ST. LOUIS — St. Louis Circuit Attorney Kim Gardner filed her formal response to Missouri Attorney General Andrew Bailey's legal effort to remove her from office about 2 1/2 hours before her deadline to do so.
In four pleadings responses filed at 9:19 p.m. Tuesday, Gardner denied many of the allegations in Bailey's quo warranto petition to remove her from office two weeks ago.
Bailey accused her of failing to keep victims informed about cases, prosecuting at least 3,000 cases sitting in an email account and having just five prosecutors left to oversee more than 400 felony cases.
Along with the response, Gardner also filed a motion to dismiss the quo warranto petition altogether and asked to be given more time for discovery until the petition to dismiss is addressed.
In her motions, Gardner denied some the allegations and noted that even if they were true, they do not serve as lawful reason to remove her from office.
“Even taking the petition’s allegations as true and granting them their broadest intendment, as is required at this stage, Mr. Bailey’s petition nonetheless fails to state a lawful claim for Ms. Gardner’s ouster,” according to the motion to dismiss the petition. “A quo warranto petition must allege the official engaged in a corrupt intentional act of misconduct or a corrupt intentional failure to act in the performance of official duties, and a mere failure of such a duty is insufficient.”
“In short, Mr. Bailey must allege a willful and intentional failure, not negligence.”
Gardner's office is under scrutiny after the handling of a high-profile case. A 17-year-old volleyball player was critically injured in a crash caused by a suspect who was supposed to be on house arrest.
Court records show the suspect in that crash violated house arrest on a previous armed robbery case, but prosecutors never filed a motion to revoke his bond and dismissed and refiled the charges against him in July 2022 because they weren't ready to go to trial.
Gardner said her office can't force a judge to make a decision to keep someone in jail or allow them to be on house arrest. She maintains her office was not negligent.
Some local and state leaders have called the case emblematic of the dysfunction in Gardner's office.
Three men are listed as Gardner’s attorneys in the filings. Michael Downey of the Webster Groves based Downey Law firm is the lead counsel, followed by Jonathan Sternberg of Kansas City, Mo. and Ronald Sullivan of Washington D.C.
The motions outline how there have only been six decisions made in previous legal attempts to oust a prosecutor since 1877. And, only twice, were prosecutors ultimately ousted.
“In both, this was because the prosecutor plainly had engaged in nakedly corrupt intentional conduct in failing to even investigate entire classes of open and notorious offenses with which he had personal involvement,” according to the motion to dismiss the petition.
Among the failed attempts to remove a prosecutor cited in the motion, Gardner points to former St. Louis County Prosecutor Bob McCulloch. A group of citizens tried to have him removed from office following his decision to take a charging decision on former Ferguson Officer Darren Wilson to a grand jury.
“Dismissal of their request for a special prosecutor was proper,” according to Gardner’s motion. “The inescapable conclusion from these cases is that a (quo warranto) proceeding is not a vehicle for inserting the courts into a political difference of opinion about how a prosecutor’s office should be run. Such a proceeding is not a forum for complaining about mistakes by a Circuit Attorney’s Office. Rather, the question is whether the prosecutor was intentionally acting with a corrupt purpose. Mr. Bailey’s allegations don’t meet that standard.”
Gardner’s motion also notes Bailey’s allegations of wrongdoing involved subordinates in her office – including an assistant circuit attorney’s failure to revoke the bond of the man accused of causing the crash that left the Tennessee volleyball player in town for a tournament without both of her legs.
“These cases were not litigated by Ms. Gardner herself, but by others, and Mr. Bailey has provided no factual allegation of Ms. Gardner’s personal involvement or knowledge of what happened in those cases,” according to the motion. “This is an action against Ms. Gardner; it must allege that Ms. Gardner, herself, acted intentionally or corruptly.”
The motion also cites allegations from the quo warranto that accuse her of staffing shortages affecting more than 200 murder cases. Records requests from the I-Team show there are five attorneys handling those 200 murder cases in addition to more than 200 other felonies.
“There is no allegation that she has failed in any way to investigate or prosecute them, only that Mr. Bailey would prefer the staffing be done differently,” according to the motion.
