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 22nd 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.
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.
Yesterday afternoon I had two bench trials set in Division 13. When I walked into court, two assistant circuit attorneys, one for each case, were already there waiting for me. However, neither of my clients was there. I didn’t expect them to be since they were both in federal prison. That’s because after each of my clients was charged in state court with gun and drug charges, the U.S. Attorney’s Office charged them federally for the same conduct. This is not double jeopardy, as it involves two different governmental entities.
Most state prosecuting attorney offices, like St. Louis County, simply dismiss pending state charges after a person is charged and convicted in federal court for the same conduct. But not Kim Gardner. She’s the reform prosecutor for the City. Her office wants concurrent prison time – so that her office can log a conviction.
How these types of cases are handled in the City varies. Sometimes the cases are set for bench trials, and the court will order the state to produce the defendant. When that doesn’t happen, the court will entertain a motion to dismiss. One of my cases in Division 13 was dismissed for this reason. The other was continued and a new bench trial date set, as the state felt it had not made a sufficient attempt to procure my client.
Another way these cases are handled occurred earlier this week in Division 17. My client had been charged with being a felon in possession of a firearm by the state in 2018. The feds then picked up his case. He had already completed his federal prison time and was now on federal supervised release (a period of supervision by the U.S. Probation Office that follows release from prison). In that case, my client pled guilty and was sentenced to time in state prison, but the execution of the sentence was suspended (SES), and he was placed on two years of unsupervised probation.
I mention these cases because they demonstrate on a small level how stupidly the CAO wastes allocates resources. The CAO trial division is vastly under-staffed – perhaps at one-third full strength in number of attorneys, and even more so in strength of experience. One assistant circuit attorney recently told me he had 500 open minor felony cases. No attorney can handle that caseload. It would take at least 3 attorneys to competently manage that number of cases.
It would seem to make sense to get rid of cases and reduce the CAO caseload by, among other things, dismissing cases where the defendant was also charged and convicted in federal court. Then assistant prosecutors would not have to spend timedoing the necessary workthat the case requires: preparing writs, calling the U.S. Marshals Office, contacting witnesses and otherwise preparing the case for a bench trial, making court appearances, etc. They could use that time and their efforts on more important and consequential matters. And, it would not waste the courts’ time, the effort and cost in transporting confined individuals, etc.
The problem with a prosecutor having too many cases is that they only have so much time to spend effectively working on those cases. Even minor felony cases require that certain necessary (i.e., bare minimum) things — reviewing discovery, providing it to the defendant, contacting witnesses, endorsing witnesses, providing the defendant with a plea recommendation, etc. — need to be done. As the cases get more complex, even more time and energy need to be expended to prepare them.
After my cases were resolved in Division 13, Neal, Jonathan, and Peter Bruntrager, a family of criminal defense attorneys, arrived for a pretrial and motion hearing on a double manslaughter case. They told me that the case was set for trial in two weeks. Their client was confined without bond. They were having a hearing because they were frustrated in their attempts to represent their client: the state had not yet endorsed witnesses (provided the names of witnesses it intends to call at trial), had failed to provide full discovery, and had been disingenuous on a number of occasions (for example, it told the court at a prior hearing that the medical examiner’s report hadn’t yet been prepared when it had in fact been prepared months earlier).
I decided to stay and observe this hearing because is seemed all too familiar to what I was going through with a similar case.
The prosecutor at the hearing in Division 13 defended his failure to provide discovery (DNA analysis and 911 tapes) by arguing to the judge that he did not possess those materials and couldn’t provide to the defense items he didn’t have. The court explained to him that the Missouri Supreme Court has unequivocally held that Rule 25.03 of the Missouri Rules of Criminal Procedure “imposes an affirmative requirement of diligence and good faith on the state to locate records not only in its own possession or control but also in the control of other governmental personnel.” The assistant circuit attorney seemed surprised by this news.
When the Court asked the assistant circuit attorney why he hadn’t endorsed witnesses for trial, he told the Court (and I’m not making this up) that it was a matter of trial strategy — he believed that he did not need to endorse witnesses until 10 days before trial and he was keeping them in the dark as trial strategy. The Court pointed out that providing the defense with a list of witnesses was required by Rule 25.03(b)(2) and that the rule provided the state to do so within 14 days after the indictment was filed (not ten days before trial).
Unsurprisingly, the Court found on the record that the assistant circuit attorney had not demonstrated diligence and good faith in providing the defense with discovery materials it is required by law to produce. The case was continued, and the defendant was released on bond.
What this hearing told me, as an experienced trial lawyer, was that the prosecutor in that case simply was not prepared for trial. He didn’t have a witness list because he hadn’t worked up the case sufficiently to know whom he intended to call at the trial. And so he couldn’t possibly have gotten any subpoenas served on witnesses that he would need for the trial (and as it turned out, the medical examiner in that case – who had not been served with a subpoena – was scheduled to leave town on the Tuesday of the trial week). He did not have the 911 tapes or the DNA that could help him secure a conviction.
Yesterday in Division 13, I saw three assistant circuit attorneys each handling a different case. Two of them had cases that should not have even been prosecuted. One of those cases was dismissed by the court, and the other will soon be dismissed. The third case involved a double homicide where the judge found that the prosecutor had failed to exercise diligence and good faith and so continued the trial and released the defendant on bond.
This was just a typical Wednesday in the 22nd Judicial Circuit since Kim Gardner became the Circuit Attorney.
