The St. Louis area is unique in that we are the only metropolitan area in the country with a “wanted” (for questioning) alert system. This is where police officers who want to question a suspect or anyone for any reason, even if there is no allegation of wrongdoing on that person’s part, can essentially issue their own warrant — in the practical but not in the legal sense — for a person’s arrest. Then, when any other member of local law enforcement stops these persons and runs their name, the “wanted” will pop up, and they will then be arrested. Subsequently, they will be transferred to whatever agency issued that “wanted” so that the issuing officer can question them.
This practice is being challenged in the 8th Circuit Court of Affirms Appeals. The issue is whether an arrest for a “wanted” is an unconstitutional and wrongful seizure. Their ruling could have enormous consequences.
Yesterday Judge Noble dismissed two murder cases with prejudice (i.e., charges cannot be refiled) because the CAO had failed, after repeated orders to disclose and several years of delays, to provide required discovery to defense counsel.
This follows on the heels of the acquittal of three men just the day before who were charged with two murders. In that case, Judge Sengheiser had excluded the CAO from introducing into evidence various jail calls and other messages that inculpated the defendants, and permitted the defense to argue adverse inferences of the prosecution’s failure to investigate possible Brady material, including the victims’ phones and their Facebook posts.
And, all this comes after the Circuit Attorney herself, Kim Gardner, agreed to accept a reprimand from the Office of the Chief Disciplinary Counsel for egregious discovery violations in the only case she has personally handled!
WTF is going on?
The CAO is a mess, and Kim Gardner created the mess. She took over what was at that time the top prosecutor’s office in the state, and with her “reforms” and lack of leadership, reduced it to a shadow of its former self.
As an ex-prosecutor, I know that the job of an assistant prosecuting attorney is difficult. A prosecutor needs good training, and that comes primarily from on-the-job apprenticeship (working with good, more-experienced prosecutors). But Ms. Gardner has fired or forced out all the career prosecutors, who were the backbone of that office, and who provided the institutional knowledge necessary for the successful operation of the CAO. The trial staff at the CAO are trying to figure things out as they go with really no guidance.
A prosecutor needs to work in concert with and to be supported by the police and other law enforcement branches (the U.S. Attorney’s Office, the Office of the Attorney General, etc.). Yet Ms. Gardner has alienated those agencies whose assistance is essential for the successful operation of the CAO.
And a good prosecutor can only handle so many cases competently. In many ways, a caseload is a juggling act — you are trying to keep so many balls in the air. As the number of balls increases, it becomes more and more difficult to not drop one. The trial staff at the CAO is now a bit over 50% of what it was during the Jennifer Joyce era. The trial workload of the assistant prosecutors in the CAO — and particularly those with serious felony caseloads — is almost unfathomable. (And, it makes one wonder where the money allocated for the staff that isn’t there has gone. To pay Ms. Gardner’s outside legal expenses?). This only leads to burn out (how many murder cases can Chris Desilets try back-to-back?) or balls being dropped.
The point of my rant is that all the problems with the CAO stem from Ms. Gardner. She created the shit show, and her assistant trial attorneys are the ones who have to work the best they can knee-deep in it.
On Monday, “Teflon” Kim Gardner worked out a deal with the Office of the Chief Disciplinary Counsel to keep her law license. All the hubbub, it appears, was because Gardner’s office “failed to maintain a comprehensive approach to collecting, producing and logging documents.” And, she “admit[ted] that she should have been more vigilant in ensuring the prosecution’s discovery obligations.”
The very next day, three young men who were prosecuted by Gardner’s office for murdering two other young men were acquitted. The trial judge in that case barred the prosecution from using jail calls and some other messages as evidence because the information had not been properly disclosed to defense lawyers. And, because investigators had also failed to examine the phones of three people, including the two victims, and a “potentially exculpatory” Facebook message, all of which could have helped the defense, the judge allowed defense attorneys to make the normally prohibited “adverse inference” argument: the state didn’t do this because they thought it would hurt their case.
As I expected, the Tisaby fiasco ended, in the words of T.S. Elliot, “not with a bang but a whimper.” Kim Gardner’s hand-picked and personally hired chief investigator in the Greitens debacle case avoided trial by entering into a plea agreement that resulted in his six felony perjury and one felony tampering with evidence charges being reduced to a single misdemeanor of tampering with evidence and his being placed on bench probation for one year.
The comic relief in all this was provided by comments from the defense during the plea. Mr. Tisaby told Judge Hettenbach that “My whole life, I’ve dedicated to doing justice.” His defense lawyer, Jermaine Wooten, a close friend and vocal supporter of Kim Gardner (surely no conflict of interest?), in an even more masterly display of irony told the judge that Mr. Tisaby “was a very honest man who thought he was doing everything right.”
The concerning part of all this is I believe Mr. Tisaby and Mr. Wooten were actually being truthful during the plea. I think Mr. Tisaby believes he has done justice his whole life and that his criminal actions were just. Similarly, Mr. Wooten was correct when he said that Mr. Tisaby believed he was doing the right thing. There is a certain type of self-righteousness sometimes found in bad (incompetent) prosecutions, and it was abundant in the Greitens case. It’s the notion that as the good guy I will do whatever it takes to get the “bad guy,” including lying, tampering with evidence, etc. It ignores the fundamental aspect of what constitutes justice: that how you go about things is just as important as the result (the means are just as important, perhaps more important, than the ends).
It’s very sad that a man who has dedicated “his whole life to doing justice” has his career end by pleading guilty to a crime, and one that involves trying to circumvent justice.
I’m not certain what effect this will have on Kim Gardner’s pending ethics violation hearing that is currently set for April 11th. It seems a deal may have been struck there as well. I’ve heard that the witnesses for the hearing have been called off.
