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Remember when Kim Gardner got into all kinds of hot water for refusing, in a truly memorable combination of incompetence and dishonesty, to provide various items of discovery to the Greitens’ defense team? Well, she’s at it again.

As it turns out, some time ago Judge McGraugh ruled against Kim Gardner and the CAO in a “Sunshine Law” request case, imposed a $5,000 penalty, and ordered her to pay the attorney fees of the plaintiff.

https://www.stltoday.com/news/local/crime-and-courts/fox-news-contributor-wins-judgment-in-effort-to-obtain-records-from-st-louis-prosecutors-office/article_31a2bcf6-96c1-5e38-8142-0425e5386cfc.html

To put it in context, all this revolves around the CAO not filing an answer to a petition requesting that the court order the CAO and Kim Gardner to turn over various materials pertaining to the Greitens case (after that case had been dismissed). Specifically, the request asked for materials that might shed light on whether the prosecution of Greitens was politically motivated.

The CAO had not responded to the initial Sunshine request, and subsequently a lawsuit was filed asking the courts to order her to follow the law. In keeping with the tradition of the CAO, no response was filed to the lawsuit. The court (Judge McGraugh) then gave the CAO extra time to file an answer, but they still filed nothing. They could have answered the petition and avoided the default by simply writing “plaintiff is not entitled to the requested materials as they pertain to a closed file” on a blank memo and filing it with the court. But, they did nothing. In civil cases, if you don’t file an answer, the plaintiff will get a default judgment. And, that’s exactly what happened.

The CAO responded by asking Judge McGraugh to set aside the default judgment. Courts will do that when the default is caused by some sort of good-faith mistake. In this instance, however, Judge McGraugh found there was no such mistake: it was, in his words, a “reckless, dilatory, and intentional refusal to timely file a responsive pleading.” Gardner was ordered to turn over the requested materials.

You’re not thinking she turned them over, are you? Not so fast, Sonny Jim. She chose to appeal the court’s ruling and order in an attempt to avoid having to surrender potentially career-damaging materials.

As her office had proved itself unable to successfully handle this simple civil matter in the first place, she ultimately decided to not to try do the appeal in-house. Instead, she hired an outside, high-powered, Clayton-based law firm, Capes Sokol, to work to get her out of the mess that she created. Sometimes, though, you are in too deep to be saved.

https://www.stltoday.com/news/local/crime-and-courts/appeals-court-upholds-ruling-that-st-louis-circuit-attorney-violated-sunshine-law/article_f85e60ec-e6b4-5132-ab5d-92b45a7ef54c.html

The Missouri Court of Appeals just decided that “the trial court did not err in finding (Gardner’s) failure to file a timely response to (plaintiff’s) amended petition was not the result of an unexpected or unavoidable hindrance, accident, or mishap, but was instead the result of (Gardner’s) carelessness, inattention, and deliberate disregard.” The Court of Appeals went to far as to say that Gardner’s appeal had “no merit.” Slap.

They too ordered Kim Gardner to turn over the requested materials.

You’re not thinking she is going to turn them over, are you?

“We are disappointed with the Court’s decision, and intend to investigate and pursue the Office’s right to have the decision reviewed.” Yup, that’s right — another appeal.

I don’t know if we will ever get to see these materials or get a glimpse “behind the curtain.” Regardless, what I find significant is that Kim Gardner created this whole mess through her incompetence and her incompetence continues to drive it forward.

I was chided today by an assistant circuit attorney for my lack of recent postings. My excuse was “it’s difficult to find anything meaningful to post about when your blog is about what’s happening in the 22nd Judicial Circuit and nothing is happening!”

Yeah, some assistant circuit attorneys have come and gone, the CAO has a new Chief Trial Attorney, Marvin Teer, and jury trials have been canceled again. But things in the 22nd Judicial Circuit have pretty much been at a standstill.

That standstill has of course created its own problems. For example, numerous riots in the Justice Center.

https://www.stltoday.com/news/local/about-120-st-louis-detainees-headed-to-workhouse-after-another-disturbance-at-downtown-jail/article_a9ff1dec-1f6c-59a2-ba24-b9d0a3e0a3a6.html

But my hope is that 2022 will provide some much-needed drama. Popcorn-worthy drama.

