Month: February 2020

“There are three kinds of lies: lies, damned lies, and statistics.”

I bring this up because the Circuit Attorney’s Office is claiming — now get this — their “overall conviction rate is 95%.”

https://www.kmov.com/news/records-show-conviction-rate-for-circuit-attorney-s-office-has/article_a1c0f8d2-5842-11ea-b7f6-d7598e1fc94e.html

A conviction is obtained when the state obtains a finding of guilty by a judge or jury, either after a guilty plea or a trial. The “conviction rate” is typically defined as “the number of convictions divided by the number of criminal cases brought.”

https://en.wikipedia.org/wiki/Conviction_rate

Number of cases brought — in other words, the number of cases originally charged. This would include cases that where charges were brought and later dismissed. If a prosecutor brings charges in 100 cases and later dismisses 99 of them and has one case that ends in a plea of guilty, that prosecutor does not have a 100% conviction rate. She has a 1% conviction rate.

In 2019, at least a third of the cases assigned out to trial were dismissed by the CAO. That does not include the cases dismissed earlier, before they were assigned to a trial division — cases that were dismissed in associate circuit court for failure to prosecute (like the double murder case recently dismissed), dismissed by the state before trial for other reasons, etc. It would be interesting to know the CAO’s dismissal rate (number of cases eventually dismissed divided by the number of cases brought). I strongly doubt the CAO will release this information.

But no matter how you slice it, there is no possible way for the CAO to have a “95% conviction rate” like they claim as so many cases were being dismissed — unless they weren’t counting those dismissed cases in their statistics. For the life of me, I can’t figure out how they are determining their 95% number.

Besides conviction rate, there is also a trial conviction rate to show how well or poorly a prosecutor’s office is doing. Trial conviction rate is the number of cases where a guilty verdict is returned after trial divided by the number of cases that went to trial. In 2019 the CAO trial conviction rate was 54%. That means in 46% of the cases that went to trial — almost half — there was no finding of guilty or conviction: the defendant in those cases was fully acquitted.

So far this year (February, 2020), there has been, by my counting, 15 criminal jury trials (8 in January, 7 in February). The state had convictions — a finding of guilty on any charge — in 5 of those cases (4 not guilty in January, 6 not guilty in February). That’s a 33% jury trial conviction rate in 2020.

This dismal trial conviction rate only tells part of the story however. Even a finding of guilty is not necessarily a “win” for the state. For example, if someone charged with murder, armed criminal action, assorted felonies, and one misdemeanor went to jury trial and was found not guilty of all but the misdemeanor, this would count as a “win” or conviction in the state’s overall conviction rate.

The bottom line is that the CAO’s statistics are worse than damned lies.

The August 4, 2020, Primary Election will determine if Kim Gardner will continue in her position of the Circuit Attorney for the City. That’s because only a democrat can get elected in the City, and the Primary determines who the democratic nominee will be.

Filing for the August 4, 2020, Primary Election in the City of St. Louis begins today, February 25th. It ends March 31st.

As far as I know, only Mary Pat Carl has publically announced that she is challenging Gardner.

https://www.stltoday.com/news/local/govt-and-politics/mary-pat-carl-announces-run-against-kim-gardner-for-st/article_cde7332c-b23c-5d7b-9978-a6bb35b095b4.html

Mary Pat certainly has the ability and credentials to be a successful Circuit Attorney. Without a doubt, she would be a huge improvement over Kim Gardner. And if no better candidate steps forward she will have my support. However, her past alliance with ex-Circuit Attorney Jennifer Joyce and the fact she is not seen as a “reform prosecutor” by many progressives may work against her in the election.

But her biggest challenge will be in overcoming the “Poor Kim” narrative. That’s the story of how “Poor Kim” is a strong, African-American woman who is taking on the racist, old-boy criminal justice establishment in an effort to reform it, and that racist, old-boy establishment is busy trying to thwart her every move. I intend to address the “Poor Kim” narrative itself in a later post, but for now it’s simply important to realize this is Gardner’s go-to move whenever she is challenged or criticized.

