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 time doing the necessary work that 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.