I’m hoping we get to see Circuit Attorney’s Kim Gardner’s disciplinary hearing on the allegations that she failed to disclose evidence to the defense team in the Greiten’s case, then lied to the court about it, and then repeated her lies to the Office of the Chief Disciplinary Counsel, which is scheduled for late February.

https://www.stltoday.com/news/local/crime-and-courts/disciplinary-hearing-for-st-louis-circuit-attorney-set-in-february-2022/article_ac05e6ff-bfd3-5ff6-995d-b1c7a1eea641.html

That should be entertaining. And, then there is her investigator’s perjury trial scheduled for March.

https://www.stltoday.com/news/local/crime-and-courts/march-2022-trial-date-set-in-tisaby-perjury-case/article_7854ba09-6d86-56e5-b99f-6ae248063861.html

The added bonus is that with these we will likely get the displays of support (typically on the court house steps) by clueless but passionate people who will insist that this is all the result of a racist conspiracy by the powers-that-be to stop the wonderful justice reforms that Kim Gardner is bringing us. God Bless Them.

Yes, 2022 could put on a really good show. Keep those fingers crossed.

“Speaking of Gardner, she is a strong presence in this Republican primary. Greitens was in the end stages of being ousted by a Republican coup when Gardner intervened and charged him with a crime. Her handling on that matter was so inept that charges were dropped against Greitens and issued against her investigator.” Bill McClellan

https://www.stltoday.com/news/subscriber/mcclellan-advice-for-democratic-voters-in-a-trump-state/article_9ed0d956-5d61-5c17-84fd-fa0f560ae3c8.html

Tony Messenger, the St. Louis Post-Dispatch columnist, often writes about what he sees as the various injustices in the justice system. In 2019, he won — deservedly — a Pulitzer Prize for his “bold columns that exposed the malfeasance and injustice of forcing poor rural Missourians charged with misdemeanor crimes to pay unaffordable fines or be sent to jail.”

https://www.pulitzer.org/winners/tony-messenger-st-louis-post-dispatch

I think he did us all a great service in bringing those practices to light.

As someone who has practiced and continues to practice in the criminal justice system, I encounter things almost daily in that system that can be criticized and could be improved. But, I also recognize that the issues surrounding many of those problems are complicated. Most of these problems are not as obvious to the casual observer or as simple to solve as that problem Messenger won the Pulitzer for reporting.

Messenger’s latest crusade has been focused on various persons who have been convicted of murder, who have maintained their innocence, and who have the support of a “reform prosecutor.” For example, he has championed the release of Lamar Johnson who was convicted by a St. Louis City jury of murder in 1995, who has maintained his innocence and has the support of the Midwest Innocence Project and our own reform prosecutor, Circuit Attorney Kim Gardner.

https://www.stltoday.com/news/local/columns/tony-messenger/messenger-delays-and-dismissals-in-innocence-cases-lead-to-dark-day-for-justice-in-missouri/article_e9e84dd7-f33c-5b6e-9b15-76310a15f47a.html

And to be fair, there does appear to be some significant questions regarding Johnson’s conviction — it was based on the testimonies of a single eyewitness and a jailhouse snitch, and now that eyewitness has recanted, other persons have confessed to the crime, etc. Messenger has reported on some of this.

One of my concerns is that Messenger hasn’t been reporting the full story. He is writing as an advocate — advancing his narrative that Lamar Johnson is innocent and that a corrupt and rigid system is conspiring to keep an innocent person in prison — and presenting only some of the available evidence to support that narrative. There is much more to the story. For just one example, he leaves out that Johnson’s innocence claims have already been reviewed and denied by both state and federal courts numerous times.

But a more serious concern I have is that Messenger appears to misunderstand the very foundational principle of our criminal justice system. For example, Messenger writes that he is appalled that a St. Louis City Circuit judge, then a Court of Appeals, and then the Missouri Supreme Court all denied a motion for new trial that Circuit Attorney Gardner filed on behalf of Lamar Johnson. He says this shows that the judges found that “[p]rocess . . . was more important than justice.” No, Tony, that’s not it — that’s not it at all. What the Supreme Court justices understand and what you apparently do not, is the that the process itself (“due process”) is justice, and not some individual result.

Kim Gardner in filing a motion for new trial in the Lamar Johnson case after 25 years was using the wrong process (going about it the wrong way). That particular motion has a very specific time limit (a maximum of 25 days after a verdict is rendered). When it was first filed by Gardner, literally every criminal defense lawyer I know thought it was either a legal blunder or some sort of political move or both. No one who understood the criminal justice system thought that motion would — or even could — be granted. It had to be denied. Moreover, a circuit court loses jurisdiction to even grant any motion 30 days after the judgment is final. Honestly, this was a no-brainer.

