St. Louis prosecutor, disciplinary panel reach agreement

ST. LOUIS — St. Louis Circuit Attorney Kim Gardner has reached an agreement with the Missouri Office of Disciplinary Counsel in which she acknowledges she made mistakes in her handling of the prosecution of former Gov. Eric Greitens but won't face severe penalties for those mistakes.

The "joint stipulation" agreement was announced Monday, just as a disciplinary hearing for Gardner was about to begin. It calls for no suspension, probation or disbarment for Gardner. The agreement would still need the approval of a three-person panel of the Disciplinary Counsel and the Missouri Supreme Court. The panel will make a recommendation within 30 days, but it's unclear when that court might consider it.

Gardner's attorney, Michael Downey, said in a written statement Gardner will "continue to direct her attention to the important work she has been elected to perform as the Circuit Attorney of the City of St. Louis."

The 2018 prosecution of Greitens played a pivotal role in his eventual resignation. Greitens is now attempting a political comeback. Gardner, meanwhile, was accused in a 73-page report of failing to disclose evidence to Greitens's lawyers, misrepresenting evidence, and other ethical violations.

The most severe punishment — suspension or disbarment — would likely have cost Gardner her job because state law requires elected prosecutors to hold active law licenses.

FILE - Former Missouri Gov. Eric Greitens gestures while speaking to reporters in Jefferson City Feb. 22, 2022. St. Louis Circuit Attorney Kim Gardner faces a hearing Monday, April 11, 2022, before the Missouri Office of Disciplinary Counsel. The panel will determine if she committed ethical violations in her handling of the 2018 criminal investigation of then-Gov. Greitens, who resigned in June 2018. If the panel determines violations, the Missouri Supreme Court will hear the case and Gardner could face punishment ranging from a mild reprimand to being disbarred. (AP Photo/David A. Lieb File)

Gardner, a 46-year-old Democrat, is St. Louis's first Black female circuit attorney and is one of several progressive prosecutors elected in recent years with a focus on creating more fairness in the criminal justice system.

In the past 12 months, Greitens has emerged as a leading contender for the Republican nomination for one of Missouri's U.S. Senate seats, despite recent allegations of abuse by his ex-wife.

The brash former Navy SEAL officer with presidential aspirations was a year into his first term when news broke in January 2018 of an affair three years earlier with his St. Louis hairdresser. The woman alleged Greitens took a compromising photo and threatened to use it as blackmail if she spoke of their relationship.

"There was a victim, someone saying they had been attacked," Gardner's lawyer, Downey, said.

But neither the FBI nor St. Louis police seemed inclined to investigate, Downey said. Gardner's in-house investigator was away on military duty.

So Gardner hired private investigator William Tisaby, a former FBI agent. The investigation led to Greitens's indictment on one felony count of invasion of privacy. Greitens claimed he had been the victim of a political witch hunt.

Jury selection had just begun when Gardner dropped the charge after a judge ruled she would have to answer questions under oath from Greitens's attorneys over her handling of the case. She said it put her in an "impossible" position of being a witness in a case she was prosecuting.

Meanwhile, Gardner filed a second charge accusing Greitens of tampering with computer data for allegedly disclosing to his political fundraiser a list of top donors to a veterans charity he founded, without the charity's permission.

Under investigation by lawmakers as well, Greitens resigned in June 2018, and Gardner agreed to drop the criminal charges.

Attention then turned to how Gardner and Tisaby handled the investigation. In 2019, Tisaby was indicted on six counts of perjury and one count of evidence tampering. He pleaded guilty last month to misdemeanor evidence tampering and received a suspended sentence of one year of probation.

The case stemmed from Tisaby's statement he had not taken notes during an interview with the woman when a video later showed he had, and his statement he hadn't received notes from the prosecutor's office before he interviewed the woman when a document later showed that he had.

Greitens' attorneys raised concerns about Gardner's failure to correct the record on Tisaby's statements, and whether she concealed evidence.

Downey said any mistakes were unintentional, the result of Gardner's heavy workload during the Greitens investigation.

"Under the circumstances of the case I think they were doing the best job they could to manage the case," Downey said. "We've admitted in our answer that mistakes were made."

Washington University School of Law Professor Peter Joy, who teaches and writes about legal ethics, said the fact that Gardner didn't disclose Tisaby's note-taking isn't necessarily a violation because Missouri law doesn't specify a timeline for such disclosures — and in this case, testimony hadn't even begun.

"I don't think the ethics case against her is so clear cut," Joy said before the settlement was announced. "This isn't somebody falsifying evidence."

Last summer, charges were dropped in three murder cases in one week because prosecutors failed to show up in court or weren't prepared after months of delay, the St. Louis Post-Dispatch reported. The newspaper also cited Circuit Court data showing that about one-third of felony cases were dismissed — triple the percentage of her predecessor.

Gardner contends that her reforms have made the city safer and the criminal justice system more equitable. She has expanded a diversion program and stopped prosecuting low-level marijuana possession, helping to significantly reduce jail overcrowding.

Gardner has often been at odds with police, especially in 2019, when she placed dozens of officers on an "exclusion list," prohibiting them from bringing cases. The list was developed after a national group accused the officers of posting racist and anti-Muslim comments on social media.

In 2020, Gardner filed a lawsuit accusing the city, a police union and others of a coordinated and racist conspiracy aimed at forcing her out of office. The lawsuit alleged violations of the Ku Klux Klan Act of 1871, which was adopted to thwart efforts to deny the civil rights of racial minorities.

Downey, in a court filing, said the latest ethical complaints involve "another attempt by Ms. Gardner's political enemies — largely from outside St. Louis — to remove Ms. Gardner and thwart the systemic reforms she champions."

Greitens had remained largely out of sight until Sen. Roy Blunt's announcement in March 2021 he would not seek a third term. Republican leaders worry Greitens could win the primary but lose to a Democrat in the general election, forfeiting what should have been a surefire GOP seat.

In a court filing last month in a child custody case, Sheena Greitens accused her ex-husband of being physically abusive to her and their children. Eric Greitens called the allegations "completely fabricated" and "baseless."