ST. LOUIS — In an expected move, a disciplinary panel has recommended St. Louis Circuit Attorney Kim Gardner get a reprimand for her misconduct during an investigation into former Missouri Governor Eric Greitens.
Gardner appeared before the panel on April 11 after reaching an agreement with the Missouri Disciplinary Counsel, which also recommended Gardner be given a reprimand for withholding evidence from Greitens’ defense attorneys in 2018. The panel typically upholds recommendations from the Disciplinary Counsel.
The panel’s recommendation now goes to the Missouri Supreme Court – which has the final say on the disciplinary outcome.
The panelists during the April 11 hearing included attorney Keith Cutler, who chaired the panel, attorney Elizabeth McCarter, and Sheryl Butler, public member.
At issue is whether Gardner withheld evidence from an interview including notes and a videotaped copy of an interview she and one of her investigators conducted with Greiten’s mistress. Gardner’s office accused Greitens of invasion of privacy for allegedly taking a compromising photo of his mistress without her consent.
The pane agreed Gardner violated three rules:
- Failing to ensure compliance with discovery obligations in the underlying Greitens prosecution by allowing the submission of a pleading filed with the court that erroneously represented that all notes from interviews with the alleged victim had been turned over to the defense and by representing in open court that all notes from interviews with the alleged victim had been turned over to the defense.
- Failing to comply with a legally proper discovery request by failing to produce notes, memos and emails pertaining to interviews with the alleged victim.
- Failing to ensure correction of an erroneous statement contained in a pleading filed with the court that pertained to the original authorship of certain bullet points contained in a memo prepared as part of the investigation
In its 12-page opinion, the panel acknowledged a factor in determining discipline is the injury or harm resulting from the conduct.
“In this case, the primary harm is essentially financial,” the panel wrote.
The panel noted Gardner’s failure to produce the evidence in question did not equal more jail time for Greitens. The panel also noted how the charges against him for allegedly taking a compromising photo of his mistress without her permission were ultimately dismissed, therefore he was never wrongfully convicted because exculpatory evidence was not provided to his defense.
The panel did, however, call the duty to deliver all evidence “one of the most basic responsibilities of a prosecutor.”
“Those notes should have been at the top of the list – literally and figuratively,” the panel wrote. “The evidence does not reflect that there was a dishonest or selfish motive in (Gardner’s) actions.
“However, the fact that those notes were nevertheless overlooked is concerning to the panel.”
The panel noted how Gardner took responsibility for her mistakes during the hearing before them.
“(Gardner) did not offer any excuses for the conduct, but did offer explanations as to why she believes mistakes occurred,” they wrote.
Gardner did not believe the camera recorded the interview, and gave it to the defense two days after learning it worked, according to the opinion.
“To a large degree, any notes taken during the interview reflecting what the alleged victim said became virtually inconsequential,” the panel wrote.
Gardner’s investigator, William Tisaby, was accused of making false statements about whether he took notes during the interview to Greitens’ defense attorneys.
“Respondent and her co-counsel knew that it was false, but were unsure of exactly what to do in response thereto,” the panel wrote. “At some subsequent point, respondent advised the court that the investigator made inaccurate statements in his deposition. Respondent now acknowledges she had some responsibility to address the issue, since the investigator was retained by her office.”
The panel called the dispute over the disclosure and production of documents “more of an issue of negligence than intentional non-disclosure.”
“As such, the panel does not believe that the conduct involved in this case rose to the level of a potential breach of the public trust,” they wrote.
Tisaby was indicted by a grand jury and pleaded guilty to evidence tampering. The special grand jurors in the indictment wrote a letter to Judge Rex Burlison on April 12 – one day after Gardner appeared before a disciplinary panel to agree to a 40-page stipulation with the Office of Chief Disciplinary Counsel.
The jurors voiced concerns that Gardner might only face a reprimand for her conduct and not a suspension or revocation of her law license.
A spokesman for the 22nd Judicial Court said Burlison did not respond to the letter from grand jurors, or forward it along as requested as it would be “highly inappropriate and irresponsible” to do so.
Gardner's attorney Michael Downey said the letter should not have been authored and made public for legal and ethical reasons.
