A federal judge has ruled that racist text messages written by a former St. Louis police officer charged with beating an undercover colleague may be introduced as evidence in his trial.
Former officer Dustin Boone is accused of depriving officer Luther Hall, who is Black, of his civil rights. The jury previously deadlocked on the charge, but prosecutors plan to try again.
And this time, they’ll be armed with new evidence: text messages that show Boone using racial slurs to refer to both the people he’s tasked with policing and St. Louis Circuit Attorney Kim Gardner. Boone’s attorney, Patrick Kilgore, had fought to keep the texts out of the public eye, calling them "inflammatory, irrelevant, and highly prejudicial.” Kilgore hoped the judge would sanction prosecutors for filing them in a way that rendered them open to the public.
In a ruling issued yesterday, U.S. District Judge E. Richard Webber disagreed. He said the texts show Boone’s attitude toward African Americans — and have value as evidence.
Eric Banks, a former state prosecutor now in private practice at Banks Law, said the texts speak to Boone’s state of mind.
“It is not sufficient [under the law] that somebody has been injured,” he explained on Thursday’s St. Louis on the Air. “The prosecutor has to prove that the defendant intended the result. And I believe that these text messages allow that to happen.”
“One of the things that you have in a federal civil rights case that has to be proven is a willfulness to violate somebody's civil rights,” added Bill Freivogel, an attorney who's a professor of journalism at Southern Illinois University-Carbondale. “And certainly these go a long way towards doing that.”
Nicole Gorovsky, a former federal prosecutor now in private practice at Gorovsky Law, agreed with defense attorneys that the texts were inflammatory — but suggested that’s a problem for Boone, not prosecutors.
“I always find it interesting if you're caught in a position of arguing that something is so inflammatory and so incendiary, but the problem is your clients are the ones that actually said those things,” she said. “I think you're in a bad position. I mean, as the defense attorneys, you're trying to prevent public acknowledgement of something that your clients actually did. … If you can't handle what you said, don't say it.”
Webber also ruled that texts Boone exchanged with his now-wife, Ashley Marie Ditto, may be used against him.
Boone allegedly livestreamed Hall's beating for Ditto by hooking his phone to his uniform. That video does not survive, but the text messages they exchanged soon afterward do.
One year later, the two married. Boone’s lawyers had sought to invoke spousal privilege, which wraps some marital communications in a zone of privacy. But prosecutors had argued Boone married Ditto only to keep her from testifying, rendering that privilege moot.
Webber agreed.
“Ditto was served with a subpoena on August 14, 2018 to testify before the grand jury on August 23, 2018,” he wrote. “Despite having no previously disclosed plans to wed, Boone and Ditto obtained a marriage license the day after receiving the subpoena and were married the same day.”
Nine days later, Webber wrote, Boone’s parents testified before the grand jury. Both testified to their surprise at the marriage. Boone’s own father testified that he believed they’d married so Ditto could avoid testifying.
Discussing the case on St. Louis on the Air’s Legal Roundtable, Banks said that even without those issues, the marriage may have come too late as far as the text messages are concerned. “I have never heard of the marital privilege being extended to a timeframe even before you were married,” he said. “So what's up with that? Are we going to have next a ‘fiancee privilege’?”
Banks added, “I think that anybody who believes that there is a reasonable expectation of either privacy or confidentiality with any type of text message needs to have his or her head examined.”
In addition, the judge ruled that he will permit text messages written by former St. Louis officer Christopher Myers, who will also be retried after the jury deadlocked on March 30. He faces one count of destruction of evidence, for allegedly destroying a cell phone that captured the undercover officer being beaten.
While Myers’ texts do not include racial slurs, they reference other things the judge found relevant.
“Whooping ass, living for craziness of downtown for a sick reason, expecting use of force will be tolerated more by superiors, fighting protestors [sic] and trying to [expletive] up the bad guy is behavior one with the ability to cover-up would likely exercise,” Webber concluded. “The evidence goes directly to Defendant Myers conduct in knowingly altering, destroying, or mutilating [officer Hall’s] cell phone, intending to impede, obstruct, or influence any investigation of police misconduct, which could lead to arrests of officers. These text messages, if offered, will be received in evidence.”
The Legal Roundtable also discussed the lawsuit to force Missouri to expand its Medicaid program, misconduct charges by the state’s disciplinary counsel against Circuit Attorney Kim Gardner and a special prosecutor’s decision to offer a reduced, misdemeanor charge in the case of Patricia McCloskey, who is accused of brandishing a weapon at protesters who walked by her house.
Editor’s note: During an on-air discussion of Judge Webber’s ruling about Boone’s marriage, we cited KMOV in stating that prosecutors were granted the right to call Ashley Marie Ditto to testify against her husband. The judge did not address that issue in yesterday’s ruling, only whether the couple’s text messages could be entered as evidence.
“St. Louis on the Air” brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill and Lara Hamdan. The audio engineer is Aaron Doerr.
