St. Louis City Criminal Justice Blog

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.

One thing you can say about Kim Gardner is she doesn’t let minor distractions get in the way.

The Circuit Attorney’s Office is crumbling around her. There is a pending quo warranto writ filed by the Attorney General to remove her from office for blatant incompetence. There is a bill going though the state legislature to effectively take away her handling of serious criminal cases and give them to an appointed prosecutor. Her criminal trial staff, presently operating at fewer than half the necessary attorneys, will soon be losing its Chief Trial Assistant and at least three other of her assistant prosecutors who have recently given notice. The state auditor is auditing her office. Many of her political allies have distanced themselves from her. There have been numerous calls for her to resign. And, she has a 23% approval rating among City voters.

What do you do when you’re caught in the midst of all this?

Well, if you’re Kim Gardner you host a forum to discuss her ideas on criminal justice reforms. It’s this Thursday. Cake may be served.

While I understand and appreciate the efforts of both the Attorney General (AG) and the state legislature to remove Circuit Attorney Kim Gardner, I find their efforts problematic.

Any informed, thinking person can only believe she has been a complete disaster as the chief prosecutor for the City. The AG’s amended petition in support of a quo warranto writ simply demonstrates with numbers how poorly the CAO is operating. For example, the courts in the past six years have dismissed 2,735 cases due to the CAO either not providing timely discovery to the defendant or not being ready for trial. For context, that’s more cases than the CAO issued last year! Apparently another 9,000 cases were dismissed by the CAO over the past six years. And, there are around 3,500 warrant applications (i.e., potential cases) that have been awaiting the CAO to decide whether or not to issue charges.

It’s also clear that the number of criminal cases issued by the CAO has precipitously declined: in 2017, 4,498 criminal cases were issued; in 2018, 4,386 cases; in 2019, 3,961 cases; in 2020, 2,155 cases; in 2021, 1,901 cases; and, in 2022, 1,974 cases. St. Louis County, in contrast, issued 10,290 criminal cases in 2022. As the petition points out, this is not because of a dramatic decrease in crime in the City.

From 2017 through 2020, Kim Gardner has “either fired, or accepted the voluntary resignation of at least 85 assistant circuit attorneys.” The very experienced trial staff of over 40 attorneys she inherited from Jennifer Joyce has been replaced by approximately 18 attorneys. In 2017, the salaries for the regular staff of the CAO was $5,143,836.75; in 2022, the salaries for the regular staff was $2,751,103.63. This trend demonstrates the toxicity of the CAO under Gardner. She can’t keep good people. Her mismanagement and the crushing caseloads carried by the assistant circuit attorneys (having fewer than half the needed staff) forces them out. And, as the experience and number of the assistant circuit attorneys decline, so does the overall performance of the office. You can’t take a great sports team, cut the team in half, force out the best players, and expect great results.

Of course the petition goes on to list many other issues — many of which I’ve previously blogged about — however the numbers themselves tell you all you need to know.

However there are serious issues with a quo warranto writ to remove Gardner. I understand the writ to be a device to remove an elected official who is not performing their elected duties. The CAO is running, it is working. Kim Gardner is doing her job. She is just doing it extraordinarily poorly. So, I don’t think the writ should succeed. And even if it did remove her from office, that will just create other problems.

Nor do I think having a second, independent prosecution office in the City (as the legislature intends) is a good idea. Similarly, it would create a whole host of other problems.

The real issue in attempts to remove Gardner is they’re both an ends-justifies-the-means approach. Both the AG and the legislature recognize how bad the situation is with Gardner running the CAO, and they are trying to use whatever means they can to remove her. I totally agree with their assessment of the situation but disagree with their approach.

One of the bedrock principles of law in our country is that the means is more important than the result itself. It seems in this era of political and cultural upheaval we have lost sight of this. How we go about trying to achieve justice, for example, is more important than any individual result. Once we start rigging the system to get the results we want, there will no longer be justice.

