Bob Matichek retires today. Bob has been in charge of treatment for the City’s Treatment Court (Division 25A) for as long as I can remember.
He was often the only friend a defendant — and the defendant’s attorney — had when applying for drug court. Literally every time I’ve been at the conference table in drug court arguing to have my client accepted into the program, Bob would be on my side patiently explaining to the rest of the team why my client needed treatment. Often, the vote would end up 2 for treatment — Bob and me — with everyone else in the room voting ‘no.’
One of my clients once barricaded himself in Bob’s office. Bob let him stay there, called me, and patiently waited while I talked my client into coming out. I’ve never seen him get angry or frustrated.
Assistant Circuit Attorney Jonathan “Buddy” Phipps won his first jury trial this past week in Division 11. It was a case involving a car stop by police where a gun and drugs were allegedly found by police, and the defendant was represented by ‘The Master’ of cop-credibility defense, Robert Taaffe.
The case was set for trial on February 14th, Buddy entered his appearance on February 18th, and jury-tried the case on March 2nd. He had less than two weeks to prepare for his first trial. And, the week before trial, the CAO could not locate the file!
Kudos to Judge Hettenbach for not continuing the case at the request of the state. And kudos to Ricardo Dixon for second-chairing Buddy and providing him invaluable assistance.
I was able to see part of the trial and Buddy put in a solid performance. The court staff told me he did a very fine job for the state.
There is an old saying: litigators are always prepared but never ready, and trial attorneys are always ready but never prepared. Little things like only having two weeks to prepare for your first jury trial and not having a file is what makes trial work fun!
The Tisaby trial is set to begin March 30th in Division 11.
William Don Tisaby was the hand-picked, ex-FBI investigator Circuit Attorney Kim Gardner hired to assist her in her unilateral role of investigating and charging ex-governor Eric Greitens with felony invasion of privacy by allegedly taking a nude photograph of a mistress and then transmitting it. That case was later dismissed by the state on the morning trial was scheduled to begin. And, as it turns out, the state never had any such photo, could not prove one existed (though the alleged victim “believes” one was taken since she heard a “click” while undressed and blindfolded), and had no evidence that if one ever existed it had ever been transmitted to anyone.
Tisaby is now charged with numerous counts of perjury for alleged lies made during his pretrial deposition in the Greitens case.
Some of the alleged lies pertain to discovery materials, evidence that is required by law to be turned over to the defense. Tisaby said under oath that he didn’t take notes of interviews (and so couldn’t turn them over to the defense) and a video-recorded statement by the alleged victim was not made because the recorder malfunctioned. He also denied communicating with Gardner during a break in the deposition.
Here is the deposition video:
As it turned out, however, there actually were notes of interviews taken by Tisaby, there was a working video-recorded statement of the alleged victim, and Tisaby and Gardner had significant communication during the break of the deposition.
The case against Tisaby hinges on whether those lies were material to the Greitens case or not since for a lie under oath to be perjury it must go to a material issue. Tisaby’s defense can only be “yes, I misspoke but none of that was material to the case.”
The real significance of the Tisaby case goes beyond Tisaby’s misconduct, however. More importantly, his actions reflect Ms. Gardner’s ethics. She was present at the deposition. She heard Tisaby’s responses. She knew that many of his responses were false because she was with Tisaby when he questioned the alleged victim and took notes, she was with Tisaby and the alleged victim when a video-recorded statement was made (and had the video), and she and Tisaby engaged in numerous texts and calls during the break. But she did not intervene when “incorrect” answers were provided by Tisaby.
Gardner, however, has told the New York Times that “she did nothing wrong, and that she corrected the former agent’s errors as soon as she learned about them.”
That, of course, is untrue. She personally witnessed Tisaby lie over and over again and said nothing. Unlike Tisaby, however, her conduct wasn’t perjury since she wasn’t being questioned under oath at the time. It’s notable that when it became clear later that she was going to be called as a witness and would be required to testify under oath, she dropped the case.
All of this misconduct became public in a pretrial motion hearing where the Greitens’ defense argued that the charges should be dismissed due to prosecutorial misconduct, and Greitens’ defense counsel James Martin, a former Assistant United States Attorney, told the court that Gardner “sat there and let him lie every time.” Scott Rosenblum reported that “[n]ot only was her behavior grossly, grossly incompetent, under any stretch but she suborned perjury in my presence.”
At that time, the Circuit Attorney’s Office momentarily saved the Greitens case by throwing Tisaby under the bus, with Chief Trial Assistant Robert Dierker arguing to the court that Tisaby was simply incompetent, and comparing him to Inspector Clouseau.
Tisaby will likely piggyback on this “defense” at his upcoming perjury trial: he’s an incompetent whose lies were not material to the case. It may work. However, I don’t think whatever happens to Tisaby is in the big picture all that significant.
What is significant is that this whole affair gives us great insight into who and what Kim Gardner really is.
