ST. LOUIS — Missouri’s Office of Chief Disciplinary Counsel has recommended a reprimand for St. Louis Circuit Attorney Kim Gardner following allegations that she purposefully withheld evidence from the defense team for former Gov. Eric Greitens.
In less than an hour Monday, Gardner agreed to a 40-page stipulation that set forth how notes and a recording Gardner’s office took during an interview with Greitens’ alleged mistress were not given to defense attorneys.
The stipulation means Gardner and the Office of Chief Disciplinary Counsel will not argue the facts before a disciplinary panel. It calls for no suspension, probation or disbarment for Gardner.
Instead, the panel, which includes three members, will have 30 days to make a recommendation to the Missouri Supreme Court on whether to accept the stipulation and recommendation for a reprimand.
The Missouri Supreme Court has the ultimate say on the type of discipline Gardner will face.
Gardner testified before the disciplinary panel under oath Monday, saying, “This was a very fast-tracked case...We did our best to make sure we had a process, but unfortunately that process came up short.”
"In this case, some things were not done in the best way, and I take accountability as a leader, hopefully my office can get past this," Gardner told the panelists at the conclusion of the hearing.
At issue is whether Gardner intentionally withheld a video recording and notes from an interview she and her investigator, William Tisaby, conducted with Greitens’ mistress.
Beth McCarter, one of the panelists, called Tisaby’s deposition about whether he took notes during the interview “the most troubling aspect of this case.”
“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 said. “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.”
Gardner also reiterated how the St. Louis Police Department refused to “step in” to investigate the allegations against Greitens, so her office was all alone in its investigation.
That’s a claim Chief John Hayden has repeatedly denied.
Also at Monday’s hearing, Gardner said she didn’t think the video recorded the interview she and Tisaby conducted with the mistress, or was working properly, therefore she did not believe it should be turned over to the defense.
Attorney Keith Butler chaired the hearing Monday and repeatedly asked Gardner whether she told the defense that the recording existed, even though it didn’t appear to be working.
“We assumed the video did not work, so if it never worked, how could we disclose it to the defense if it didn’t work?” Gardner said.
Later, under questioning by McCarter on the same matter, Gardner said she did tell the defense that the video existed, and added that her office has conducted “extensive training” since this case and used the Greitens case to teach her staff “to understand when you have notes, make sure to turn them over.”
“We’ve taken this case as a learning lesson to make sure nothing falls through the cracks,” Gardner said.
Gardner's attorney Michael Downey told reporters during a press conference following the hearing the reprimand was the lowest form of formal discipline she could have received.
"Is it serious? Yes," he said. "Any formal discipline is serious."
Downey said he worked for Gardner on a pro bono basis.
"I felt she deserved representation," he said. "And I felt honored to be asked."
Downey said Gardner was "very emotional" during all of the disciplinary proceedings.
"There's a lot of stress when you have to tell a lawyer their law license is in peril," Downey said.
Downey said it is not "uncommon" for there to be problems during the discovery process with any case, but added that because the Greitens case was on "such a compressed schedule, there was no room for ordinary fixing of mistakes."
Scott Rosenblum was part of Greitens' legal team.
Upon learning of the Office of Chief Disciplinary Counsel's recommendation for a reprimand, he said he was "disappointed."
"Her actions during the investigation of the Gov. Greitens case deserve much more than a reprimand," he said.
St. Louis University law professor Anders Walker said reprimands can "cause serious reputational damage," for most attorneys.
"It could mean a loss of business, the end of your career," he said. "If you are reprimanded by the bar, people might not seek you out.
"But for Kim Gardner, it might not cause any damage. She is elected by the people of St. Louis and she’s already been quite successful challenging the status quo.
"She’s challenged the police department, she accused the mayor and police department of a conspiracy against her, she’s argued this whole investigation against her was a conspiracy to have her removed and pioneered by people who do not live in city of St. Louis. She might turn this into a win. She’s been vindicated. The reprimand is meaningless, she’s still in office."
Walker said Gardner's supporters see her as a David fighting Goliath.
"It shows that she could stand up literally to the man, the governor of the state, and not be removed despite an incredible effort to go after her," he said. "That’s her narrative and I think her supporters believe that."