St. Louis Circuit Attorney Kimberly M. Gardner

The phenomenon of the Brady List is at the heart of the open warfare between the St. Louis Metropolitan Police Department and St. Louis Circuit Attorney Kimberly M. Gardner – including its most dramatic casualty to date: the indictment of a private investigator who worked for Gardner, William Tisaby, on seven felony counts, including multiple perjury charges.

Tisaby, a former FBI agent who pleaded not-guilty of all charges, was not indicted by the police, of course. He was indicted by Gerard Carmody, a principal at Carmody MacDonald, a Clayton-based firm. Though his firm’s stated specialties do not include criminal prosecution, Carmody was appointed special prosecutor in the Tisaby case. Carmody was not appointed by the police, but rather by Circuit Judge Mike Mullen. However, Mullen’s appointment of this private defense attorney as special prosecutor came at the request of the police department. “The St. Louis Metropolitan Police Department is investigating allegations that Tisaby lied under oath,” as St. Louis Public Radio reported at the time, “and Gardner is a potential witness,” creating an evident conflict of interest for Gardner.

However, Mullen overlooked another evident conflict of interest in appointing Carmody to prosecute the Tisaby case. Tisaby did not allegedly perjure himself in court, but rather in a deposition conducted by another team of private lawyers representing then-Gov. Eric Greitens. As everyone in St. Louis’ legal community knows, including Mullen, Carmody is personally and professionally connected with key members of Greitens’ defense team. This evident conflict is heightened in importance by Gardner’s repeated public accusations that members of Greitens’ defense team threatened damage to her career if she proceeded with her investigation of Greitens (for felonious invasion of privacy; the charge was later dropped).

Remarkably but not surprisingly, St. Louis police never investigated Gardner’s accusation of Tampering with a Judicial Officer when private attorneys allegedly threatened the prosecutor. However, the police jumped right on those same private attorneys’ allegation that an independent investigator hired by the prosecutor lied under oath to them. So, instead of a special prosecutor investigating Greitens’ attorneys for allegedly threatening a prosecutor, a special prosecutor with a clear bias towards Greitens’ attorneys has been investigating Greitens’ independent investigator who was investigating those attorneys’ client. To further indicate how tangled this legal matter is in personal conflicts and vendettas, Gardner hired Tisaby to investigate Greitens, she claimed, only because the police would not investigate Greitens (though the police claim she never asked them).

Some community advocates claim that racism underlies the majority-white police department’s resistance to and now open warfare against Gardner, the first black person ever elected St. Louis prosecutor, who was elected with promises of reform. (We understand that the police department has both an appointed black police chief and a black director of Public Safety; we also assert that this has done nothing to impact the department’s deeply ingrained racism.) While racism – and sexism – are underlying factors, as it almost goes without saying in St. Louis, we believe they crystallized over Gardner’s unapologetic defense of keeping what is known as a Brady List.

A Brady List – named for John Leo Brady, the defendant in the landmark 1963 U.S. Supreme Court case concerning police and prosecutors withholding evidence favorable to the defendant – is a list that a prosecutor keeps of police officers who can’t be trusted. To tighten the connection to the eventual indictment of Tisaby on perjury charges, a prosecutor puts a cop on a Brady List if he has perjured himself (or withheld evidence) in the past or she thinks he would perjure himself if called to the stand. Notice that this is not called a “Gardner List,” as the practice long predates Gardner’s election or her compilation of such a list. When her predecessor, Jennifer M. Joyce, was in office, police called hers “Jennifer’s List.”

The Post-Dispatch first reported on Gardner’s Brady List (she called it an “exclusion list”) in August 2018 after it claimed that police officials leaked the list. Race may be relevant in that chain of events. We know from police sources that Joyce’s Brady List was a known fact, as surely was the Brady List kept by every elected prosecutor in the city going back to the Brady decision. Why would the police burn Gardner for keeping a list that police know prosecutors keep, whether official or unofficially? Perhaps Gardner made a rookie mistake in making the list official enough to share with police – clearly, when her office first shared the list, she must have thought they were colleagues – that police could then share with friendly media.

What is remarkable (and perhaps, to the police, unforgivable) was that Gardner defended the list, once its existence was made public. Further, as St. Louis police officers were revealed recently making bigoted and violent posts on social media by the Plain View Project, Gardner essentially announced that she was expanding her list.

We believe Gardner is both courageous and bold in her public claims that there are paid, uniformed, active-duty St. Louis Police officers who could not and should not be trusted in a court of law. We believe this bold stance is based on painful facts: that our police leaders tolerate in their ranks officers who cannot be trusted to protect and serve the public (or are so restricted by police-empowered bargaining agreements and a legacy of leniency in Internal Affairs decisions that all they can do is talk tough about the bad cops). They don’t actually have the power or nerve to dismiss all of the department’s untrustworthy cops, even when they have the will.

William Tisaby may or may not have lied to Greitens’ defense attorneys and tampered with physical evidence (another charge against Tisaby that connects it even tighter to the Brady decision). But we believe that we are only talking about Tisaby today, with some detriment to Gardner’s career – rather than, say, private attorneys’ threat to damage her career – because she has the courage and respect for the rights of the accused to stand by her decision to trust St. Louis Police officers only in so far as they deserve the public’s trust.

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(1) comment

OLB010

What are these threats specifically? My understanding is that she was threatened with sanctions. That is a procedural issue in the legal profession and not a "threat". I'm sorry but Kim has disgraced herself. We can't play the game they did wrong so I can too. Kim has run off so many good black attorneys and we cannot keep defending her.

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