PHOTO BY WESLEY LAW
On the morning of June 2, St. Louis Circuit Attorney Kim Gardner stepped toward a podium to address the previous 24 hours—a period that had begun with nationwide protests against a Minneapolis policeman’s killing of George Floyd, an unarmed Black man, but had ended, 550 miles south in St. Louis, with smashing, looting, smoke, and bloodshed.
Gardner was at a press conference inside the St. Louis Metropolitan Police Department’s headquarters. The police and fire chiefs stood nearby in bleached-white uniform shirts, the mayor and public safety director in somber tones. Gardner wore a bright red dress and peeled off her face mask to speak. She’s the first African-American woman to serve as the city’s top prosecutor. She won office in 2016 decrying racial inequities. During her tenure, she’d pushed for stricter oversight of police and tangled with the force repeatedly. But at that very moment, four officers were recovering from gunshot wounds inflicted during the unrest. One retired police captain had been killed. She drew a breath and held it.
At age 44, Gardner has played many public-facing roles—star athlete, sports agent, funeral director, registered nurse, state legislator—but she doesn’t seem to relish press conferences. Those close to her say she’s a charmer and raconteur in relaxed, small-group settings. But when she speaks to local news reporters, some of whose coverage she considers unfair, her commentary can sound rushed, fragmentary, even defensive. This time it didn’t.
“I fully support and strongly believe in the power of nonviolent protests to shine a light on the systemic racism and discriminatory practices that are in the criminal justice system,” Gardner read from a prepared statement. “But what happened last night,” she said, her tone sharpened, “were small groups of individuals who chose to benefit off the pain and suffering of our community and use it as an excuse to cause insensible, undamageable harm… I will use the full power of the law and my office to prosecute and hold accountable anyone who murders police officers, who shoot at police officers or harm anyone in my community.”
Cracking down on violence has long been considered the chief duty of any prosecutor, but therein lies the reason that Gardner needed to restate it: She has spent her tenure trying to broaden the public’s perception of what her job really is.
Gardner is part of a wave of progressive prosecutors who’ve swept into power across the country in recent years promising reform. The tough-on-crime policies of the ’80s and ’90s no longer make sense to many voters. Crime rates have fallen. The unrest in Ferguson and recent death of George Floyd have placed law enforcement practices under intense scrutiny. Both political parties see the costs, human and financial, of a high incarceration rate, particularly in low-income communities of color. From Chicago, Baltimore, Philadelphia, and San Francisco to St. Louis—with Prosecuting Attorney Wesley Bell in the county and Gardner in the city—justice is now measured not only in convictions and sentences but sometimes in the avoidance of those outcomes.
Gardner, for example, has stopped issuing standalone charges for marijuana possession of less than 100 grams. She has offered diversion to low-level and nonviolent offenders. The number of convictions secured by her office so far is several thousands lower than in the final three years of her predecessor. She’s vying for a second term to continue her efforts, and city residents will decide in the August 4 Democratic primary whether she’s earned it.
Her critics insist that she hasn’t. The St. Louis Police Officers Association, the union that represents city police, has labeled her policies a “criminal empowerment agenda.” Gardner has punched back, grabbing national headlines by accusing the union in a lawsuit of a “racially motivated conspiracy” against her. But even some former high-level members of Gardner’s staff who praise her ideas say she lacks the administrative chops to make them a reality.
Mary Pat Carl, a former prosecutor who’s taking on Gardner in the August primary, says, “I do believe that Kim Gardner has likely experienced racism and/or sexism in the time that she’s been circuit attorney, but I still think that she also has not been a great circuit attorney. It’s possible for both those things to be true.”
Voters seeking basic facts about her tenure will find that even those spark fierce debates.
The day after Gardner spoke at the press conference, Missouri Attorney General Eric Schmitt tweeted, “In a stunning development, our office has learned that every single one of the St. Louis looters and rioters arrested were released back onto the streets by local prosecutor Kim Gardner.” Local news outlets covered this tweet. It received more than 35,000 retweets—though it may not capture what happened.
As Chris Hinckley, Gardner’s chief warrant officer observes, Gardner can’t “release” anyone; she’s not a jailer. The police detain suspects and apply for charges; prosecutors decide whether to issue them. Spokespeople for both institutions report that, in this instance, officers arrested about three dozen suspects during that first night of unrest but released the majority without applying for charges. If the police don’t apply for charges, both institutions attest, then as a rule, the circuit attorney’s office doesn’t make the decision to release. For the remaining suspects, police did apply for charges and could therefore hold them for up to 24 hours, but prosecutors refused to issue in that timeframe. Hinckley says a video showed one suspect throwing rocks but, in the office’s opinion, it was insufficient to charge him for assaulting a law enforcement officer or property damage. As for the eight others arrested on suspicion of looting, prosecutors determined that the detective applying for charges needed to interview the arresting officers, but the latter weren’t available in those hectic circumstances. Therefore the 24-hour clock ran out and the arrestees went free. Since then, prosecutors have charged at least seven, whose cases were pending at press time.