So, my plan to remove Kim Gardner is this: vote her out of office. I think this is the only legitimate way to remove her. Yes, the City will pay a price until we do vote her out. That is called “accountability.” We voted her in. Now we have to pay for our stupidity. Thomas Jefferson observed, “The government you elect is the government you deserve.”

Marvin Teer, the Chief Trial Attorney at the Circuit Attorney’s Office (CAO), is leaving at the end of this month after serving in that role for approximately two years. When Marvin came aboard the already floundering ship, we in the 22nd Judicial Circuit — judges, assistant prosecutors, and defense attorneys — were hopeful. Marvin had been a trial prosecutor with Jennifer Joyce and had handled serious cases, and later he became both a municipal and administrative law judge. He had the chops. He came back to St. Louis from retirement to help Kim Gardner. If only Gardner would give him the authority to do what we knew he could do, and then didn’t get in his way, we thought Marvin might turn things around.

He was hired by Gardner after the CAO had just lost two important battles in dealing with their mounting caseload (caused by having insufficient trial staff). The CAO had gotten caught assigning many serious cases to an assistant prosecutor who was out on maternity leave (a not-so-clever trick to reduce the caseload of its other prosecutors). When this didn’t work, the CAO tried to farm out cases to hand-picked, out-state prosecutors, citing “a conflict of interest.” As there was no genuine conflict of interest, only a backlog of cases, a judge told them Missouri law wouldn’t allow that. (Interestingly, while statutes do permit any prosecuting attorney’s office that needs help to ask the Governor or Attorney General for assistance, Gardner had never sought their aid — presumably because in doing so, she would lose control over how those cases were handled.)

One of the cases involved in both fiascoes was the Dorn murder case. Two young men were charged with being involved in the murder of retired police Captain David Dorn: Stephan Cannon was charged with shooting Dorn, and Mark Jackson was charged with being his accessory. I represented Jackson.

During a period of widespread looting after George Floyd’s death in Minnesota, Jackson had driven Cannon to and from a pawn shop late at night to engage in looting. Video from the store’s interior showed my client inside with several other persons when the shooting started outside. As they all ran toward the door in a panic, Jackson tripped and was trampled by the others fleeing the store. He dropped his debit card in the confusion. When he finally was able to get to his car, he met up with Cannon, and they left the scene together. Jackson didn’t know Cannon was armed or had shot anyone until Cannon later told him. The debit card led the police to Jackson, and he was charged as Cannon’s accessory to the murder.

There was no video footage of the shooting itself, and no witnesses to the actual shooting. Dorn had gone to the pawn shop to protect it from looters and had been shot. A video of him lying on the pavement dying had been uploaded to social media. Marvin was assigned to this very high-profile case. He wanted to convict the shooter and recognized that he needed Jackson’s testimony — that he was with Cannon and that Cannon had confessed to him — to secure a conviction. And so a deal was struck for Jackson to testify against Cannon. The deal called for the murder charges to be dropped, and my client was to receive probation on burglary charges in exchange for his testimony.

Marvin did go on to convince a jury to convict Stephan Cannon of murder in the first degree, and Cannon’s conviction rested in large part on the testimony of my client. Dorn’s wife, Ann Dorn, said outside the courthouse after the verdicts, “I want to thank Marvin Teer for doing a phenomenal job in prosecuting the case.” This is what we expected Marvin to deliver when he came to help Kim Gardner.

On the morning of Jackson’s plea, the same week the jury found Cannon guilty, I received a telephone call from Marvin. He was extremely upset. Gardner had just told him not to drop the murder charge against Jackson — to not go through with the deal. This was after Jackson had met with prosecutors and told them about his involvement, after he had been deposed by Cannon’s defense attorney, and after he had testified in court to secure a conviction. Marvin, almost in tears, told me that he was going to continue “working on Kim” and would update me.

