Missouri attorney general releases final report on St. Louis Circuit Attorney Kim Gardner investigation

ST. LOUIS — 25,000 cases dismissed.

2,735 cases dismissed by judges for failure to prosecute.

$351,500 in taxpayer money paid to an unlicensed attorney providing legal advice.

Countless violations of the Crime Victims’ Rights Act.

A resignation just hours before a judge was to order potentially damaging records be turned over and a deposition be scheduled.

All are among the findings in a 62-page report Missouri Attorney General Andrew Bailey released to the I-Team Monday. It summarizes what his office found within the tens of thousands of documents, interviews with almost 40 witnesses and investigation into St. Louis Circuit Attorney Kim Gardner and her administration.

It was all part of a lawsuit he filed earlier this year to remove her from office.

“It was important for us to publish the Gardner Report to put into the public domain what went wrong here, how it happened, and what systems need to be put in place to prevent it from ever happening in the future,” Bailey said. “The public is entitled to know the mistakes that she made, and she tried to deprive the public of access to that information by resigning before the court could order disclosure of several of those records.”

In his report, Bailey calls on the legislature to beef up the quo warranto process as it’s known, put “teeth” behind the law that states public officials must devote all of their time to the duties of their office and amend the Victims’ Rights Act.

The report also shines new light on the abrupt timing of Gardner’s resignation in May, showing a judge was about to rule on whether Bailey could schedule Gardner for a deposition as well as get records from Saint Louis University showing how often Gardner was taking nursing classes there instead of fulfilling her duties as the city’s top prosecutor.

“It’s proof positive that there’s a lot of smoke there for there not to be any fire,” Bailey said.

But do any of the findings mean Gardner will be held accountable for her actions?

Bailey said it’s still possible, and he’s still seeking thousands of pages in records from the city that Gardner refused to turn over as part of subpoenas.

“I think that that’s going be up to the judiciary to decide whether her licensure is at risk,” Bailey said. “But I also think that when you have a prosecutor that conducts behavior or conducts activities that are outside of the scope of their statutory authority, they run into a potential waiver of sovereign immunity.

“So there could be a civil suit if somebody can establish damages based on that. And certainly, if she is stealing from the public coffers, that’s something that attaches criminal liability as well.”

The I-Team contacted Gardner late Monday and is waiting for a response.

Missouri Auditor Scott Fitzpatrick is also investigating records from Gardner’s time in office.

Bailey filed his lawsuit, also known as a quo warranto, to remove Gardner from office weeks after a 17-year-old girl in town for a volleyball tournament was struck by an allegedly speeding driver.

The I-Team first reported that driver, Daniel Riley, was supposed to go to trial for an alleged armed robbery months before that crash, but didn’t, because Gardner’s office was not ready to go to trial.

Charges were refiled. Riley was put on house arrest without objection from Gardner’s office. And he violated that house arrest multiple times without anyone from Gardner’s office asking a judge to put him in jail.

Janae Edmondson lost both of her legs as a result of the crash.

“It never should have happened,” Bailey said.

The quo warranto proceeding Bailey then initiated to remove Gardner from office has been used less than 10 times in history.

“The internal workings of the office were completely dysfunctional, her absence, her misdirection, her attack on her own staff had caused a decay in morale and operations to the point that the criminal justice system just wasn’t functioning anymore,” Bailey said. 

A team of seven attorneys reviewed more than 25,000 documents from subpoenas Bailey’s office sent to the city, as well as interviewed several key officials including the city’s budget director and comptroller.

Retired Judge Bill Corrigan was the deputy attorney general Bailey had appointed to serve as the lead prosecutor on the case.

“I believe the evidence was so overwhelming, there is no doubt that we would have won this case,” Corrigan said.

He said he’s also glad it never went to trial.

“I think it’s in the public’s interest that she resigned,” he said. “I think it’s a good thing for our community that we didn’t have to go through a trial, that the public didn’t have to have to listen to a parade of victims whose families were either murdered or seriously injured.

“A parade of people talking about how they weren’t protected or their families weren’t protected. Or judges to come and testify about the fact that cases were dismissed on the eve of trial because they weren’t ready or there were discovery abuses that took place and orders had to be entered, and that former lawyers in the office didn’t have to come testify or law enforcement.”

Here are some of the key dates highlighted in the report:

Ms. Gardner spent the entire morning, and part of the afternoon, until 12:44 p.m., at Family Care Health Centers performing her clinicals (or practicum) to meet the criteria to obtain her master’s in nursing degree from Saint Louis University. An investigator for the Attorney General’s Office saw Ms. Gardner at the clinic.

