As of June 15, 2022, Kim Gardner’s office has issued fewer than 900 criminal (felony and misdemeanor) cases for the year. In contrast, the St. Louis County Prosecuting Attorney’s Office has issued almost 4,600 criminal cases.
At this pace, by the end of the year, the City will have issued 1,800 criminal cases and the County will have issued around 9,000 criminal cases.
The St. Louis area is unique in that we are the only metropolitan area in the country with a “wanted” (for questioning) alert system. This is where police officers who want to question a suspect or anyone for any reason, even if there is no allegation of wrongdoing on that person’s part, can essentially issue their own warrant — in the practical but not in the legal sense — for a person’s arrest. Then, when any other member of local law enforcement stops these persons and runs their name, the “wanted” will pop up, and they will then be arrested. Subsequently, they will be transferred to whatever agency issued that “wanted” so that the issuing officer can question them.
This practice is being challenged in the 8th Circuit Court of Affirms Appeals. The issue is whether an arrest for a “wanted” is an unconstitutional and wrongful seizure. Their ruling could have enormous consequences.
Yesterday Judge Noble dismissed two murder cases with prejudice (i.e., charges cannot be refiled) because the CAO had failed, after repeated orders to disclose and several years of delays, to provide required discovery to defense counsel.
This follows on the heels of the acquittal of three men just the day before who were charged with two murders. In that case, Judge Sengheiser had excluded the CAO from introducing into evidence various jail calls and other messages that inculpated the defendants, and permitted the defense to argue adverse inferences of the prosecution’s failure to investigate possible Brady material, including the victims’ phones and their Facebook posts.
And, all this comes after the Circuit Attorney herself, Kim Gardner, agreed to accept a reprimand from the Office of the Chief Disciplinary Counsel for egregious discovery violations in the only case she has personally handled!
WTF is going on?
The CAO is a mess, and Kim Gardner created the mess. She took over what was at that time the top prosecutor’s office in the state, and with her “reforms” and lack of leadership, reduced it to a shadow of its former self.
As an ex-prosecutor, I know that the job of an assistant prosecuting attorney is difficult. A prosecutor needs good training, and that comes primarily from on-the-job apprenticeship (working with good, more-experienced prosecutors). But Ms. Gardner has fired or forced out all the career prosecutors, who were the backbone of that office, and who provided the institutional knowledge necessary for the successful operation of the CAO. The trial staff at the CAO are trying to figure things out as they go with really no guidance.
A prosecutor needs to work in concert with and to be supported by the police and other law enforcement branches (the U.S. Attorney’s Office, the Office of the Attorney General, etc.). Yet Ms. Gardner has alienated those agencies whose assistance is essential for the successful operation of the CAO.
And a good prosecutor can only handle so many cases competently. In many ways, a caseload is a juggling act — you are trying to keep so many balls in the air. As the number of balls increases, it becomes more and more difficult to not drop one. The trial staff at the CAO is now a bit over 50% of what it was during the Jennifer Joyce era. The trial workload of the assistant prosecutors in the CAO — and particularly those with serious felony caseloads — is almost unfathomable. (And, it makes one wonder where the money allocated for the staff that isn’t there has gone. To pay Ms. Gardner’s outside legal expenses?). This only leads to burn out (how many murder cases can Chris Desilets try back-to-back?) or balls being dropped.
The point of my rant is that all the problems with the CAO stem from Ms. Gardner. She created the shit show, and her assistant trial attorneys are the ones who have to work the best they can knee-deep in it.
An assistant circuit attorney at work.
On Monday, “Teflon” Kim Gardner worked out a deal with the Office of the Chief Disciplinary Counsel to keep her law license. All the hubbub, it appears, was because Gardner’s office “failed to maintain a comprehensive approach to collecting, producing and logging documents.” And, she “admit[ted] that she should have been more vigilant in ensuring the prosecution’s discovery obligations.”
The very next day, three young men who were prosecuted by Gardner’s office for murdering two other young men were acquitted. The trial judge in that case barred the prosecution from using jail calls and some other messages as evidence because the information had not been properly disclosed to defense lawyers. And, because investigators had also failed to examine the phones of three people, including the two victims, and a “potentially exculpatory” Facebook message, all of which could have helped the defense, the judge allowed defense attorneys to make the normally prohibited “adverse inference” argument: the state didn’t do this because they thought it would hurt their case.
As I expected, the Tisaby fiasco ended, in the words of T.S. Elliot, “not with a bang but a whimper.” Kim Gardner’s hand-picked and personally hired chief investigator in the Greitens debacle case avoided trial by entering into a plea agreement that resulted in his six felony perjury and one felony tampering with evidence charges being reduced to a single misdemeanor of tampering with evidence and his being placed on bench probation for one year.
The comic relief in all this was provided by comments from the defense during the plea. Mr. Tisaby told Judge Hettenbach that “My whole life, I’ve dedicated to doing justice.” His defense lawyer, Jermaine Wooten, a close friend and vocal supporter of Kim Gardner (surely no conflict of interest?), in an even more masterly display of irony told the judge that Mr. Tisaby “was a very honest man who thought he was doing everything right.”