Gardner responded to Schmitt’s tweet in a video, saying he was fueling “division,” but his tweet remains online. Nasty emails have flowed into her office. She reads some of them aloud to me. “You idiot racist piece of shit,” wrote one person. “These criminals you released will hurt or kill your local police and residents. You will have blood on your hands.” (Schmitt’s spokesman says, “We denounce any and all hateful rhetoric directed at Circuit Attorney Gardner or her office.”)
Asked how it feels to receive those, Gardner says, “Sometimes, when you sign up for this, you’ve got to deal with it. You get tired of it, but you’ve got to keep pushing.”
Kim Gardner is the great-granddaughter of Sicilian immigrants and one James H. Randle, a World War I veteran who co-founded the nation’s first Black American Legion post. She’s also the granddaughter of the late Eddie Randle Sr., a jazz trumpeter who led the renowned Blue Devils band, which featured a young Miles Davis. Since 1932, her mother’s family has run funeral homes; the current iteration is Eddie Randle & Sons, at Natural Bridge and Cora. That’s in the 21st Ward, where Kim Gardner grew up with her parents and two younger siblings.
She remembers how, as a kid in the 1980s, she’d pedal her bike around the funeral home parking lot. She’d hear the sobs, the preaching, and sometimes a “jazz wake”—an intimate concert performed in honor of a deceased musician. She began absorbing the best ways to talk with someone grieving over the loss of a loved one, a skill that she uses today with crime victims. “I learned from watching my family,” she says. “You have to let them vent.”
The Randles weren’t involved in politics, per se, but kept active in neighborhood affairs. Gardner recalls how the funeral home hosted regular “block unit” meetings, a key part of social infrastructure in the ward, which was filled with working- and middle-class Black homeowners. “It was a highly organized, highly cohesive place to grow up,” says Mike W. Jones, who served as 21st Ward alderman in the early 1980s. “Kim’s is probably the last generation to see it at its height.” On weekends, the family drove their RV out to Wentzville to visit their 40-acre farm, right next to Chuck Berry’s estate.
From third grade onward, Kim rode the bus to Webster Groves as part of the school desegregation program. Once she entered high school there, her father, James Gardner, himself a runner, pushed her to run cross-country. “Everybody would laugh at me my freshman year, because I was always last,” she says. “It was horrible, but he taught me to stick with stuff.” They trained hard in O’Fallon Park during the summers, and Kim underwent a metamorphosis: She won the 4A state championship as a sophomore, then again as a senior. Later in her senior year, she won the state title in track in the 800-meter run. Mississippi State University offered her an athletic scholarship, and she accepted.
While in college, she dated a football player, Kevin Bouie, who would go on to play as a running back in the NFL. At age 20, Gardner gave birth to their daughter. Rather than remain in the South, she chose to transfer home to Harris-Stowe State College [now University]. “When you have responsibility for a child,” Gardner says, “you have to woman up and not think about yourself.” She earned her undergraduate degree in health care administration in 1999.
By that time, the neighborhood of her youth had deteriorated; families had moved away as drugs and gangs took their toll. In 2000, Gardner’s brother, who was 21, and her cousin, 19, pleaded guilty to an incident in which, after a night of drinking and smoking, they entered the home of a family friend, restrained her, threatened her with a knife, and stole electronics. At the sentencing hearing, Gardner’s aunt pleaded for mercy for her son: “Don’t bury him where he can’t grow.” The judge sentenced each to 20 years, which meant a minimum of 17 years. The process, Gardner says, devastated her family and kindled her interest in the law. “It taught me that if you want to really be a part of making changes in the system, you have to be a part of the system,” she says.
She gained admission to Saint Louis University School of Law’s part-time program and remembers studying in the library while trying to keep an eye on her rambunctious 3-year-old. During law school, she worked as a sports agent on the side, representing several arena football players. She earned her J.D. in 2003.
After a stint in private practice, Gardner became a prosecutor under then–Circuit Attorney Jennifer Joyce. Change was afoot in that office. Joyce had won a second term in 2004 and set out to overhaul what she calls a “good-enough-for-government culture.” She instituted regular performance reviews and promoted attorneys on the basis of merit. Gardner started in misdemeanors, then handled property crimes such as burglary; she tried no serious violent crimes under Joyce.
“I ended up liking the office, but I saw where things could be different,” Gardner recalls. “I felt like, being prosecutors, we could do more. People should be treated as more than just a file.”
She decided to go back to school and continue studying health care. She completed a master’s degree in nursing at SLU in 2012.
Throughout this time, Gardner kept an eye on state politics. She’d run as a Democrat in 2008 for the District 60 seat in the Missouri House of Representatives but lost by 50 points to Jamilah Nasheed. In 2012, she tried again and ended up winning two terms in the House. She filed bills on education, health care and criminal justice, though none passed in the GOP-controlled chamber. Former state Representative Jeanette Mott Oxford remembers her as a “very responsible” legislator who showed up to committee hearings, asked good questions, and engaged in debate. “I was aware of colleagues who wouldn’t do those things, so I appreciated that she did,” Oxford recalls.
Gardner also made a personal decision during those years: In 2014, she married Mark Elliott, now director of the track and cross-country programs at Clemson University. (Their wedding was held in Jamaica, where Elliott was born.)
