Circuit Attorney Kim Gardner on Tuesday night filed a motion requesting that the state Supreme Court dismiss state Attorney General Andrew Bailey’s petition to have her removed from office.
Her mandatory response came about three hours before a midnight Wednesday March 15 deadline.
To fulfill Missouri statute requirements for her removal, Gardner’s attorneys contend Bailey “must allege a willful and intentional failure, not negligence.”
“[The statute] has only been applied to oust a prosecutor (or any other official) when they engaged in intentional corrupt acts in derogation of their official duties, and ouster of prosecutors under this statute has been uniformly denied for anything less. (Infra at 9-19.)
“Taking Mr. Bailey’s allegations in his Petition as true and giving them their broadest reading, his Petition fails to state facts that show Kimberly Gardner has engaged in intentional corrupt acts in derogation of her official duties. Instead, the Petition alleges mere negligence or mistakes in the administration of her office without any allegation of corrupt intent or bad faith."
The motion states, “Mr. Bailey’s Petition fails to meet the extremely high bar to state a lawful claim for ouster. Instead, his Petition is a gross power grab, an affront to the liberties of all Missourians. The Court should dismiss it.”
Also this week, Gardner was granted permission by Judge John Torbitzky to have Ronald Sullivan Jr. join her legal team. The high-profile Harvard law professor assisted Gardner in her failed attempt to prosecute former Gov. Eric Greitens in an invasion of privacy case. He also represented the late Harvey Weinstein, the late former New England Patriot tight end Aaron Hernandez, who faced multiple murder charges, and the family of Michael Brown who reached a $1.5 million settlement with the City of Ferguson in 2017.
According to Harvard’s website, Sullivan is a “leading theorist in the areas of criminal law, criminal procedure, trial practice and techniques, legal ethics and race theory.”
Since he is not licensed to practice law in Missouri, Judge Torbitzky agreed to let Gardner sponsor Sullivan in the case to remove her from office. Michael Downey of the Webster Groves-based Downey Law Firm is also a part of Gardner’s legal team.
Gardner's office is under scrutiny after the handling of a high-profile case. A 17-year-old volleyball player was critically injured in a crash caused by a suspect who was supposed to be on house arrest.
Court records show the suspect in that crash violated house arrest on a previous armed robbery case, but prosecutors never filed a motion to revoke his bond and dismissed and refiled the charges against him in July 2022 because they weren't ready to go to trial.
Gardner’s motion also contends that she was not personally involved in the suspect’s case, thus she cannot be held accountable.
“These cases were not litigated by Ms. Gardner herself, but by others, and Mr. Bailey has provided no factual allegation of Ms. Gardner’s personal involvement or knowledge of what happened in those cases,” according to the motion. “This is an action against Ms. Gardner; it must allege that Ms. Gardner, herself, acted intentionally or corruptly.”
While Gardner has added lawyers to her defense team, Marvin Teer, the city’s chief trial prosecutor and a former city court judge, suddenly decided to leave the Circuit Attorney’s Office [CAO] last Friday.
A recent “quo warranto petition” [a form of legal actionused to test a person's legal right to hold office] alleges 163 homicide cases are assigned to just five attorneys at the CAO.] With Teer’s departure, that number is reduced to four.
Reportedly, dozens of criminal cases may be in limbo as the CAO struggles to keep up with a huge caseload. According to the St. Louis Post-Dispatch, as of last month, Teer’s docket showed he was handling 84 cases, including 55 murder or manslaughter cases.
The circuit attorney’s office did not respond to this newspaper’s questions about Teer’s resignation or how the office plans to redistribute his workload.
It's not clear when Teer will depart. The St. Louis American has made repeated attempts to speak with Gardner over the past three weeks. The newspaper also requested an interview with Teer. No responses had been received as of presstime on Wednesday.
A statement from the office simply read: “Judge Marvin Teer has been an invaluable leader at the CAO and has led his team with integrity. Judge Teer will continue to be an asset to the office and as the office transitions his role, he will continue to provide support. We wish him the best as he transitions from our office to spend more time with his family.”
Teer said he joined the circuit attorney’s office in 2021 to help lead an “amazing, young team of lawyers” and because he loved trying cases. Before joining the CEO, Teer was a city prosecutor and later worked in the Missouri Attorney General’s Office under Jay Nixon. In addition, he served as a traffic court judge, an administrative law judge, a commission counsel for the Missouri Supreme Court, a special prosecutor and an assistant city counselor.
After joining Gardner’s team, Teer quickly took on some of the office’s biggest cases. The most prominent was the July 2022 trial of Stephan Cannon, who was convicted last year and sentenced to life in prison for fatally shooting retired St. Louis police Capt. David Dorn.
Teer’s abrupt resignation ignitedfurther outcries from Gardner’s critics and some local and state leaders who claim the prosecutor's office is falling further into disarray and dysfunction.
Former Assistant Circuit Attorney Patrick Hamacher, who lost to Gardner in the 2016 circuit attorney’s race, has also been critical of her office since Teer’s resignation.
"From an institutional perspective,” Hamacher tweeted recently, “this office appears to be on the brink of collapse. The sheer lack of employees to handle the high number of important cases is concerning,” Hamacher wrote in another tweet.
According to a recent KSDK report, some “progressive” Democrats have asked Hamacher to run for circuit attorney again next year.
The TV news station also cited comments from a poll conducted over the weekend. Reportedly, several people familiar with the survey questions said pollsters were gauging support for a potential match-up between Gardner and State Sen. Steve Roberts.
Roberts, who is also a private attorney, challenged Congresswoman Cori Bush in 2022 but lost. He has not responded to media inquiries about the poll or challenging Gardner in the next circuit attorney’ race.
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