St. Louis Circuit Attorney Kim Gardner will probably face a reprimand, but not lose her license to practice law, as a result of alleged misconduct during the investigation of former Gov. Eric Greitens.
In an agreement between Gardner and the Chief Disciplinary Counsel Alan Pratzel presented Monday in a hearing in St. Louis County, Gardner admitted to unintentionally failing to produce documents to a judge for review and failing to correct misstatements from her contracted investigator.
Gardner’s attorney, Michael Downing, said Gardner understood the “seriousness” of the reprimand.
Pratzel presented the agreement to the three-person panel with Missouri’s attorney disciplinary system during Monday’s hearing.
At the conclusion of the hearing Pratzel did not recommend disciplinary action against Gardner.
“The evidence does not support a conclusion that these documents were deliberately withheld from production,” the agreement states.
Further, there was no finding that the Circuit Attorney or her office had “an improper motive or strategy regarding the production of materials in the Greitens case,” it states.
No formal action was taken by the panel Monday on the proposed agreement. Made up of two lawyers and one non-lawyer, the panel will make a recommendation within 30 days to the Missouri Supreme Court, which will have the final say on whether Gardner committed professional misconduct.
Both Downing and Pratzel said they could not comment on the agreement until after the Supreme Court’s decision.
At the heart of the agreement is five pages of a document of bullet-pointed thoughts that Gardner made after interviewing a woman who had an extramarital affair with Greitens in 2015, Gardner told the panel.
Pratzel stated that her notes should have been added to a “privilege log” – or a list of documents that Gardner’s team believed weren’t required by law to be given to Greitens’ attorneys. The judge wanted to review the list to ensure the documents were privileged.
Gardner told the panel that she and her team had not intentionally left the document off the log, and that she didn’t know the document still existed in its original form.
Gardner has previously said the person in charge of compiling the privilege log for the judge during the 2018 Greitens investigation was her chief trial assistant, Robert Dierker, who had formerly been the presiding judge of the 22nd Circuit (where the Greitens case was being heard) and a judge for more than 30 years before joining her team. She has said she took his advice on what to include on the log and believed that Dierker and Greitens’ attorneys had agreed on what should be included.
In the agreement presented Monday, Gardner also admitted to having some responsibility over supervising former FBI agent William Tisaby to assist in the Greitens probe, Pratzel said.
Last month, Tisaby pleaded guilty to a single misdemeanor count of evidence tampering, just before he was scheduled for trial on seven felony charges — six for perjury and one for evidence tampering.
Pratzal alleges Gardner should have corrected the record when Tisaby failed to acknowledge in court that he received documentation from Gardner about the Greitens’ case before interviewing Greitens’ accuser – the basis of Tisaby’s misdemeanor plea.
Gardner had emailed her bullet-point notes to Tisaby before he interviewed K.S. on Jan. 29, 2019, on video — a recording that was given to the defense.
Although Tisaby had told Gardner that he wasn’t going to use her notes, Tisaby had actually reformatted her words into a new document — cutting off the several pages — and printed it, Gardner’s response states. Then during the interview, he took 11 pages of handwritten notes on top of that print out.
The presiding officer on the panel is Keith Cutler, a trial attorney with his family’s law firm James W. Tippin & Associates in Kansas City. He and his wife, Dana, were previously judges on the Atlanta-based TV Show “Couples Court with the Cutlers.”
Also on the panel are Elizabeth McCarter, a partner at Behr McCarter & Potter P.C. in St. Louis County; and Sheryl Butler, a non-practicing lawyer from St. Louis.
The panel will now make a written decisionto the Missouri Supreme Court on whether to accept the agreement or recommend discipline.
However, this is unlikely to be the end of the proceedings.
After the panel’s written decision, both parties have 30 days to accept or reject it. At that point, the panel’s decision and the parties’ responses will be filed with the Supreme Court. From there, the Supreme Court could make a decision based on the filings, or it could schedule the case to be briefed and argued.
Regardless, the ultimate decision regarding discipline lies with the state’s highest court.
This article by Rebecca Rivas is published from The Missouri Independent through a Creative Commons license.