ST. LOUIS — St. Louis Circuit Attorney Kim Gardner cannot claim she is not responsible for the actions of her subordinates; does not have prosecutorial discretion to fail in her duties; and has failed to turn over a single document requested via subpoenas from Missouri Attorney General Andrew Bailey.
Those are among the claims the Missouri attorney general’s office made in a flurry of documents filed late Monday – the eve of Tuesday’s first hearing where a judge will decide whether there is enough evidence to start a trial to remove Gardner from office.
In those documents, Bailey and his assistants argue Gardner cannot “pass the buck” for any wrongdoing that may have occurred in her office to her subordinates, and that prosecutorial discretion does not give her permission to fail to carry out her duties all together.
“In her motion to dismiss, Gardner seeks to shift blame and make excuses, but she is responsible for the failures of her office, and she cannot blame her assistants for failing to do her job,” according to the state’s response. “She cannot excuse her willful neglect or her knowing violation of her duties by claiming that ‘she, herself, personally’ did not ‘intentionally, deliberately, and corruptly’ mean for things to get this bad. Gardner has lost the trust of the people, and under (the statute), Gardner has forfeited her office. The State must enforce the law. The Court should deny the motion to dismiss.”
Multiple prosecutors have left Gardner’s office since Bailey filed a quo warranto petition to remove her in February. Just two months ago, there were six prosecutors to handle 470 cases – of those, there are now three.
One of them, Natalia Ogurkiewicz, quit Friday with a resignation letter that faulted Gardner for saying she’s not responsible for the actions of her subordinates in her legal filings.
Gardner’s office has not responded to a request for comment on the resignations, but sent an internal memo obtained by 5 On Your Side to her staff Monday.
She wrote, “I emphatically refute the suggestion that I am throwing my staff under the proverbial bus.”
In their filing Monday, Bailey and his team focused heavily on that notion.
“Through her personal actions, Gardner has created a toxic and dysfunctional workplace. Gardner’s failed management of her office caused a mass exodus of experienced prosecutors, extraordinary turnover, and unworkable caseloads ensuring that the few remaining employees could not effectively fulfill the work of the office.
Gardner cannot escape the duties of her office by assigning them to her assistants knowing that they will fail because she has made it impossible for them to succeed.
She also offers an unsupported argument that her assistants can be removed in quo warranto—hoping to sacrifice them to preserve herself.”
One of the biggest hurdles Bailey will have to overcome in the process to remove Gardner from office known as quo warranto is that Gardner willfully neglected her duties as prosecutor.
Gardner has countered that she has prosecutorial discretion that the voters support. She was elected twice and has announced plans to run again in 2024.
In Monday’s filings, the Missouri attorney general’s office wrote:
“Gardner does not have discretion to fail in her duties.
While prosecutorial discretion is rarely questioned in the context of individual criminal cases, quo warranto proceedings under (the statute) require prosecutors to show that their discretion was ‘sound’ and exercised in ‘good faith.
In every published case concerning the removal of a prosecutor under (the statute), courts have required evidence justifying a prosecutor’s use of discretion. In (a separate case), the court found that the prosecutors’ discretion was not exercised in good faith when they failed to make a full investigation of open and notorious crimes.”
Gardner’s office has also filed motions asking the judge to quash the Bailey’s subpoenas seeking documents related to Gardner’s time sheets, policies and procedures regarding warrant applications from the police department, her diversion programs and the office’s relationship with the Vera Institute, a nonprofit aimed at reducing mass incarceration.
The Missouri attorney general’s legal team also argued against Gardner’s motion to quash, writing, in part:
“At the Vera Institute’s recommendation, respondent dismissed approximately 25,000 pending ‘taken under advisement’ cases, but later raised an affirmative defense that she had, in fact, ended the ‘taken under advisement’ practice.
Especially in the face of contradictory statements made by respondent publicly, her office’s communications with the Vera Institute are relevant to the issues presented here.
Records of the diversion programs of the Circuit Attorney’s Office are in the exclusive possession of the Circuit Attorney’s Office and it would be improper to allow respondent to use these records as sword and shield without allowing the State to examine them.”
Judge John Torbitzky is expected to hear all the motions filed in this case at 1:30 p.m. Tuesday.
5 On Your Side will be streaming the hearing on the 5+ app and will have team coverage.