Under scrutiny: Investigator’s indictment may imperil top prosecutor Kimberly Gardner

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A recent 30-page indictment issued by a special grand jury contains allegations that could imperil the political future of St. Louis Circuit Attorney Kimberly Gardner.

On June 14, the special grand jurors indicted her former investigator, William Don Tisaby of Trussville, Alabama. His alleged offenses: six counts of perjury and one count of tampering with physical evidence, all in connection with the work he did last year as an independent contractor for Gardner during her prosecution of then-Governor Eric Greitens.

In that case, the circuit attorney charged Greitens with felony invasion of privacy, accusing him of taking a nonconsensual semi-nude photo of a woman with whom he had an extramarital affair. To launch the investigation, the circuit attorney personally had sought Tisaby’s help.

Now her hand-picked investigator, a former FBI agent, is the one under law-enforcement scrutiny. He has pleaded not guilty to the charges, posted bond and been released on supervision.

The potential threat that Tisaby’s indictment poses to Gardner is not merely an unflattering association. It’s also that the special grand jury, in describing each count against Tisaby, has supplied details that suggest Gardner knew or should have known about his alleged wrongdoing but failed to inform the court. And that, in turn, raises the question of what consequences, if any, may await Gardner herself.

Gardner declined to comment through a spokeswoman, citing a judicial gag order. But in filings related to Tisaby’s case, she has explicitly denied suborning perjury. She has portrayed herself as a successful reformer who is nevertheless “under siege by various actors intent on silencing her and preventing her from executing the duties of her office” — an office, she points out, that no other African American woman has ever held.

Spearheading this matter is Special Prosecutor Gerard T. Carmody of Carmody MacDonald in Clayton. A former assistant circuit attorney turned commercial litigator, Carmody has represented Fortune 500 companies, served on the Missouri Supreme Court’s Commission on Racial and Ethnic Fairness, helped to create the Missouri Coalition for the Right to Counsel and served on the Missouri Appellate Judicial Commission. He did not respond to a request for comment.

Carmody was appointed in June 2018 by St. Louis Circuit Judge Michael K. Mullen in response to a request from the Saint Louis Metropolitan Police Department, which by then was looking into Tisaby’s conduct. Mullen determined that Gardner’s office had a conflict of interest that disqualified it from getting involved, and he tapped Carmody “to pursue criminal charges . . . in connection with” the 2018 prosecution of Greitens.

It’s a broad mandate, observed Professor Peter Joy, director of the criminal justice clinic at Washington University School of Law. Joy added that there is no statutory bar against indicting a sitting circuit attorney, but that he considers such a move unlikely in this case.

“It’s my impression that they left no stone unturned,” Joy said. “If there were probable cause [to prosecute Gardner], I would’ve expected an indictment.”

The allegations in the indictment also leave open the possibility of a potential bar complaint filed by the governor’s legal team, which came to include James G. Martin, Edward L. Dowd and James F. Bennett of Dowd Bennett; N. Scott Rosenblum of Rosenblum Schwartz & Fry; and John F. Garvey, a former St. Louis Circuit Judge now at Carey Danis & Lowe. Said Martin: “We’re not commenting.” 

Missouri Chief Disciplinary Counsel Alan Pratzel wrote in an email that he could neither confirm nor deny an open case against Gardner.

Speaking about OCDC policy in general and not about any particular case, Pratzel said, “the OCDC generally refrains from interfering with pending litigation or legal processes, whether they be civil or criminal in nature. In such cases, the OCDC may decide to hold an investigation in abeyance pending the conclusion of a civil or criminal proceeding that may impact the disciplinary process.”

Two depositions

On Jan. 10, 2018, Greitens publicly admitted to having the extramarital affair but denied any wrongdoing. The next day, Gardner announced she would initiate a formal investigation. Her decision to enlist Tisaby in this project and bypass staff investigators and police was “contrary to normal protocol,” according to the indictment. Gardner filed the invasion-of-privacy charge against Greitens on Feb. 22.

About a month later, on March 19, Greitens’ legal team deposed Tisaby to learn about his investigative role. Gardner was present that day on behalf of Tisaby and the State of Missouri. In the deposition, the special grand jury alleges, Tisaby made a variety of false statements under oath — and Gardner made no effort to correct them.

The defense team focused its questions on two interviews the circuit attorney’s office conducted with the woman with whom Greitens had the affair, identified as K.S. The first occurred on Jan. 24; Gardner conducted it by herself. The second occurred on Jan. 29, when Gardner and Tisaby interviewed K.S. jointly.

The governor’s attorneys asked Tisaby: Before he participated in that second interview of K.S., had the circuit attorney provided him with any information from the first one she conducted by herself?