At 1:30 PM, Judge Michael Noble conducted a show cause hearing in which Gardner failed to appear. He scheduled the hearing after one of her assistant prosecutors failed to show up for a hearing on a separate case and announced he was considering holding Gardner and her assistant in contempt. Noble concluded there was probable cause to believe that Gardner and her assistant prosecutor were guilty of indirect criminal contempt. He set an evidentiary hearing for May 30, 2023, and declared Gardner’s office appeared to be a “rudderless ship of chaos.”

Despite findings by Noble, Gardner returned to Family Care Health Centers. Again, an investigator for the Attorney General’s Office witnessed Gardner at the clinic.

By the end of April, Bailey’s office interviewed nearly 40 witnesses.

The AGO took the videotaped deposition of St. Louis Deputy Comptroller Beverly Fitzsimmons, who testified that Gardner had initiated and maintained a contract with Maurice Foxworth for $5,000 per month without oversight from the City of St. Louis or the Comptroller’s Office. Fitzsimmons also agreed that Maurice Foxworth had received payments from the Circuit Attorney’s Office totaling at least $351,500 since 2017. Bailey said Foxworth is not a licensed attorney.

A hearing was scheduled for 1:30 p.m., in which a judge was going to rule on whether the Attorney General’s Office could get documents from the nursing school and the clinic and schedule a video deposition of Gardner. However, two hours before the hearing, at 11:31 a.m., Gardner sent an email to Gov. Michael Parson to inform him that she was resigning from office “effective today.”

“Then, apparently realizing that any delay in her resignation would permit further action in the quo warranto proceedings — including disclosure of the nursing school records she was seeking to conceal— 16 minutes later, at 11:47 a.m., Gardner sent a second email to Parson, stating that her resignation was ‘effective immediately,’” according to the report.

Ms. Gardner then moved to dismiss the petition in quo warranto as moot.

Key findings:

• St. Louis University confirmed that Gardner was enrolled in its nursing school, seeking a master’s as a nurse practitioner, since the fall semester of 2021, which began on or about Aug. 25, 2021.
• The AGO calculated that from Aug. 25, 2021, through April 28, 2023 – while she was enrolled in classes – Gardner was paid approximately $281,028 in salary from St. Louis taxpayers. “Instead of protecting victims and prosecuting crime, instead of earning her salary and running her office, and instead of providing training and supervision to her ACAs, Ms. Gardner was an absent prosecutor,” according to the report.
• The Attorney General’s Office took the videotaped deposition of St. Louis Budget Director Paul Paine, who testified that in 2019, based on the passage of the Prop P sales tax, Gardner’s office received an additional $1.5 million in appropriations, and has received that amount in each budget year. “Thus, Gardner’s office has not been ‘divested,’ as she has often claimed. Rather, Gardner had more than enough funds to staff and operate her office,” according to the report.

What the judges said:

• Over the course of the AGO’s investigation, the investigative team interviewed more than 10 different judges from the 22nd Judicial Circuit. The judges expressed “dismay, disappointment, and despair” over the state of the Circuit Attorney’s Office, particularly with respect to the ability to resolve cases through litigation and with respect to the ability to notify victims of impending dispositions and trials.
• Other judges pointed out that, despite Missouri law to the contrary, Gardner’s office was not charging defendants with armed criminal action even when the defendant was charged with committing a felony, and where the defendant committed that felony by, with, or through the knowing use of a deadly weapon or dangerous instrument. The United States Supreme Court has specifically held that Missouri law authorizes separate punishment for the act of committing a felony by, with, or through the knowing use of a deadly weapon. Later conversations with assistant circuit attorneys confirmed that this policy directive came from Gardner and her administration.
• Several judges explained that, due to understaffing and mismanagement by the senior administrative team, the assistant circuit attorneys were frequently not ready for trial. When local media began to report on this, the judges noticed that Gardner began directing her staff to force judges to enter orders dismissing cases for lack of prosecution, in an apparent effort to redirect the community’s ire from Gardner to the judicial circuit. As a result, the circuit had to adopt an administrative rule for reassigning dismissed and refiled cases. This pattern and practice helped explain why the circuit court had dismissed 2,735 criminal cases during Ms. Gardner’s tenure as Circuit Attorney.

