Disciplinary counsel recommends reprimand for St. Louis circuit attorney | Law and order

CLAYTON — St. Louis Circuit Attorney Kimberly M. Gardner on Monday cut short a disciplinary hearing by admitting to some ethics charges regarding her office’s handling of a 2018 criminal case against former Gov. Eric Greitens.

The proceedings could have involved a week of public testimony. Instead, on Monday morning, Missouri’s chief disciplinary counsel, Alan Pratzel, announced an amended ethics case and a “joint stipulation” that recommends a reprimand for Gardner. Her agreement with Pratzel’s office acknowledges mistakes in her office’s prosecution of Greitens and means she will dodge potentially severe punishment such as suspension of her law license, probation or disbarment.

Monday’s hearing wrapped up within an hour.

Specifically, the stipulation says Gardner’s office “failed to maintain a comprehensive approach to collecting, producing and logging documents,” but that she did not intentionally fail to produce them. Gardner also “admits that she should have been more vigilant in ensuring the prosecution’s discovery obligations” and that she should have promptly disclosed notes from interviews with key witnesses.

The deal still needs the approval of the three-person disciplinary panel and the Missouri Supreme Court. The panel will send its recommendation to the state’s highest court within 30 days.

The focus of Monday’s hearing was on several pages of Gardner’s typed notes and a video of Gardner’s January, 2018, interview with the woman who accused Greitens of taking a photo of her while she was partly clothed and without her consent.

Last year, Pratzel accused Gardner of violating rules of evidence by failing to provide or omitting witness statements favorable to Greitens’ defense and allowing former FBI agent William Don Tisaby to make multiple false statements under oath. Gardner hired Tisaby, claiming the police department refused to investigate.

Gardner, 46, took questions from panelists Monday and testified that her office made “reasonable efforts” to disclose all evidence to Greitens’ defense lawyers. She said she failed to turn over her typed, bulleted notes because of the “compressed schedule” of the case, almost daily court hearings and limited staffing.

“This case was like no other we’d ever dealt with,” Gardner said.

At the time, she told the panel, her office had about 30 attorneys on staff and her roster of lawyers is about the same size today. Gardner’s office has struggled with heavy turnover since her first term.

Gardner said her staff initially believed a video recording of an interview with Greitens’ accuser had malfunctioned but later realized it had worked. She said the Greitens case has served as a “teaching lesson” in her office to “make sure nothing falls through the cracks.”

She said her office believed at the time that “we turned everything over in our possession” but acknowledged a breakdown in her office’s handling of evidence.

“This case was on a very fast track,” Gardner said. “We did our best to make sure we had a process, but unfortunately that process came up short.”

Gardner and Pratzel declined to comment after the hearing. Several of Gardner’s supporters attended the hearing at the St. Louis County courthouse in Clayton.

At a Monday afternoon news conference, Gardner’s lawyer Mike Downey said negotiations with Pratzel’s office were handled “in good faith.”

“People sort of wonder, you know, ‘It’s not going to affect her practice. Is it serious?’ The answer is yes. Any formal discipline of a Missouri attorney by the Supreme Court is serious,” Downey said. “That should not be taken away. Obviously it suggests there were some problems here that Ms. Gardner recognized and admitted, that things were not done well.”

“A good settlement to a case leaves no one happy but everyone recognizing they benefited from it,” Downey said. “We’re not thrilled with the outcome, but at the same time, we recognize it’s a fair outcome.”

Downey said his work on Gardner’s ethics case is pro bono.

“I have not been paid a dime,” Downey said. “I have no expectation of getting paid, and if I do get paid, wonderful, but I have no expectation at all.”

He said he believes every formal discipline case that involves a reprimand includes a $750 penalty against the lawyer.

“If the reprimand is entered, Ms. Gardner will be able to practice without any interruption at all,” Downey said.

Gardner’s agreement with Pratzel’s office said Gardner and one of her top assistants agreed that Tisaby had testified inaccurately but could not agree how to handle his false testimony because her office did not represent him.

In court filings, Gardner’s lawyer had previously denied the misconduct charges, calling them “another attempt by Ms. Gardner’s political enemies — largely from outside St. Louis — to remove her from office and thwart the systemic reforms she champions.”

Gardner withheld or omitted statements made by Greitens’ accuser that suggested an ongoing, consensual relationship months after their 2015 encounter in Greitens’ basement, according to the ethics charges.

The charges said Gardner also made false claims to her own staff, in open court and in filings, and to the office of the chief disciplinary counsel about interview notes she and Tisaby took and their disclosure to the defense.

Tisaby pleaded guilty last month to a misdemeanor count of evidence tampering. He was accused of lying during a daylong deposition in March 2018 about his probe of the former governor.

Video of Tisaby’s deposition revealed how Greitens’ lawyers sought to attack Tisaby’s credibility by eliciting inconsistent and incorrect testimony about his investigation. It also reveals Tisaby stumbling over basic questions and struggling to explain key evidence and witness statements.

Gardner, who was present for the deposition, said Monday that she sat for Tisaby’s deposition because the lawyer from her office who who was supposed to be there got stuck at an airport.

Tisaby’s investigation led to an indictment against Greitens on one felony count of invasion of privacy. Greitens claimed he was the target of a political witch hunt.

Gardner dropped the charge against Greitens on May 14, 2018, during jury selection after a judge decided she would have to testify about her office’s handling of the case.

On Monday, one of the panel members asked Gardner about Tisaby’s testimony and what she could have done differently.

Gardner said Tisaby was “blindsided” by the “egregious tactics” Greitens’ lawyers used to attack Tisaby’s credibility, including leaking details about his FBI personnel file. Tisaby refused to answer questions about his demotion and suspension or the agency’s conclusions that he lied under oath about having remarried in 1998 before his divorce was final.

“Mr. Tisaby made mistakes,” Gardner said. “But I’m not here about Mr. Tisaby. I’m here about Kim Gardner.”

In hindsight, Gardner said, she would have reminded Tisaby to tell the truth.

“But I can’t control what someone says,” Gardner said.

Monday’s hearing took place at the St. Louis County courthouse. The three members of the panel were Sheryl Butler of St. Louis and lawyers Elizabeth D. McCarter of St. Louis and Keith A. Cutler of Kansas City.