Attorneys fall silent as news quote weighed

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An issue that hinged on a media interview now has parties not wanting to talk about it.

A federal judge is weighing whether prosecutors acted improperly by publicly questioning convictions in cases investigated by an indicted police officer.

St. Louis attorney Chet Pleban, of Pleban & Associates, filed the motion to dismiss for prosecutorial misconduct after the St. Louis Post-Dispatch quoted former U.S. Attorney Catherine Hanaway and current St. Louis Circuit Attorney Jennifer Joyce as saying that more than 1,000 convictions were put in doubt because of the indictment of Pleban’s client, St. Louis Metropolitan Police Officer Bobby Lee Garrett.

Pleban – an attorney who rarely ducks out of the limelight – declined to be interviewed, citing the sealed motions. Calls to Assistant U.S. Attorney Hal Goldsmith were not returned. Acting U.S. Attorney Michael Reap declined to comment on the allegations of prosecutorial misconduct.

Except for the original motion and memorandum in support filed by Pleban and one response made by the U.S. Attorney’s Office, all other motions and affidavits were filed under seal.

Garrett and another officer, Vincent Carr, were indicted in December 2008, accused of planting evidence, stealing money and dealing drugs. Officer Leo Liston was also indicted in April 2009 for similar charges. Carr pleaded guilty; Liston and Garrett pleaded not guilty.

In Garrett’s motion, Pleban argued that the statements made by Hanaway and Joyce created an impression that Garrett is guilty of additional uncharged crimes and that his testimony cannot be trusted.

In response, Goldsmith said at Thursday’s hearing that the pair made the comments to assure that innocent people would not be prosecuted.

“[Catherine Hanaway] made no specific comments about the case,” he said. “There was nothing improper about what she said. And I would make the same argument for Jennifer Joyce, and that’s not even our battle.”

Goldsmith also said the motion was filed in response to national attention to prosecutorial misconduct by the dismissed conviction of Alaska Sen. Ted Stevens.

Calls to Hanaway were not returned.

At the hearing before U.S. District Judge E. Richard Webber, Pleban argued that both offices violated Brady v. Maryland in either Garrett’s case or in the cases where Garrett and the other indicted officers were involved in investigations that later led to charges and convictions. Brady requires prosecutors to provide exculpatory evidence to the defense.

“Either there was Brady violation for all the defendants or just against Garrett,” Pleban said at the hearing. “I honestly can’t believe the government’s cavalier attitude about its obligation under Brady.”

Pleban said that the federal investigation into the officers began some 16 months before the indictment, but both offices continued to prosecute cases where the officers were involved in the investigation. He read from Joyce’s affidavit saying that Joyce had said she had not known “officially” about the investigation until just before the indictment.

“I find it incredibly hard to believe that the chief law enforcement officer knew nothing about this investigation,” he said at the hearing.

Goldsmith said that, since the investigation was handled properly, Joyce shouldn’t have known about it until the indictment. 

Joyce was away at a conference on Friday and unavailable for comment.

Mary Fox, district defender for the St. Louis City Public Defender’s Office, said her office had been subpoenaed to provide information about whether the office had been provided any Brady material regarding the federal investigation. She said the office had not received any Brady material but that the St. Louis Circuit Attorney’s Office had dropped some pending cases that involved the officers.

At the evidentiary hearing, both parties discussed an affidavit from defense attorney Joel Schwartz, of Rosenblum, Schwartz, Rogers & Glass, concerning a client’s participation in the federal investigation against Garrett.

In a telephone interview, Schwartz said he was not fully aware of the nature of his client Chester Wilson’s involvement in the investigation until the indictment. Wilson pleaded guilty to one count of possession of marijuana and was placed on probation for two years.

Schwartz used this example to describe the situation:

“Let’s say that I’m an officer and you’re a defendant and you cooperated with me by giving information and doing some things. I say thank you very much but didn’t help you.”

Schwartz has filed a motion to have Wilson’s guilty plea withdrawn because the state had failed to disclose the investigation into Carr and Garrett.

Schwartz said he anticipates raising similar issues in additional cases.

Fox said no public defender clients have made the decision to challenge their convictions because of the officer’s indictments.

Reap said the U.S. Attorney’s Office is still working through the cases right now to determine what actions need to be taken.

“Everyone will be notified once we make a decision,” Reap said. “But so far, we’re not dismissing an indictment or getting someone out of jail.” 

Webber has yet to make a ruling on Garrett’s motion to dismiss for prosecutorial misconduct and change of venue.

The case is U.S. v. Garrett, 4:08-cr-703.