While most knowledgeable persons find that narrative ludicrous, many others, particularly dyed-in-the-wool progressives, find it powerful. Tony Messenger, the St. Louis Post-Dispatch columnist, for instance, has swallowed the “Poor Kim” narrative hook, line, and sinker.

https://www.stltoday.com/news/local/columns/tony-messenger/gardner-alleges-racist-conspiracy-in-federal-civil-rights-lawsuit-against/article_357ab90f-c308-5c08-aa3f-afaf33d3b47f.html

Gardner will argue that Mary Pat, as part of the establishment, is either one of or working for “the select few . . . [trying] to stop criminal justice reform.”

I think we need a candidate for Circuit Attorney who can save the Office and the City. I therefore nominate ex-Judge and present St. Louis Public Safety Director Jimmie Edwards.

Judge Edwards can bring the support of the Mayor’s Office (he works for the Mayor now), the police (he hired the current Chief of Police), and the judges (he was one of them until recently) to the Circuit Attorney’s Office. He can get everyone in the criminal justice system to work together to deal with the City’s crime problems as opposed to alienating every group like Kim Gardner. Systemic problems can’t be solved single-handedly.

He can also lead and manage the Circuit Attorney’s Office in a manner to rebuild it to its past reputation as one of the elite prosecuting attorney offices in the state. Judge Edwards, unlike Ms. Gardner, exudes competence. He has been successful in every position he’s held. Past performance is the best indicator of future performance.

Judge Edwards would be a “reform prosecutor” that the progressives want. He has actual experience in successfully working to reform the criminal justice system:

https://www.stltoday.com/opinion/columnists/how-to-shut-down-the-school-to-prison-pipeline/article_08fd2f18-e803-5698-9dce-9be6da998205.html

Most significantly, he’d take Gardner’s “Poor Kim” narrative — her only defense — away from her. He is an African-American who has devoted his life to public service, who has worked tirelessly and effectively within the system for criminal justice reforms, who has won numerous awards for his efforts, who left the bench and took up the position as Public Safety Director to try to more effectively deal with the City’s problems, and is someone universally respected by everyone in the legal community.

As the Circuit Attorney, Jimmie Edwards could accomplish so much more than in his current position as Public Safety Director. He could save the Circuit Attorney’s Office.

I have asked Judge Edwards to run. He has demurred.

Call or write him.

https://www.stlouis-mo.gov/government/departments/public-safety/profiles/judge-jimmie-m-edwards.cfm

Urge him to run.

I was not surprised that the jury returned a verdict in favor of the police in the tasing case tried this week in Division 6.

https://www.stltoday.com/news/local/crime-and-courts/jury-awards-university-city-woman-in-her-taser-lawsuit-against/article_84ed2e75-554b-59ce-8579-e666e0c7505d.html

The jury found for defendant Officer Wilson and, while finding Officer Ogunjobi liable for an assault on Ms. Hendrix, only returned a verdict for $3,500 against Ogunjobi. No punitive damages were awarded.

Before the trial began, I thought Ms. Hendrix’s case had all the elements necessary for a potential significant plaintiff’s verdict: here is the case of an Afro-American, well-educated women, an elected University City School Board member, peacefully protesting in an effort to bring community awareness to the problem of police brutality when she becomes the victim of that brutality. And it’s all caught on video!

As I watched parts of the trial (opening statements, the plaintiff’s testimony, Officer Ogunjobi’s testimony, etc.), I found the presentation by the plaintiff’s lawyers from the ArchCity Defenders to be — and this is to put it as kindly as I can — underwhelming. The City’s lawyers, led by Erin McGowan, did a much better job.