In July 2016, Circuit Attorney Joyce announced that she would not seek re-election. Four candidates filed to run; Gardner was one. Her campaign pitch was that in North City, where she grew up and where violent crime is concentrated, the community is both over-policed and underserved. The system can only work there, she argued, if residents trust it and see prosecutors who look like themselves. She promised to bridge that gap. In the August 2016 Democratic primary, Gardner won 47 percent of the vote. Because no Republican had filed, she clinched both the nomination and the election.
She was sworn in January 6, 2017, inside the Old Courthouse—the venue where, more than 170 years earlier, slaves Dred and Harriet Scott had sued for their freedom, only to be told by the U.S. Supreme Court that Black Americans could never be citizens. “I remember a lot of tears,” says Hinckley, who was sworn in as a member of Gardner’s executive staff. “I think the significance of the event had people in awe. You were part of history.”
On September 15, 2017, St. Louis Circuit Judge Timothy J. Wilson signed a verdict—and, without wanting to, lit a fuse.
“Agonizingly, this court has poured [sic] over the evidence again and again,” wrote Wilson. He found that in December 2011, city police officer Jason Stockley had indeed fatally shot 24-year old Anthony Lamar Smith at the end of a high-speed chase triggered by a suspected drug deal. The question for Wilson, the trial judge, was whether prosecutors under the new circuit attorney, Gardner, had proved that Stockley committed murder rather than acted in self-defense, as the officer claimed.
“This Court,” Wilson wrote in his decision, “is simply not firmly convinced of defendant’s guilt.”
Furious citizens clustered in the streets for days. Protests gave way to property damage, mass arrests, and injuries sustained by both demonstrators and police.
Several weeks later, Gardner arrived at a Public Safety Committee hearing with a plan: She requested at least $1.3 million, or 1 percent of the police’s budget, to create her own unit to probe officer-involved shootings. In the aftermath of such incidents, Gardner proposed, the scene would be controlled by her unit, not by the SLMPD’s Force Investigation Unit, which at that time took the lead. The police shouldn’t be investigating themselves, she argued.
“This won’t guarantee the outcome,” Gardner said, “but at least we can say we had a fair and independent investigation.” She suggested that as things stood, the police’s FIU was dragging its feet. There was a backlog of 25 open cases, she reported. She wanted a unit of five investigators and four prosecutors who could chip away at it.
Factors on her end, however, may have been slowing the pace. Two alderpersons asked about her staffing levels; the St. Louis Post-Dispatch had reported the departure of more than two dozen prosecutors from her office. Gardner acknowledged the turnover but said it was normal for a new leader with a new vision. (That’s true, but Wesley Bell would lose 11 percent of his employees during his first year, compared with Gardner’s loss of about 41 percent in hers.)
The board bill to create Gardner’s unit failed to gain traction. In 2018, she hired Crockett Oaks III, a former FBI agent, to investigate officer-involved shootings. He’s since departed, but he says Gardner was right to push for independence. He achieved symbiosis with his counterparts in the FIU, describing them as “hardworking professionals” who are “interested in seeing the right thing prevail.” But he sensed resistance from the police union. If real or perceived conflicts of interest were removed from these probes, he says, “I think you’d see a drastic change in the hearts and minds in that police department.”
As things stand, Gardner refuses to work with some officers: the ones on her “exclusion list,” who, she believes, lack credibility or integrity. In August 2018, her office emailed the police a list of nearly 30 such officers, explaining that prosecutors would no longer accept any cases that depended on their participation and would review existing cases that did. Once these emails surfaced in the media, Gardner said she’d created the list for “internal purposes” and at the request of police leadership. Chief John Hayden denied the latter claim, calling the list “unnecessary overreach.”
Rank-and-file prosecutors felt “blindsided” by this controversy, says one former assistant circuit attorney—especially when defense lawyers started calling about the older cases. “It was poorly handled,” says the attorney, “and this was not a three-dimensional chess move on her part. She did not think that email would get out.”
Exclusion lists aren’t new or unique. Both of Gardner’s predecessors say they had informal policies to the same effect. Scores of current and former law enforcement officials signed a letter in support of Gardner, calling the lists “a well-settled best practice” that was common at all levels nationwide.
Disagreement arose over whether Gardner’s policy for adding and removing officers was sufficiently clear; that appeared to be resolved once the city’s public safety director, former Circuit Judge Jimmie Edwards, brokered a protocol that both sides could live with. Then Gardner decided that certain officers could never be struck from the list. In June 2019, the Philadelphia-based Plain View Project published a database of racist and boorish Facebook posts by current and former cops in various jurisdictions, including St. Louis. Gardner reviewed those posts and added 22 more officers to her list. Seven were “permanently banned,” meaning that they could no longer apply for charges, be involved in obtaining or executing search warrants, or serve as essential witnesses. The SLMPD has fired at least two of them.
Those officers had no credibility, says Lieutenant Heather Taylor, president of the Ethical Society of Police, an association of primarily African-American officers, sheriff’s deputies, and park rangers. Gardner was right to go after them, she says, but the list included two ESOP members. They didn’t deserve to be on it, Taylor says, and have since been removed. “There should’ve been a thorough review before you put them on there,” says Taylor. “We have to be careful on both ends.”
On January 24, 2018, Gardner drove alone to a hotel in Illinois. Inside a reserved room, she met with a nervous hairdresser in her mid-thirties. She’s now known in court documents as K.S. The story that K.S. laid out over the next three hours prompted Gardner to indict a sitting Missouri governor—a decision that would speed his downfall but also cast a long shadow on the circuit attorney herself.
K.S.’s story went like this: In March 2015, she was working at a salon in the Central West End. One of her clients was Eric Greitens, a Rhodes Scholar and Navy SEAL with political aspirations. He was married but flirted with her at the salon; she was separated from her husband and charmed by Greitens. When he invited her to his nearby home, she walked over. They descended to his basement. In her telling, he bound her hands with tape to exercise rings, blindfolded her, ripped off her shirt. She recalled seeing a flash through the blindfold and hearing a sound typical of a cell phone taking a photo. He allegedly told her that he would spread the photo if she divulged anything. She started crying, felt humiliated; he bear-hugged her to the floor, she recalled, where she concluded that in order to leave, she had to perform oral sex on him; she did, then left, but she forgot her keys. When she returned to retrieve them, he apologized and said he’d deleted the photo. They saw each other a couple more times before she cut off contact. (Greitens later denied blackmailing the woman, saying the relationship was consensual and calling the subsequent testimony in a House report “explosive, hurtful allegations of coercion, violence, and assault,” which he denied.)
Days after that basement encounter, K.S. felt so anguished that she sat in a vehicle with her husband and spilled her story—as he secretly recorded it. The couple got divorced the next year and Greitens was elected governor. Rumors about the affair circulated. By early January 2018, the ex-husband—through his attorney, Al Watkins—was aggressively pitching the story to the media. (Watkins would later testify that at this time, bundles of cash totaling $100,000 arrived at his law office, the delivery having been arranged by Missouri Times publisher Scott Faughn, who told Watkins that it came from a wealthy Republican hostile to Greitens and was intended to ensure that the ex-husband could pay attorney’s fees and have a “soft landing.” Faughn would later deny this, insisting the money was all his own.)
News outlets sat on the story at first. K.S. wouldn’t corroborate the details and begged for privacy. But on January 10, 2018—the night of Greitens’ second State of the State speech—KMOV News 4’s Lauren Trager broke the news after obtaining a statement by the governor in which he admitted to the affair but nothing else. The story caught fire.
The next day, Gardner called the allegations “very troubling” and announced a probe. She and K.S.’s attorney, Scott Simpson, connected on the phone. They agreed on a meeting at the hotel in Illinois. According to K.S.’s subsequent testimony, she felt “neutral,” driving with her attorney over the bridge, about being the victim in a prosecution. It pained her that “on top of all of it,” Greitens had, in effect, called her a liar. She knew that she could be subpoenaed to testify before a grand jury but didn’t sense that Gardner was threatening to do that. Rather, she felt relatively comfortable just sitting down and telling her story to Gardner, who promised to protect her privacy.
It’s unclear from the testimony whether Gardner’s gentle approach won K.S. over that day, but if it did, it was a pyrrhic victory: The decision by the circuit attorney to attend that meeting by herself would prove costly.
“She didn’t want to force [K.S.] into doing something she didn’t want to do,” says Susan Ryan, Gardner’s former spokeswoman, “but it would’ve been better for her to have an investigator with her.”
Gardner decided to pursue charges against the governor. His defense team would later suggest her motives were political. Ryan recalls it differently: “She told me she felt like she had an obligation to go forward because she believed the victim.”
On February 15, Gardner led the questioning of K.S. before the grand jury, which indicted Greitens for invasion of privacy. Specifically, prosecutors alleged that Greitens took that photo of K.S. in a seminude state; that she didn’t consent to it and had an expectation of privacy; and that he transmitted it into his phone or into cloud storage. (That latter element was key: “transmission” is what boosts the offense to a felony.)
Greitens assembled a potent squad of lawyers in his corner: high-profile defense attorney Scott Rosenblum, retired Circuit Judge Jack Garvey, and several former federal prosecutors at Dowd Bennett, among them Ed Dowd, Jim Martin, and Michelle Nasser. For weeks, they pummeled Gardner’s team in hearings and in filings, accusing them of discovery violations. Behind closed doors, they pressed Gardner in personal terms to dismiss the case. The teams met privately on March 16 in the library of the Circuit Attorney’s Office. Garvey and Gardner knew each other; he’d supported her 2016 campaign and even met her for coffee several times to discuss her ideas for reform. Now, according to a special prosecutor’s report that later described the scene, Garvey sat across the table with a less encouraging tone. The gist: The Greitens case is weak. It will only get worse for you. It’s the type of case that can ruin a career.
In the pleadings, the defense noted that K.S. never actually saw a photo. The state’s forensic examination of Greitens’ cell phone didn’t dredge one up, either. This didn’t doom the case, necessarily; the 12 jurors at trial could have chosen to believe K.S.—and, notably, a bipartisan special committee of the Missouri House later did, in fact, unanimously find her credible and consistent. But without any specific photo, the transmission of one seemed hypothetical. (Throughout the case, Greitens denied breaking the law but didn’t explicitly deny taking the photo; in early 2020, he finally did deny it, though not under oath; it was in an interview with KTVI Fox 2 News.)
By mid-May, the defense had Gardner cornered. They insisted that she and another member of the team had impermissibly “molded” K.S. into a victim. The defense had every right, they asserted, to question the circuit attorney about, among other things, what she’d initially promised K.S. in that Illinois hotel. When the judge ordered her to testify, Gardner—refusing to be a witness in her own case—dismissed the charge altogether. She promised to refile it or seek the appointment of a special prosecutor.
That evening, as a violent thunderstorm rolled toward downtown, Greitens walked down the steps of the Civil Courts Building to a mob of reporters. “This experience has been humbling,” he said, “and I have emerged from it a changed man.” His lawyers, though, blasted Gardner. Rosenblum accused the circuit attorney of “misconduct from the beginning of this case to the end,” adding, “I can tell you, in 35 years [of practicing law], I do not take that allegation lightly.”
But Greitens had not escaped Gardner’s scrutiny. By that time, she’d opened a second case against him, this one related to campaign finance and referred to her by then–Attorney General Josh Hawley. Gardner had also persuaded a judge to reassign the invasion-of-privacy case to a special prosecutor: Jean Peters Baker, Gardner’s counterpart in Jackson County. Meanwhile, the House committee was bearing down on Greitens with parallel investigations into both matters. The GOP-controlled House as a whole soon had the votes to impeach him. On May 29, 2018, Greitens announced he would resign at the end of the week.
The day after Greitens’ announcement, his counsel inked a deal with Gardner: On receipt of the governor’s resignation, she would drop the campaign finance case; Greitens, for his part, would release the circuit attorney and her agents from civil liability stemming from the invasion-of-privacy matter.
This could have ended the epic legal bout between Gardner and Greitens’ defense team—but it didn’t.
“They told her if she pursued this, life would get very bad for her,” says Ryan, “and it sure seems like they did what they could to make that happen.”
While investigating the governor, Gardner had swerved from protocol in one fateful respect: She outsourced the legwork to a private investigator. Normally, the SLMPD gathers evidence of crimes. In this case, Gardner hired someone outside the department to do it: former FBI agent William Don Tisaby.
Tisaby interviewed K.S. and other witnesses. After the defense team deposed him over that activity, they flew into a frenzy, accusing him of lying about it. Even a member of the prosecution called Tisaby’s statements “untruthful.” Robert H. Dierker, a former circuit judge who was then serving as Gardner’s chief trial assistant, said in open court, “To say he’s Inspector Clouseau would be a compliment. We are saddled with the egregious mistake of relying on him. He lied to me, you know.” (Tisaby, through his lawyer, denied any wrongdoing.)
Once the Greitens case was dropped, Ed Dowd announced that the defense team would report Tisaby’s alleged perjury to the police. Garvey says lawyers have that duty: “If they know a falsehood is put on the record out there, they have to report that.”
Then the police themselves strayed from the norm. Typically they apply for charges with the circuit attorney; if Gardner sees an ethical conflict, she seeks a special prosecutor. In this instance, however, the police took the case instead to the city counselor, and he persuaded a circuit judge to appoint a special prosecutor: Jerry Carmody of the Clayton firm Carmody MacDonald.
Carmody is a commercial litigator. He cut his teeth as an assistant circuit attorney and also served on the Missouri Supreme Court’s Commission on Racial and Ethnic Fairness. Gardner protested that he was no neutral actor but rather a Chaminade High School classmate and lifelong friend of Ed Dowd, the Greitens lawyer who reported the alleged perjury in the first place. Their relationship, her lawyers argued in a filing, created at the very least an appearance of a conflict of interest. No public hearing was held, they complained, to discuss whether Carmody and his firm “were qualified candidates for this highly public, prestigious, controversial, and lucrative appointment.”
But the courts upheld Carmody’s appointment. What ensued was legal trench warfare. At one point, he obtained a search warrant that police used to physically seize Gardner’s email server. In pleadings, he accused her and her office of doing “everything in their power to interrupt and thwart the investigation.” She, in turn, accused him of going on a “fishing expedition,” all because he and the police “dislike how this African-American woman is reforming the criminal justice system.”
In June 2019, a grand jury indicted Tisaby. He stood accused of six counts of perjury in a deposition—possibly the first person in Missouri to face that charge—plus one count of tampering with physical evidence. Though the circuit attorney herself faced no charges, her name popped up throughout the 30-page narrative, raising eyebrows among insiders.
Nearly every count is related to things that Tisaby said March 19, 2018, the day Greitens’ lawyers grilled him under oath. Gardner sat by his side that day. The lawyers asked Tisaby, for example, whether he’d received any information from the circuit attorney before interacting with K.S. No, Tisaby said, because he’d preferred to come up with his “own take” and do an “independent review.” Yet in reality, the grand jury alleged, Gardner had sent him six pages of notes, plus they’d spoken for five hours on the phone, exchanged more than 100 texts, and even met in person in Louisiana. Gardner didn’t correct his testimony.
In the middle of the deposition, both sides broke for lunch. On reconvening, the defense asked whether Tisaby had been in contact with Gardner during the break. “Not at all,” he said. In reality, the indictment alleges, they had spoken at least seven times on the phone for a total of 34 minutes. Again, she didn’t correct him.
An ethics question arose: If the grand jury was right that Gardner “did not attempt to correct this false testimony,” did she have an affirmative duty to do so? Court rules in Missouri require attorneys to “take reasonable remedial measures” if a client lies in a deposition. Gardner argued that Tisaby wasn’t her client. Carmody begged to differ, countering that she objected multiple times on his behalf and instructed him not to answer certain questions. This dispute may be litigated in the courts: The Greitens team has filed a bar complaint against Gardner, though the Office of Chief Disciplinary Counsel has not issued a public statement on the matter.
In Gardner’s eyes, this was all a political attack and an attempt to re-litigate the Greitens case. She tried to avoid being deposed, but the effort failed, and, in January, she testified under oath. At press time, Tisaby had pleaded not guilty and was awaiting trial; Carmody said the investigation “will continue.”
Meanwhile, Gardner is incurring hundreds of thousands of dollars in legal fees from private law firms—and now there’s a lawsuit in circuit court to prevent taxpayers from footing the bill. Retired police officer Charles Lane, who has sued the city several times, filed the petition. A judge ruled that Lane is likely to prevail on his claim that Gardner’s contracts with these firms are void because she violated the County Budget Law when she signed them. The judge has temporarily blocked the city from paying the bills.
The more explosive accusation in Lane’s suit, though, is that Gardner feared exposure in the Tisaby probe, “decided to lawyer-up,” and is “attempting to use City funds to subsidize her efforts to avoid criminal prosecution.” In a twist, City Counselor Julian Bush, who has defended the circuit attorney against other suits, sided with Lane on that issue. Bush suggested in a filing that Gardner’s own lawyers construed their work to be defending her from the special prosecutor; after all, they had argued that the Tisaby probe had “morphed into an attempt to prosecute Circuit Attorney Gardner.” Gardner responded that what they really meant was that she’d become a political target of the probe, not a criminal target. “Either way,” reasoned Bush, for them to defend her for any purpose in a criminal proceeding “would be an impermissible use of public funds.” The judge hadn’t ruled at press time on this part of the suit.
Gardner, for her part, is going on offense. She sued Carmody and his firm under the Sunshine Law, asking for the paper trail of their appointment. She also reported to the police her belief that during the Greitens investigation, the defense had twice threatened to ruin her—behavior she felt rose the level of a crime (tampering with a judicial officer). She persuaded the court to appoint yet another special prosecutor. In November, that prosecutor cleared the defense of an intent “to threaten or harass the Circuit Attorney.”
In January, Gardner filed a federal civil rights petition under the Ku Klux Klan Act. She sued Carmody, Lane, the SLPOA, and the city itself, accusing them of “a racially-motivated [sic] conspiracy to deny the civil rights of racial minorities by obstructing a government official’s efforts to ensure equal justice under law for all.” She wants compensatory and punitive damages. She also wants an order enjoining the other parties to respect her rights. (The case is pending.) Gardner’s complaints have caught the eye of the national media: CBS News broadcast a segment on the suit, and The New York Times ran the headline “The St. Louis Prosecutor Went After the Establishment. Now the Tables Are Turned.”
The suit serves as the legal libretto to a fiery speech that Gardner gave last year. On March 19, 2019, she walked to the front of West Side Missionary Baptist Church. A crowd of admirers welcomed her with applause, hollers, some arm cranks. She took the microphone and addressed them.
“No matter how much these few powerful people dislike my policies or my personality,” she said at one point, “no matter how much disdain they have for me, I refuse to kneel down and kiss the ring of the good ol’ boy system.”
No sane lawyer becomes a prosecutor for the pay. They typically do it because they believe in it or they want the trial experience, knowing that a large law firm’s salary will better assist in paying down their mountain of law school debt. Therefore, steady turnover is the norm at the Circuit Attorney’s Office, which averages about 140 employees. Yet historically speaking, Gardner’s turnover is high. In the first three years of the Joyce administration, 48 attorneys and staffers quit or resigned; in the three years after Joyce’s restructuring, 88 departed. In Gardner’s first three years, at least 125 employees left.
Not all have been replaced, either. In late May, Gardner mentioned in a public hearing that she was slotted in the city budget for 53 attorneys but had only 39 (though several applicants had recently agreed to come on board). The upshot of this multi-year exodus is that many seasoned attorneys have moved on, taking with them their technical know-how and institutional knowledge. Last September, the Post-Dispatch calculated that a combined 470 years of experience have walked out the door.
Defense attorney Robert Taaffe says that although Gardner has the best intentions and her attorneys on the front line work hard for her, “they just lack experience. They’re overwhelmed at this point.” Taaffe says this leads to a second problem: The wheels of justice have slowed, meaning that defendants don’t get out of jail or get to trial as fast as they could have with a fully staffed office.
Gardner contends that she’s a disruptor of the status quo, that there will always be people who resist change and head for the exit. That wouldn’t explain the departure of multiple attorneys she hired, including at least seven who were women, people of color, or both. (Gardner notes that those kinds of employees are especially hard to keep, given that private sector entities looking to diversify their rosters can lure them away with higher pay.) She has also seen historically high turnover in her handpicked executive staff. Consider the chief trial assistant, a position that across the state is traditionally occupied by an office’s wisest tactician. Circuit Attorney Dee Joyce-Hayes had one chief trial assistant during her eight years in office; Jennifer Joyce (no relation) had two in her 16 years. Gardner has had four in less than four years; in mid-June, the post was vacant and had been for months.
