Byers' Beat is a weekly column written by the I-Team's Christine Byers, who has covered public safety in St. Louis for 15 years. It is intended to offer context and analysis to the week's biggest crime stories and public safety issues.
ST. LOUIS — There was a major development this week in the story of what kind of punishment St. Louis Circuit Attorney Kim Gardner will face for her conduct during the former Missouri Gov. Eric Greitens investigation – but it isn’t over yet.
Missouri’s Office of Chief Disciplinary Counsel and Gardner’s attorneys filed what’s known as a joint stipulation – or a mutually agreed-upon set of facts.
It negated the need for any arguments before the state’s disciplinary panel about whether Gardner violated the rules of discovery during the Greitens investigation -- but the panel still got to question Gardner during a hearing.
Gardner’s office charged Greitens in 2018 with invasion of privacy for allegedly taking a compromising photo of his mistress without her permission.
The stipulation also suggested the disciplinary panel recommend to the Missouri Supreme Court that a reprimand be issued, in part because Gardner’s conduct during the investigation was, “negligent or perhaps reckless, but not intentional.”
But the stipulation is just that, a recommendation.
The panel doesn’t have to agree with it, nor does the ultimate authority in disciplinary cases – the Missouri Supreme Court.
It could take months before we really know whether a reprimand is what Gardner will get for violating the rules of discovery in the Greitens case.
That's because the panelists questioned Gardner under oath this week have to issue a report. Gardner and the Office of Chief Disciplinary Counsel need time to accept or reject it. And the Missouri Supreme Court needs time to make the final say.
Here are a few tidbits that caught my attention within the 40-page stipulation of facts, a timeline of what's next and some background about the panelists who must agree – or disagree – with the recommendation for a reprimand.
The facts
At issue, in this case, are notes Gardner and her investigator William Tisaby took during an interview with Greitens' mistress that were not turned over to the defense team; whether Gardner knew Tisaby was being untruthful during a deposition about the notes; and whether Gardner corrected the record once she realized Tisaby was not truthful.
Tisaby has already pleaded guilty to evidence tampering in the case.
According to the stipulation, Gardner and her then-Chief Trial Assistant Robert Dierker “both believed that Mr. Tisaby had testified inaccurately during his deposition. But could not agree on what, if anything, the office should do when
a. They weren’t representing him
b. The CAO did not designate Tisaby as a witness and did not expect for him to be called as a witness at any hearing or trial
c. The CAO was not sponsoring Tisaby’s testimony or seeking its admission at any trial
d. After his first deposition, the CAO produced additional materials including a video tape that contradicted certain portions of Tisaby’s prior testimony
e. The CAO dismissed the case against Greitens.
“The evidence does not support a conclusion that these documents were deliberately hid from production…Nevertheless, Circuit Attorney Gardner admits and regrets that the Circuit Attorney’s Office did not properly manage production or assertion of privilege over” some of the documents, and “did not properly answer questions regarding whether Mr. Tisaby had prepared or circulated any draft reports. To be clear, Ms. Gardner admits that she should have ensured these documents were logged and/or produced, and she regrets that they were not,” according to the stipulation.
At several points, the stipulation concludes Gardner did not withhold information from Greitens’ team on purpose.
It includes phrases like, “The evidence supports that this was not an intentional failure,” “Ms. Gardner’s failure to do so…appears to have been negligent or perhaps reckless,” and, “The pattern of what was produced versus what was not produced timely also does not support any finding that Circuit Attorney Gardner or her Office had an improper motive or strategy regarding the production of materials in the Greitens case.”
The stipulation also notes how the Supreme Court is guided by two principles when determining appropriate discipline:
- The purpose of discipline is not to punish the attorney, but to protect the public and maintain the integrity of the legal profession.
- Those twin purposes may be achieved both directly, by removing a person from the practice of law, and indirectly, by imposing a sanction which serves to deter other members of the bar from engaging in similar conduct.
And the document also outlines why both parties believe a reprimand is the appropriate recommendation:
“Reprimand is generally appropriate when a lawyer in an official or governmental position negligently fails to follow proper procedures or rules, and causes injury or potential injury to a party or to the integrity of the legal process.”