I called our plea judge to update her on the situation and then began researching judicial enforcement of a plea agreement. But I didn’t take any of the case law I found with me to court. As I thought about the situation, I realized I didn’t need a judge to enforce the deal. Marvin, above everything else, is an honorable man. I knew in my gut that he would go through with the agreement, regardless of whether he received Gardner’s approval. I suspect if Gardner had still refused to abide by the deal, he would have gone through with it and then resigned.

In the end, Marvin was able to convince Gardner to follow through on their agreement. Jackson’s murder charge was dismissed, and he received probation.

That episode, however, told me that Marvin’s days in the CAO were numbered.

Marvin is a rock-solid, competent trial prosecutor. He’s a man of his word. He’s reasonable to deal with. He gets along with everyone. He is respected by everyone. He’s everything you could want in a prosecutor. As Chief Trial Attorney, the person in charge of the trial staff, he had both the courtroom and interpersonal skills to enable him to work with his prosecutors, the judges, and defense attorneys to get the 22nd Judicial Circuit back to working smoothly. Any sensible elected prosecutor would simply have let Marvin loose to upright the ship. As he demonstrated with his handling of the Dorn case, Marvin has the ability to see what needs to be done, what to do to get that done, and how to follow through.

But, Kim Gardner isn’t a sensible elected prosecutor. And she was already second-guessing him in his handling of the Dorn case. This pattern has, not surprisingly, continued and only gained momentum. Marvin did what he could but he couldn’t save the ship. The ship’s captain wouldn’t let him. I think Marvin realized that with Kim at the helm it was a lost cause.

Thanks for trying though, Marvin.

Yesterday was St. Louis City Circuit Judge Michael K. Mullen’s last. He has retired from the bench and is taking a position with the prestigious silk-stocking law firm of Armstrong Teasdale.

I first met Mike Mullen in 1990 when he was a fresh, young Assistant Circuit Attorney. We had a few cases together, but I really didn’t know him very well. I could tell that he was smart, hard-working, ambitious, and sensible – traits that I admire. I liked him. After a few years, he left the CAO and went on to work with the legendary criminal defense attorney Charlie Shaw. And it wasn’t long before he left Shaw to open his own firm.

Eventually though, he returned to public service, first as an associate circuit judge and later as a circuit judge in the City. He even became the Presiding Circuit Judge. Perhaps his claim to fame is that he oversaw the grand jury investigation of Kim Gardner and her investigator William Don Tisaby. It was during his tenure as a judge that I really came to know Mike Mullen.

Over the years he was a judge in the City, I handled so many cases before him I can’t even begin to guess a number. There were tons of pleas, a few bench trials, and some jury trials. My last jury trial before him was a murder case in October 2019. I had the honor of being involved in his last official court proceeding – a sentencing hearing held yesterday while a going-away party was active in his courtroom! My client received probation.

That’s all the superficial stuff.

This is what I really want you to know about Mike Mullen:

I’ve had the privilege to practice before many fine judges. And among that group is a small number who brought something special to the bench. Those judges not only did their job exceptionally well, they carried within themselves something that made them stand out.

I’ve seen a great many persons receive very long prison sentences. And I’ve seen judges who relish giving them – you can see the glee in their eyes when they announce their sentence. I’ve seen other judges who do it with suppressed fury at the defendant. Others who impose a life sentence matter-of-factly, as though it’s no different from entering an order for continuance.

But with those special few, and Judge Mullen was one of them, you could see the pain in their eyes when they did it. When Judge Mullen handed down such a sentence, it gave him no pleasure. He looked as though he felt sorry for the defendant, sorry for the crime that defendant had committed, sorry that he had the responsibility of holding the defendant accountable, sorry for the whole situation. It was a recognition of the human dignity of the person before him and of the tragedy of their life. In such moments, I could see his humaneness.

That’s what I want you to know about Mike Mullen. He is a fine human being. They don’t come much better.

I owe an apology to Mark Maxwell with KSDK news. He contacted me yesterday to confirm Kim Gardner’s timeline and account of actions taken by her office regarding Daniel Riley’s bond. I bit his head off because this whole affair has made me very angry with our City’s journalists and reporters.

