St. Louis Circuit Attorney Kimberly Gardner was surrounded by supporters on July 11, 2019 when she made public remarks following the lifting of a gag order regarding an investigation into her office’s handling of the Eric Greitens case (Wiley Price/St. Louis American).
Three years ago this month, a dozen police officers raided the office of St. Louis Circuit Attorney Kim Gardner.
They were executing a search warrant connected to the ongoing investigation of William Tisaby, an ex-FBI agent Gardner had hired to assist her in the 2018 investigation of former Missouri Gov. Eric Greitens.
Tisaby would eventually plead guilty to a misdemeanor charge of evidence tampering.
But the saga continues for Gardner — and will culminate at 9 a.m. Monday, when Gardner will face a three-person panel with Missouri’s attorney disciplinary system.
The panel will be recommending to the Missouri Supreme Court if Gardner should lose her law license — and her job as prosecutor — or face other discipline as a result of alleged misconduct during the Greitens probe.
During Greitens’ trial, defense attorney James Martin called Gardner’s actions, “gross prosecutorial misconduct.” But Gardner contends the investigation is simply an attempt by opponents, largely outside of the city, to oust a progressive-minded prosecutor trying to reform the criminal justice system.
“If there were minor mistakes made, they were not deliberate, they did not undermine justice, and they did not deny the defendant a fair trial,” according to her written response to the claim.
Bennett Gershman, law professor at Pace University whose 1985 book “Prosecutorial Misconduct” has been referenced by scholars for decades, said the ethics complaint against Gardner is “nonsense.”
“It’s just a total train wreck,” Gershman said, after reading the filings in the ethics case. “Very little to do with the facts. Very little to do with law. Very little to do with ethics. Almost everything to do with politics.”
Gershman added that he nearly fell out of his chair when he read the details of the raid on Gardner’s office.
Officers allegedly threatened to kick in the door of the IT room, forced an employee to provide the passwords to her entire computer system, and then took the office’s entire server, according to a lawsuit Gardner filed in 2020.
On the server was information of about 40 investigations of alleged police misconduct, which contained “sensitive” information about the health and financial information of witnesses, subjects, and targets of grand jury investigations.
This kind of raid on a prosecutor’s office is “absolutely unheard of,” especially for a perjury investigation, Gershman said.
“If what Kim Gardner alleges is true, it is one of the most grotesque, extraordinary violations of a search warrant that I’ve seen,” said Gershman, who lives in New York and has never met Gardner.
The 2019 raid produced a document with bullet points of Gardner’s thoughts, after interviewing a woman who had an extramarital affair with Greitens three years earlier.
The woman, who was referred to as K.S., alleged Greitens had threatened to release a nude photograph of her, taken against her will while she was blindfolded and her hands were bound, if she told anyone of a sexual affair.
The bullet points are now the focus of the ethics complaint.
On Jan. 24, 2018, Gardner met with K.S. at an Illinois hotel. At the meeting, Gardner started taking handwritten notes, but then the woman’s attorney asked her to stop. So instead, Gardner just listened for the remainder of the time.
Over the next few days, Gardner typed up some of her thoughts on her iPad, including what she remembers K.S. saying during their meeting, but they weren’t direct quotes, she states in her response.
During the trial, Gardner’s team handed over the handwritten notes she took before she was asked to stop – knowing that this type of record is required by law to be given to the defense attorneys. But they didn’t hand over the iPad document with her thoughts, and Gershman said that’s common practice.
“Every lawyer is allowed to keep confidential the lawyer’s work product,” Gershman said, noting that he means lawyers’ recollections when interviewing witnesses. “It is enjoyed by every lawyer in the country, including prosecutors. And there is no case, that I know of, which holds that a lawyer is required to disclose their work product.”
Gardner said she didn’t know the document still existed until the raid turned it up, according to her response to the claims.
Chief Disciplinary Counsel Alan Pratzel alleges in a 73-page probable-cause document that her notes should have been added to a “privilege log” – or a list of documents that Gardner’s team believed weren’t required by law to be given to Greitens’ attorneys. The judge wanted to review the list to ensure the documents were privileged.
