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.
Even the victims’ family sees the truth and blames Gardner.
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.
