Missouri Supreme Court rules Gardner can prosecute cases while investigating officers | St. Louis Public Radio

Missouri Supreme Court rules Gardner can prosecute cases while investigating officers

Dec 5, 2018

The Missouri Supreme Court unanimously ruled that a judge should not have barred St. Louis Circuit Attorney Kim Gardner from prosecuting a criminal defendant when her office was investigating a police officer who was involved in the case.

It’s a decision that Gardner says affirms that she’s “legally empowered by our state’s constitution to make decisions that I believe are in the best interest of the people of this city.”

The underlying case involves Wendell Davis, who faces several charges, including unlawful use and possession of a weapon. According to a probable cause statement, Davis pointed a gun at a police officer after a chase. The officer shot Davis in the back, paralyzing him.

The police officer is a witness for Davis’ criminal trial. But Gardner’s office was also investigating the police officer about whether he was justified in using force. That’s standard practice for Gardner’s office whenever an officer injures or kills someone. Gardner assured the officer’s attorney this year he would not be charged with anything in the case.

The Gardner investigation prompted the officer’s attorney, Brian Millikan, to convince St. Louis Circuit Court Judge Timothy Boyer to disqualify Gardner’s office from the case. Boyer wrote there was an “appearance of impropriety” because Gardner was “actively prosecuting the defendant while simultaneously reviewing the conduct of the very officer upon whom [it was] relying to effectuate such prosecution.”  

Ultimately, Boyer vacated his decision. But the Supreme Court decided to unanimously rule that Boyer should not have disqualified Gardner’s office from the case. Judge Paul Wilson wrote that Boyer’s order prevents Gardner and her office “from exercising [her] statutorily authorized duties in this case as the elected circuit attorney of the City of St. Louis.”

“[Gardner] holds one of the most powerful positions in our legal system, and [Boyer] cannot control the way [Gardner] chooses to exercise the broad, almost unfettered, discretion conferred upon her by statute,” Wilson wrote.

In an interview on Wednesday afternoon, Gardner said the Supreme Court’s decision is a victory for prosecutorial decision making.

“The people elected me to implement reforms. And a big conversation is how we do an investigation of office-involved shootings,” Gardner said. “And that’s crucial to building trust in the criminal justice system, as well as trust in the community. So that’s what this signifies. It’s a win for the people.”

Gardner said the decision will ultimately allow prosecutors greater leeway in looking into officer-involved shootings.

“We understand the complex conversations of officer-involved shootings,” Gardner said. “The will of the people, in this case, cannot be usurped by a police union or a judge. And that’s what this Supreme Court decision signifies.”

In a statement, Millikan said that “while we disagree with the Supreme Court's conclusion in this case, we recognize and respect the court's authority to issue its order and to bring finality to the issue.”

Keith Barrett, a sergeant with the St. Louis police department, said the department did not have anyone available for comment.

The court’s decision comes amid tension between Gardner’s office and the police department. Gardner announced this year that she would no longer prosecute cases from 28 police officers — and added she was reviewing testimony they offered in others.

And last month, Gardner said her office had to dismiss 91 cases involving four officers who were indicted on federal changes in connection with an assault of an undercover police officer during the Jason Stockley protests in 2017.

Gardner said that her office and police work well together “in most cases.”

“These are cases where individual officers have the right with their union representative to make decisions. And I don’t want to make it seem like this is a normal occurrence,” Gardner said. “This does happen. And this case has decided how we’re going to proceed forward. And I just want to say to the people: ‘You won.’” 

Follow Jason on Twitter: @jrosenbaum