ST. LOUIS — After 60 days, five pleadings, four meetings and one hearing, St. Louis Circuit Attorney Kim Gardner’s Office has not produced a single document to Missouri Attorney General Andrew Bailey's Office seeking to oust her, according to court documents filed late Monday.
“The only thing the Circuit’s Attorney’s Office has produced is delay,” according to Missouri Attorney General Andrew Bailey’s filing. “But the time for delay is over. This Court should compel the Circuit Attorney’s Office to fulfill its discovery obligations.”
But exactly what judge will rule on these matters remains unclear.
On Friday, Gardner’s legal team filed a motion requesting a new judge replace Judge John Torbitzky. Asking for a change of judge is a right afforded to both sides of a trial, and often a trial strategy.
The attorney general’s office is arguing Torbitzky should rule on the motions that are already before him even though he’s been dismissed, and cite a case Torbitzky himself presided over as the legal precedent that gives Torbitzky that duty.
Torbitzky has not yet signed off on the request to replace him.
Bailey is seeking to remove Gardner from office, accusing her of willfully neglecting her duties. The Missouri Supreme Court appointed Torbitzky to preside over the matter after all 30 of the judges in the 22nd Judicial Circuit recused themselves, believing they could be called as witnesses by the attorney general.
Torbitzky also scheduled status hearings to take place every first and third Tuesday of the month until the matter goes to trial – should he decide it is worthy of proceeding to trial. The first of those status hearings was to take place Tuesday, but that has now been cancelled.
Statements Gardner made during a weekend event at a church along with evidence her office filed in response to a hearing to determine whether to hold her or someone from her office in contempt for missing a murder trial are cited in the attorney general’s new filing.
The state’s top prosecutor has asked for all documentation related to how several cases were handled along with text messages, emails and other documentation – all information Gardner’s legal team has asserted is privileged information, irrelevant, and, in some cases, “too burdensome” to produce.
“Any claim that such information is irrelevant and privileged has been refuted by her own actions,” according to the filing.
On April 24, former Assistant Circuit Attorney Alex Polta appeared before Judge Scott Millikan to explain why he missed a murder trial. Gardner did not appear in court, but sent Assistant Circuit Attorney Rob Huq and her personal attorney, Michael Downey, in her place.
“In order to avoid a contempt finding in that case, Gardner sought to pass the buck to her subordinates,” according to the filing. “In service of that goal, she produced text messages between her subordinates.
“The text messages discuss decision-making within the office; the text messages appear to be between employees on their private phones; and the text messages use the names of witnesses in a discussion analyzing the relevant importance of the witnesses to the case. Not only did Gardner produce all this information in four days—which belies any claim that such information is too difficult or burdensome to produce—she filed it in a document publicly available on Missouri Case.net. In light of her actions in the Jones case, she cannot now raise burden, privilege, or related arguments.”
In a 13-minute speech during an event at a church Saturday, Gardner accused police union leaders of telling her they would let her win an election as long as she didn’t hold any officers accountable; leads an office that has disinvested in; and discussed her previous service as an assistant circuit attorney. 5 On Your Side was the only media outlet that captured Gardner’s remarks, which you can read in full here.
In the filing, the state argues Gardner’s own words now prove all of the documents related to those topics are even more relevant. But the attorney general’s office further argues that it does not appear that anyone they’ve been talking to about the case knows exactly what records Gardner’s office keeps.
“The Circuit Attorney’s Office has made no effort to search its records for nearly two months,” according to the filing. “Having delayed, it cannot now claim that there is not enough time to produce the records it refused to search for.”
The attorney general also accused Gardner of allowing a disbarred attorney Maurice Foxworth to consult on cases and cited how Assistant Circuit Attorney Chris Hinckley did not appear to comply with a deadline Torbitzky gave on a legal filing.
"Despite filing the exact same document twice on April 26, 2023, associate counsel for the Circuit Attorney’s Office, Christopher Hinckley, inaccurately certified that he filed the response on April 25, 2023," according to the filing.
The filing concluded: “It is not in the public’s interest to lengthen these proceedings; it is in the public’s interest to know whether Gardner has forfeited her office and is merely a usurper of the office of Circuit Attorney."