Yet, Messenger seems to think that we should just disregard the rules of criminal procedure in order to get the result we want. Stop and think about that. Think about the implications of that. That is not justice — that is the very antithesis of justice. It is mob rule. It is autocracy. I decide what is or is not justice. With that perspective, the rule of law goes out the window. While it might seem benign in this case (I want the person I believe is innocent released), what about the situation involving a person you think is guilty? Damn the rules? What do we need a trial for, can’t we simply trust Gardner to decide for us?

Due process is a safeguard against all of that.

Frighteningly, Messenger’s view of how the criminal justice system should work (result over process) also seems to reflect the views of Circuit Attorney Kim Gardner, the self-proclaimed “minister of justice.” Her use of the motion for new trial is an example of how she wants courts to bend or ignore the rules to get the result she wants. Her present battle with the Office of The Chief Disciplinary Counsel to keep her law license stems, in my opinion, from this misguided result-oriented view of “justice.” She believed Greitens was guilty, and she wasn’t going to be bound by doing things (the process) the so-called right way (i.e., legally and ethically).

If Messenger had bothered to actually read the Supreme Court opinion in the Johnson case that he criticized, he would have seen that the judges were aware of the problems with the Johnson conviction, but they all recognized that the Circuit Attorney was using the improper procedure to challenge that conviction. One justice suggested the use of an already existing process (a writ of habeas corpus) and the Chief Justice himself wrote that the legislature might want to consider providing an additional mechanism for challenging troublesome convictions. Which is precisely what the legislature did — enacted a law to provide a process prosecutors can use to have convictions reviewed.

https://www.stltoday.com/news/subscriber/messenger-missouri-legislature-gives-prosecutors-a-path-to-seek-justice/article_faa7b301-5682-5390-9f38-61ca9df62f49.html

That’s the system working at its very best to provide more due process to citizens.

I just wish Messenger better understood the criminal justice system so that when he gets on his soapbox to right injustices he actually knew what he was talking about. When I read his opinion on legal matters, I often feel like I’m listening to a sports commentator that really doesn’t understand the game or its rules.

• 

Emily Heidebreder, the Assistant Chief Warrant Officer for the CAO and the glue that was holding the Warrant Office together, has apparently quit — without another position already in place — as of August 6, 2021, for being unappreciated and underpaid (these things do tend to go together).

Rumor has it that when Ms. Heidebreder asked for a raise, Kim Gardner refused and replied, “What exactly do you even do around here?” Well done, Kim Gardner.

• 

www.madwomanintheforest.com

The St. Louis City Grand Jury’s latest report is extremely critical of the way the Circuit Attorney’s Office handles their cases.

https://www.ksdk.com/article/news/investigations/grand-jury-report-st-louis-circuit-attorney-kim-gardner-office/63-3f7be114-9e26-47e7-a6da-5f30e4853c21

Is anyone surprised by this?

Kim Gardner’s response: “This noncompliant report is part of a continued, relentless attack on the integrity of the Circuit Attorney’s Office.”

Is anyone surprised by this?

Valid and specific criticisms by an independent body are summarily dismissed. No changes are forthcoming.

Expect more of the same.

This morning I had a frantic call from the mother of one of my clients who is presently detained without bond and in the City with a pending, very serious felony. She said, “They are trying to send my baby to the workhouse, and the mayor already said on the news that the living conditions there are horrific . . . please don’t let them send him there. Please!”

I explained to her what precipitated the transfer.

https://www.stltoday.com/news/local/crime-and-courts/st-louis-jail-inmates-stuffed-trash-and-debris-in-locks-to-escape-cells-in-latest/article_a290dd44-0838-5575-aede-2ad42e6453e0.html

However, I could not explain to her the rationale of the City or alleviate her fears. If the Medium Security Institution, the workhouse, is a hell hole as Mayor Jones has repeatedly said it is — with such deplorable living conditions that it needs to be closed, then why is her administration moving persons back to that facility? Does the fact that the Justice Center has its own problems suddenly make the living conditions at the workhouse better?

Well, now it seems that the City is suggesting that the workhouse isn’t so bad after all. “City officials draw a distinction between the front portion of the facility built in 1966 and the units built in the 1990s. Detainees are now being housed in the newer part of the workhouse, which previously underwent renovations.”

But if that were the case, what was the need to close the entire workhouse? Why not only close those portions that weren’t renovated? And why haven’t we heard that distinction before from Mayor Jones? As one of my favorite assistant public defenders from the past, Talat Bashir, used to ask witnesses, “Were you lying then, or are you lying now?”

