When Kim Gardner was running for St. Louis Circuit Attorney, she vowed change “by reforming a broken system.”
After the Michael Brown shooting, voters warmed to her message of rebuilding trust in the criminal justice system. She promised to reduce violent crime in the city. She also promised to increase diversity, to conduct fair and complete investigations in police shootings, reduce racial disparities and increase gun control.
Voters liked what they heard, and Gardner became the first African American woman elected to the city office.
But her nearly two-and-a-half-year tenure has been a roller coaster ride.
Some of her successes included the institution of progressive policies such as decriminalizing small amounts of marijuana and diversion programs that kept more than 600 defendants out of prison. Her office also changed a policy that allowed police to issue a summons, instead of jailing people until they could post bail.
Some of her challenges include her office’s strained relationship with local police, the involvement of a special prosecutor to investigate the handling of then-Gov. Eric Greitens' prosecution and turnover in her office.
“When you are a black woman talking truth to power, you create adversaries,” said Jamala Rogers, executive director for the Organization for Black Struggle.
Going after Greitens
It began a little more than a year into her term: Gardner announced her office would prosecute Greitens — a rising star in the Republican party.
The facts of the case were salacious. The charge alleged Greitens took a semi-naked photograph of a woman he had an affair with to secure her silence. The case drew national media attention.
Prosecutors were unable to produce a key piece of evidence — the photograph.
Greitens’ attorneys questioned the actions of Gardner’s private investigator. They said he lied during the investigation. They also questioned Gardner’s involvement in her investigator’s potential perjury.
They asked the judge to question Gardner under oath about her prosecution of the case. He allowed it. She said that she couldn’t be a witness in a case her office was prosecuting. Instead of taking the stand, Gardner dismissed the invasion-of-privacy charge against the governor.
Scott Rosenblum, one of Greitens’ attorneys, speculated about Gardner’s reason for the dismissal.
“It’s our belief that she was going to take the Fifth Amendment because she was in a position to know what her investigator did. She did not stop the perjury. She tacitly agreed to it. And it was even worse, then she suborned it,” Rosenblum said.
Gardner later agreed to dismiss a computer tampering case against Greitens if he resigned and agreed not to seek sanctions against Gardner.
He took the deal.
The criminal cases against Greitens were over, but the questions regarding Gardner’s investigation into the former governor linger.
A judge appointed a special prosecutor to investigate. The investigation is centered on the private investigator hired by Gardner: William Don Tisaby.
Tisaby, a former FBI agent, headed Enterra LLC, a private investigation firm in Rochester, Michigan. He was hired by Gardner to handle certain parts of the Greitens investigation.
But it was Tisaby’s actions during a deposition of the woman who Greitens had an affair with that came into question by the defense. He originally denied taking handwritten notes, until a video came out showing he was taking notes. Gardner also told defense attorneys that a video camera malfunctioned during another interview. A tape was later released with the first 10 minutes of the interview missing.
But Greitens’ attorneys claimed Gardner hadn’t done her homework on Tisaby. If she had, they said, there were plenty of reasons not to hire him.
In court documents, Greitens’ attorneys said Tisaby:
- Lied under oath to his employer.
- Violated Alabama law by committing bigamy.
- Was in business with Sebastian Lucido, a Michigan man indicted for “mobster activities.” A jury acquitted Lucido of those charges.
- Had an unstable work history since he left the FBI. The business address for Enterra comes back to a UPS store in Rochester, Michigan.
Tisaby received more than $16,000 for his work in interviewing two witnesses in the Greitens case, according to the court documents.
Gardner hired private attorneys for her court battles, trying to halt the seizure of her email server.
The judge accused Gardner’s office of trying to impede the grand jury’s investigation. And all the while the bills are growing. Gardner has asked the city’s comptroller for $225,000 to defend her office in the legal fight.
Neither Gardner nor Tisaby can comment on the investigation. The judge issued a gag order preventing parties from talking about the case.
Lucy Lang, who heads John Jay College’s Institute for Innovation in Prosecution, said with Gardner, like her counterparts Kim Foxx in Chicago and Rachael Robbins in Boston, race and gender may play a part in the criticism.
“A huge amount of this backlash seems to be falling on women of color who have been elected into local district attorney offices,” Lang said.
The criticism can become even more intense when it comes to using a prosecutor’s discretion in high-profile cases. She pointed to criticism Foxx received in the handling of the Jussie Smollett case or Gardner’s handling of the Greitens case. The criticism is more intense when a prosecutor exerts their discretion, Lang said.
The grand jury is currently hearing evidence in the Tisaby case. It just received a 60-day extension.
Police woes
Then there is Gardner’s rocky relationship with the St. Louis Police Department.
Gardner created an exclusion list for police officers, and that added to the bad feelings between police and prosecutors. The list contains 36 officers that Gardner won’t call to testify in criminal cases because of what she said are credibility issues.
There are four reasons why officers could find themselves on the list: lying, either in a report or in testimony; exerting undue influence; not cooperating with prosecutors; and being under investigation for wrongdoing.
