DANNY WICENTOWSKI
File photo of Kim Gardner.
Missouri Attorney General Andrew Bailey's quest to remove Kim Gardner from office continued today when he filed a 120-page amended petition in circuit court accusing the embattled circuit attorney of a litany of failures while in office, including a failure to prosecute a man who killed a seven-year-old.
According to Bailey's court filing, Gardner's mismanagement has resulted in judges dismissing more than 2,700 cases. Gardner's own office has dismissed more than 9,000 cases due to a lack of diligence, the amended petition says.
The initial quo warranto petition that Bailey filed on February 23 relied heavily on media reports about Gardner's office. This amended petition cites numerous specific cases in which Bailey is alleging Gardner's office failed to bring defendants to court, show up to court themselves or prosecute misdemeanors like domestic assault.
One of the cases Bailey mentions in the petition is of a man, identified as E.P., who was charged with assault and armed criminal action in February 2021 for shooting a person referred to as S.P. seven times. According to Bailey's petition, an assistant circuit attorney contacted S.P. and allegedly told her not to appear at E.P.'s bench trial, which was to take place in February of this year.
That assistant circuit attorney then told E.P.'s lawyer that S.P. wasn't cooperating as a witness. At the bench trial, the prosecutor said the CAO was "not ready for trial as the complaining, essential witness is not cooperative." The court subsequently dismissed the case.
According to the petition, when the shooting victim read that the case had been dismissed, she wrote, "I am the complaining witness / victim for this case. I was and remain cooperative. I have attended court for the trial that didn’t end up going, and I was willing to come to court to testify on Feb. 10th 2023, but was directed not to appear by the assistant circuit attorney assigned to the case."
Bailey also alleged the CAO has a pattern of filing last minute nolle prosequi motions "on the eve of trial or the day of trial." This is a move that drops charges against a defendant and allows prosecutor to refile them, essentially restarting the prosecutorial clock and allowing prosecutors more time to prepare a case. However, it can also leave defendants lingering in jail.
Bailey's amended petition cites multiple examples of this, including a 2019 case against an individual identified as D.H., indicted for assaulting a police officer for allegedly trying to stab him with a knife. After a jury had been selected in the case, the prosecutor filed a nolle prosequi and elected not to proceed.
The petition claims court data shows the nolle prosequi rate has "skyrocketed" during Gardner's tenure, from 14.9 percent of case dispositions in 2016 to 35 percent in 2020.
Bailey's filing also references the case against Brandon Campbell, who was indicted for murder. On three occasions between May and July 2021 an attorney from the CAO failed to show up to hearings relating to the case, which was eventually dropped.
The petition also highlights the August 12, 2019, shooting death of seven-year-old Xavier Usanga in Hyde Park.
According to the petition, Malik Ross got into an argument with two other men and began firing at them. One of the bullets struck Usanga, who was playing in an alley behind his home. The SLMPD collected enough evidence to try Ross, but the CAO requested "follow-up work." The police collected more evidence and again presented it to the CAO, but Bailey's petition alleges the office never followed up on the case.
The SLMPD also collected evidence against Ross implicating him in an embezzlement scheme as he sought to collect money to flee in the aftermath of the shooting. With the CAO not prosecuting, police took the evidence of embezzlement to federal prosecutors, who got a 10 year sentence against Ross. The evidence related to Usanga’s shooting was given in testimony at Ross' sentencing, leading to the stiffer sentence.
The amended quo warranto also accuses Gardner of failing to investigate officer-involved shootings as well as failing to disclose evidence to defendants and their attorneys in a timely manner.
A graph included in the filings shows that the number of cases issued by the CAO has declined precipitously in the past decade, with less than 2,000 cases being issued in 2022, down from 6,118 in 2013.
Many of the later parts of the amended petition describe what Bailey refers to as the "untenable position" Gardner's staff attorneys have been put in by their heavy caseloads and lack of support.
The petition cites one assistant circuit attorney responsible for handling the prosecution of 400 felonies. Another assistant circuit attorney told a judge on the record he could not continue for reasons of "exhaustion and health."
"Because Respondent has knowingly and willfully assigned so many felony cases to so few assistant circuit attorneys, the assistants are suffering from health conditions, including exhaustion and seizures from the extraordinary stress," the petition says.
According to the petition, between 2017 and 2020, at least 85 assistant circuit attorneys either resigned or were fired from the office.
This story has been updated.
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