The Civil and Carnahan Court Houses are closed to anyone who is not 22nd Judicial Circuit staff. You need an employee badge to gain entry.
The only exception is if you have a court order. So, if you have a in-person hearing set, like a bond hearing in Division 16B, before you go you need to obtain a court access order that will allow you in the building. No court order, no admittance. All cases presently set in Division 25 and 26 will be continued automatically. If it’s a situation where you need to appear, you need to contact the judge to get an access order.
I have been in contact via email with Presiding Judge Burlison. He’s been very responsive to our concerns and questions. Criminal Docket Controller, Dawn Allen, is also a great resource for anyone having questions.
On a side note, the COVID-19 emergency has most criminal defense attorneys working from home. Only some offices remain open. Some other criminal defense firms have had firings, lay-offs, etc. My office (Niehoff & Hufty, LLC.) is open but client access is by appointment only. We swab everything down daily — and after each visit — with disinfectant, keep contact to a minimum, etc. And we continue to visit our confined clients.
The reason I call bullshit is because while many nonviolent offenders are being released it is not because of the handiwork of the reform prosecutors, including Ms. Gardner. Many nonviolent defendants have been typically released on bond, and today, because of bail reforms instituted by the Missouri Supreme Court, most of the remaining are released. In other words, the judges would release these people regardless of the CAO’s recommendation. Ms. Gardner really has nothing to do with it.
But, of course, it’s politically useful to take credit for other people’s work.
Many things have changed in the 22nd Judicial Circuit since my last post. And, I think they will continue to change as the virus situation changes. There are so many moving parts to this emergency that no one can really say with any assurance how things are going to move.
Judge Sippel, the presiding District Judge in the U.S. Eastern District of Missouri, has of yesterday issued an order essentially continuing all “non-essential,” in-person court proceedings for the entire federal district courts through May 31, 2020. Yes, May 31st. I expect that sooner or later the Missouri Supreme Court and our judges will follow suit.
Presently, in the City the CAO has gone to a rotating skeleton crew. Detention hearings and bond hearings are about the only things going on. The City court houses are pretty much ghost towns. Many judges are preemptively continuing status conferences, bond appearances, etc. Of course all jury trials have been canceled. It’s a good idea to call (a day ahead of time) before you go to court. I’m telling all my bond clients not to go to court unless I specifically tell them otherwise.
The sheriffs — God bless them — are screening people as they come into the court houses by taking their (forehead skin) temperature. I walked into the Carnahan Building today after walking 3 blocks in the cold to have mine checked. The deputy looked at the result, said, “Your’s is 92. You’re good.”
At the Justice Center and at MSI you are also screened with questions about your health and travels before admittance.
Of course, this means the much-anticipated Tisaby trial set March 30th will be continued. And the Joe Neill bench trial which was scheduled for this afternoon has been continued to May 26th.
And, for some sad news: Kristy Ridings (The Ridings Group) was officially disbarred as of March 17, 2020. She will be missed. She was good at criminal defense but apparently very bad at business.
Shifting gears: do what you can to slow the spread of the virus. The whole idea of social distancing is not to prevent you from contracting the disease. It is to prevent — or at least slow — the spread of it. So assume you are a carrier of the corona virus. How should you as a virus carrier behave? Every person with whom you have contact, you are putting at risk. If you aren’t concerned for your health, at least be concerned for the health of other people.
Starting Monday, March 16th, the St. Louis County State Court will close for 2 weeks in response to the coronavirus pandemic. Only essential personal and activities will continue – new criminal confined, bond hearings, etc. The City is canceling all jury trials for 4 weeks. Federal jury trials are also being continued.
Word is that the Missouri Supreme Court will be enacting some statewide order to close or restrict courts shortly.
A jury in Division 22 is hearing a felony criminal case, State v. Michael Fullilove and State v. Sionya Haley, involving alleged child abuse where the both defendant-parents are accused of having abused their very young children by feeding them only vegetables. No sugar or fast food. Only vegetables. The kids were restricted to such an extreme vegan diet that it resulted in severe undernourishment and permanent injuries to the kids.
They are both now charged with class B felonies. Charges that carry from 5 to 15 years in prison.
The defendant-parents are representing themselves and have claimed sovereign-citizenship (which the court properly rejected).
That demonstrates the “mindset,” cognitive abilities, and/or mental health of the parents. In other words, they have significant mental issues. And that is the crux of this case: how do we treat the mentally ill?
The parents weren’t neglectful or abusive in the normal sense. They wrongfully believed, due to their mental issues, that their extreme veganism was actually healthy for their kids. It’s a case of the sovereign-citizen mindset applied to child rearing. Sincere but crazy. And their sincere actions permanently damaged their kids.
The best analogy I can come up with is a parent who learns that drinking water is good for your kids and so they force them to drink so much water they become water-intoxicated, a serious medical condition that can kill you.
Fortunately for the children, the state intervened. The children are now in DFS custody, and until the parents demonstrate an understanding and ability to properly nourish their children — which likely may be never — the kids will remain in DFS care.
With the children now safe, it makes one wonder what the goal of the CAO is with prosecuting the parents? These parents were trying to do what is best for their kids. They, due to their own serious mental limitations, hurt their kids. Were these the actions of criminals? Should they go to prison for 5 to 15 years?
The CAO must think so because they brought and unrelentingly continue with this prosecution. And, as a prosecutors ethical duty is to seek justice and not convictions, the CAO must believe that is proper justice to convict the parents. Harsh. Legalistic.
