Those of us who support St. Louis Circuit Attorney Kimberly Gardner’s reform agenda and want her to succeed have to be realistically concerned about the ongoing special prosecutor’s investigation of her office. This is nothing specific to Gardner or to her dual disadvantaged minority status as a black woman prosecutor. It’s a reasonable assumption that any prosecutor’s office and any police department would face tough questions about decisions made and situations handled in the course of doing the people’s business if the details of their work were known. What is true in most cases is that the prosecutor works harmoniously with the police, and neither turns evidence on the other. The potential complaining witnesses who know about the mistakes made (and covered up) end up as silent accomplices, either before or after the fact.
A reform prosecutor – of any race or gender – disrupts old ways of doing things, and that includes old ways of covering up for each other and turning a blind eye rather than state’s evidence. This puts the reform prosecutor at extreme risk. Gardner could be described as facing the nightmare scenario for a reform prosecutor who has tried to disrupt the status quo. Her adversaries finagled the appointment of a special prosecutor who obtained a search warrant for her office server with its email records. In an age of digital communications, many difficult decisions will have been made and precarious situations handled via office email.
Again, we think it’s a reasonable assumption that no prosecutor’s office or police department would emerge unscathed from an adversarial investigation where the office email server was emptied out into the evidence locker and principals were served subpoenas for sworn depositions. The William Tisaby indictment is an important indicator. Tisaby stands accused of multiple perjury felonies for doing what, if the charges are valid, amounts to coaching a witness while trying to keep his coaching off the record. The lawyers who charged Tisaby with those felonies know that, even if the charges are true, Tisaby did something that prosecutors and their investigators do all of the time.
The difference, however, is that most prosecutors and their investigators cover the backs of the police officers they work with, so the cops have their backs. They would never get down into the kind of dogfight where the cops are walking into a prosecutor’s office with a search warrant for the email server and a private attorney – familiar and friendly to the police – empowered as the special prosecutor of the elected prosecutor.
Gerard Carmody, the special prosecutor whose investigation led to the charges against Tisaby, has made no announcement regarding any evidence he may have found pursuant to the search warrants and subpoenas he has had served on Gardner’s office. Carmody, the police and many others who have assisted in his investigation now stand accused by Gardner of a racist conspiracy – referencing the Ku Klux Klan Act, which are fighting words. We can expect Carmody and company to respond with the most damaging evidence they can find and the hardest charges they can file.
Assuming and yearning for the best, we can only offer at this point two pieces of advice for reformer prosecutors and those who find fault in the agenda, competence or ethics of reformer prosecutors. Reformer prosecutors need to know they can’t make the mistakes and questionable decisions that status quo prosecutors can (and routinely do) get away with making. Everything you do in office can and will be used against you. And standard bearers of the status quo, if you want to oppose and even investigate a reformer prosecutor, especially if she is a black woman, when you have a loudmouth, bigoted white male representing the police on your side, then don’t be surprised if you’re cited for violating the Ku Klux Klan Act.