Ms. Hendrix brought her lawsuit out of principle, in her continuing fight against police brutality, and not for the money. Unfortunately, it is the monetary amount of the verdict that sends a message. Her case needed a very good plaintiff’s lawyer handling it to send the message she wanted. The ArchCity Defenders let her down. They would have served her and her message much better by not handling the case but referring it to a good plaintiff’s trial attorney.

The rumors regarding the CAO mandatory office meeting were untrue — it wasn’t called by Kim Gardner to announce she was resigning. Instead Ms. Gardner delivered a “bunker speech” in an attempt to rally her troops. According to Ms. Gardner, attorneys who leave her office are “weak.”

Oh, and she announced that until further notice all plea agreements/deals must go through her. Just take a minute to consider the ramifications of that.

And either because he was motivated by Ms. Gardner’s unraveling or because he is “weak,” Assistant Circuit Attorney Richard King gave notice today. Richard was the prosecutor assigned to the treatment court and had a general felony caseload. He is going to hang up his shingle.

This week two St. Louis Metropolitan Police Officers, Stephen Ogunjobi and Louis Wilson, go to jury trial in Division 6 in a civil case for damages for assault and excessive use of force (battery) brought by Kristine Hendrix, a 38 year old African-American woman and elected University City School Board member, who was peacefully protesting police misconduct back in May, 2015, outside Busch Stadium when she was arrested and repeatedly tased.

Fortunately for Ms. Hendrix, the arrest was caught on video.

Ms. Hendrix was subsequently charged in municipal court with resisting arrest. After a bench trial she was acquitted. At a trial de novo in Associate Circuit Court, she was again acquitted. Judge Colbert-Botchway wrote in her opinion that “[t]he evidence presented in this case does not establish that Ms. Hendrix was ever given an opportunity to comply before she was tased repeatedly and then handcuffed.”

Even more concerning is Judge Colbert-Botchway’s description of the evidence presented at the trial:

“It is clear from the video and from Officer Wilson’s testimony that he and Officer Ogunjobi approached Ms. Hendrix from behind. . . . [T]he ‘pop’ sound of Officer Ogunjobi’s taser clearly can be heard as he applies it to Ms. Hendrix for the first time. Within a couple of seconds of that Ms. Hendrix can be heard saying “Oh my God, oh my God, oh my God. Why did you do that? I wasn’t doing anything?” An officer can be heard saying “Put your hands behind your back,” but before he even finishes the sentence the sound of Officer Ogunjobi administering another cycle of tasing to Ms. Hendrix can be heard, and she screams. In response to the officer’s command, she then can be heard saying five times in succession “I can’t it hurts! I can’t it hurts!” then “It hurts so bad, please, please stop.” She repeats this several more times, then Officer Ogunjobi tases her a third time. Again, Ms. Hendrix screams, then says, “Oh my God, why are you doing this, I’m on the ground.””

You can see the video for yourself here:

https://www.stltoday.com/news/local/crime-and-courts/woman-sues-st-louis-police-claiming-brutality-during-her-arrest/article_fd5b0de8-0395-54ef-b6e5-d1f9b100f81e.html

I don’t expect this to end well for the officers.

Another departure . . .

Matei Stroescu is leaving the CAO for the Hepler Broom law firm. He is a fine trial lawyer and has the distinction of beating Scott Rosenblum in the well-publicized Bommarito trial. Even more impressive in my opinion, he was able to survive being assigned to Division 3 for an entire year!

By my count that makes the fourth prosecutor — the other three being Peter Bruntrager, Tristin Estep, and Rachel Smith — to leave since January, 2020. When your trial staff is at half-strength with less than twenty-five felony trial attorneys, that’s a huge hit to the office. And, consider the loss in terms of experience: Rachel Smith was the Chief Trial Assistant, Matei was essentially a team leader and handling only serious felony cases, and Tristin and Peter were also both handling only serious felonies.

I’m sure there will be more to come.

Up-coming trials of interest . . .

