Tuesday, 21 May 2024

The St. Louis Prosecutor Went After the Establishment. Now the Tables Are Turned.

ST. LOUIS — Kimberly Gardner was elected chief prosecutor by a wide margin in 2016, one of two dozen district attorneys across the country who campaigned to overhaul the criminal justice system.

Like a lot of them, she made quick enemies. She angered the powerful police union in St. Louis by refusing cases by officers whose credibility had been called into question. She indicted the sitting governor, Eric Greitens, a rising star in national Republican politics.

Now her adversaries have turned the tables: Ms. Gardner’s professional actions are being scrutinized in a manner that is virtually unheard-of for an elected prosecutor.

Her office’s email server has been seized by the police, giving them access, her lawyers say, to active criminal investigations of the department itself. Her aides have been called before a grand jury. And she is a focus of a special prosecutor who was appointed to investigate a former F.B.I. agent but has been fishing for incriminating information on her administration, according to an affidavit by the agent’s lawyer.

The investigation has been conducted in secrecy, with a gag order on the parties involved. But that has not stopped allegations that it is riddled with serious conflicts of interest. Nor has it stifled a sense, among Ms. Gardner’s supporters, that it is an attempt to embarrass one of the few black officials with truly independent power in St. Louis, a city with a police force mistrusted by many in the African-American community that makes up half the population.

National advocates of remaking the criminal justice system have watched as like-minded prosecutors in places like Boston, Chicago and Dallas won the support of voters but ran headlong into opposition from police unions and other local powers. Though all of them have been criticized, Ms. Gardner’s situation — facing possible criminal charges — is the most extreme.

Her critics say her problems are entirely of her own making. “You have to be scratching your head saying, ‘How is she not in jail, or at least, removed from office?’” a top police union official, Jeff Roorda, wrote.

The controversy began in January 2018, when allegations surfaced that before he was governor, Mr. Greitens, who was married, had taken a picture of his mistress without her consent while she was partly clothed, tied up and blindfolded, and threatened to release it if she revealed the affair.

The woman, who had been his hairdresser, testified before a state legislative committee that she had also been coerced into sex and that he later slapped her.

Mr. Greitens admitted the affair, but said he never hit her, coerced her or threatened blackmail.

The encounter occurred in the jurisdiction of Ms. Gardner, officially known as the circuit attorney for St. Louis. She hired the former F.B.I. agent, William Tisaby, to interview the hairdresser. In February 2018, she indicted Mr. Greitens on a charge of felony invasion of privacy.

During a sworn deposition the following month, though, Mr. Tisaby made a number of false statements, including that he did not have notes from the interview, and that a video recorder had malfunctioned.

But there were notes, and a videotape, both of which Ms. Gardner turned over to the Greitens legal team three weeks later. Armed with those, the defense lawyers went on offense.

They said the tape had been deliberately concealed because it showed the hairdresser contradicting what she had told a state legislative committee, undermining the case against Mr. Greitens.

And they accused Ms. Gardner, who had attended the interview and the deposition during which Mr. Tisaby made false statements, of having known about his notes and suborning his perjury.

“Nothing is more dangerous than a dishonest prosecutor,” one of Mr. Greitens’s lawyers, James Martin, told a judge last year, calling Ms. Gardner “a full participant in this conspiracy to keep information from us.”

Failure to turn over the tape would be a far more serious concern if it had the potential to help exonerate the defendant. But it is not clear that the video would have: When the state legislative committee investigating the controversy, composed largely of Mr. Greitens’s fellow Republicans, reviewed the tape, it found that the hairdresser’s accounts had been consistent.

Ms. Gardner has been criticized for indicting Mr. Greitens without first obtaining the photo at the heart of the case. And her lawyers were forced to admit that relying on Mr. Tisaby — whose spotty record at the F.B.I. became news in St. Louis — had been an “egregious mistake.”

But Ms. Gardner denied withholding evidence or manipulating testimony. In legal filings, she said that she believed that the tape was unusable, but after defense lawyers filed a motion demanding to see it, she asked her I.T. department to examine it and it was found to work.

Only then did she watch it in full for the first time, she said, although the initial part still contained no audio.

She then turned the tape over to the Greitens team, along with some notes Mr. Tisaby had written on another document. She said she hadn’t realized he had made notes until viewing the tape.

Her lawyers acknowledged that Mr. Tisaby made untruthful statements, but said Ms. Gardner corrected the errors “in ample time to allow the defense to prepare for trial,” still a month away.

