Attorney General's Effort to Oust Kim Gardner Has First Day in Court

Lawyers for Missouri Attorney General Andrew Bailey and St. Louis Circuit Attorney Kim Gardner clashed in court today at a hearing for the trial that will determine if Gardner should be removed from office. The two sides met in front of Judge John Torbitzky to hash out a number of points of contention pending before the court.

The first half of the hearing, which kicked off at 1:30 p.m. and wrapped up well after 5 p.m.,was dedicated to Gardner’s motion to dismiss filed last week.

Gardner was seated in the front row wearing all black as her attorney Jonathan Sternberg argued that Bailey's quo warranto petition to have her ousted from office was a “poorly considered political move.”

"Our new attorney general has decided he doesn't like the way Kim Gardner is doing her job," Sternberg said. "This is an attack on the democratic process by someone who was never elected."

In order to warrant removal from office, the attorney general must show Gardner intentionally failed or refused to do her job, Sternberg argued. He pointed out that previous quo warranto proceedings involved removing officials who had illegally funneled money, unlawfully detained individuals and committed other "wilful acts." According to Sternberg, Bailey's allegations "don't remotely come close to meeting that bar."

Sternberg spent very little time refuting the allegations contained in Bailey's amended petition, including those about the thousands of cases that were allegedly dismissed due to negligence on the part of the Circuit Attorney's Office. Nor did Sternberg dispute Bailey’s accusation that prosecutors failed to show up to court dates. However, Sternberg did say that Bailey's petitions alleged neglect only by people other than Gardner.

Arguing this motion on behalf of the attorney general , who was not in court, was attorney Andrew Crane, who said that previous examples of quo warranto proceedings involved officials who "should have known to do more" but didn't, and that court filings by Bailey's office were replete with examples of Gardner not doing more despite her knowing that she should have.

Crane cited the example of a prosecutor carrying a load of 500 cases and then being assigned case number 501, saying that to assign a prosecutor new cases they can't reasonably manage is tantamount to willful neglect.

"The circuit attorney's duties are hers, and they're not getting done," Crane said.

He also argued that the sheer volume of cases that were dismissed, numbering in the thousands, should be adequate to demonstrate willful intent as well.

There was a moment of contention between William Corrigan, an attorney with the attorney general's office, and Jonathan Jeffress, one of Gardner's attorneys, concerning how discovery would work in the case going forward.

Gardner's side asked for a pause on the discovery process, arguing that the items requested by the attorney general's office were "incredibly onerous" and included crime and policing data that, if it were made public, could threaten public safety.
Jeffress said lawyers for the Circuit Attorney's Office had been in meetings with Bailey's office about discovery.

To that, Corrigan adamantly disagreed, saying that no such meeting had occurred and that the Circuit Attorney's Office had not produced a single document since the first request for material was made March 1.

Around 2:40 p.m. Torbitzky requested that the court go into recess and both sides meet in a conference room to see if they could reach an agreement about discovery.

After a 45 minute break, court re-adjourned, but there was still no agreement over a number of items the attorney general's office had requested. Among the disputed items were office timesheets, internal communications, budgetary information and the performance review from Gardner's time as an assistant circuit attorney.

Torbitzky said that his ruling on the discovery questions would likely lean toward favoring disclosure. That ruling, as well as the judge's ruling on whether or not the quo warranto proceeding will be dismissed could come relatively quickly.

"People of the state and the city want an answer sooner than later," he said.

Torbitzky was brought in from the Missouri Court of Appeals to oversee Bailey's attempt to remove Gardner after the judges in the 22nd Circuit Court recused themselves as they could be potential witnesses in the proceeding.

The quo warranto proceeding as a whole has its roots in an incident that occurred February 18 when Daniel Riley was allegedly driving erratically downton, and caused a car crash that severely injured 17-year-old Janae Edmondson, a multi-sport athlete visiting from out of town to play in a volleyball tournament.

Edmondson had to have both her legs amputated, and the public grew outraged when KSDK reported that Riley was out on bond for armed robbery and had violated the conditions of that bond dozens of times.

Criticisms of Gardner were already so common they had become background noise in the city's political landscape, but after Edmondson's maiming they reached an unprecedented volume.

Mayor Tishaura Jones said the week after the crash that Gardner needed to "do some soul searching" about whether she wanted to stay in the top prosecutor job.

On February 23, Bailey filed his initial quo warranto petition to remove Gardner, who dug in.

Prior to today, Gardner's and Bailey's camps spoke to each other only through the media and in court filings.

Gardner's defense has been to call Bailey's efforts to remove her a "gross power grab." She has also argued that if the failings Bailey is alleging did occur, they are the fault of her staff attorneys, not her.


Since the filing of the quo warranto petition almost two months ago, Gardner's office has suffered numerous setbacks, including many high-profile and public resignations of staff, the revelation Bailey is also looking into her office's finances, as well as yesterday a judge threatening to hold Gardner herself in contempt of court after prosecutors failed to show up on the first day of a murder trial.

At the close of the day's hearing, Corrigan, with the attorney general's office, asked that the quo warranto proceeding be resolved as quickly as possible.

"The Circuit Attorney's Office is down to essentially two assistant circuit attorneys handling violent crimes," Corrigan said. "The state is concerned about the office and its ability to protect public safety."

Corrigan asked that the proceedings go to trial in the last weeks of August or early September.

Assuming the proceeding isn't dismissed, Judge Torbitzky set the trial date for September 25.

Retired judge Booker Shaw, who is now representing the judges of the 22nd Circuit Court, spoke briefly today saying that he hoped the proceedings could be resolved as quickly as possible, adding that the court system is in an “untenable and unsustainable situation” and that the Circuit Attorney's Office is near total collapse.

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