What former and current employees said:

• After becoming Circuit Attorney, Gardner required all plea offers be personally approved by her. Despite imposing this requirement on her employees, Gardner was difficult to reach, and often would not approve — or even respond to — proposed plea deals.
• One former employee revealed that it was common for assistant circuit attorneys to have “breakdowns” and to cry in the office from the overwhelming stress.
• Assistant circuit attorneys had insufficient time—or no time—for pre-trial preparation with law enforcement. That, in turn, led to things like being unprepared for direct examination, handing the officers the wrong piece of evidence when trying to lay foundation, and asking officers to explain the cases to the prosecutor just days before trial.

What police officers said:

• Witness cooperation and involvement had ‘gotten worse’ due to a lack of trust in the office from the community. Officers cited dismissals and refilings on the day of trial; a fear in witnesses that even if they cooperated, the Circuit Attorney’s Office could not hold the defendant accountable; and a lack of witness protection resources as contributing to the community’s lack of faith.
• The mother of a sexual assault victim reported that she was not notified of bond hearings or the status of the case. She resorted to contacting the mayor’s office in an effort to obtain information from the CAO, and she endured significant stress and anxiety due to prosecutorial turnover and lack of preparedness. On one occasion, she witnessed an ACA discussing sensitive facts of case flippantly in open court with a defense attorney.

Partnership with Vera Institute:

• Gardner’s partnership with the Vera Institute, with the aim of ‘actively shrinking the criminal legal system’s footprint,’ was a disastrous experiment, and it unmoored the office from sound law enforcement practices. One particular area where the Vera Institute’s vision was especially damaging was in coordinating with the CAO’s office to drop consideration of “taken under advisement” or TUA cases on the grounds that such delayed prosecutions created “confusion and injustice” for individuals arrested on probable cause of having committed crimes.

“To remedy this practice, based on Vera’s review and recommendations, CAO dismissed approximately 25,000 pending TUA cases…” Sadly, this drive to create “resolution” for those arrested had no corollary in finding such resolution for the actual victims of their crimes, thousands of which saw the cases against their victimizers dismissed by the CAO.

• The Vera Institute pushed the CAO to reject cases where the “beyond reasonable doubt” standard could not be met – even at the pre-indictment phase where investigations were nowhere near complete. Remarkably, the CAO adopted this misguided practice, short-circuiting its own investigative prerogative in a rush to lower prosecution rates in order to meet the political goals of Gardner.
• The Vera Institute bragged that the CAO increased its refusal rate to prosecute felony charges from an alarmingly high baseline of 49% in 2016 to an even higher 55% by 2019 (non-prosecutions of misdemeanors spiked to two-thirds).
• Part of the drop in criminal prosecutions was a drive to encourage judges to not issue bench warrants, instead relying on summonses and sending accused felons to diversion programs. While quick to claim credit for how many individuals “successfully complete” such programs, the metrics of what completion entails remain vague. Tragically, by the only measure of what actually counts to the residents of St. Louis (a reduction in the victimization of innocent citizens), the program was a dismal failure.

Recommendations:

• The Victim’s Rights Act requires notice of “the filing of charges, preliminary hearing dates, trial dates, continuances and the final disposition of the case.” The Act also provides the right to notice—by the Attorney General—of “case status information throughout the appellate process of their cases.” But the Act is silent as to post-conviction relief proceedings.

The AG’s report cited 5 On Your Side’s coverage of the Lamont Cambell case, in which a murder victim’s family did not know his conviction was being overturned due to ineffective counsel until after the hearings had taken place. Gardner’s then Chief Trial Assistant Marvin Teer argued before a judge in January that prosecutors needed more time to decide on a trial date, then, within 10 minutes, notified the court that prosecutors were dropping the case altogether. Campbell walked out of prison that day after serving seven years behind bars.

“Given the potential harm to victims when they are not kept informed of important events related to their cases, the General Assembly should address this issue by amending the Victims’ Rights Act to extend victim’s rights to post-conviction relief proceedings,” according to the report.

• Bailey also said the legislature should consider banning public officials from seeking office should they resign during a quo warranto proceeding.
• Missouri law states elected officials like Gardner need to devote all of their time to the duties of their office. Bailey’s investigator followed Gardner at least twice and found her at clinicals.

“There needs to be an action that can be taken when you’ve got public officials who are refusing to do their job because they’re pursuing other endeavors on company time, on public time, that there needs to be teeth behind those statutes to hold those wrongdoers accountable,” Bailey said.

Read the full report here: