Ethics

Top St. Louis prosecutor is reprimanded for discovery missteps, misstatements in then-governor’s prosecution

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St. Louis Circuit Attorney Kim Gardner. Photo from the city of St. Louis website.

St. Louis Circuit Attorney Kim Gardner was reprimanded Tuesday for her handling of a 2018 investigation into then-Missouri Gov. Eric Greitens for alleged invasion of privacy.

The Missouri Supreme Court reprimanded Gardner, accepting the recommendation contained in her April joint stipulation with the Missouri chief disciplinary counsel’s office.

Greitens had been accused of taking a partially nude photo of his mistress without her knowledge and consent. An invasion-of-privacy charge was dropped in May 2018, but Greitens nonetheless resigned from office the next month.

Greitens had claimed that an investigator in the case committed perjury when he said he didn’t take notes during an interview with the accuser.

A March 2021 ethics complaint had alleged that Gardner failed to correct false statements by the investigator, failed to correct false statements made to the court, failed to turn over possibly exculpatory material, and falsely asserted in court that everything had been turned over to the defense.

The April stipulation concluded that Gardner’s mental state with respect to discovery problems and misstatements “was negligent or perhaps reckless but not intentional.” The stipulation pointed out that the Greitens case “proceeded on an unusually expedited track” that required production of documents “on an extremely short time frame.”

According to the stipulated facts, Gardner had sought investigative assistance in the case from the St. Louis police chief, the U.S. attorney’s office, the local FBI office and a lawyer in private practice with extensive experience investigating corruption cases. As Gardner understood the situation, all were unwilling or unable to help.

Gardner’s office did not have a lead investigator at the time. The incoming investigator, who was completing military service, suggested hiring former FBI agent William Don Tisaby and his investigation firm Enterra.

Gardner conducted an initial interview with Greitens’ accuser to assess her credibility. Then a second interview was conducted with Tisaby taking the lead.

According to the stipulated facts, Gardner failed to ensure production of five documents, including a draft report by Tisaby and documents stemming from Gardner’s first interview with the accuser. She also wrongly stated that requested documents had been turned over and failed to ensure the correction of discovery misstatements in a legal memo filed with the court.

Gardner and a lawyer in her office agreed that Tisaby testified inaccurately during a deposition, but their office did not represent Tisaby at the deposition, and they did not intend to call him as a witness in the case. Lawyers in Gardner’s office could not agree on what to do in response, according to the stipulation.

The stipulation said Gardner “takes seriously her and her office’s obligation to provide discovery to criminal defendants and has even taken steps for the office to participate as a pilot program for adoption of a new electronic document management system.”

The Associated Press, the St. Louis Post-Dispatch and the Kansas City Star had coverage of the reprimand.

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