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Gardner defends hiring outside legal counsel: 'The whole office was a target, including me'

Gardner defends hiring outside legal counsel: 'The whole office was a target, including me'

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ST. LOUIS — Circuit Attorney Kimberly M. Gardner testified Wednesday that the lawyers she hired during the grand jury investigation of ex-FBI agent William Don Tisaby represent her in her official capacity as St. Louis circuit attorney, not personally.

Gardner, testifying under subpoena in a lawsuit brought by St. Louis resident Charles Lane, said she believed the special grand jury that investigated Tisaby was part of a “political attack” on her and her office.

“I think the whole office was a target, including me,” Gardner said.

Last month’s perjury and evidence-tampering indictment of Tisaby, 66, also pointed allegations at Gardner: that she failed to correct Tisaby’s lies, failed to report them to police, and made incorrect statements to defense lawyers and a judge.

William Don Tisaby

William Don Tisaby of Trussville, Ala., was indicted Friday, June 14, 2019, on six counts of perjury and one count of tampering with physical evidence. Booking photo provided by St. Louis Metropolitan Police Department.

Gardner said Wednesday she had only “glanced at” the Tisaby indictment but has not read the allegations thoroughly.

Lane, 66, who said he served the city police department for more than 25 years and has lived in St. Louis since the mid-1970s, sued Gardner in April claiming her contracts with several out-of-town law firms are illegal because she had not properly filed them with the city register.

“I think it’s important for the government to obey their own rules,” Lane told the Post-Dispatch. “I was held to a higher standard, which is fine, so I don’t know why everyone can’t have that.”

The focus of Wednesday’s hearing was whether the private law firms Gardner hired represented her personally or in her official capacity as the elected circuit attorney. That’s a key issue, because tax dollars cannot be spent to mount a private legal defense.

Lane’s lawsuit asks St. Louis Circuit Judge Joan Moriarty to issue a preliminary injunction halting payment to those firms. They include a half-dozen lawyers from Harris, Wiltshire & Grannis of Washington; Brown, Goldstein & Levy of Baltimore; Dentons, a global firm; and SpencerFane and Shaffer Lombardo Shurin, both of Kansas City, Mo. Many of the contracts Gardner signed say the firms were representing her in both her personal and official capacity.

The Tisaby grand jury disbanded earlier this month without indicting Gardner, but sources have told the Post-Dispatch a new grand jury may be summoned to continue the investigation into how Gardner’s office handled the cases against former Gov. Eric Greitens. 

Wednesday’s all-day hearing included some tense testimony from Gardner under questioning from Lane’s lawyer, Elkin Kistner.

“Imagine you’re indicted,” Kistner said to Gardner.

“I’m not answering that,” she said. “Why would I answer a hypothetical?”

“Just assume that you are,” Kistner said.

“No, I cannot,” she said.

She told Kistner she hired outside counsel instead of requesting representation from the City Counselor’s Office because she believed the City Counselor’s Office had a conflict of interest when it requested a special prosecutor on behalf of the police department to investigate Tisaby.

“These contracts were executed under my official capacity,” Gardner said.

The special prosecutor is also costing city taxpayers: Gerard “Jerry” Carmody, appointed to run the Tisaby grand jury, has a war chest of $250,000 from the 22nd Judicial Circuit’s city budget to cover anticipated bills related to the investigation.

Gerard Carmody

Lawyer Gerard Carmody, appointed special prosecutor to investigate an allegation against Clayton lawyer Albert Watkins, speaks outside court on Friday, Oct. 19, after the case was resolved.

Over the past several months, Gardner’s lawyers fought a judge’s gag order over the Tisaby investigation and filed several appeals to block a grand jury search warrant for emails, data and records from the Circuit Attorney’s Office. Gardner said the lawyers were needed “to protect the integrity of the office” as well as private information of thousands of St. Louis residents including crime victims, witnesses and testimony of police officers in pending criminal cases.

Gardner testified Wednesday that she was subpoenaed to testify before the Tisaby grand jury, but did not, saying Carmody did not call her as a witness.

Expected legal bill

Legal bills for Gardner and her office are expected to exceed $225,000, Deputy City Counselor Michael Garvin told the Post-Dispatch Wednesday during a break in the hearing.

Those anticipated bills do not include the legal defense for Gardner’s private investigator, who was accused last month of perjuring himself in a deposition, or Gardner’s legal defense in Lane's lawsuit.

Gardner’s spokeswoman, Susan Ryan, said Tisaby is currently paying his own legal bills, but has the ability to submit his legal bills to the Circuit Attorney’s Office for payment. “We have not received any invoices for his legal expenses to date,” she said.

Deputy Comptroller Beverly Fitzsimmons testified Wednesday that she set aside $375,000 in this year’s budget for Gardner’s legal defense, at the direction of her boss, Comptroller Darlene Green. Fitzsimmons said not all city departments routinely submit contracts through the comptroller’s office, and that she is concerned about the office’s practice of paying some bills without contracts. She said she relayed her concern to the state auditor as part of a ongoing review of city finances. 

Gardner held a news conference last week defending her record, calling for an end to the investigation and denying any wrongdoing in the handling of the Greitens cases.

On Tuesday, a St. Louis judge appointed retired Boone County Associate Circuit Judge Michael Bradley as special prosecutor at Gardner’s request to investigate claims that Greitens’ lawyers threatened her last year as she pursued a criminal case against the governor.

Michael Bradley

Retired Boone County Associate Circuit Judge Michael Bradley has been appointed special prosecutor to investigate allegations of tampering with a judicial officer.

Greitens was indicted on one count of invasion of privacy in February 2018, after news broke that he had had an affair with his hairdresser as he was preparing to run for office in 2015. The woman’s ex-husband claimed Greitens threatened to release a photo of her partly undressed if she exposed their affair. Greitens denied that; Gardner dismissed the case during jury selection when faced with possibly having to testify about Tisaby. Greitens later resigned as part of a deal with prosecutors over a charge that he improperly shared a donor list from a charity for the purpose of political fundraising.

Post-Dispatch coverage of Greitens' affair scandal

From Greitens' initial statement to calls for his resignation, read the Post-Dispatch coverage of the governor's affair scandal.

For coverage of the Confide app, campaign issues and The Mission Continues fundraising, go here.

A lawyer for Missouri Gov. Eric Greitens said Monday morning that prosecutors had ended their efforts to find a photo of the woman at the cent…

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