While I understand and appreciate the efforts of both the Attorney General (AG) and the state legislature to remove Circuit Attorney Kim Gardner, I find their efforts problematic.
Any informed, thinking person can only believe she has been a complete disaster as the chief prosecutor for the City. The AG’s amended petition in support of a quo warranto writ simply demonstrates with numbers how poorly the CAO is operating. For example, the courts in the past six years have dismissed 2,735 cases due to the CAO either not providing timely discovery to the defendant or not being ready for trial. For context, that’s more cases than the CAO issued last year! Apparently another 9,000 cases were dismissed by the CAO over the past six years. And, there are around 3,500 warrant applications (i.e., potential cases) that have been awaiting the CAO to decide whether or not to issue charges.
It’s also clear that the number of criminal cases issued by the CAO has precipitously declined: in 2017, 4,498 criminal cases were issued; in 2018, 4,386 cases; in 2019, 3,961 cases; in 2020, 2,155 cases; in 2021, 1,901 cases; and, in 2022, 1,974 cases. St. Louis County, in contrast, issued 10,290 criminal cases in 2022. As the petition points out, this is not because of a dramatic decrease in crime in the City.
From 2017 through 2020, Kim Gardner has “either fired, or accepted the voluntary resignation of at least 85 assistant circuit attorneys.” The very experienced trial staff of over 40 attorneys she inherited from Jennifer Joyce has been replaced by approximately 18 attorneys. In 2017, the salaries for the regular staff of the CAO was $5,143,836.75; in 2022, the salaries for the regular staff was $2,751,103.63. This trend demonstrates the toxicity of the CAO under Gardner. She can’t keep good people. Her mismanagement and the crushing caseloads carried by the assistant circuit attorneys (having fewer than half the needed staff) forces them out. And, as the experience and number of the assistant circuit attorneys decline, so does the overall performance of the office. You can’t take a great sports team, cut the team in half, force out the best players, and expect great results.
Of course the petition goes on to list many other issues — many of which I’ve previously blogged about — however the numbers themselves tell you all you need to know.
However there are serious issues with a quo warranto writ to remove Gardner. I understand the writ to be a device to remove an elected official who is not performing their elected duties. The CAO is running, it is working. Kim Gardner is doing her job. She is just doing it extraordinarily poorly. So, I don’t think the writ should succeed. And even if it did remove her from office, that will just create other problems.
Nor do I think having a second, independent prosecution office in the City (as the legislature intends) is a good idea. Similarly, it would create a whole host of other problems.
The real issue in attempts to remove Gardner is they’re both an ends-justifies-the-means approach. Both the AG and the legislature recognize how bad the situation is with Gardner running the CAO, and they are trying to use whatever means they can to remove her. I totally agree with their assessment of the situation but disagree with their approach.
One of the bedrock principles of law in our country is that the means is more important than the result itself. It seems in this era of political and cultural upheaval we have lost sight of this. How we go about trying to achieve justice, for example, is more important than any individual result. Once we start rigging the system to get the results we want, there will no longer be justice.
So, my plan to remove Kim Gardner is this: vote her out of office. I think this is the only legitimate way to remove her. Yes, the City will pay a price until we do vote her out. That is called “accountability.” We voted her in. Now we have to pay for our stupidity. Thomas Jefferson observed, “The government you elect is the government you deserve.”
Marvin Teer, the Chief Trial Attorney at the Circuit Attorney’s Office (CAO), is leaving at the end of this month after serving in that role for approximately two years. When Marvin came aboard the already floundering ship, we in the 22nd Judicial Circuit — judges, assistant prosecutors, and defense attorneys — were hopeful. Marvin had been a trial prosecutor with Jennifer Joyce and had handled serious cases, and later he became both a municipal and administrative law judge. He had the chops. He came back to St. Louis from retirement to help Kim Gardner. If only Gardner would give him the authority to do what we knew he could do, and then didn’t get in his way, we thought Marvin might turn things around.
During a period of widespread looting after George Floyd’s death in Minnesota, Jackson had driven Cannon to and from a pawn shop late at night to engage in looting. Video from the store’s interior showed my client inside with several other persons when the shooting started outside. As they all ran toward the door in a panic, Jackson tripped and was trampled by the others fleeing the store. He dropped his debit card in the confusion. When he finally was able to get to his car, he met up with Cannon, and they left the scene together. Jackson didn’t know Cannon was armed or had shot anyone until Cannon later told him. The debit card led the police to Jackson, and he was charged as Cannon’s accessory to the murder.
There was no video footage of the shooting itself, and no witnesses to the actual shooting. Dorn had gone to the pawn shop to protect it from looters and had been shot. A video of him lying on the pavement dying had been uploaded to social media. Marvin was assigned to this very high-profile case. He wanted to convict the shooter and recognized that he needed Jackson’s testimony — that he was with Cannon and that Cannon had confessed to him — to secure a conviction. And so a deal was struck for Jackson to testify against Cannon. The deal called for the murder charges to be dropped, and my client was to receive probation on burglary charges in exchange for his testimony.