Grant Simon, a felony/misdemeanor attorney, gave notice last week. That brings the total number of attorneys who have quit the CAO in the first two months of the year to 6.
I’ve previously written about Circuit Attorney Kim Gardner and her office’s many serious problems. And what they all come down to, I think, is a failure of leadership.
In case you haven’t heard of them, Leif Babin and Jocko Willink are former Navy SEALs that have become recognized business consultants and best-selling authors. The basis of their message is that the principles of good leadership are independent of domain: what makes a good leader in the military makes a good leader in business and also makes a good leader in fill-in-the-blank-activity.
One of their trenchant observations is that “there are no bad teams, only bad leaders.”
In other words, if a team or office is under-performing, it is because of poor leadership. Conversely, if a team or office demonstrates exceptional results it is because of exceptional leadership. The results of a team or office reflect the leadership of that team or office.
The Circuit Attorney’s Office is no exception. The results of that office only demonstrate Ms. Gardner’s leadership.
When we accept this tenet, we can see that for a team or office to improve, the leadership must improve. Leaders can only improve, however, by taking “ownership” or responsibility for the lack of results by their team or office and then changing their behaviors. If the leader won’t accept that they are the problem — and instead blame circumstances, others, etc. for their team’s or office’s problems, or they lie about their office’s results — then they won’t change what they are doing, how they are leading. They will keep doing the same, leading the same, and expecting different results.
Unfortunately, Kim Gardner refuses to take responsibility for her problems. She maintains that all her problems are the result of a racist conspiracy that is trying to frustrate her efforts.
Yes, that’s right. According to Kim Gardner, the police union, the individual citizen suing her to determine if she has used public funds to pay for personal legal expenses, and the special appointed prosecutor that brought perjury charges against her hand-picked investigator in the Greitens case, are all to blame for . . . well, I don’t exactly know. Because her federal lawsuit doesn’t specifically say other than they are out to stop her from enacting her reforms. What specific reforms they have prevented or how they have prevented them are not enumerated in her suit. It’s just that they are all trying to “destroy her.”
How does any of that impact the day-to-day operation of her office? I have no idea. I can’t see how the actions of the people named in her lawsuit — regardless of what they did or do — have any significant effect on the running of her office. Are they to blame for the mass exodus of attorneys, that her office is running with a 50% trial staff, that the CAO trial conviction rate is in the toilet, etc.? I don’t see how. Perhaps that’s why Ms. Gardner didn’t provide specifics in her federal lawsuit; she can’t think of how they can either.
That only points to the fact that her federal lawsuit is not a real attempt to solve her office’s problems. It’s just a political smokescreen designed to shift blame away from her and obscure the real problem: a failure in leadership.
Until Ms. Gardner steps up and takes ownership of her problems, she will keep doing the same, leading the same, and expecting different results.
A conviction is obtained when the state obtains a finding of guilty by a judge or jury, either after a guilty plea or a trial. The “conviction rate” is typically defined as “the number of convictions divided by the number of criminal cases brought.”
Number of cases brought— in other words, the number of cases originally charged. This would include cases that where charges were brought and later dismissed. If a prosecutor brings charges in 100 cases and later dismisses 99 of them and has one case that ends in a plea of guilty, that prosecutor does not have a 100% conviction rate. She has a 1% conviction rate.
In 2019, at least a third of the cases assigned out to trial were dismissed by the CAO. That does not include the cases dismissed earlier, before they were assigned to a trial division — cases that were dismissed in associate circuit court for failure to prosecute (like the double murder case recently dismissed), dismissed by the state before trial for other reasons, etc. It would be interesting to know the CAO’s dismissal rate (number of cases eventually dismissed divided by the number of cases brought). I strongly doubt the CAO will release this information.
But no matter how you slice it, there is no possible way for the CAO to have a “95% conviction rate” like they claim as so many cases were being dismissed — unless they weren’t counting those dismissed cases in their statistics. For the life of me, I can’t figure out how they are determining their 95% number.
Besides conviction rate, there is also a trial conviction rate to show how well or poorly a prosecutor’s office is doing. Trial conviction rate is the number of cases where a guilty verdict is returned after trial divided by the number of cases that went to trial. In 2019 the CAO trial conviction rate was 54%. That means in 46% of the cases that went to trial — almost half — there was no finding of guilty or conviction: the defendant in those cases was fully acquitted.
So far this year (February, 2020), there has been, by my counting, 15 criminal jury trials (8 in January, 7 in February). The state had convictions — a finding of guilty on any charge — in 5 of those cases (4 not guilty in January, 6 not guilty in February). That’s a 33% jury trial conviction rate in 2020.
This dismal trial conviction rate only tells part of the story however. Even a finding of guilty is not necessarily a “win” for the state. For example, if someone charged with murder, armed criminal action, assorted felonies, and one misdemeanor went to jury trial and was found not guilty of all but the misdemeanor, this would count as a “win” or conviction in the state’s overall conviction rate.
The bottom line is that the CAO’s statistics are worse than damned lies.