SLM interviewed three high-level employees who’ve resigned from Gardner’s office. Speaking on condition of anonymity, all three lauded her character and praised her reform agenda, calling it both necessary and urgent. But all three concluded that she hasn’t shown the managerial skill to fully realize that vision. “She’s an ideas person,” says one. “She knows her community. She just has zero project management experience, and she has no willingness to trust people who do have that experience.” They describe how she’s tightened her circle of trusted advisors and centralized decision-making at her own desk to the point that no one person could get to it all. One recalled that the office was taking divergent stances on nearly identical cases: “It was a system of micromanaging, but the managers didn’t really know what they were doing on a technical level.” And that goes back, the former employee says, to the loss of criminal law expertise.
Personnel issues aside, how is the office performing? One point of comparison between Gardner and her predecessor is the trial conviction rate. During Joyce’s final three years, it was 71 percent (with 291 trial wins). During Gardner’s first three years it was 56 percent (with 220 trial wins). These trials are almost always felony cases.
But trials are only a sliver of what’s going on. Law & Order buffs may assume that most criminal cases are resolved at trial; in reality, few get that far. The vast majority of convictions nationwide are secured through guilty pleas. To evaluate the office’s performance overall, then, you must include those outcomes.
On the whole, the levels of crime and prosecution in the city of St. Louis are quite a bit lower than they were a decade ago, but zooming in on the most recent six years reveals some nuance. If you compare Joyce’s final three years with Gardner’s first three, you can see that total reported crime was 3.5 percent lower under Gardner, yet police brought her more cases (31,600 versus 30,300). Gardner issued fewer cases than her predecessor (12,600 versus 13,900) and dismissed more (5,100 versus 3,500). One standout stat: Gardner’s office won 7,469 convictions versus Joyce’s 11,169.
Does this drop in convictions mean that some offenses are going unpunished—and, if so, that city residents are less safe as a result? Not necessarily. Some cases are simply being handled at the federal level. Data from the U.S. District Court reveals that the prosecution volume by the U.S. Attorney’s Office is higher than it used to be, with 1,475 criminal defendants in 2019, compared with about 900 in 2016. But that doesn’t fully explain the conviction gap.
Gardner says her goal is not to rack up as many convictions as possible, but rather, to reduce mass incarceration. Though she intends to hold accountable those who commit violent and serious crimes, she says, she declines to pursue cases that, in her view, offer little benefit to public safety. For example, she no longer issues standalone charges for individuals caught holding less than 100 grams of marijuana. (It’s unclear from the data provided how much that one policy explains the conviction gap because convictions aren’t broken down by offense. A spokesperson for the office says it plans to release a public-facing data dashboard that will eventually afford such granular detail.)
Gardner points to another reason for fewer convictions: her diversion programs. They don’t fully explain the conviction gap either, given that 572 individuals have been accepted and 371 individuals graduated over the past three years, but they do reveal, at least, the heart of Gardner’s reform philosophy: that to attack crime, you must attack its roots, which lie in poverty, lack of education, and psychology.
For years, the city has run “treatment courts,” alternative sentencing schemes in which offenders receive addiction treatment, therapy, and other kinds of help. These specialized dockets, managed by judges, reward personal growth and sanction harmful behavior. They’re geared toward high-risk, high-need offenders. Yet many offenders don’t fit that profile. To give those people a chance to avoid prison and probation, and remove their cases from the public record, Gardner launched her own menu of alternatives, called “diversion.”
Diversion generally works like this: An offender pleads guilty and signs an individualized contract, agreeing to complete tasks (e.g., community service, victim restitution, anger-management classes, trauma-informed counseling, or attendance at a victim support group). On completing the tasks, the offender retracts the plea and the circuit attorney dismisses the case.
The rollout of Gardner’s program, by some accounts, was rocky. In December 2018, Circuit Judge James Sullivan, who at the outset presided over these cases, sent an email, which SLM obtained through a Sunshine request, to the Missouri Department of Mental Health. He worried that Gardner’s program was not properly screening participants and was admitting some with drug abuse and mental health challenges that a handful of classes couldn’t address. He also worried that there were no clear policies and procedures. (Gardner says the screening and policies were, in fact, adequate; diversion cases are now handled by Judge Paula Bryant.)
District defender Matthew Mahaffey says that he, too, had concerns in those early days. He feared that the contracts didn’t lay out Gardner’s expectations clearly enough. Even today, he says, they could be clearer, but they have improved. He confirms that a screening process is in place, and he welcomes the five diversion tracks now open to his clients.
“That is a gigantic leap forward,” says Mahaffey. One of these tracks is a series of opioid education classes that Gardner created from scratch in partnership with the University of Missouri–St. Louis and the Missouri Institute for Mental Health. All told, Gardner’s office says, only a handful of the 371 graduates have ended up back in the system.