What is clear, I think, is that the mayor is not really concerned about the lives of these confined persons. This is the same Mayor Jones that had all the federal detainees removed from the workhouse and Justice Center to make room for the City detainees (even though the feds asked to continue to use the workhouse as a federal detention center), resulting in many federal detainees being transferred to faraway places like Indiana or Kentucky.

https://www.stltoday.com/news/local/crime-and-courts/hundreds-being-held-in-kentucky-indiana-jails-on-st-louis-charges/article_1119cc84-f687-54a6-94f1-4bcdbbb3f70d.html

As a St. Louis Post-Dispatch editorial pointed out, the workhouse issue is really not about making the lives of persons who are confined better — it is about being able to claim “political victory.”

https://www.stltoday.com/opinion/editorial/editorial-transferred-workhouse-inmates-suffer-so-others-can-claim-political-victory/article_069ef2a9-f4a5-506a-a1c3-d3d84d17eab6.html

The sad reality is that mayor’s political victory has not made the lives of the confined any better. It has made their lives worse. The measure of a policy isn’t in its intention but in its results.

Returning to my phone call with my client’s mother, as I spoke to her, for some reason all I could think about was this sketch:

Kim Arshi, one of the best and most experienced of the assistant circuit attorneys, resigned from the CAO Tuesday.

While she should have been enjoying maternity leave, her name was being dragged through the mud for repeatedly not appearing in court on a murder case assigned to her and having the ignominy of it being dismissed by a judge.

https://www.stltoday.com/news/local/crime-and-courts/no-show-st-louis-prosecutors-trigger-dismissal-of-2020-murder-case/article_6be57257-6f1a-5640-a40e-57436c0d3789.html

This whole mess, as it turns out, was not Ms. Arshi’s fault, and is certainly not a reflection on her conscientiousness. In fact, it’s doubtful Ms. Arshi even knew about this case because it was assigned to her after she began maternity leave.

https://www.stltoday.com/news/local/crime-and-courts/assistant-prosecutor-in-st-louis-was-assigned-nearly-30-felony-cases-while-on-leave/article_86592860-7bbd-5399-9c88-db5b778754b3.html

The CAO, it appears, had been assigning cases to her while she was out on leave. Approximately 30 very serious felony cases, including a death penalty case, were transferred to her while she was away, knowing full-well that she wasn’t available to do anything on those cases. And, the CAO then didn’t even bother to take steps to provide court coverage on these cases!

While the press is just getting wind of this, many of the judges and practitioners in the 22nd Judicial Circuit were already aware this was going on. It is commonly believed that the cases were not assigned by the CAO to Ms. Arshi by mistake, but rather something more devious: these cases were being assigned to Ms. Arshi precisely because she was on maternity leave as part of a plan by the CAO. With the CAO being so understaffed, assigning cases to someone on maternity leave would effectively result in all those cases being placed on hold until Ms. Arshi returned, and so other assistant prosecutors would not have their workloads increased by having them parceled out to them. Presumably after Ms. Arshi returned, all those cases could then be reassigned to these other prosecutors, who would then be able to seek continuances to allow them time to prepare using the excuse that they had just been assigned the case.

That might seem like a clever tactic by the CAO to game the system except it deprives the accused of their rights to due process and to a speedy trial, and interferes with the administration of justice. Not to mention it throws one of their finest under the bus.

Fox News

It seems like a good time to restart this blog. The courts are now beginning to open up following the Covid-19 pandemic closures, and that means things are happening in the 22nd Judicial Circuit.

Not that things ever stopped happening — lots of assistant circuit attorneys departed for various reasons over the last year, for example. I mention that specifically because “turnover” has been one of the CAO’s biggest problems since Kim Gardner took over leadership (and I use that word in an ironical sense) of the Circuit Attorney’s Office. Initially, Kim Gardner and her supporters used the turn-over-is-natural-in-a-new-adminstration excuse when almost every assistant trial attorney that was hired by her predecessor, Jennifer Joyce, left the CAO. When it was pointed out that some turnover was expected but that this level of exodus was unprecedented, Ms. Gardner blamed the attorneys who left: they just couldn’t work for a “reform prosecutor” bent on retooling the system. The fact that quite a few who left are now working in St. Louis County as prosecutors for another “reform prosecutor” belies that argument.

By my count, Kim Gardner has turned over her office at least three times in 6 years. There is presently no trial attorney left who was there before Kim Gardner took office.

