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On January 10, 2020, award-winning journalist John Solomon filed a lawsuit against the Circuit Attorney’s Office and Kim Gardner for not honoring his Sunshine Law requests. Mr. Solomon had asked for “public records” pertaining to “all records of contacts between Circuit Attorney Kimberly Gardner and her staff with the following individuals and entities from Jan. 6, 2017 through July 3, 2019: Scott Faughn; Al Watkins; Jeffrey E. Smith; JES Holdings LLC; Jeff Smith; The Missouri Workforce Housing Association; George Soros; Michael Vachon; Soros Fund Management; The Safety and Justice PAC; Open Society Foundation; Scott Simpson; Katrina Sneed; Phil Sneed; State Rep. Stacy Newman; State Rep. Jay Barnes.”

The background is that Mr. Solomon, a Fox News contributor, reporter for the Associated Press, and former editor of The Washington Times, made his first of several requests for these records in July 2019. They all pertain to the prosecution of former governor Eric Greitens. He is obviously trying to ferret out evidence to see whether the prosecution was politically motivated.

The CAO denied Mr. Solomon’s request, citing that the cases against Mr. Greitens had been dismissed and were closed. They also indicated that the communications requested were “privileged work-product.”

Mr. Solomon, of course, did not buy those excuses and brought his lawsuit.

Legal wrangling ensued.

The case came to an abrupt resolution when Judge Christopher McGraugh entered an order on July 31, 2020, granting Solomon a default judgment against the CAO and Ms. Gardner. Judge McGraugh found that the CAO “was reckless, dilatory, and intentional in its refusal to file timely responsive pleadings.” He also awarded Solomon $5,000 in civil penalties and ordered the CAO to pay his attorney fees (which may amount to over $50,000 at this point).

In response, Ms. Gardner hired the Capes Sokol law firm to take over this Sunshine Law case (from her office attorneys who had been handling it). They subsequently moved to have the default judgment set aside. The court has denied the request.

Now it’s November, 2020, and although Mr. Solomon has won his suit, he’s still not gotten the public records he requested over a year ago. Mr. Solomon recently asked the Court to hold the CAO in contempt for continuing to refuse to provide the materials. Judge McGraugh denied that request, but has ordered the CAO to provide to the Court all the documents in question by December 4, 2020. Judge McGraugh will review them to see which documents, if any, are privileged and then, presumably, will release the rest to Mr. Solomon.

Unless, of course, there is an appeal by the CAO — which is standard operating procedure for Ms. Gardner. The Missouri Court of Appeals and Supreme Court are littered with frivolous writs and appeals Ms. Gardner has filed.

Ms. Gardner is not, however, just wasting litigation time. Consider the financial cost of all this: the $5,000 civil penalty against the CAO, Mr. Solomon’s attorney fees the CAO has been ordered to pay (which will only go up with an appeal), and the CAO’s legal fees now that they’ve hired a top legal firm to take over the case from the CAO’s own lawyers. Ms. Gardner expects taxpayers to foot the bill.

Stay tuned. I’m sure there is more to come.

Last week, there were seven reported cases of COVID in the City (in the Carnahan and Civil Courts Buildings). This week, so far, there are four more. Several of those cases are deputy sheriffs. And at least one grand juror has tested positive for the virus. Some others are in self-isolation awaiting test results.

I had a bench trial on a domestic assault first scheduled for Thursday, but it was continued at the request of everyone involved because the City is a COVID hotspot.

I still believe that we will not get back to jury trials or in-person hearings until after we have a vaccine readily available. Currently, that looks to be April, 2021.