The concerning part of all this is I believe Mr. Tisaby and Mr. Wooten were actually being truthful during the plea. I think Mr. Tisaby believes he has done justice his whole life and that his criminal actions were just. Similarly, Mr. Wooten was correct when he said that Mr. Tisaby believed he was doing the right thing. There is a certain type of self-righteousness sometimes found in bad (incompetent) prosecutions, and it was abundant in the Greitens case. It’s the notion that as the good guy I will do whatever it takes to get the “bad guy,” including lying, tampering with evidence, etc. It ignores the fundamental aspect of what constitutes justice: that how you go about things is just as important as the result (the means are just as important, perhaps more important, than the ends).
It’s very sad that a man who has dedicated “his whole life to doing justice” has his career end by pleading guilty to a crime, and one that involves trying to circumvent justice.
I’m not certain what effect this will have on Kim Gardner’s pending ethics violation hearing that is currently set for April 11th. It seems a deal may have been struck there as well. I’ve heard that the witnesses for the hearing have been called off.
The City has a new Detention Facilities Oversight Board, and an aldermanic panel has approved the nine initial appointees. They will deal with complaints at the City Justice Center (CJC).
Complaints like these:
Complaints that have led to a recently-filed class-action lawsuit alleging “violent and systemic abuse” at the CJC.
The unfortunate reality is that this oversight board is really just an example of a common political ruse. When politicians, like City mayor Tishaura Jones, must deal with a genuine problem, instead of directly addressing it, they make it appear they are addressing it. They form a committee of well-meaning people, these people take a lot of time looking into the problem and discussing it, then they make suggestions that of course need to be carefully considered, etc. This all takes a lot of time. A lot of time when nothing really changes. But, it demonstrates to the politician’s constituents that they are taking the problem “seriously.” It permits these politicians to deflect criticism about how nothing significant is really being done to deal with the problem.
The sad truth is that the formation of the oversight board is essentially an admission that the problems at the CJC are not being directly addressed.
There are numerous examples of well-run and humane pretrial detention facilities in our country. The models of how to do it right already exist. You don’t need to reinvent the wheel. If you do what the other successful pretrial detention centers are doing, you too will have a successful pretrial detention center. It doesn’t take an oversight committee to look at what they are doing, see which of those things the CJC is not doing, and then begin doing those things. And, if you’re doing things those successful pretrial detention centers aren’t doing, stop doing those things. It’s not that complicated; it’s not rocket science.
If the mayor was genuinely determined to make the CJC better, she could hire a superintendent that was knowledgeable and experienced in running one of these model pretrial detention centers and have them come in and make the changes needed. She could hire consultants that have a proven track-record of turning around other problem detention centers. She could take direct action to solve the problem.
Or, she could do nothing but sound good doing it.
Kim Foxx, Chicago’s “reform prosecutor,” has written an op-ed piece in the Chicago Sun-Times explaining how the prosecution of the Jussie Smollett case was an injustice. Her complaint is that “[r]ather than working collaboratively to stem rising crime or free the wrongly convicted, a small group of people hijacked the judicial system to enact what is best described as mob justice.” She went on to describe the prosecution and sentencing of Smollett as the actions of a “kangaroo court.”
While I agree that there are more important concerns facing Chicago than the prosecution of a celebrity for poorly enacting an attempted lynching hoax, that case was hardly an example of “mob justice” or a “kangaroo court.” After all, a sitting grand jury did indict Smollett, a special prosecutor was appointed by a judge after Ms. Foxx recused herself, and Smollett received top-notch criminal defense. This was a textbook example of how the criminal justice system is supposed to work.
You may be wondering, if that’s all true, what’s Ms. Foxx’s real beef? She believes that she was deprived of her prosecutorial discretion, i.e., the authority of the elected prosecutor to decide where to focus their office’s resources and whether or how to enforce, or not to enforce, the law against an individual. In other words, she should have gotten to decide whether or not to prosecute Smollett in the first place and not some “mob.”
Normally, of course, as the elected prosecutor, she would have had that discretion. But she lost that through her inappropriate actions: while Smollett was being investigated by police, Ms. Foxx was busy text-messaging with his family and offering to help them. Later, after this became public, she recused herself from the case and tried to appoint her assistant in her stead. However, a judge ruled (against her) that she couldn’t give the case to someone else in her office because there was a statutory mandate requiring the appointment of a special prosecutor in cases where the State’s Attorney is recused. And so the case went to a special prosecutor, and he did not see the case the same way as Ms. Foxx.
That the case went to a special prosecutor who decided to actually prosecute Smollett (and not to dismiss charges as Ms. Foxx had intended to do) is her definition of “mob justice” and a “kangaroo court.”
But this was no isolated incident according to Ms. Foxx. Oh, no. “Black women elected prosecutors around the country have faced the same mob mentality.” One example she cites is how “opponents of Circuit Attorney Kim Gardner are working to revoke her law license as retribution for her decision to prosecute former Missouri Gov. Eric Greitens.”