Jamie Myers, the assistant circuit attorney who works in diversion, says Gardner herself sometimes gives a tough-love talk to those in danger of flunking out. Last February, Myers recalls, a woman in her twenties sat in the diversion courtroom, arms crossed. She’d been accused of stealing. She gave short, angry responses to the judge. Gardner and diversion staffers ushered her into the jury room. They learned that she was a caretaker in a full household that included children with special needs. She was sleeping in a car to avoid bedbugs. After the conversation, the woman walked back out, arms down, face shiny with tears. She said she’d stick with the program.
Apart from diversion, Mahaffey has noticed other, subtler changes at the Circuit Attorney’s Office. “The language of ‘menace’ and ‘predator’ and ‘thug’ and ‘evil,’ while not completely gone, is so much diminished,” he notes. “There’s a greater sense of humanity in the way that [prosecutors] and Kim speak about our clients. That has been noticeable to our office. And honestly, it is appreciated.”
On a drizzly June evening, Aaron Davis sits on the front porch of his Dutchtown house and worries about safety. In his youth, Davis fell afoul of the law, but now he’s a 41-year-old father who attends neighborhood meetings. He says he’s lived there with his family since 2007—and believes that crime is worsening. It feels, he says, like the “bad element,” is emboldened. “I come from that element. I know what they’re thinking: They do believe they’re not going to get prosecuted.” His neighbors may not openly criticize Gardner, he says, but “these conversations are going on.”
Whether Gardner has lost African-American votes is another question. In 2016, according to the Post-Dispatch, Gardner won all 13 majority-Black wards and six predominantly white wards, even while facing three opponents for an open seat. Now the election will be a referendum on her. Jamilah Nasheed, now state senator for the Fifth District, posits that this time around, the central corridor and some South City wards won’t support her because they think she’s too soft on crime, but “the African-American community is going to come out in droves for her.”
That remains to be seen. Bishop Elijah H. Hankerson III says that last year, Gardner addressed his organization, the St. Louis Metropolitan Clergy Coalition, which includes members of at least 150 churches. Though the group never takes stances on candidates, he says, “some members think she’s the best thing in the world. Other members think she needs to do a better job cracking down on things. I will say this: I feel she’s trying to do the best she can, but she’s under much attack for some of the actions she has taken.”
One vocal critic is Jeff Roorda. A former police officer and state representative, he's currently the business manager of the SLPOA, which represents city officers. “More than anything else,” says Roorda, “the 1,100-plus police officers I represent are advocates for justice for victims, and it is unfathomable to us that we meet so much resistance from Kim Gardner in that very important endeavor.”
Last September, Roorda called Gardner a “menace to society,” chided her “propensity to plop down the race card,” and said she ought to be removed “by force or by choice.” In a holiday season issue of the union’s newspaper, he superimposed Gardner’s face onto the Grinch and even supplied lyrics: You’re a disaster, Misses Kim/ Your heart is dark and vile/ You’d rather charge a policeman/ Than all the murders you could file...
But Gardner isn’t running against Roorda this summer. She’s running against Mary Pat Carl, a Florissant native, mother of four, and now a partner and litigator at Husch Blackwell. Carl practiced for 16 years in the circuit attorney’s office, focusing solely on violent crime for three and a half years before spending her final two years as head of homicide. All told, she boasts of trying 87 cases to verdict without losing a homicide case.
Carl ran to the right of Gardner in 2016 as the traditional law-and-order candidate. This time around, she’s adopted a more progressive platform that she sums up as “smart on crime.” Her argument: Good ideas by themselves aren’t good enough. Only someone with experience can turn ideas into reality, she says—and she possesses that experience.
She calls for robust diversion programming, more funds for witness relocation and assistance, implicit bias training, and regular reporting of data to the public. Like Gardner, she wants to close the city jail (also known as the Workhouse). She says she’s open to a civilian review board for officer-involved shooting investigations and would manage the exclusion list with greater transparency.
Campaign finance reports suggest that much of the legal community favors Carl; multiple firms and attorneys have made donations to her campaign, and in April’s quarterly reports she had $44,700 on hand compared with Gardner’s $6,600. This bolsters Gardner’s claim to being the anti-establishment candidate.
But the scales may yet tip in Gardner’s favor. In 2016, Gardner’s campaign received a huge boost of nearly $200,000 in donations from the Safety & Justice Political Action Committee, which is financed at least in part by the liberal billionaire philanthropist George Soros. That infusion of money came in mere weeks before the August 2016 primary; asked whether it would be repeated this year, Gardner says she doesn’t know.
On a bright Saturday afternoon in June, Gardner holds a rally at Fairground Park. She heaps scorn on her critics—Jeff Roorda, “who does not matter,” she says, and the “Trump-wannabe Missouri Attorney General” Eric Schmitt—and “the same people who want to take us back to the status quo.”
But the outsider pitch is now much harder to land for an incumbent with a three-and-a-half-year record. Voters no longer wonder merely, What will she fix? They also wonder, What has she fixed?
Standing on the small stage this afternoon, Gardner seems to realize this.
“I’m asking for your reelection,” she says in closing, “not because I want to keep it the same way [but] because I’ve got work to do, and I’m changing this damn system like it’s supposed to be.”
