Missouri Judge Denies St. Louis City Prosecutor’s Request for Outside Prosecutors to Handle Death-Eligible Cases

A St. Louis Circuit Court judge has denied St. Louis City Circuit Attorney Kimberly Gardner’s (pictured) July 2021 request for special prosecutors to handle three death-eligible homicide cases in her jurisdiction. On October 15, 2021, Circuit Judge Elizabeth Hogan wrote that the conflicts cited by Gardner’s office in its request for a special prosecutor were not “disqualifying” and therefore that “the Court has no authority to appoint a special prosecutor.”

Gardner was elected in 2016 and re-elected in 2020 on a platform of criminal legal reform, including reduced use of the death penalty. She has said that she is personally opposed to capital punishment and would carefully review individual death-eligible cases. In her request for outside special prosecutors to handle the three death-eligible cases, Gardner blamed the COVID-19 pandemic for causing court and trial delays and workloads that were unmanageable given current staffing levels and expertise. Gardner argued that the situation had created “an untenable backlog of serious cases requiring immediate attention by experienced attorneys.”

The court found that this did not constitute a “disqualifying conflict” and that the more appropriate course of action for the prosecutor’s office would be to seek assistance from the attorney general’s office. “This appears to be the proper mechanism to procure assistance for a prosecuting attorney’s office that has no conflict of interest but is unable to handle its caseload, due to the pandemic, staff turnover, or any other reason,” Hogan’s order said. “To this court’s knowledge, however, the circuit attorney has made no request for assistance … to either the governor or to the attorney general.”

“Disqualification is a ‘drastic response’ to concerns that may be better addressed by case management tools, especially given the prosecutor’s statutory duties to commence and prosecute the case,” Hogan wrote. “The Court finds that the purported ‘conflict’ cited by the Circuit Attorney is not a disqualifying conflict under the Rules of Professional Conduct, and the Court has no authority to appoint a special prosecutor … .”

In a blog post, Missourians for Alternatives to the Death Penalty criticized Gardner’s actions as a way to maintain her progressive reputation while still seeking the death penalty against Black defendants. “CA Gardner was elected to represent the people of St. Louis City,” the group said. “Her pursuance of the death penalty, particularly upon Black men, does not represent the people of St. Louis City. Despite this, CA Gardner continues to try to hand death ticketed cases to the AG and his office, who have continually been proven unsuccessful, costly to the people of St. Louis City, and re-traumatizes co-victims of horrific crimes.”