Federal Judge John Ross threw out Circuit Attorney Kim Gardner’s ludicrous federal lawsuit. As you may recall, it cited the 1871 Klu Klux Klan Act and alleged that she was the target of a racist conspiracy.

https://www.stltoday.com/news/local/crime-and-courts/federal-judge-dismisses-st-louis-prosecutors-lawsuit-alleging-racist-conspiracy-against-her/article_8c9dfbfa-6f20-5586-b902-a9c689fa2afc.html

Judge Ross ruled that “[h]er complaint is nothing more than a compilation of personal slights — none of which rise to a legal cause of action.” He pointed out that Gardner presented “no specific material facts, circumstantial or otherwise, to show that Defendants acted with each other for the purpose of depriving her — or anyone else — of a constitutional right to equal protection.”

Gardner’s lawyer, Roy Austin of Harris, Wiltshire & Grannis LLP, a silk-stocking, Washington, D.C. firm, responded:  “Nothing about today’s court ruling changes the underlying merit of this case.”

I actually agree with Mr. Harris on this one! Having your case thrown out for failing to cite a cause of action demonstrates that your claim has no legal merit. And, it was clear to everyone that had no legal merit when it was filed.

Last week a judge in the 22nd Judicial Circuit had an in-person court hearing with an assistant public defender from the Death Penalty Office, an assistant circuit attorney, and normal court staff in attendance. And, now it appears that this public defender was at that time positive for COVID although s/he remains asymptomatic.

The powers-that-be in the 22nd Judicial Circuit seem to be willfully ignoring a positive case in the court house so as to not change the Supreme Court “operating phase” of the Circuit (currently at phase 1). Moreover, they are trying to keep this thing quiet. This is not the first time this has occurred. The City’s philosophy apparently is not when in doubt play it safe and be transparent but rather “damn the torpedoes” and keep silent — try to push the operating phase forward and ignore the number of positive cases if you can get away with it.

For those of us who practice in the City, keeping us in the dark as to these sorts of things only makes it impossible for us to make intelligent and informed decisions about what actions we can safely take — for example, should I have that in-person preliminary hearing? Since I cannot trust the powers-that-be to take my best health interest into account in their decisions, I need this sort of information so that I can make that determination for myself.

Unfortunately, they are trying to keep us in the dark.

I haven’t updated this blog in a while because I’m still depressed over Kim Gardner’s re-election as the Circuit Attorney for the City of St. Louis. It’s my blog and I’ll sulk if I want to.

The latest news: Joanna Byrne is leaving the CAO to go into private practice at Klar, Izsak & Stenger.

On the verge of re-instituting jury trials, the City is back to Phase 1 after two employees, one in the Civil Courts Building and the other in the Carnahan Courthouse, tested positive for the virus.

https://www.stltoday.com/news/local/crime-and-courts/st-louis-st-louis-county-courts-pull-back-reopening-amid-more-covid-19-cases/article_ce6d6185-3d7e-5acf-bac2-4f550859ad09.html

While the courts take a step back from opening, Governor Parson is trying to do a run-around Circuit Attorney Kim Gardner. He believes that Gardner is not doing enough to combat violent crime, and is trying to get a resolution passed that would allow the Attorney General’s Office to have “concurrent jurisdiction” in homicide cases. In other words, the AG’s Office would essentially take over the prosecution of murder cases in the City.

Ms. Gardner, continuing her successful poor-Kim narrative, claims this is all a political, racist, and sexist plot against her and her reforms.

https://www.stltoday.com/news/local/crime-and-courts/parson-targets-st-louis-prosecutor-saying-gardner-not-doing-enough-to-combat-crime/article_7505776b-2d36-57d2-a9f9-d089ce20279c.html

In all this chaos associated with the 22nd Judicial Circuit, I am reminded of a lesson from Book 1 of Ovid’s Metamorphoses. Chaos, he wrote, might be the best possible starting point for anything worthwhile.

The City of St. Louis spoke yesterday. We are going to get four more years of Kim Gardner. And, I’m not happy.

I chronicled many of the problems with Kim Gardner’s running of the CAO on my blog. I contributed a substantial sum of money to Mary Pat Carl’s campaign. I was also the treasurer of a Political Action Committee (PAC) that was trying to remove Kim Gardner. I did everything I could to get the word out about Ms. Gardner’s performance.