The August 4, 2020, Primary
Election will determine if Kim Gardner will continue in her position of the
Circuit Attorney for the City. That’s because only a democrat can get elected
in the City, and the Primary determines who the democratic nominee will be.
Filing for the August 4, 2020, Primary Election in the City of St. Louis begins today, February 25th. It ends March 31st.
As far as I know, only Mary Pat Carl has publically announced that she is challenging Gardner.
Mary Pat certainly has the
ability and credentials to be a successful Circuit Attorney. Without a doubt,
she would be a huge improvement over Kim Gardner. And if no better candidate
steps forward she will have my support. However, her past alliance with
ex-Circuit Attorney Jennifer Joyce and the fact she is not seen as a
“reform prosecutor” by many progressives may work against her in the
election.
But her biggest challenge will be in overcoming the “Poor Kim” narrative. That’s the story of how “Poor Kim” is a strong, African-American woman who is taking on the racist, old-boy criminal justice establishment in an effort to reform it, and that racist, old-boy establishment is busy trying to thwart her every move. I intend to address the “Poor Kim” narrative itself in a later post, but for now it’s simply important to realize this is Gardner’s go-to move whenever she is challenged or criticized.
While most knowledgeable persons find that narrative ludicrous, many others, particularly dyed-in-the-wool progressives, find it powerful. Tony Messenger, the St. Louis Post-Dispatch columnist, for instance, has swallowed the “Poor Kim” narrative hook, line, and sinker.
Gardner will argue that Mary
Pat, as part of the establishment, is either one of or working for “the
select few . . . [trying] to stop criminal justice reform.”
I think we need a candidate for Circuit Attorney who can save the Office and the City. I therefore nominate ex-Judge and present St. Louis Public Safety Director Jimmie Edwards.
Judge Edwards can bring the support of the Mayor’s Office (he works for the Mayor now), the police (he hired the current Chief of Police), and the judges (he was one of them until recently) to the Circuit Attorney’s Office. He can get everyone in the criminal justice system to work together to deal with the City’s crime problems as opposed to alienating every group like Kim Gardner. Systemic problems can’t be solved single-handedly.
He can also lead and manage the Circuit Attorney’s Office in a manner to rebuild it to its past reputation as one of the elite prosecuting attorney offices in the state. Judge Edwards, unlike Ms. Gardner, exudes competence. He has been successful in every position he’s held. Past performance is the best indicator of future performance.
Judge Edwards would be a “reform prosecutor” that the progressives want. He has actual experience in successfully working to reform the criminal justice system:
Most significantly, he’d take Gardner’s “Poor Kim” narrative — her only defense — away from her. He is an African-American who has devoted his life to public service, who has worked tirelessly and effectively within the system for criminal justice reforms, who has won numerous awards for his efforts, who left the bench and took up the position as Public Safety Director to try to more effectively deal with the City’s problems, and is someone universally respected by everyone in the legal community.
As the Circuit Attorney,
Jimmie Edwards could accomplish so much more than in his current position as
Public Safety Director. He could save the Circuit Attorney’s Office.
I have asked Judge Edwards
to run. He has demurred.
The jury found for defendant Officer Wilson and, while finding Officer Ogunjobi liable for an assault on Ms. Hendrix, only returned a verdict for $3,500 against Ogunjobi. No punitive damages were awarded.
Before the trial began, I thought Ms. Hendrix’s case had all the elements necessary for a potential significant plaintiff’s verdict: here is the case of an Afro-American, well-educated women, an elected University City School Board member, peacefully protesting in an effort to bring community awareness to the problem of police brutality when she becomes the victim of that brutality. And it’s all caught on video!
As I watched parts of the trial (opening statements, the plaintiff’s testimony, Officer Ogunjobi’s testimony, etc.), I found the presentation by the plaintiff’s lawyers from the ArchCity Defenders to be — and this is to put it as kindly as I can — underwhelming. The City’s lawyers, led by Erin McGowan, did a much better job.
Ms. Hendrix brought her lawsuit out of principle, in her continuing fight against police brutality, and not for the money. Unfortunately, it is the monetary amount of the verdict that sends a message. Her case needed a very good plaintiff’s lawyer handling it to send the message she wanted. The ArchCity Defenders let her down. They would have served her and her message much better by not handling the case but referring it to a good plaintiff’s trial attorney.
The rumors regarding the CAO mandatory office meeting were untrue — it wasn’t called by Kim Gardner to announce she was resigning. Instead Ms. Gardner delivered a “bunker speech” in an attempt to rally her troops. According to Ms. Gardner, attorneys who leave her office are “weak.”
Oh, and she announced that until further notice all plea agreements/deals must go through her. Just take a minute to consider the ramifications of that.
And either because he was motivated by Ms. Gardner’s unraveling or because he is “weak,” Assistant Circuit Attorney Richard King gave notice today. Richard was the prosecutor assigned to the treatment court and had a general felony caseload. He is going to hang up his shingle.
