ST. LOUIS • A St. Louis judge has disqualified the Circuit Attorney’s office from prosecuting a man shot by police last year, saying the office shouldn’t prosecute the defendant while simultaneously investigating whether the shooting was justified.
Circuit Judge Timothy Boyer’s order late Thursday said removing Circuit Attorney Kim Gardner’s office and appointing a special prosecutor to pursue charges against Wendell Davis would avoid “an appearance of impropriety.”
The case against Davis, 27, stems from an encounter with police in August in the Jeff-Vander-Lou neighborhood in which an officer, identified in court documents only as “AF,” ran after Davis then shot him during an arrest attempt.
Boyer wrote that Gardner’s office was “relying largely on the cooperation and testimony of AF in the prosecution of defendant while at the same time investigating or reviewing possible criminal conduct on the part of AF, which conduct could be inconsistent with the guilt of the defendant. ...”
The case underscores growing distrust between Gardner’s office and some city officers over police shooting cases. Boyer’s ruling also comes as St. Louis aldermen are considering a bill to establish an independent investigative team within Gardner’s office to investigate police shootings. Gardner requested last fall at least $1.3 million to launch such a team.
In a prepared statement Friday, Gardner said she was disappointed by the judge’s decision and would review “various options.”
“As the only elected official in the city of St. Louis with the sole job of protecting public safety and pursuing justice,” Gardner said, “we will continue to fight to hold police officers accountable for unlawful actions and hold offenders accountable for violence against police, just as we did in court this week.” Gardner was referring to a St. Louis jury Thursday finding a man guilty of shooting and wounding St. Louis police Sgt. Charles Lowe in 2015.
“If we are forced to dismiss cases against criminals who assault and shoot at police because officers won’t testify in court, then these officers are putting all officers at risk and the public at large,” Gardner’s statement says.
Boyer’s ruling sides with a disqualification motion filed this week by Brian Millikan, the lawyer representing the officer who shot Davis.
In a hearing Wednesday, Millikan said having the same prosecutors handling shooting investigations and the connected criminal cases resulted in a “chilling effect” on officers.
“Under the previous administration, there was a wall between the prosecutors handling the shooting investigations and those handling the criminal case,” Millikan told the judge. “That wall has been effectively torn down.”
Gardner’s chief trial assistant, Robert Dierker, argued that politics was driving Millikan’s “hypothetical controversy” that would better be resolved by the city’s elected leaders. He said the circuit attorney’s office asked officers involved in such cases for truthful testimony in the pursuit of justice but also acknowledged “the approach in our office is to some degree a work in progress.”
Since Gardner took office, some city officers have refused to testify in police shooting cases, Millikan says, because of a backlog caused by prosecutors’ failure to finish their investigations.
That’s the reason Millikan gave last year when Officer Andrei Nikolov declined to testify in an assault case against Jennifer Morgan-Tyra. The circuit attorney’s office hadn’t finished its review of the May 2015 shooting of Morgan-Tyra by Nikolov. A judge wouldn’t grant prosecutors’ request for more time, prompting Gardner’s office to dismiss the assault case against the woman.
“Why is it taking in some cases over two years to determine whether the police officer’s conduct was justified?” Millikan said Friday. “All we want is a fair process,” he said.
Millikan said Gardner’s office was punishing Nikolov for his refusal to testify by refusing to accept warrant applications from him. Millikan said the same was true for Officer Brian Bianchi after he refused to cooperate in the murder investigation of his former partner Officer Jason Stockley in the killing of Anthony Lamar Smith in 2011. Stockley was acquitted last year of murder.
Last month, three officers were cleared in a March 2017 police shooting of John Blanchard, who was shot by police after allegedly pointing a gun following a chase along Interstate 44. The officers in those cases would not testify without being cleared.
Gardner has blamed the St. Louis Police Officers Association, claiming it has a policy advising officers not to testify and calling it “a dangerous position” for themselves and St. Louis residents. But Millikan stressed that he represented individual police officers in these cases, not the police union, and that each officer made a personal decision about testifying.
Jeff Roorda, business manager for the SLPOA, said Friday that Gardner “trying to pivot and make this about the union’s position is fake news.”
When Gardner made her pitch for funding for a new team, she said the process of investigating police shootings was broken, accusing the police department’s Force Investigation Unit of intentionally withholding evidence from her in dozens of cases.
Millikan said Friday that he was pleased with Boyer’s order and believed it establishes a precedent in such cases. A preliminary hearing for Davis is set for Monday, five months after he was arrested and jailed. Davis’ public defender, Mary Fox, complained that the continued fighting between the police and Gardner’s office had violated Davis’ right to a speedy trial.
Boyer’s order also questioned why prosecutors were taking the “unusual” course of holding a public preliminary hearing instead of presenting the case to a closed grand jury for indictment.
“The court does not recall any occasion during the last 12 months that the Circuit Attorney’s office asked for a preliminary hearing on any victim cases,” Boyer said.
Millikan called Gardner’s strategy “political,” perhaps aimed at putting a police officer on the stand in open court.
Gardner’s spokeswoman, Susan Ryan, said Gardner had discretion over how to handle such cases and believed the preliminary hearing was “the best approach in this situation.” Ryan would not explain why.