ST. LOUIS — Whether a former Assistant Circuit Attorney can cooperate with a subpoena filed by the Missouri Attorney General seeking to oust St. Louis Circuit Attorney Kim Gardner is a decision that belongs to the City of St. Louis and its Board of Aldermen, not Gardner.
That is the argument former Assistant Circuit Attorney Natalia Ogurkiewicz made in a filing submitted Tuesday.
Who owns a city prosecutor's documents?
Ogurkiewicz resigned from the Circuit Attorney's office on April 14.
She wants to turn over more than 3,000 documents responsive to Missouri Attorney General Andrew Bailey’s subpoena, but an attorney is seeking to quash all of the subpoenas Bailey is seeking involving prosecutors under Gardner.
That attorney, John Jeffress, is with the Washington D.C.-based KaiserDillon law firm. Jeffress told the judge overseeing the Attorney General’s lawsuit he was representing the Circuit Attorney’s Office during an April 17 hearing. And the information assistants like Ogurkiewicz have been asked to produce via subpoenas is privileged information.
Robert Plunkert, Ogurkiewicz's attorney, said that's not for Jeffress or the Circuit Attorney's Office to decide.
“As a non-legal entity and administrative arm of the City of St. Louis, the Office of the Circuit Attorney does not own any documents responsive to the subpoena which are in possession of Ms. Ogurkiewicz,” according to the filing written by Robert Plunkert, Ogurkiewicz’s attorney. “The City of St. Louis, through its Board of Aldermen, has the authority to determine whether any potential privilege may be asserted or waived — not (Gardner) in her own interests.”
Who can represent the Circuit Attorney in court?
In the filing, Ogurkiewicz argues a civil lawsuit filed by former St. Louis police officer Jason Stockley in 2018 against the Circuit Attorney's Office shows the Circuit Attorney’s Office is not a separate legal entity from the city, and therefore, only the city can appoint legal counsel to represent it and direct its actions.
“The obvious patently improper representation highlights a significant conflict, in this regard, and seeks not only to undermine the integrity of the discovery process in this action, but also of the City’s bedrock democratic principles,” according to the filing. “Respondent is not the City of St. Louis or the Mayor, and her authority does not properly extend over the Board of Aldermen.”
And city leaders appear to be cooperating with the Attorney General’s investigation.
Mayor Tishaura Jones has criticized Gardner, stating, “She has lost the trust of the people.” And city attorneys have also turned over more than 30,000 documents responsive to the Attorney General’s subpoenas, according to court filings.
Can the attorney be a witness?
Plunkert also argued Assistant Circuit Attorney Chris Hinckley lacks the authority to essentially vouch for Jeffress’s ability to practice law in Missouri because Hinckley is likely going to be a witness in this case – and Plunkert says the law doesn’t allow someone to do both.
The Circuit Attorney responds
Also Tuesday, Gardner’s attorneys filed another response to the Attorney General’s Office’s allegations.
“Nothing in the suggestions refutes the plain fact that his allegations against Ms. Gardner in his amended petition, even taken as true and given their broadest reading, are woefully insufficient to state a claim for her ouster,” according to the filing written by Jonathan Sternberg of Kansas City-based Sternberg Law.
It continued: “Mr. Bailey’s Amended Petition fails to state any facts alleging Ms. Gardner has engaged in intentional bad-faith acts in derogation of her official duties. Instead, Mr. Bailey only alleges mere violations and mistakes, mostly by others, and without any showing of Ms. Gardner’s intent.”
The filing also cites how the majority of previous quo warranto proceedings were not successful.
“Failures of evidence, not allegations, is what led to the denial of ouster in those cases,” Sternberg wrote.
It continued: “Nothing in Mr. Bailey’s amended petition alleges Ms. Gardner was given information about an offense but intentionally refused to investigate or prosecute it. Instead, he alleges only that Ms. Gardner is slower than Mr. Bailey wishes in reviewing cases and processing warrants.”