Yet, she was re-elected. A lot of well-meaning people voted for her because they want justice reform and she ran on a reform platform.

There was a lot of misinformation disseminated by dubious sources praising Ms. Gardner’s reform efforts. For example, someone calling themselves a “civil rights and criminal defense attorney” wrote this piece on the eve of the election:

http://www.stlamerican.com/news/columnists/guest_columnists/im-a-defense-attorney-and-im-voting-for-kim-gardner/article_01e1f4a6-d5e2-11ea-b5d6-1b17138558ee.html

Sounds like Ms. Gardner is doing a great job, doesn’t it? And, the praise coming from a “civil rights and criminal defense attorney” makes it seem more credible. But, as a real criminal defense attorney for the past 30 years, and as someone who is in the city courtrooms every single day that they’re open, I’ve never laid eyes on Ms. Merta. As far as I know, her only courtroom experience is when she was held in contempt of court, jailed for two days, and ordered to pay $775,000.00 to her old law firm for essentially stealing copies of that firm’s client files and refusing to return them. Oh, she’s also been to bankruptcy court because she later declared bankruptcy to avoid paying the $775,000.00.

https://www.stltoday.com/news/local/crime-and-courts/after-two-nights-in-jail-st-louis-lawyer-ordered-to-pay-775-000-to-her/article_943ed583-f03c-5816-938c-dcb257ab3be1.html

Not only is her claim of being a “civil rights and criminal defense attorney” questionable, so is her understanding of the Lamar Johnson case. Her recitation of the evidence in that case appears to be a rehash of old Tony Messenger stories. I wonder if Ms. Merta knows that Lamar Johnson has had numerous appeals, post-conviction motions, and habeas corpus petitions filed in both state and federal courts. And, that the courts have repeatedly examined his innocence claims, along with all the evidence, and found his claims to be not persuasive. Any argument can sound good if you ignore all the contrary evidence and only present your favorable evidence in the best light possible.

And, that’s true of candidates too. If you don’t hear from credible sources the true information about a candidate, how can we expect a voter to make a sound decision?

People in the courthouse know what kind of job Kim Gardner has been doing, people who have worked for her know, elected officials know, everyone in law enforcement knows, any observant person around the courthouse will know. But, that knowledge did not get out to the public.

Why?

I think there are many reasons the people who know haven’t been publicly talking –and, they’re all self-serving reasons. I don’t blame the voters for re-electing Kim Gardner; I blame the people in the know who said and did nothing.

Tomorrow, August 4, 2020, is the primary election in the City. It will determine who is going to be the next Circuit Attorney. Please get out and vote. Elect Mary Pat Carl. End the madness.

I was wrong about the photo on the Kim Gardner ad showing her marching in a protest being photo-shopped (see “False Narrative” below). I had several persons provide me with similar photos by David Carson of the St. Louis Post-Dispatch from the same protest so that I can say with absolute certainty that Ms. Gardner did participate in the “Pride is Canceled” march on June 5, 2020. The photo may have been manipulated or edited, but clearly she was there.

I have never doubted Ms. Gardner’s commitment to social justice. I believe that she genuinely feels strongly about justice reforms, about wanting to make systemic changes at the root-cause level of criminal behavior, etc. I, as a criminal defense attorney, support many of the changes Ms. Gardner wants to bring about.

Unfortunately, however, she is simply incompetent for the job of Circuit Attorney and as such won’t be able to bring about those very changes. She doesn’t have the skill set necessary to do the job. Having lofty ideals is one thing; being able to actually produce results is another. And, as the St. Louis Post-Dispatch said in its endorsement of Mary Pat Carl for Circuit Attorney, Ms. Gardner “has made a mess of about everything she’s touched.”

She claims, however, to have produced results.

These claims all sound impressive — except the claim about her diversion program we will discuss below — but are generally either untrue or misrepresented.