Kim Gardner’s office has been a disaster for six years and it hasn’t been some secret. Anyone who is paying attention already knows it. I’ve blogged about many of her failures. Everyone involved in the criminal justice system in any way knows about her failures. And every time she has another significant failure, I hear the same refrain from everyone I know: “I didn’t think it could get any worse than it already was.”

It’s so bad and widely known legislators in Jefferson City even know it — and have tried to take steps to remedy it. Yet, somehow this has escaped the notice of our reporters and journalists. I got a call from Elliott Davis, the You-Paid-for-It guy, saying he was doing a story on the Circuit Attorney’s Office and asking if we could talk. Where have you been for six years, Elliott? Has your head been in the sand like Tony Messenger’s?

It doesn’t take great intelligence to realize that when the Circuit Attorney’s Office is a disaster, other disasters will inevitably follow. If these reporters think the Daniel Riley situation would have never happened had Kim Gardner been competently doing her job, then aren’t they complicit in her failure? She was able to perform so poorly – and for so long – because they performed so poorly.

I owe an apology to Mark Maxwell because he has only been in St. Louis for a year. He seems sincere. And I do recognize that some news outlets have intermittently reported Kim Gardner’s mismanagement, her inability to work with her law-enforcement partners (in case you don’t already know this: it’s really difficult to get people to work with you when you call anyone who disagrees with you a racist and misogynist), and her utter lack of professionalism.

But this story is really just the tip of the iceberg. There are huge problems in the CAO that have and will continue to result in tragedies. These are not new problems, only under-reported problems. I don’t know if Kim Gardner can or will be removed by the Attorney General or whether a special prosecutor will be appointed to take over her caseload. I’m not even sure either of those is a good idea. The City voters did elect Gardner. This might be my naivete speaking, but I would like the voters to remove her. But to do that, they need to be informed of what’s really going on in the CAO and how it impacts their lives. That can only come from the press. And so far, they’ve let the voters down.

I’ve never been a fan of how Kim Gardner runs her office. She is incompetent and should never have been reelected. She has taken what was once one of the best prosecuting attorney offices in the state and through mismanagement reduced it to a barely functioning shell of its former self. And, she has done incalculable damage to the City and its residents as a result.

And now, after she has served almost six years in office, people are finally waking up to the problem. This is not because of the things I’ve outlined here on my blog or the innumerable other problems I haven’t written about: it is all because of the community outrage brewing over a car accident that left a young woman, a multi-sport athlete, critically injured with both her legs amputated.

Daniel Riley was apparently speeding (45 mph in a 25 mph zone) when he struck several cars and rolled the car he was driving. One of the cars he struck during the accident pinned the young woman between two cars crushing her legs.

The outrage is because Riley was on bond on a robbery case when the accident occurred, and he had incurred “more than 50 bond violations.” Not only that, but his case, which had been set for trial, was dismissed by prosecutors and was then refiled.

City politicians have erupted with condemnation. Mayor Jones pledged “to review the processes that led up to this preventable tragedy.” St. Louis Alderman Tom Oldenburg lamented, “You have an innocent 16-year-old lose her legs because that office can’t file a motion (to revoke bond)? Despicable.” “It just breaks my heart to think about that young woman and what she’s going to endure because this individual was still running loose,” said Rep. Lane Roberts of Joplin, Missouri (the sponsor of a legislative bill to appoint a special prosecutor to take over the City’s serious cases).

Missouri Attorney General Andrew Bailey has called for Kim Gardner to resign by noon today or face removal from office.

The prevailing sentiment that’s being reported is that this accident could have been avoided if only the Circuit Attorney’s Office had done their job properly and filed a motion to revoke Riley’s bond. But that’s simply not true. I know because I was Riley’s attorney for that robbery case.

The assistant prosecutor on that case did bring to the Court’s attention Riley’s numerous bond violations. We had a hearing on his violations. And based on the totality of the circumstances — none of which appear in the media stories — the Court allowed him to remain on bond.