Marvin did go on to convince a jury to convict Stephan Cannon of murder in the first degree, and Cannon’s conviction rested in large part on the testimony of my client. Dorn’s wife, Ann Dorn, said outside the courthouse after the verdicts, “I want to thank Marvin Teer for doing a phenomenal job in prosecuting the case.” This is what we expected Marvin to deliver when he came to help Kim Gardner.
On the morning of Jackson’s plea, the same week the jury found Cannon guilty, I received a telephone call from Marvin. He was extremely upset. Gardner had just told him not to drop the murder charge against Jackson — to not go through with the deal. This was after Jackson had met with prosecutors and told them about his involvement, after he had been deposed by Cannon’s defense attorney, and after he had testified in court to secure a conviction. Marvin, almost in tears, told me that he was going to continue “working on Kim” and would update me.
I called our plea judge to update her on the situation and then began researching judicial enforcement of a plea agreement. But I didn’t take any of the case law I found with me to court. As I thought about the situation, I realized I didn’t need a judge to enforce the deal. Marvin, above everything else, is an honorable man. I knew in my gut that he would go through with the agreement, regardless of whether he received Gardner’s approval. I suspect if Gardner had still refused to abide by the deal, he would have gone through with it and then resigned.
That episode, however, told me that Marvin’s days in the CAO were numbered.
Marvin is a rock-solid, competent trial prosecutor. He’s a man of his word. He’s reasonable to deal with. He gets along with everyone. He is respected by everyone. He’s everything you could want in a prosecutor. As Chief Trial Attorney, the person in charge of the trial staff, he had both the courtroom and interpersonal skills to enable him to work with his prosecutors, the judges, and defense attorneys to get the 22nd Judicial Circuit back to working smoothly. Any sensible elected prosecutor would simply have let Marvin loose to upright the ship. As he demonstrated with his handling of the Dorn case, Marvin has the ability to see what needs to be done, what to do to get that done, and how to follow through.
But, Kim Gardner isn’t a sensible elected prosecutor. And she was already second-guessing him in his handling of the Dorn case. This pattern has, not surprisingly, continued and only gained momentum. Marvin did what he could but he couldn’t save the ship. The ship’s captain wouldn’t let him. I think Marvin realized that with Kim at the helm it was a lost cause.
Yesterday was St. Louis City Circuit Judge Michael K. Mullen’s last. He has retired from the bench and is taking a position with the prestigious silk-stocking law firm of Armstrong Teasdale.
I first met Mike Mullen in 1990 when he was a fresh, young Assistant Circuit Attorney. We had a few cases together, but I really didn’t know him very well. I could tell that he was smart, hard-working, ambitious, and sensible – traits that I admire. I liked him. After a few years, he left the CAO and went on to work with the legendary criminal defense attorney Charlie Shaw. And it wasn’t long before he left Shaw to open his own firm.
Eventually though, he returned to public service, first as an associate circuit judge and later as a circuit judge in the City. He even became the Presiding Circuit Judge. Perhaps his claim to fame is that he oversaw the grand jury investigation of Kim Gardner and her investigator William Don Tisaby. It was during his tenure as a judge that I really came to know Mike Mullen.
Over the years he was a judge in the City, I handled so many cases before him I can’t even begin to guess a number. There were tons of pleas, a few bench trials, and some jury trials. My last jury trial before him was a murder case in October 2019. I had the honor of being involved in his last official court proceeding – a sentencing hearing held yesterday while a going-away party was active in his courtroom! My client received probation.
That’s all the superficial stuff.
This is what I really want you to know about Mike Mullen:
I’ve had the privilege to practice before many fine judges. And among that group is a small number who brought something special to the bench. Those judges not only did their job exceptionally well, they carried within themselves something that made them stand out.
I’ve seen a great many persons receive very long prison sentences. And I’ve seen judges who relish giving them – you can see the glee in their eyes when they announce their sentence. I’ve seen other judges who do it with suppressed fury at the defendant. Others who impose a life sentence matter-of-factly, as though it’s no different from entering an order for continuance.
But with those special few, and Judge Mullen was one of them, you could see the pain in their eyes when they did it. When Judge Mullen handed down such a sentence, it gave him no pleasure. He looked as though he felt sorry for the defendant, sorry for the crime that defendant had committed, sorry that he had the responsibility of holding the defendant accountable, sorry for the whole situation. It was a recognition of the human dignity of the person before him and of the tragedy of their life. In such moments, I could see his humaneness.
That’s what I want you to know about Mike Mullen. He is a fine human being. They don’t come much better.
