Federal court says no prosecutorial misconduct in cop case

A federal judge said no prosecutorial misconduct occurred in the case against Bobby Lee Garrett, a St. Louis police officer accused of planting evidence, stealing money and dealing drugs.

U.S. District Judge E. Richard Webber, of the St. Louis-based federal court, on Wednesday denied the defendant’s claims that former U.S. Attorney Catherine Hanaway and St. Louis Circuit Attorney Jennifer Joyce prejudiced the case against him when they spoke to the media.

Garrett’s lawyer, Chet Pleban, of Pleban & Associates, wanted the judge to dismiss the case, disqualify the U.S. Attorney’s Office in St. Louis or move the case to another venue.

Garrett and another officer, Vincent Carr, were indicted in December 2008. Officer Leo Liston was also indicted in April 2009 for similar charges. Carr pleaded guilty; Liston and Garrett pleaded not guilty.

In a February article, the St. Louis Post-Dispatch said the criminal corruption cases cast doubt on more than 1,000 convictions.

Hanaway said in the article that the U.S. Attorney’s Office had “put the brakes” on three cases before charges were filed as a result of the investigation into Garrett’s conduct. She also vowed to review the cases in which Carr and Garrett were involved to make sure they “did not alter the outcome of the cases.” Joyce said she was “outraged by the conduct of these officers.”

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.

But Webber said Hanaway’s comments cannot be considered misconduct because they are permitted by the Missouri Rules of Professional Conduct and the U.S. Attorneys Manual.

“It is clear that [Hanaway’s] comments regarding the manner in which her office is handling cases in which Defendant was involved do not amount to prosecutorial misconduct,” Webber wrote. “Informing the general public how the United States Attorneys’ Office intends to proceed in order to ensure that innocent persons are not in jail as a result of police wrongdoing is certainly in the interest of furthering law enforcement goals.”

The judge also said the pretrial publicity didn’t warrant a change of venue. While the defense argued the newspaper articles were “invidious and inflammatory,” Webber found otherwise, calling the coverage “fair and certainly not corrupt.”

In his order, Webber addressed potential Brady v. Maryland violations by the U.S. Attorney’s Office and the Circuit Attorney’s Office 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.

Pleban had stated that both had known of the investigation into Garrett’s misconduct for at least 17 months before his indictment in December 2008 and had allowed him to be the investigating officer in at least 50 cases. The information regarding the investigation should have been disclosed to the other 50 defendants.

Webber rejected that argument because Garrett did not have standing to make constitutional arguments for other defendants and because it did not appear from the evidence presented that there were any Brady violations.

“Merely because the indictment includes charges based on conduct that occurred on Aug. 7, 2007, does not necessarily establish that the Government was even aware of that conduct when it occurred,” he wrote.

“I have always maintained that Mr. Pleban’s allegations were completely without basis in law or fact,” Joyce said in a response to the judge’s order. “The federal court fully reviewed these questionable claims and reached a just and fair conclusion.”

Webber also found that there was no Brady violation in Garrett’s case because evidence of his lack of criminal wrongdoing is not favorable or material to him and does not have to be disclosed.

Acting U.S. Attorney Michael Reap declined to comment on the judge’s order other than to say he thinks it’s “the right decision.” The office is reviewing the other federal cases with which Garrett was involved.

Pleban also argued that the entire U.S. Attorney’s Office should be disqualified from prosecuting his client because Hanaway and Assistant U.S. Attorney Hal Goldsmith might be called as witnesses. But Webber said the defense hasn’t yet shown that their testimony is vital to his case and would not disqualify the office at this time.

Calls to Pleban and Hanaway were not returned by press time.

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