The week of March 23rd. Nathaniel Hendren, the police officer who allegedly shot fellow police officer Katlyn Alix while playing Russian roulette, goes on trial in Division 7.

The week of March 30th. William Don Tisaby, Kim Gardner’s hand-picked investigator in the Greitens fiasco, goes to trial on perjury charges in Division 11.

Friday, February 14, 2020, is Chief Trial Attorney Rachel Smith’s last day at the Circuit Attorney’s Office.

Hallelujah! Let the celebrations begin.

Mary Fox is out as the District Defender of the Public Defender’s Office for the 22nd Judicial Circuit, and has moved on and up to be the statewide director of the system. I have no doubt she will be very successful in that position. She is in my opinion an outstanding manager who focuses on the big picture. These strengths are much better suited to her new role.

Even better news for the 22nd Judicial Circuit is Matthew Mahaffey was selected as the new District Defender. He’s a good defense attorney, everyone in the courthouse likes and respects him, and he genuinely cares about his clients. I hope his focus will remain more on what is in the best interest of the individual client rather than take the Mary Fox big-picture approach to running that office.

When Kim Gardner took over the Circuit Attorney’s Office (CAO) in January, 2017, it was one of the elite prosecuting attorney offices in the state. The CAO tried more felony jury trials than any other office. It was staffed with a little over 40 felony trial prosecutors, some of whom were career prosecutors that had been there for decades. The CAO had a long tradition of being a training ground for future leaders in the legal community, producing numerous federal and state judges, local and state legislators, many of the top civil lawyers in the area, etc. The U.S. Attorney’s Office would routinely recruit from the career prosecutors of the CAO. Many of St. Louis’ legal families, the Dowds, the Bruntragers, the Finneys, the Carmodys, etc. sent their children to the CAO to perform public service while learning how to try cases. Because of this reputation, it was difficult to get hired by the CAO and there was typically a long waiting list of applicants.

That all changed when Kim Gardner took over.

She fired many of the City’s long-time prosecutors, and made it clear to the remaining others that they were not appreciated or welcome. For example, she fired Beth Orwick, Jennifer Joyce’s appointed Chief Trial Assistant. Beth was one of the finest prosecutors in that office. She was so good in fact that the U.S. Attorney’s Office hired her the day after Gardner fired her! She is now the St. Louis County Counselor, the lawyer in charge of overseeing all legal work of the County. Of the original 40+ felony trial attorneys in the office when Gardner took over three years ago, only 4 remain.

Of course, Gardner hired replacements. And interestingly, quite a few of those quit or were fired too. I’ve seen quite a few of them in St. Louis County, working for the Prosecuting Attorney’s Office there.

Today, her office can’t find lawyers to fill vacancies because the word is out. The fine reputation of the CAO is gone. The CAO was staffed with over 40 felony trial lawyers when Gardner took over in 2017; today it has only 20+ felony trial lawyers. Its felony trial staff is almost at half-strength — just in terms of the number of lawyers available to handle cases.

While the staff she inherited was loaded with experienced trial prosecutors, her trial staff today overwhelming consists of lawyers with little experience. In September, 2019, the St. Louis Post Dispatch estimated that 470 combined years of experience had left her office.

https://www.stltoday.com/news/local/crime-and-courts/years-of-experience-gone-kimberly-m-gardner-has-lost-more/article_c5b70e30-d3c3-551c-8a90-d1f03b47c1e3.html

This matters because a weakened prosecutor’s office cannot provide the community the full justice services they deserve. The CAO is an integral cog in the operation of the justice system. When the prosecutors can’t do their job, the system can’t work.

https://www.stltoday.com/news/local/crime-and-courts/after-judge-rejects-delay-prosecutors-dismiss-murder-other-charges-against/article_0e458c4b-4ab7-5935-bc18-dea185dabfe3.html

https://www.kmov.com/news/news-uncovers-pattern-of-delays-in-murder-trials-amid-claims/article_a5e271ec-47cc-11ea-9a01-0372dc9edbc0.html

Unfortunately this problem can’t be solved in the near future because trial attorneys learn through apprenticeship and practice. Young prosecutors need experienced guidance to develop the skills required to perform their job successfully — and that guidance and experience is in very short supply in the CAO. And even with sound guidance, it takes time for a young prosecutor to develop. I respect the efforts of the trial staff of the CAO: they are doing the best they can with their limited resources and experience but they are overworked and inexperienced.

