve, drastic changes must be made. From discussions with a number of knowledgeable persons familiar with the Kim Gardner fiasco, I’ve put together a 6-point plan that addresses the major issues I believe need to be resolved to get the CAO on the road to recovery.

First, get rid of the poisonous influences in the CAO. Serena, Maurice, and all the other Gardner-enablers who add nothing to the actual performance of the CAO have got to go. These are sycophants who tell Gardner that she is doing a wonderful job, it is everyone else’s fault, and nothing needs to change.

Second, meet with the entire staff and ask for a three-year commitment to stay at the CAO, since it is going to take at least that long to stabilize the office. Implement significant pay raises for all who make the commitment. You can’t fix the CAO on the cheap.

Third, reorganize the trial staff and empower them. The CAO needs a chief trial attorney with unfettered discretion in dealing with the day-to-day issues that arise with the trial staff, including making plea deals. Team leaders need to be assigned and given authority to approve deals suggested by the trial staff on their team and to oversee their performance. Current staff must be moved around in the office to make the best use of their present abilities. The warrant office and grand jury both need significant changes in staffing and procedures.

Fourth, ask for help. Contact the Governor and Attorney General and ask for attorneys from the AG to take some of the trial load off the current CAO trial staff. There is already a statute, Section 27.030 RSMo, that provides the mechanism for obtaining assistance from the AG. Meet with the Presiding Judge to work out a trial schedule plan that won’t overwork your present staff as you rebuild the office.

Fifth, replenish some of the lost wealth of institutional knowledge that had existed before Kim Gardner’s purge. Rehire some of the CAO’s former competent attorneys. I’ve talked to a few former assistant circuit attorneys who indicated they would consider returning to the CAO if Gardner was no longer in charge and they had confidence in her replacement. And engage other former competent prosecutors, either through informal meetings or by hiring them as short-term consultants, to provide the staff with guidance in how to best perform their duties.

Sixth, open the lines of communication. Meet individually and regularly with the judges and get their feedback and suggestions on how to make the 22^nd Judicial Circuit work more effectively and efficiently. Meet with the police department – and not just the Chief but also the police on the street (go to roll calls or police union meetings) – to get their feedback and suggestions on how to better work with them. Turn investigations of police misconduct over to the Highway Patrol and the AG — you can’t effectively prosecute your work partners. The criminal justice system is a collaborative effort. Adopt an open-door policy where any judge, staff member, or police officer can meet with you or call you.

In short, if you want to rebuild the CAO, do the opposite of what Kim Gardner has done.

My client, Javonn Nettles, has been confined without bond since April 2021 on a double murder case. Twice his case has been scheduled for trial, and twice the Circuit Attorney’s Office (CAO) has dismissed the case the week before trial was to begin and then reissued the same charges.

The cases were dismissed by the CAO after I had filed motions asking the court to impose sanctions because the CAO had failed to give me discovery materials they are required by law to provide. Discovery materials are items pertinent to the case that are in the state’s possession – not simply in the prosecutor’s possession, but anything relevant to the case in the possession of a state or local government agency. The Missouri Supreme Court has held that prosecutors have an affirmative duty to diligently seek out these items and then turn them over to defendants to ensure that they can receive a fair trial.

The CAO didn’t want a judge to impose sanctions for violating their duty to provide discovery, so they dismissed the case before the judge could rule. Then they reissued the charges.

This tactic of dismissing and then reissuing cases has become common practice with the CAO. But that’s only since Kim Gardner took over. I was speaking with an assistant U.S. attorney yesterday who had worked for many years in the CAO under Jennifer Joyce. She told me that she had jury-tried numerous murder cases and never resorted to dismissing and refiling. I think her experience is typical; it is a rarity in every jurisdiction except the present-day City.

Of course, according to Kim Gardner, none of this is her Office’s fault. She has publicly blamed the discovery violations on police.

What Kim Gardner does not seem to appreciate is that the police do not have an affirmative duty under the law and Rules of Professional Conduct to provide discovery. Only she has that duty. If police or other government agencies are dragging their feet providing discovery items to her office, then she has the affirmative duty to take the necessary steps — subpoenas, show-cause orders, etc. — to get them. In the Nettles case, the CAO did not take those necessary steps.

Even the victims’ family sees the truth and blames Gardner.

This failure of the CAO to provide discovery is not unique to simply the Nettles case. Murder cases have been dismissed before for discovery violations. I have filed a motion to dismiss on behalf of Nettles for the state violating his speedy trial rights and for prosecutorial misconduct. That motion has yet to be heard.

Rule 4-3.4(d) of the Rules of Professional Conduct requires all attorneys “to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.” Kim Gardner has previously been admonished by the Missouri Supreme Court for her unethical conduct of not disclosing discovery in the Greitens case — admonished for violating this very Rule. You’d think that almost having your law license taken away would drive home the importance of being vigilant in ensuring the CAO’s discovery obligations.

I don’t blame the assistant circuit attorney assigned to the Nettles case. He’s doing the best job he can under the circumstances. He has three to four times the caseload any competent lawyer could handle — all because the CAO is vastly understaffed. And when you have that many cases, you simply cannot give the necessary time and attention that a serious case needs for you to practically and ethically handle it. The assistant prosecutor is doing the best that he can under the circumstances — but those disastrous circumstances were created by Kim Gardner’s mismanagement and incompetence.

The Nettles case is not unique, only an extreme example of how things are in the City with Kim Gardner running the CAO. The main “reform” she has brought the City is to take the CAO from being arguably the best prosecuting attorney’s office in the state to the brink of collapse.