ST. LOUIS — A high-stakes court hearing which could determine the fate of Kim Gardner’s legal career took place Tuesday afternoon.
Hearing
The hearing began at 1:30 p.m. and Judge John Torbitzky began the proceedings. He said there are several motions to get through and he began with the motion to dismiss.
Gardner's main council Jonathan Sternberg addressed Judge Torbitzky first.
The attorneys for Gardner asked the judge to dismiss the whole case, saying Missouri Attorney General Andrew Bailey has to show evidence she intentionally ignored her duties.
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Sternberg further stated the petition to kick her out of office doesn't include any specific allegations where she intentionally refused to do her duties. He described the allegations listed as "mistakes" and said she disputes all of them.
"This is an attack on the Democratic process by someone who was never elected," Sternberg said.
Bailey's office responded by saying willful neglect for a public official is when they "know they need to do more, and they didn't do more." His language mirrors Gardner's press conference where she acknowledged they could've done more in the Janae Edmondson case, the Tennessee volleyball player who lost her legs in a crash earlier this year.
Judge Torbitzky asked the attorney general's office to explain the difference between neglecting duties and performing duties poorly. His office said repeatedly failing to show up in court "can add up to" neglect of duty, not just poor performance.
"One act of negligence would not be enough" to qualify for removal, Bailey's office said. They asked the judge to view the "pattern and practice of failure" as collective evidence of Gardner's neglect of duty.
Judge Torbitzky signaled a trial could help determine Gardner's intent.
He granted Gardner's office seven days to file a written motion to dismiss the proceeding. A decision would be issued "fairly quickly" after reviewing the motion from Gardner's office.
One of the lawyer's representing the Circuit Attorney's Office described the volume and scope of the subpoenas made by the attorney general's office as "breathtaking" and included information about criminal victims. Bailey's office said the Circuit Attorney's Office has not provided any documents.
Judge Torbitzky said the Circuit Attorney's Office has "kind of asserted a blanket privilege" to protect the record from the attorney general's discovery. Gardner's lawyers asked the court to narrow the scope before they hand information over.
Her lawyers said it would take immense manpower to provide documents to satisfy the subpoenas and would undermine public safety. Judge Torbitzky said they should assume the motions will proceed so they can "get this show on the road, so to speak."
The court went to recess around 2:40 p.m. as the two sides confer and try to decide what documents or subpoenas they might be willing to start with.
The court was back in session shortly after 3:30 p.m.
The attorney general's office and Circuit Attorney's Office continued to disagree on the subpoenas requested by the AG's office.
Both sides worked through the list of subpoenas regarding documents and information from Gardner and her office. Judge Torbitzky heard the arguments from both sides on the subpoenas and either quashed or took them under submission.
The attorney general's office will issue a revised subpoena to Gardner and her office, the third one in total.
Bailey's office asked for an expedited setting and proposed a trial to take place at the end of August.
Gardner's attorneys agreed they would like an expedited setting but Gardner’s main attorney isn’t available during the proposed time by Bailey's office. They suggested late October into early November for a proposed date.
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."
The court wrapped up at 5:40 p.m.
Watch the full pre-trial hearing here.
Gardner's office provided the following statement after Tuesday's hearing:
"With this Quo Warranto, the Attorney General of the State of Missouri has launched a full-out attack not only against St. Louis Circuit Attorney Kim Gardner, but against her entire staff. Laser-focused on removing a twice-elected Black female who represents a majority-minority city, the AG has picked apart every case and every decision her staff makes, taking delight in any mistake he imagines attorneys have made.
"No other office in America is the subject of such scrutiny, and any staff that experienced this, no matter their leader, would feel demoralized and broken. That is, of course, the Attorney General’s goal – to break down the office until people quit, even if it means cases cannot be prosecuted. He does not care about public safety, because if he did, he would push for investments into St. Louis City and leave Kim Gardner alone to do the job voters elected her to do – seeking justice and prosecuting cases on behalf of the residents of the City of St. Louis. But to the Attorney General, it is worth sacrificing safety and the vote of the people to win political points with his base."
Bailey held a press conference after Tuesday's hearing:
Reaction
The back and forth inside the courtroom spilled outside the Civil Courts Building.
One of Kim Gardner's Attorney's, Michael Downey, said this entire filing is a blatant attack pointing straight at Attorney General Andrew Bailey.
"Mr. Bailey's intentions appear to be to harm Ms. Gardner and the city for his own political gain. Ms. Gardner cares deeply about the City of Saint Louis. She is also proud of and supports her attorneys, investigators and staff. Neither Ms. Gardner nor her colleagues deserve the criticisms directed at her by the Attorney General," Downey said.
Attorney General Andrew Bailey said he is trying to protect the city and there is really only one person at fault here.
"She is responsible for her toxic work environment. She is responsible for her refusal to do her job. Her failures are the result of her behavior, and this removal proceeding is the result of her decisions and her inaction," Bailey said.
5 On Your Side's Laura Barczewski asked Bailey during a post-hearing news conference, "With the most recent incident that happened when an attorney from her office failed to show up to court and a judge, therefore, filed to hold her in contempt, what's your reaction to that and will that play into your case?"
He responded, "Yeah, it's disturbing. This was a murder trial. There was this. This was not set for a counsel status hearing or some kind of update hearing. It was set for a trial, and she didn't even show up to court. So now a victim suffers."
Gardner's supporters said they're frustrated and will continue to stand by her.
"We believe that what the AG is doing under the guise of wanting public safety is obstructing public safety. It's not helping the City of Saint Louis. It's not helping any victims. It's not helping the state as a whole," supporter Rev. Darryl Gray said.
Case
Missouri Attorney General Andrew Bailey wants the embattled St. Louis circuit attorney removed from office. Bailey is not backing down in his fight to oust Gardner, claiming she's not doing her job.
Baily has said nearly 12,000 criminal cases have been dismissed due to what he calls Gardner’s failures. More than 9,000 cases were thrown out as they were about to go to trial, forcing judges to dismiss over 2,000 cases due to what Bailey cites as Gardner's failure to provide defendants with evidence and speedy trials. He also claimed a toxic environment is running attorneys away from her office.
The most recent resignation took place just last week. 5 On Your Side learned about two more assistant prosecutors who turned in their resignations.
On April 11, Gardner responded to Bailey's allegations in a legal filing.
Gardner said, "His amended petition is a gross power grab, an affront to the liberties of all Missourians and the democratic process."
The circuit attorney said the law allows for the removal of an elected official for willful neglect, failure or refusal to perform duties. Gardner claims there are no corrupt intentional acts of misconduct or failure to perform her official duties.
"If the attorney general or the political interests behind his petition were truly concerned about crime in St. Louis, they would seek to assist with resources," Gardner said.
5 On Your Side will stream the hearing starting at 1:15 p.m. Tuesday. Click here to watch it live.
To watch 5 On Your Side broadcasts or reports 24/7, 5 On Your Side is always streaming on 5+. Download for free on Roku or Amazon Fire TV.