ST. LOUIS — St. Louis Circuit Attorney Kim Gardner will be tried for willfully neglecting her duties, and her various motions to quash subpoenas of current and former employees have been denied, a judge ruled Tuesday.
In a six-page ruling entered Tuesday evening, Judge John Torbitzky determined there is enough evidence to proceed to trial on seven of the 10 counts of willful neglect Missouri Attorney General Andrew Bailey filed against her earlier this year.
"What is required to prove willful neglect, therefore, is that the public official was aware of an official duty, yet made a conscious decision not to act in accordance with the duty," Torbitzky wrote. "In other words, if a public official has refused to perform their official duties, then that official would be guilty of willful neglect whether their refusal to do so is the result of corruption, indifference or simply inattention.
"If, on the other hand, a public official is attempting to meet their duties, but does so poorly, then no willful neglect may be found."
Bailey's lawsuit to remove Gardner from office is known as a quo warranto petition. He must prove Gardner is willfully neglecting her duties.
Torbitzky determined the Attorney General's Office's arguments that Gardner willfully failed to prosecute cases, make charging decisions, keep victims informed and ensure defendants and victims receive speedy trials do fall within the quo warranto law.
"The facts alleged in the petition also permit the reasonable inference that (Gardner) was aware of occurrences in her office and yet took no action," he wrote. "There is also reasonable inference that (Gardner's) subordinates were acting at her direction or in accordance with her policies.
"Whether any alleged failure of one of those subordinates could subject (Gardner) to ouster need not be answered at this time because the breadth of the allegations gives rise to the reasonable inference that (Gardner) has refused to perform her duties as the Circuit Attorney."
The judge dismissed three counts without prejudice, stating Bailey can refile those allegations in an amended petition with further evidence.
Those counts include an allegation about disposing of crime lab evidence in a timely manner, failing to comply with the Sunshine law in a case that cost the office more than $27,000 in penalties and that she mismanaged the finances of her office by failing to turn in bills on time.
Torbitzky ruled the attorney general’s allegations on those examples did not demonstrate willful neglect.
“Although those allegations are troubling, they do not state a claim under the (quo warranto law),” Torbitzky wrote.
The judge also explained his role in the civil lawsuit requires he assume all allegations to be true, and his job is to determine whether they are applicable to the quo warranto law.
"In fairness to (Gardner), there is also an inference to be made that these are isolated incidents, divorced from one another, simply strung together in an attempt to make a case against (Gardner)," he wrote.
Last month, Judge Torbitzky set a tentative trial date for Monday, Sept. 25, provided he doesn't dismiss the case. Lawyers estimate the trial could last up to three weeks "or as long as it takes."
On Saturday, Gardner appeared at a town hall forum on Saturday morning with about 50 to 60 of her supporters at the Central Baptist Church. During her speech, she shrugged off the ongoing court battle to remove her from office as "a witch hunt" designed to discourage young reformers from going to law school or pursuing a career in the criminal justice arena.
"I'm not leaving. I'm not resigning. I'm not doing nothing," she said to rousing cheers. "You gonna have to remove me."