And, yes, Riley’s case was dismissed on its trial date and refiled. This was because I thought the state and I had reached a plea agreement, but that deal fell through on the morning of the scheduled trial when we were going to conduct the plea. The state had only recently gotten in contact with the victim — who by the way was at court the day of the scheduled trial/plea — and didn’t want to proceed to trial without being fully prepared (it was a serious case after all). In view of the defense changing its mind about the plea, the state requested a continuance. This was denied by the Court and the state filed a nolle prosequi rather than proceed with a trial it didn’t feel it was adequately prepared for. None of that is outlandish, and happens in every jurisdiction.

Interestingly, no media outlet except KMOV contacted me about the situation. You’d think reporters would be interested in getting all the details correct.

In any event, this incident could very well mean the end to Kim Gardner’s stint as the Circuit Attorney for the City of St. Louis. And, if it does, the world will be a better place. However, I find it ironic that none of the genuine issues with her management has brought about her downfall, but what very well might is a situation where her office really did nothing wrong.

I never really appreciated the final straw metaphor until now.

Judge Bryan Hettenbach, one of the “good” St. Louis City circuit judges and notorious bon vivant, was struck by lightening last week as he was leaving a winery in the Finger Lakes region of New York State. A bolt of lightning hit a metal sign next to him and then struck him in the back (a side flash). He was propelled about 10 feet and landed apparently face-down on a paved area. He reported that he has a burn the size of a baseball on his back, and I could see several nasty gashes on his face.

After the strike he was taken to a hospital, where he was treated and released.

Judge Hettenbach before being struck by lightning.

Amazingly, he is back at work this week, though he looks and feels like he went 10 rounds with Canelo Alvarez. That’s a work ethic I admire!

I was recently taken to task by public defender Neil Barron for saying in my blog that the public defenders who made Bar complaints against City prosecutors were “douche bags.” He went on to say that public defenders actually hadn’t made all the Bar complaints as I suggested in my last post. I told him that while I had learned that the broader Bar investigation was initiated apparently due to a misunderstanding by the Chief Disciplinary Counsel, nevertheless I understood it was true that some public defenders from his office had made Bar complaints against specific assistant circuit attorneys for discovery violations and related matters. I maintained that persons who do that are behaving as douche bags.

Let me explain:

As I see it, we lawyers who work in the criminal justice system, prosecutors and defense attorneys, are trench lawyers. We are fighting in the trenches of the legal system. And trench fighting is hard. Really, really hard. In part it’s hard because of the system that we are trying our best to navigate: a dynamic confluence of various criminal and related statutory schemes, criminal procedure, local court rules, the rules of evidence, state and federal constitutional provisions, applicable case law, etc. It’s also hard because of the nature of the cases we handle, and how they often take a huge emotional and psychological toll on us. Fighting in the trenches involves long hours, dealing with difficult people, oftentimes involving terrible circumstances and situations, all while under deadlines and immense pressure to perform at our best – with the lives of other persons who are depending on us hanging in the balance. A trench lawyer’s two most frequent companions are stress and frustration.

I take great pride in being a trench lawyer. I also recognize that being a trench lawyer is not for everyone. It’s not for a person who wants to take the easy road; it’s for the person who enjoys and yearns for constant challenges, who wants to work hard, and who wants what they do to be meaningful. Fighting in the trenches can be a lot of fun (type 2 fun) and very fulfilling, but it requires that you embrace the difficulties. Only someone who has fought in the trenches can understand what it is like or what I’m talking about. This is the bond all trench lawyers share.

I respect anyone – prosecutors, public defenders, private attorneys (I’ve been all three) — who fights in the trenches because I know what it takes. I’ve been doing it for 30 years. And over those years I’ve seen how fighting in the trenches has wrecked some very good people. I’ve seen how some have developed unhealthy coping mechanisms (for example, taking frequent sick days, reliance on drugs and alcohol, ideological fervor, etc.), and how others have left the trenches because they no longer wanted to endure the continual wear and tear involved in being there.