Jurors often give police the benefit of the doubt during criminal cases, Gardner said. If an officer’s credibility is in question, Gardner will not call them to testify. That’s part of the reforms voters wanted when they elected her, she said.
“I will not jeopardize the integrity of the criminal justice system by allowing the concerning actions of a small number of police officers to taint the good work of the credible and hardworking officers. We will continue to pursue current, open criminal cases involving these officers, as long as the criminal case can be proven without their testimony,” Gardner said.
“Police officers are granted great power. With that power comes an obligation to tell the truth at all times. Law enforcement officers are held to the highest standards of truthfulness and fairness because that’s what the community and justice demands.”
The decision to create of the list wasn’t popular with police.
The list is the source of a lawsuit against Gardner and the police department by the St. Louis Police Officers Association seeking to block the release of the officers’ identities. That lawsuit is still pending.
“She’s detested by the 1,100 police officers that I represent,” said Jeff Roorda, the business manager for the police union. “She is a complete failure when it comes to prosecuting dangerous criminals in our cities.”
But there are some officers on the list who need to be there, said Heather Taylor, the president of the Ethical Society of Police, which represents black police officers. Those officers on the list are largely holdovers from previous administrations, she said.
“They should be prosecuted and fired,” she said.
The exclusion list led to the dismissal of at least a dozen pending felony cases. If one of those 36 officers are a material witness in a case, Gardner said, her office wouldn’t issue charges.
Gardner contends her office is taking a closer look at cases, interviewing victims and witnesses. Last year, Gardner’s office issued charges in about 50% of the cases, 8,500 of the 17,000 cases police brought to her office. Other prosecutors say this seems low but note that prosecution styles vary by jurisdiction.
When asked about prosecutions, St. Louis Police Chief John Hayden underscored the need for getting charges after arrest.
“It is very important. The officers are going to get discouraged. Citizens and victims are going to get discouraged if they see the same people out again when they know they are arrested,” Hayden said.
But Gardner pointed out there has been a 16% reduction in violent crime last year.
Gardner, who is a registered nurse in addition to being an attorney, sees crime as a public health issue. Since her election, she implemented diversion programs that address the underlying drivers of crime: addiction, mental health and poverty.
Every defendant who goes through her diversion program must obtain their high-school-equivalency degree. She’s put social services inside the courthouse so defendants can access job training and placement, counselors, drug treatment and social programs.
And Gardner said its working. About 83% of people who have gone through the diversion programs haven’t reoffended.
“We are fighting crime with these programs,” Gardner said.
Taylor said she hopes that Gardner’s relationship with the department improves. But Roorda needs to tone down the rhetoric for that to happen, she said.
“Everyone needs to be professional. We need to work together,” Taylor said.
Rogers, of the Organization for Black Struggle, said the St. Louis City Police Department has long needed cleaning up. Gardner’s reform efforts are what is causing the friction between police and prosecutors, Rogers said.
“I am going to go a step further than Ms. Gardner. If those folks that were singled out for their behavior are still working for the city, I wonder why. Why are they working for any city department?” she said.
The office exodus
On top of relations with police and the ongoing investigations into the Greitens investigator, Gardner has also been dealing with personnel issues. About a quarter of Gardner’s staff quit or were fired in the months following her election.
Some people left because they didn’t share her vision, Gardner said, and some left to make more money.
Whatever the case, Gardner said she wishes them well.
But that turnover cost Gardner’s office experience, said Heather Taylor.
“Whether it was for personal reasons or pay, whatever the case was, I think that had to hurt,” Taylor said.
It’s not just people leaving that are taking a toll. Some hiring decisions were controversial.
Gardner hired a St. Louis University Law School classmate as a consultant. Maurice Foxworth was paid $25,000 in 2017. His law license was suspended at the time.
Earlier this month, Gardner hired labor lawyer Serena Wilson-Griffin as her top assistant. Wilson-Griffin has no experience in criminal law, but she did advocate for Wilson-Griffin’s family when her cousin Andre Walker was gunned down in 2016. Dominique Kemper was found guilty of Walker’s murder in March.
Roorda doesn’t think the police department will have to mend the relationship with Gardner. He doesn’t think she will be in office much longer.
“If not for the allegations of criminal misconduct that the special prosecutor is investigating, then for her ineptitude and her conduct in office,” Roorda said.
Gardner will soon prepare for her reelection in 2020. She also faces an expanding investigation into the Greitens’ prosecution. She promises she will continue to reform and disrupt the old thinking on fighting crime, turning her sights on domestic violence and wrongful convictions and continuing her diversion programs.
“It’s too soon to know whether the backlash against the recently elected progressive prosecutors is going to win the day, or if there will be enough early successes in these offices that they can set a precedent for the rest of the country,” Lang said.
Gardner maintains that she is committed to reform, even if it creates adversaries.
“You know, I’m a fighter. I don’t like to feel like I am a, ‘Woe is Kim Gardner.’ I signed up for it. I’m going to fight, and this is just the strength of pushing and doing the right thing,” she said.
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