Ms. Foxx is referring to the investigation by the Office of the Chief Disciplinary Counsel (OCDC) after it received ethical complaints by the attorneys who represented Greitens. That investigation independently determined that Ms. Gardner had in fact violated the Rules of Professional Conduct during the prosecution of Greitens (and also lied to their investigator about it). Ms. Foxx sees both Ms. Gardner and herself facing “the same mob mentality.”
It’s interesting, though, that Ms. Foxx never identifies this “mob.” However, I will out them. This “mob” are the judges and officials enforcing the established laws and codes which govern our profession, and which are designed to make certain that we lawyers behave ethically. And, it is particularly important for prosecutors to behave ethically because they wield so much power. They are not supposed to talk with the family of a criminal suspect and offer to help them before the case is even fully investigated or charges are brought. They are not supposed to suborn perjury and then lie about it.
I guess Ms. Foxx believes that she and Kim Gardner should get to do whatever they want because as “black women elected prosecutors,” they shouldn’t be held to the same standards as everyone else. They’re special and deserve special treatment.
Kim Gardner’s disciplinary hearing has been postponed from February 28th until April 11th. I expect this will get dragged out by Ms. Gardner for as long as she can.
On a related note, the perjury trial of William Don Tisaby, the investigator hired by Ms. Gardner to help her with the Greitens case, is presently set for March 28th. I expect this one to go the way of the McCloskey case.
Tony Messenger’s latest column, “Hubbub over released domestic violence defendant misses the point over cash bail,” misses the point over what the kerfuffle was all about. It had nothing to do with the cash bail system.
Mac Payne was arrested on domestic assault charges by police and taken to the St. Louis City Justice Center. While he was being booked, and while police applied to the Circuit Attorney’s Office to issue charges, he tested positive for COVID.
A person can be held for up to 24 hours without bond while charges are applied for. In this instance, however, someone — and we don’t seem to know who — decided to release Mr. Payne after just 3 hours, and while charges were still being considered by the CAO.
Mr. Messenger quotes Mindy Gorman, Mr. Payne’s attorney, as saying, “There’s really nothing about this particular domestic violence case that is really any different than any other domestic violence case.” While his case may be typical, how it was handled by authorities after it was learned he had COVID is not.
There is a procedure in place for when police take COVID-positive suspects to the Justice Center. Corrections Commissioner Jennifer Clemons-Abdullah said that the corrections department works with local hospitals, police, and the city sheriff’s department to deal with detainees on “a case-by-case basis to determine our best course of action while limiting exposure to the virus.” This involves the arresting officers calling a police supervisor to decide if the suspect is to be “medically released,” or whether they will be taken to a hospital to determine if they are “medically fit for confinement.” While at the hospital, the police chief then contacts the jail supervisor to receive approval to house the person at the jail. And, if the jail can’t house them, then the person will be held in confinement at the hospital.
But none of that happened in this case. As I said above, someone, and we don’t know who, released him while the CAO decided to issue charges. What we do know, is that the police and prosecutors did not release him.
Mr. Messenger seems to think all of this is no big deal. After all, he wrote that if Payne had been held, a “bond hearing would have been the next day; [and] the judge likely would have let him out on a personal recognizance bond.” He goes on to say that “[i]n domestic violence cases, judges in St. Louis regularly release defendants on personal recognizance bonds.”
Yes, they sometimes do, Mr. Messenger. But the whole point of the bail process is to have each case reviewed individually so as to provide a defendant with due process and best ensure the safety of the community (including potential victims). St. Louis judges also regularly detain persons charged with domestic violence because sometimes they determine it’s not safe to release the accused.
What if Mr. Payne, after being released, had gone back to his alleged victim’s home and killed her. Would Mr. Messenger still be on his soapbox saying that the bail system worked? No, because in this case the bail system never kicked in because the accused was improperly released. We are just fortunate that this mistake occurred with someone who, it turned out, wasn’t a danger to the community. But, the whole point of the city police union’s complaint (that brought all this to light) is that this shouldn’t be happening: potentially dangerous people should not be released until their case is reviewed and it determined that they are not a danger, or that safeguards be put in place prior to their release. The jail staff who apparently let Mr. Payne go are not permitted by law or equipped to make those determinations.
As it turns out, after Mr. Payne was rearrested, the CAO did ask a judge to have Mr. Payne detained without bond citing his danger to the alleged victim in his case. A judge, after a hearing involving the prosecutor, the defendant and his attorney, and the victim (who asked that Mr. Payne be detained) decided not to give him a personal recognizance bond but to imposed a cash bond with conditions designed to safeguard the alleged victim. These conditions were not in effect when Mr. Payne was improperly released from the Justice Center.
Mr. Messenger’s opines that the mistake releasing Mr. Payne isn’t important since it turned out that he was eventually released by a judge anyway. He seems blind to the fact that the real issue is that we can’t have the jail unilaterally deciding which inmates to release and which to detain. We need to find out how it happened and make sure it doesn’t happen again. It’s not a matter of “no harm, no foul.”