So, if you are a trench lawyer, and you know what it is like to be there, you don’t try to fuck over other trench lawyers. You respect them for what they are going through and for the difficulties they are dealing with. You don’t make Bar complaints. You don’t try to get them fired. Only a douche bag would do that.

The situation I was discussing with Neil involves assistant circuit attorneys who have gotten little to no training, who are trying to handle caseloads of 350 serious felony cases (!), who are getting very little assistance from their office, who must work with a hostile police department, and who are under constant pressure from defense attorneys, judges, their victims’ families, their office, etc. Who but a douche bag would make a Bar complaint against such a person? Neil argued that the Bar complaints were made because the public defender was only concerned about their clients. I called bullshit. A Bar complaint will in no way help their clients — it will only hurt another trench lawyer.

Trench lawyers get very little support or understanding from those outside the trenches. This is natural because as I said above, you have to fight in the trenches to know what it’s like. The Bar doesn’t understand what it is to be a trench lawyer: they’ve never been in the trenches. Many of the judges have never been in the trenches, and some of the judges that were have forgotten what it’s like. Support and understanding for a trench lawyer will really only come from other trench lawyers. If we don’t help each other, we won’t get any help. If we turn on each other, we are only hurting ourselves.

Apparently there have been Bar complaints made against seven or eight Assistant Circuit Attorneys in the City (a large proportion of the CAO’s trial staff) for things like egregious discovery violations, dismissing and refiling cases, etc. In other words, for business as usual for Kim Gardner’s office.

The prevailing sentiment is that these may have originated as part of a plan by attorneys within the Public Defender’s Office.

I’ve also learned that prosecutors in the County are on alert because they believe that the Public Defenders there are instructing their clients to carefully watch the prosecutors when they are in court, and if they see anything that they believe is “inappropriate,” for example, a prosecutor joking around, that they should make a Bar complaint against that prosecutor.

I don’t know whether this is part of some “master plan” by Mary Fox or if it is just a coincidence that two Public Defender’s Offices are simultaneously behaving like douchebags.

The Assistant Circuit Attorneys who were targeted for Bar complaints are all new prosecutors (in terms of their experience being a prosecutor) who joined an office that had no depth of experience to draw upon, who were not provided any significant training or supervision, and who were required to essentially learn as they go. On top of that, they were then assigned unmanageable caseloads, often with types of cases that were well-beyond their level of experience.

To add to their plight, Kim Gardner required that all plea agreements had to be run through her! (Only a mind as dim as Kim Gardner’s could think this was a good idea.) This naturally greatly slowed any effort to resolve cases and only caused caseloads to expand.

And, these prosecutors found that they were having to deal with a hostile and often non-cooperative police force. I’ve had hearings and trials (including a murder trial) where some police officers simply refused to appear! I have cases where they apparently are refusing to provide prosecutors their reports.

All of this is, of course, a direct consequence of Kim Gardner’s mismanagement of the CAO and her alienation of the police (hint: it’s really difficult to get someone to work with you when you think they are racist, liars, and should be prosecuted).

I understand how very frustrating this can be for defense attorneys and that criminal defendants are in the end getting screwed because of these issues. My clients are not immune: I am having to deal with this daily. However, I recognize that there are two diametrically opposed ways to deal with this situation: either with professionalism or by acting as a douchebag. Professionalism is the high road.

Making a Bar complaint is a very serious undertaking — you are putting someone’s license to practice law, hence their livelihood, at risk. Such an action can have potentially life-altering repercussions. I can’t imagine a more serious attack any lawyer could make on another lawyer. To make that sort of an attack on over-worked, out-of-their-depth prosecutors is unconscionable.

Nothing good is going to come out of this — not for the client, not for the prosecutor, and not for the lawyer making the complaint. It is nothing but a lose-lose scenario. My educated guess from 30 years practicing in the trenches is that when the dust clears, the person who will be most negatively effected from these Bar complaints will be the person who made them. After all, we don’t work in isolation. There are long-term consequences to being a douchebag.