No, Tisaby testified, because he wanted to develop his “own take” and do an “independent review.” Yet in reality, Tisaby and Gardner had spoken on more than 17 calls, exchanged more than 100 texts and met in person in Louisiana during a two-day period. Gardner also emailed him six pages of single-spaced notes from her first interview, according to the indictment.

“Gardner never attempted to correct this false testimony,” the special grand jury alleges.

During a lunch break of more than two hours, Tisaby promised the governor’s attorneys he would check his laptop and briefcase for more notes in his possession. When he returned, the defense asked whether he had been in contact with Gardner during the break. “Not at all,” he said. In reality, according to the indictment, they spoke at least seven times on the phone for a total of 34 minutes.

“Gardner did not attempt to correct this false testimony,” the grand jury alleges.

The governor’s attorneys asked Tisaby why he and Gardner hadn’t recorded the second interview with K.S. Tisaby then revealed for the first time that, in fact, they had recorded it on video — but, he claimed, he took no notes during that interview nor asked any questions. Both assertions later would be proven false by the video itself — and Gardner, despite having been at his side in the video, did not correct his deposition testimony.

Attorney Michael Downey, a legal-ethics specialist in Webster Groves, said lawyers aren’t obligated to fact-check everything witnesses say, but they do remain bound by the rule of professional conduct 4-3.3, which “requires a lawyer to take reasonable remedial measures if the lawyer comes to know that a client who is testifying in a deposition has offered evidence that is false.” That obligation, he said, lasts until the final resolution of the matter.

After Greitens’ legal team filed a motion seeking to compel the production of the video, the circuit attorney produced it. During a subsequent hearing, Gardner told the court that she hadn’t produced it earlier because it had been malfunctioning and that “numerous times many different people attempted” to get it to work.

“In fact,” the grand jury alleges, “no one from the [Circuit Attorney’s Office]’s IT department had been asked to examine the video or camera prior to” the motion to compel.

Upon release of the video, Greitens’ attorneys accused Tisaby of perjury. Robert H. Dierker, then Gardner’s chief trial assistant and a former St. Louis circuit judge, advised the court that he would report the allegations of perjury to the police, but — according to the indictment — Gardner instructed him not to.

Greitens’ attorneys then deposed Tisaby a second time, but he invoked his constitutional right to remain silent. They sought to call Gardner herself to the stand, reasoning that she was the only other witness who could testify about Tisaby’s behavior. Rather than take the stand, Gardner dismissed the case against the governor on the eve of trial. She promised to refile the charges. Jackson County Prosecutor Jean Peters Baker was appointed to review the case and chose not to refile the charges.

Notes and memos

After the dismissal, Greitens’ attorneys filed a complaint with St. Louis police against Tisaby for possible perjury. That complaint led the police to request the appointment of a special prosecutor. Since that appointment, Carmody and Gardner have engaged in a heated — and sometimes public — battle involving the execution of warrants to search the prosecutor’s electronically stored information.

Carmody claimed at one point in his pleadings that the city prosecutors had “done everything in their power to interrupt and thwart the investigation.”

The circuit attorney countered that the warrant was “invasive,” would lead to “disastrous” consequences, and that the real rationale behind it was “relitigating” the decision to charge Greitens and “reversing the election of Circuit Attorney Kimberly Gardner because the Respondents dislike how this African American woman is reforming the criminal justice system.”

Ultimately, St. Louis police seized the circuit attorney’s server and executed the search. According to the Tisaby indictment, investigators found a variety of documents related to the invasion-of-privacy case that never had been produced in discovery, and thus, the special prosecutor alleges, “impaired and obstructed the defense” of Greitens.

These documents, which formed the basis of the evidence-tampering charge against Tisaby, include notes and internal memos created by (and shared between) him and Gardner.

Joy said it’s not clear whether these documents, as described, would have fallen under the work-product privilege and been exempt from disclosure. In a typical situation, he said, the prosecution and the defense would fight about that and a judge would decide.

Downey pointed out that prosecutors have both a constitutional duty to turn over exonerating material (also known as Brady obligations) and an ethical duty under the professional rules to produce responsive records during discovery.

“Could I come up with a set of circumstances so that the circuit attorney’s office wouldn’t get in trouble?” Downey said. “Yes, but it would take me a while. Maybe the digital search didn’t run correctly. Maybe someone left the office. It’s not a normal set of circumstances. But this is why we have proceedings.”

As for Tisaby, he is represented by St. Louis attorney Jermaine Wooten. A status/scheduling conference is scheduled for Aug. 15.

The case is State of Missouri v. William Don Tisaby, 1922-CR01819.