I thought “reform prosecutors” promised something different.
ADDENDUM:
I received blow back from this post by several prosecutors who had all sorts of sound reasons why these parents should be prosecuted and should go to prison.
I think they missed the point of my post.
An “old school” prosecutor, like Jennifer Joyce or Bob McCullough, would certainly believe the solution would be to prosecute and lock up the parents, to both punish them for severely and permanently injuring their kids and to prevent them from further procreation (and potential injury to more children). I get it. And that’s a valid viewpoint.
However, it’s not the “reform prosecutor” viewpoint.
Bob Matichek retires today. Bob has been in charge of treatment for the City’s Treatment Court (Division 25A) for as long as I can remember.
He was often the only friend a defendant — and the defendant’s attorney — had when applying for drug court. Literally every time I’ve been at the conference table in drug court arguing to have my client accepted into the program, Bob would be on my side patiently explaining to the rest of the team why my client needed treatment. Often, the vote would end up 2 for treatment — Bob and me — with everyone else in the room voting ‘no.’
One of my clients once barricaded himself in Bob’s office. Bob let him stay there, called me, and patiently waited while I talked my client into coming out. I’ve never seen him get angry or frustrated.
Assistant Circuit Attorney Jonathan “Buddy” Phipps won his first jury trial this past week in Division 11. It was a case involving a car stop by police where a gun and drugs were allegedly found by police, and the defendant was represented by ‘The Master’ of cop-credibility defense, Robert Taaffe.
The case was set for trial on February 14th, Buddy entered his appearance on February 18th, and jury-tried the case on March 2nd. He had less than two weeks to prepare for his first trial. And, the week before trial, the CAO could not locate the file!
Kudos to Judge Hettenbach for not continuing the case at the request of the state. And kudos to Ricardo Dixon for second-chairing Buddy and providing him invaluable assistance.
I was able to see part of the trial and Buddy put in a solid performance. The court staff told me he did a very fine job for the state.
There is an old saying: litigators are always prepared but never ready, and trial attorneys are always ready but never prepared. Little things like only having two weeks to prepare for your first jury trial and not having a file is what makes trial work fun!
The Tisaby trial is set to begin March 30th in Division 11.
William Don Tisaby was the hand-picked, ex-FBI investigator Circuit Attorney Kim Gardner hired to assist her in her unilateral role of investigating and charging ex-governor Eric Greitens with felony invasion of privacy by allegedly taking a nude photograph of a mistress and then transmitting it. That case was later dismissed by the state on the morning trial was scheduled to begin. And, as it turns out, the state never had any such photo, could not prove one existed (though the alleged victim “believes” one was taken since she heard a “click” while undressed and blindfolded), and had no evidence that if one ever existed it had ever been transmitted to anyone.
Tisaby is now charged with numerous counts of perjury for alleged lies made during his pretrial deposition in the Greitens case.
Some of the alleged lies pertain to discovery materials, evidence that is required by law to be turned over to the defense. Tisaby said under oath that he didn’t take notes of interviews (and so couldn’t turn them over to the defense) and a video-recorded statement by the alleged victim was not made because the recorder malfunctioned. He also denied communicating with Gardner during a break in the deposition.
Here is the deposition video:
As it turned out, however, there actually were notes of interviews taken by Tisaby, there was a working video-recorded statement of the alleged victim, and Tisaby and Gardner had significant communication during the break of the deposition.
The case against Tisaby hinges on whether those lies were material to the Greitens case or not since for a lie under oath to be perjury it must go to a material issue. Tisaby’s defense can only be “yes, I misspoke but none of that was material to the case.”
The real significance of the Tisaby case goes beyond Tisaby’s misconduct, however. More importantly, his actions reflect Ms. Gardner’s ethics. She was present at the deposition. She heard Tisaby’s responses. She knew that many of his responses were false because she was with Tisaby when he questioned the alleged victim and took notes, she was with Tisaby and the alleged victim when a video-recorded statement was made (and had the video), and she and Tisaby engaged in numerous texts and calls during the break. But she did not intervene when “incorrect” answers were provided by Tisaby.
Gardner, however, has told the New York Times that “she did nothing wrong, and that she corrected the former agent’s errors as soon as she learned about them.”
That, of course, is untrue. She personally witnessed Tisaby lie over and over again and said nothing. Unlike Tisaby, however, her conduct wasn’t perjury since she wasn’t being questioned under oath at the time. It’s notable that when it became clear later that she was going to be called as a witness and would be required to testify under oath, she dropped the case.
All of this misconduct became public in a pretrial motion hearing where the Greitens’ defense argued that the charges should be dismissed due to prosecutorial misconduct, and Greitens’ defense counsel James Martin, a former Assistant United States Attorney, told the court that Gardner “sat there and let him lie every time.” Scott Rosenblum reported that “[n]ot only was her behavior grossly, grossly incompetent, under any stretch but she suborned perjury in my presence.”
At that time, the Circuit Attorney’s Office momentarily saved the Greitens case by throwing Tisaby under the bus, with Chief Trial Assistant Robert Dierker arguing to the court that Tisaby was simply incompetent, and comparing him to Inspector Clouseau.
Tisaby will likely piggyback on this “defense” at his upcoming perjury trial: he’s an incompetent whose lies were not material to the case. It may work. However, I don’t think whatever happens to Tisaby is in the big picture all that significant.
What is significant is that this whole affair gives us great insight into who and what Kim Gardner really is.