“Reprimand is generally appropriate when a lawyer is negligent either in determining whether statements or documents are false or in taking remedial action when material information is being withheld and causes injury or potential injury to a part to the legal proceeding or causes an adverse or potentially adverse effect on the legal proceeding.”
The stipulation outlines how Gardner’s office is participating in a pilot program for an electronic document management system to help ensure “appropriate discovery materials are produced in future criminal cases.”
The document also notes how the actual or potential injury to Greitens was limited for three reasons: Some of the items not produced could have later been deemed work product and therefore not subject to discovery, some of the materials that didn’t get turned over included information that was cumulative of information that was disclosed, and the case never went to trial.
Four days after Greitens' legal team announced they would be asking Gardner to testify under oath in the case, she dismissed the charges and the governor resigned.
The panelists
Two practicing attorneys and a non-practicing attorney serve on a disciplinary hearing panel.
In Gardner’s case, Kansas City attorney Keith Cutler chaired the panel, St. Louis attorney Beth McCarter served as the second attorney and Sheryl Butler, served as the non-practicing attorney.
Cutler and his wife, Dana, presided over a TV court show called Couple’s Court with the Cutlers. It ran for three seasons during 2017 and was nominated twice for an Emmy, according to the show’s website.
“The couple have been married and practicing law together for nearly three decades, bring their legal expertise and guidance to couples in crisis throughout each episode,” according to the site.
Keith Cutler is a civil defense trial attorney.
McCarter specializes in estate planning, probate and trust administration and guardianship of adults and minors, according to her law firm’s website. She is married to W. Dudley McCarter, a partner at his own firm and a 2019 Gov. Mike Parson appointee to the Coordinating Board for Higher Education. Parson became governor after Greitens resigned and remains the Republican in the Missouri governor’s mansion.
Butler graduated from Saint Louis University’s School of Law in 2000 and once served as an adjunct professor at Harris-Stowe State University, according to her online profile.
Butler didn’t have any questions for Gardner.
Cutler and McCarter grilled Gardner for about 25 minutes, which you can watch here:
Again the subject was the notes. At issue was whether Gardner knew Tisaby was being untruthful during a deposition about the notes. Did Gardner correct the record once she realized Tisaby was not truthful?
Tisaby has already pleaded guilty to evidence tampering in the case.
McCarter asked Gardner what she was thinking during Tisaby’s deposition.
“It had to be totally obvious to you to not know he was being untruthful,” McCarter told Gardner.
“This hearing is not about Tisaby,” Gardner told her. “Kim Gardner doesn’t represent Mr. Tisaby in a deposition. We told him to tell the truth and I was not his lawyer. He was mistaken.”
Cutler asked Gardner several times, several different ways, about why her office believed a videotaped recording of an interview with Greitens’ mistress did not record – and whether she told the defense team it existed.
In other words, what did she know and when did she know it about the videotape.
She repeatedly said she and her staff did not believe the camera recorded the video, therefore they did not believe it should be turned over to the defense.
He also asked her what prompted her office to check and see if the video recorded at a later time. She said nothing prompted her staff to try to look at the video again.
The timeline
Now, the panel has 30 days to make its recommendation to the Missouri Supreme Court.
However, the 30 days is a guideline, and the panel could take longer to issue its decision, according to the rules.
Once the panel issues its decision, that gets sent to the Office of Chief Disciplinary Counsel and Gardner.
They have 30 days to file a document saying they accept or reject the panel’s decision.
If both parties accept the panel's recommendation for discipline, the chief disciplinary counsel has an additional two weeks to file a copy of the panel’s decision along with both parties’ notices of accepting that decision.
Should either party reject the panel’s recommendation, the chief disciplinary counsel has an additional 30 days to file a complete record of the case made before the disciplinary panel.
Then, it’s in the Missouri Supreme Court’s hands to determine the final discipline.
There's a flowchart about this process on the Office of Chief Disciplinary Counsel's website.
Most of the legal experts and attorneys I’ve talked to about this week’s developments tell me the disciplinary hearing panel is highly likely to accept the stipulation and recommended discipline that comes along with it, and pass that along to the state’s highest court.
But all of them admit, they can never predict with 100% certainty how the panel – or the Missouri Supreme Court – will ultimately rule.
In other words, this story still isn’t over.