If you Google “what are the signs of a poorly managed office,” you will see that the most prominent indicators are “employees fleeing” and “employee retention.” This only makes common sense: when employees are happy and satisfied with their work environment, they don’t leave. They leave, and in droves, when the workplace environment is toxic. The Circuit Attorney’s Office is a case study in poor management.

So what? You may wonder what’s the big deal if Kim Gardner is a terrible manager and runs a really poor office.

One result is you get murder cases dismissed by a judge because no prosecutor bothers — repeatedly — to show up to court or provide discovery to a defendant (as mandated by law).

https://www.stltoday.com/news/local/crime-and-courts/no-show-st-louis-prosecutors-trigger-dismissal-of-2020-murder-case/article_6be57257-6f1a-5640-a40e-57436c0d3789.html

Similarly, very serious cases are dismissed and charges then refiled because the new — because of turnover — prosecutor isn’t ready.

https://www.stltoday.com/news/local/crime-and-courts/st-louis-prosecutors-to-dismiss-and-refile-another-murder-case/article_00007592-fc29-5367-b07d-d7dc87e63662.html

Fortunately, the management and leadership problem with the CAO is beginning to be reported.

https://www.stltoday.com/news/local/crime-and-courts/dismissal-of-st-louis-murder-cases-stems-from-problems-in-prosecutor-s-office/article_00007592-fc29-5367-b07d-d7dc87e63662.html

It’s important to recognize, however, that the consequences of this level of turnover is not limited to a few isolated instances of attorneys not being prepared or not showing up. A more significant problem with turnover, one that isn’t as obvious or dramatic as the examples above, is the lack of knowledge and experience overall in the CAO. A good prosecuting attorney’s office needs skilled trial attorneys to handle cases, and that sort of skill is developed over time through experience. There is no shortcut. It takes, among other things, prosecutors who have prepared and tried many, many trials, typically by starting off with lesser felonies and progressing to more serious crimes as their experience grows. From that experience, they learn how to work up and prepare complex cases; how to cultivate and maintain relationships with witnesses and victims so that they will come to court when required; and, with time, will come to see “what a case is worth” (which takes into account the likelihood of conviction if the case went to trial, the sentence a judge or jury would impose if convicted, etc.) to allow effective and efficient plea bargaining. Without institutional knowledge and experience, all of that gets lost — and it translates into poor overall performance.

Another consequence of a toxic office environment is the effect it has on recruitment. Word has gotten out in the legal community of Kim Gardner’s ineptitude and the situation within the CAO. The CAO has been having a great deal of difficulty filling vacant positions. That office is routinely significantly understaffed. The CAO used to be, before Kim Gardner, the premier prosecutor’s office — an office that has produced some of the finest career prosecutors, a great many of whom moved on to the Attorney General’s Office or United States Attorney’s Office. It used to be an honorary distinction to have been an Assistant Circuit Attorney. Now, attorneys working in that office worry that it will be a stain on their resume.

I am not trying to denigrate the attorneys who presently work in the CAO. Personally, I have much admiration for them. They are working under awful conditions, trying to keep the ship afloat, overworked, with little guidance or assistance or training, and being poorly paid for their efforts. God bless them!

Unfortunately, things are not going to improve – not until there is a change in the leadership of the CAO. And that’s because all of the CAO’s problems stem not from the judges or the defense attorneys or phantom racists out to get Kim Gardner: they all stem directly from the management of the CAO by Kim Gardner.

Kim Gardner and her office has been disqualified and removed by Judge Clark as the prosecutor in the Mark McCloskey case because her political fund-raising emails gave the appearance “that she initiated a criminal prosecution for political purposes.”

It is expected that Judge Stelzer will follow suit in the Patricia McCloskey case. My educated guess is that once the case is transferred to a prosecutor from a different jurisdiction, it will be reviewed, and a dismissal will follow.

The St. Louis Post Dispatch recently ran an editorial entitled “Another self-inflicted wound undermines Gardner’s reform agenda” citing this ruling.

https://www.stltoday.com/opinion/editorial/editorial-another-self-inflicted-wound-undermines-gardners-reform-agenda/article_53afdc6f-ad48-5849-b2f4-f69d22510840.html

The editorial essentially lists some of Ms. Gardner’s more significant and expensive “grandstanding sideshows and time-consuming distractions” (Greitens, the KKK lawsuit, almost her entire staff leaving, etc.). It calls on Ms. Gardner to “better prepared and a more effective advocate for crime victims.”

Frankly, that’s not going to happen. We are only going to get more of the same. The past four years have only demonstrated that she is incompetent.