It continues: “It is not a vehicle for an Attorney General to unseat the two-time choice of the people of the City of St. Louis of their state prosecutor, with whom he is politically opposed, simply because he does not feel she is doing a good enough job or running a tight enough ship.”
In closing, Gardner’s attorneys wrote: “Ms. Gardner and her office aggressively prosecute the criminals who commit those obscene crimes. But when such crimes occur, the blame rests on the criminal, not on the prosecutor (or the police). Mr. Bailey’s petition seeks to take advantage of a tragedy for political gain, while ignoring the will of the voters.”
In asking for more time to respond to the attorney general’s discovery requests, Gardner’s attorneys call the voluminous requests for documents from the Circuit Attorney’s Office “overly broad and unduly burdensome.”
They also argue the attorney general’s request for communication between Gardner and the Vera Institute – a nonprofit that works to end mass incarceration – is “wholly political in nature.”
Gardner’s attorneys also note how Mayor Tishaura Jones and Comptroller Darlene Green have already produced more than 5,000 documents and 19,000 pages of responsive documents to the attorney general’s subpoena.
Gardner’s attorneys also attached a letter to Bailey from City Counselor Sheena Hamilton.
It states, “Based on the broad nature of the subpoenas issued, namely the language ‘about or concerning Kimberly Gardner,’ and the timeline, several documents are being produced without defensible relevance objections. For that reason, and in an effort to comply with the subpoenas as written, many of the documents produced have no logical or legal relationship to the allegations contained in the State’s Quo Warranto Petition.”
In response to the allegations of wrongdoing, Gardner’s attorneys doubled down on asserting that her office did “request revocation of Mr. Riley’s bond, but that request was denied.”
Daniel Riley was supposed to be on house arrest for a 2020 armed robbery.
There is no written record of Gardner’s office ever asking a judge to revoke Riley’s bond. Transcripts of two separate hearings show her prosecutors did not object to keeping Riley on house arrest despite numerous violations – including a hearing in August 2022 after he had dozens of violations in his record.
In April 2022, Judge Bryan Hettenbach entered an order to keep Riley on house arrest and GPS monitoring despite dozens of violations. In her motion, Gardner said her office asked to revoke Riley’s bond in an “oral motion,” but there is no record of one being made.
Hettenbach scheduled the trial to take place three months later, but that didn’t happen.
The I-Team interviewed the robbery victim’s father, who said Gardner’s prosecutor was not ready to go to trial in July 2022 because she had just returned from her honeymoon.
Gardner’s office also erroneously told the I-Team the reason the trial did not proceed in 2022 was because the robbery victim had died. That error also led to the dismissal of the charges of a second defendant in that case just before it was to go to trial in February.
The charges have since been refiled against that defendant.
In her response to those allegations, Gardner’s attorneys refer to Daniel Riley as Dana Riley.
“Ms. Gardner lacks knowledge and information sufficient to form a belief regarding whether the KSDK article cited in paragraph 22 accurately quotes the father of the victim in the September 2020 prosecution of Dana Riley,” according to the motion.
The response also calls an I-Team article about the number of cases pending review by her office “inaccurate,” because “the number of pending cases and assignments fluctuate due to the reassignment and resolution of cases.” That article quotes a memo Presiding Judge Elizabeth Hogan sent to Gardner following a medical emergency involving one of her assistant prosecutors who had 73 cases pending.
Her attorneys also call several other 5 On Your Side articles “inaccurate,” including one documenting the more than 4,000 cases her office has not ruled upon along with the plight of a murder victim’s mother, who said Gardner’s office struck a plea deal with her son’s killer without telling her about it.
Gardner’s Chief Warrant Officer Chris Hinckley testified before the legislature that the backlog of cases is now around 3,000 cases. In her response to that allegation, Gardner’s attorneys called that article “inaccurate.”
Another 5 On Your Side article Gardner’s attorneys call “inaccurate” includes how a case involving a woman who went on a racist tirade that was caught on home surveillance video is among the thousands of backlogged cases. That case resulted in charges after it went viral on social media just last month, even though the harassment happened in 2022.
You can read Gardner's responses below.
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