On the eve of trial in May 2018, a judge ruled that Ms. Gardner could potentially be called to testify about Mr. Tisaby’s conduct, another rare situation for a sitting prosecutor. Ms. Gardner said that would have put her in the impossible position of both prosecutor and witness, forcing her to dismiss the case and seek another prosecutor to pursue it.

A new prosecutor, Jean Peters Baker, was appointed to review the case, but the statute of limitations had almost expired and she ran out of time, though she found the hairdresser “extremely credible.” Ms. Baker complained that 31,000 files had been deleted from one of Mr. Greitens’s phones.

The demise of the case was a stinging defeat for Ms. Gardner, who grew up in a black neighborhood of St. Louis in a family that owned a funeral home. After law school, she worked as a prosecutor, attended nursing school, and served as a state representative.

She ran for circuit attorney in 2016, two years after nearby Ferguson, Mo., erupted in protest over a police killing. She pledged to reduce incarceration of low-level offenders and make the police more accountable.

After a police officer she prosecuted for murder in the death of a 24-year-old black man was acquitted by a judge, setting off angry protests, Ms. Gardner apologized to the dead man’s family. “We cannot let the naysayers and guardians of the status quo let us miss this opportunity to seek real change,” she said.

Her tenure got off to a turbulent start, with grumbling from progressive groups that she was slow to deliver on her agenda. Now supporters say she is facing payback for more recent moves that unnerved the police, and for displeasure within the city’s clubby legal establishment that she drove out some popular longtime employees.

“Almost from the moment she took office, she faced this chorus of people that questioned her competence and organizational and leadership skills in a way that to me has always seemed both gendered and racialized,” said Blake Strode, executive director of ArchCity Defenders, a civil rights group. Many of the power brokers who have attacked Ms. Gardner are white.

In the Greitens case, both the defense and the prosecution were unhappy. Ms. Gardner went to the police last year with a complaint that some of Mr. Greitens’s lawyers had threatened her in an effort to make her drop the case, possibly constituting tampering with a judicial officer. The lawyers have denied making threats.

On the other side, one of Mr. Greitens’s lead lawyers, Ed Dowd, also filed a complaint with the police: that Mr. Tisaby had committed perjury and Ms. Gardner’s office had concealed information. At the time, Ms. Gardner had already dropped the photo case against Mr. Greitens, but was still pursuing charges that he had misused a charity donor list.

The two complaints fared very differently.

A police spokeswoman said the review of Ms. Gardner’s complaint is still ongoing. But an April 5 letter from the city’s law department said the investigation was complete and the police would support pursuing a special prosecutor. Yet the department does not appear to have taken steps to do so.

In Mr. Dowd’s complaint, on the other hand, the police did request a special prosecutor. One was appointed weeks later: Jerry Carmody, a civil litigator.

Mr. Carmody is a lifelong friend of Mr. Dowd’s. They were classmates at Catholic boys school, worked at the same law firm, socialized together and they and their families backed each other for prestigious positions.

Mr. Dowd, a former United States attorney, is a powerful figure. “Every Lawyer and His Brother is Related to Ed Dowd” was a headline in a local business journal.

As part of his investigation, Mr. Carmody obtained a warrant to search Ms. Gardner’s office email server for communication containing any of a list of 31 terms including “video” and “notes.”

Mr. Dowd did not respond to messages. Mr. Carmody, Ms. Gardner and her lawyers declined to comment, citing the gag order.

It is not clear what charges Mr. Carmody might consider. But any charge would be unusual: Prosecutors very rarely face serious consequences, even for wrongdoing that sends innocent men to prison for years — much less for cases that never get to court.

There have been about 700 exonerations in the United States in which prosecutors withheld exculpatory evidence or committed other misconduct, according to The National Registry of Exonerations.

Yet in only one of those, said Samuel Gross, the founder of the registry, did a prosecutor serve jail time — four days in a Texas case in which an innocent defendant spent almost 25 years in prison. The prosecutor in the Duke lacrosse sexual assault case spent a mere 24 hours in jail after failing to disclose exculpatory DNA evidence, and other serious lapses.

But Ms. Gardner’s critics are undaunted, said Adolphus Pruitt, president of the N.A.A.C.P.’s local branch. “They are working in conjunction, with one focus in mind,” he said, “to try to paint the worst picture they can with the hopes of forcing her out of office.”

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