Kim Gardner said she was going to reform the system and instead she broke it.

Kim Gardner has been trying to free Lamar Johnson. Johnson is in the Missouri Department of Corrections after being convicted of murder in 1995. He appealed his conviction and lost. Then he claimed ineffective assistance of defense counsel and lost. Then he appealed that and lost. He’s since filed numerous habeas corpus writs in state and federal courts where he claimed his innocence and blamed prosecutorial misconduct for his convictions. He’s had numerous hearings on these issues in both state and federal court. All of his claims have been consistently denied.

Yet Ms. Gardner believes he is innocent and has taken steps to try to free him:

https://www.stltoday.com/news/local/crime-and-courts/st-louis-man-s-challenge-to-his-murder-conviction-moves/article_c83a298b-53e1-523b-9fa8-0ace60ec3b81.html

I’m not going to discuss the Lamar Johnson case but wanted to provide background.

You see, I don’t mind the reexamination of old convictions. That can be a good thing. What I find troubling is Ms. Gardner’s allegations regarding prosecutorial misconduct by Dwight Warren, the prosecutor who convicted Lamar Johnson.

I have known Dwight Warren for at least 25 years, and have jury-tried well over a dozen murder cases against him. He is now retired. But in his heyday he was an outstanding prosecutor, one of the best I’ve ever known. I’d guess he has tried a hundred or so murder cases against all the top defense attorneys. At one point he was the head of the homicide prosecution unit in the Circuit Attorney’s Office. He was a cop before he went to law school. He was in the Army reserves and retired as a Colonel. He was a prosecutor’s prosecutor.

In all my dealings with Dwight I found him to be honest, often straight-forward to the point of bluntness. He was a minimalist in trial, putting on an often stark case that consisted solely of the evidence he needed to get a conviction with no additional fluff. Dwight didn’t put on shows or circuses, he didn’t throw on the kitchen sink in trial, there was no flamboyance. He was just rock-solid, competent prosecution all the way.

And, I’ve never met a prosecutor that didn’t look up to Dwight Warren. Except Kim Gardner.

She fired Dwight Warren, as she did so many other top-notch prosecutors that were in the Circuit Attorney’s Office not too long after she took over. She fired him on a Monday morning before he was to pick a jury in a robbery trial. Like the professional he was, he stayed until the week’s end to finish the trial — a guilty verdict — and then left the Circuit Attorney’s Office without fanfare.

That was a few years ago before the Lamar Johnson reexamination. Now Gardner’s trying to trash his reputation in an effort to free Johnson. This is Dwight’s most recent public response:

https://www.stltoday.com/opinion/columnists/dwight-warren-circuit-attorney-says-lamar-johnson-deserves-a-new/article_622a172c-519b-510d-8722-654f764b64f0.html

That’s typical Dwight. He simply says the evidence for Johnson’s claim of innocence just doesn’t add up. No personal attacks. He doesn’t take umbrage or act outraged. It is what it is.

And, of course, the state and federal courts have reviewed these same claims and found no prosecutorial misconduct.

Dwight Warren was a real prosecutor. If your loved-one was murdered, you were happy that Dwight was handling your case. He did the job right. The police, the judges, defense attorneys, and other prosecutors all respected him. In other words, he was nothing like Kim Gardner.

I miss Dwight Warren and what he brought to the 22nd Judicial Circuit.