Gardner said the person in charge of compiling the privilege log for the judge was her chief trial assistant Robert Dierker, who had formerly been the presiding judge of the 22nd Circuit (where the Greitens case was being heard) and a judge for more than 30 years before joining her team. She took his advice on what to include on the log, she states in a response, and believed that Dierker and Greitens’ attorneys had agreed on what should be on the log.
Pratzel argues Gardner violated several rules when she and her team falsely stated that they had made all of their notes known to the judge and Greitens’ attorneys.
“It seems to me the gist of the ethics investigation and charges against Kim Gardner are that she failed to disclose something,” Gershman said. “But if she failed to disclose something that is not required to be disclosed, then what? What did she do that was improper or unethical?”
Gardner had emailed her bullet-point notes to Tisaby before he interviewed K.S. on Jan. 29, 2019 on video – a recording that was given to the defense.
Although Tisaby had told Gardner that he wasn’t going to use her notes, Tisaby had actually reformatted her words into a new document — cutting off the last several pages — and printed it, Gardner’s response states. Then during the interview, he took 11 pages of handwritten notes on top of that print out.
Tisaby’s reformatting of her thoughts are also central to the ethics complaint.
During the trial, Greitens’ defense team deposed Tisaby for nine hours, where he said that he didn’t take notes during that meeting. However, once the defense got a copy of the video, it showed Tisaby writing notes while speaking to K.S.
So Gardner’s team handed over Tisaby’s notes on April 11, 2018.
Pratzal alleges Gardner should have corrected the record when Tisaby failed to acknowledge in court that he received documentation from Gardner about the Greitens’ case before interviewing Greitens’ accuser – the basis of Tisaby’s misdemeanor plea.
However, Gardner responded that she was not acting as Tisaby’s attorney when those statements were made. At that point, Greitens’ defense team had succeeded in making Tisaby a witness in the case.
After receiving Tisaby’s notes, Greitens’ attorneys argued in court that Gardner was sitting next to Tisaby when he was writing so she knew the notes existed. They claimed that she concealed evidence, allowed Tisaby to give false statements under oath and asked the judge to sanction Gardner and dismiss the case.
A month later, Gardner dropped the invasion of privacy case against Greitens, after his defense prevailed in making Gardner a witness in the trial as well and Tisaby a potential defendant.
After Gardner bowed out of the invasion of privacy case, Jackson County Prosecutor Jean Peters Baker took it over. It was eventually dropped, citing statutes of limitation that had or were about to pass and potentially missing evidence.
Last month, Greitens’ ex-wife filed an affidavit as part of a child custody dispute alleging he had been physically abusive to her and their children. She also claims Greitens admitted to her in late January 2021 that he had in fact taken the photo of K.S. that resulted in the invasion of privacy charge.
Gardner has repeatedly said the ethics complaint is not about prosecutorial misconduct.
“The Greitens team’s strategy ultimately proved largely successful: Mr. Greitens avoided a criminal conviction – and is now running for United States Senate – while Ms. Gardner faces this disciplinary proceeding that could result in unfair and unwarranted mistrust of the Circuit Attorney’s office,” her response states.
Ethics complaint process
On July 2, 2018, an ethics complaint was filed against Gardner in the Office of Chief Disciplinary Counsel regarding her conduct in the case, and Pratzel began his investigation.
On March 1, 2021, Pratzel formally started disciplinary proceedings by filing a probable cause document.
Whether or not Gardner has committed professional misconduct is now the question before a three-person panel, which includes two lawyers and one non-lawyer.
At the hearing beginning Monday, both sides are expected to present their evidence. After which, the panel will make a written determination and recommendation as to any discipline, which can range up to disbarment. It takes place at the St. Louis County Courthouse in Clayton.
However, this is likely not the end of the proceedings.
After the panel’s written decision, both parties have 30 days to accept or reject it. At that point, the panel’s decision and the parties’ responses will be filed with the Supreme Court. From there, the Supreme Court could make a decision based on the filings, or it could schedule the case to be briefed and argued.
Regardless, the ultimate decision regarding discipline lies with the state’s highest court.
When asked if he believes a recommendation for Gardner’s discipline could set a precedent in other such cases, Gershman said he doesn’t foresee it being replicated.
“Because I think this case is an aberration,” Gershman said. “And I underline the word ‘aberration.’ I’ve never seen anything like this.”
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