The CAO does not have a 97% “conviction rate.” Conviction rate is the number of total convictions divided by the total number of cases charged. What Ms. Gardner is using is total convictions divided by the total number of pleas of guilty and trials. Ms. Gardner’s approach leaves out the very large number of cases her office has dismissed prior to going to a plea or trial — numbers counted in the true definition of “conviction rate.”

While she may have “established” a Police Liaison position in her office, it’s been completely ineffectual. Other law enforcement agencies and government officials aren’t cooperating with her. That’s a huge problem.

It is true that her office may have “helped”reduce jail populations, but the brunt of that reduction comes from the new Missouri Supreme Court bond guidelines enacted last year that curtailed cash bonds. Most would have been released without Ms. Gardner’s “help.” And, while “overall crime” may be slightly down, violent crime is skyrocketing under Ms. Gardner’s watch.

Her “Conviction Integrity Unit” has floundered. It has produced only one case, that of convicted murderer Lamar Johnson, whose conviction she has sought to have overturned. Her request was denied in the Circuit Court, and then she lost again in the Court of Appeals. Mr. Johnson remains in prison serving his life sentence.

My favorite of her listed accomplishments is that she claims, “Less that 1% of completed misdemeanor and felony diversion participants have not been charged with additional crimes.” Yes, you read that right. In other words, 99% of the participants have been charged again! Clearly that’s not what she meant in this ad, but that is what it says. What Ms. Gardner doesn’t say in the ad is that the diversion program was founded not by her but by the previous Circuit Attorney, Jennifer Joyce.

I will give her all the credit for her decision to not have her office charge possession of marijuana cases that involve less than 100 grams.

These are her own self-determined social justice accomplishments in the four years she has been Circuit Attorney. Just taking into consideration her own list of accomplishments, how do you think she has been doing?

Now, weigh those against the rest of her performance as Circuit Attorney — as chronicled in this blog and in the news — which can only be described as a total disaster.

It’s five days until the election. God save us.

https://www.kmov.com/news/kim-gardner-says-shes-received-racist-threats-after-filing-charges-against-mccloskeys/article_f86ec24e-cdff-11ea-ab48-bf3331bd04dd.html

Kim Gardner claims she is the victim of yet another “racially, sexist motivated attack.”

Interestingly, there is no mention of a police investigation into these alleged threats, which if they were true, would be hate crimes.

Why is this news? Because an election is coming on August 4, and Ms. Gardner has to run against her dismal performance for the past four years. The St. Louis Post-Dispatch has finally gotten up the nerve to expose her “well-documented incompetence,” in endorsing Mary Pat Carl for Circuit Attorney.

https://www.stltoday.com/opinion/editorial/editorial-we-recommend-mary-pat-carl-for-st-louis-circuit-attorney/article_a5428f06-e41c-502d-88ff-ec2eb0ccc20d.html

While it’s obvious to anyone in the courthouse that Ms. Gardner “has made a mess of almost everything she has touched,” Gardner’s only defense is to play the same tiresome card she always uses when she is criticized: I’m a victim of a racist, sexist attack.

The poor-Kim narrative is a rhetorical trick, a tactic she and her supporters consistently use to deflect any examination of her performance or decisions away from that particular issue onto a bogeyman. I find this narrative to be repulsive for two reasons. First, it avoids answering the hard questions — which would only portray her in a very bad light. And second, it attempts to prey on our best natures, on our empathy with real victims of sexism and racism, for her own political aspirations.

https://en.wikipedia.org/wiki/Victim_playing

“Manipulators often play the victim role (‘woe is me’) by portraying themselves as victims of circumstances or someone else’s behavior in order to gain pity or sympathy or to evoke compassion and thereby get something from someone,” according to Wikipedia. “Caring and conscientious people cannot stand to see anyone suffering, and the manipulator often finds it easy and rewarding to play on sympathy to get cooperation.”

Wikipedia goes on to say, “While portraying oneself as a victim can be highly successful in obtaining goals over the short-term, this method tends to be less successful over time.”

Let’s hope so. We will see on August 4.