Circuit Attorney Kim Gardner has acquired some powerful enemies as an unblinking reform prosecutor intent on disrupting St. Louis' broken criminal justice system.
The disruptees are striking back.
Gardner may soon find herself before the Missouri Supreme Court fighting to save her law license — and her job — in disciplinary proceedings. It's the only chance Gardner's enemies have to defeat her politically in the foreseeable future, and they are going for the jugular.
Superficially, the case against Gardner is an act of retribution almost as sleazy as the guy for whom it presumably was launched — disgraced ex-Governor Eric Greitens. His attorneys filed complaints against her license in 2018. But Gardner's central problem isn't Greitens and his pathetic attempt to rewrite a sordid history. It is that she has become the target of a personal vendetta waged by power players held in the highest esteem by the very judicial system that holds her fate in its hands.
Greitens had assembled a local legal dream team to fend off Gardner's criminal cases against him. That was no surprise. The most powerful person in the state with incalculable dark resources from across the globe wasn't going to surrender like some bound mistress.
Those lawyers gave Greitens every dark penny's worth, fending off Gardner with great skill in court and only falling short in Jefferson City, where Greitens' own bitter enemies — led by powerful Republican legislators — went for his political jugular and got it.
Against Gardner, Greitens' dream-team lawyers served him well. Gardner dropped charges against their client in the sex-related case — after they had outfoxed her into becoming a witness in the case. Whether they won when she dropped a second case alleging campaign violations is more open to debate, since it coincided with his resignation as governor.
But the bottom line is this: Greitens' advocates brilliantly managed to convert two compelling criminal cases against Greitens into one unprecedented ethical case against the prosecutor herself.
That was a pretty slick trick. And no matter how many times those lawyers furrow their brows and speak in hushed tones to the media and others as to how they've just never seen such horrific prosecutorial misconduct in all their decades of practice, the ethical case against Kim Gardner can be summed up in one accessible word:
Don't take my word for it. I am, as they say, without portfolio. But I did interview Professor Bennett Gershman who — to borrow a phrase from the folks at ProPublica — "literally wrote the book about prosecutorial misconduct." Gershman, an original faculty member at Pace Law School and a former Manhattan D.A. prosecutor, is widely regarded as one of the nation's leading experts in the field, and both he and his authorship on the subject are cited often.
Gershman told me that he has read the public documents in Gardner's case but is not personally involved on either side and doesn't purport to have intimate knowledge of all the details. That said, he apparently has seen enough.
"It's startling to see them go after a prosecutor at all, much less in a case like this," Gershman said. "It is really extraordinarily rare for the disciplinary people to engage in the kind of pursuit they are making against [Gardner]."
Gershman said "the crux of the case" is in his wheelhouse professionally. He has written, testified and lectured extensively about the Brady Rule — named after the landmark 1963 U.S. Supreme Court case Brady v. Maryland — which requires prosecutors to disclose any evidence favorable to a defendant with respect to innocence or guilt, witness testimony or sentencing.
"I'm an expert on Brady v. Maryland, and I've never seen Brady used the way it is being used here, which is to go after a prosecutor for conduct during the investigative phase of a case," Gershman said. "The record focuses almost exclusively on Brady v. Maryland. I've never seen Brady injected into the way a prosecutor investigated a case, as it has been here.
"Courts don't micromanage the way prosecutors handle investigations, but here it's the focus of the case. It's a trial right of the defendant, and an obligation of the prosecution, to disclose before or during trial evidence material to the defendant's guilt or punishment. But here the defense got every piece of relevant information in a timely fashion before trial.
"There was absolutely no way they could show that anything Gardner had done prejudiced the case or affected their ability to protect their client. I could not find anywhere in the record that Gardner made any knowingly false statement [regarding the evidence] or any knowingly false statement she made with the intention of obstructing any legal proceeding."
Gershman also said the case against Gardner touched upon another area that he has written about extensively — how prosecutors' "work product" is privileged from disclosure — and here again he found the ethics complaint to lack merit. At issue was her failure to provide the defense with bullet-point notes she had made on her iPad after interviewing Greitens' alleged victim in an Illinois hotel room in 2018.
Gardner has argued that the bullet points were her summary of the accuser's testimony and did not contain direct quotes from her. She also claims she did not know the bullet points had even been preserved. They were discovered through a sweeping seizure of electronics from Gardner's office, which itself prompted Gershman to say, "I've never seen that, either."
"The bullet points were clearly Gardner's own impressions and clearly work product privileged from disclosure," Gershman said. "And you can't fault her for not disclosing work product she didn't even know existed."
Gershman also agreed with Gardner's claim that she was not responsible for the statements of William Tisaby, the outside investigator she brought in after city police refused — and the FBI failed to respond to — Gardner's request for outside assistance.
Gershman said it was understandable that Gardner would seek outside help because sex cases are extremely difficult to prosecute and because she was "up against some of the top lawyers in the area who had a great advantage in resources over her." He rejected that she should be held responsible for Tisaby's statements in depositions, noting that Gardner had not been charged with perjury — or as an accomplice — along with Tisaby (whose case is pending).
"The argument seems to be that Gardner should have intervened when Tisaby made mistakes in his testimony. First, she's not his lawyer. And she has no obligation to intervene in the proceeding to stop the deposition and say, 'No, this is wrong.' What are they talking about here?"
Gershman is, of course, just one person with an opinion. But it's an expert opinion, and I trust it a lot more than the claims made — with deafening repetition — by members of the very legal establishment that so despises Gardner.
When I asked him to characterize the gravitas of the investigation against Gardner, Gershman responded with a rapid-fire stream of adjectives.
"The matters they are talking about are peripheral, marginal, attenuated, trivial, technical. There's nothing central to the [Greitens] case. I haven't seen anything she did that violated Brady or any other rules."
But Gershman isn't part of the system in St. Louis or in Missouri. And here the question isn't whether Gardner broke any rules.
It's whether some new ones are about to be established just for her.
Ray Hartmann founded the Riverfront Times in 1977. Contact him at [email protected] or catch him on Donnybrook at 7 p.m. on Thursdays on the Nine Network and St. Louis In the Know With Ray Hartmann from 9 to 11 p.m. Monday thru Friday on KTRS (550 AM).