UPDATED at 4 p.m. with statement from police union official.
ST. LOUIS • St. Louis Circuit Attorney Kim Gardner will no longer accept criminal cases from 28 city police officers and is reviewing any open cases they handled for “viability.”
Gardner delivered the list of officers to the police department Tuesday, calling it an “exclusion list,” according to documents obtained by the Post-Dispatch.
A written statement from Gardner said, in part, that prosecutors have “the responsibility to defend the integrity of the criminal justice system. Police officers play an important role in the criminal justice system, and the credibility of officers is one of the most important attributes of the job.”
“A police officer’s word, and the complete veracity of that word, is fundamentally necessary to doing the job. Therefore, any break in trust must be approached with deep concern,” the statement said.
Sgt. Keith Barrett said Police Chief John Hayden was unavailable for an interview but issued a statement on his behalf:
“The police division did receive an exclusion list created by the Circuit Attorney’s Office. While we are seeking legal guidance on how this affects the police division, we have also taken steps to notify each of the involved employees. At this time, we are considering how best to proceed and what if any actions to take. Any further inquiries should be directed to the Circuit Attorney’s Office.”
Koran Addo, spokesman for Mayor Lyda Krewson and Public Safety Director Jimmie Edwards, said they had no comment.
In an email obtained by the Post-Dispatch, Hayden told colonels and majors to remind officers on the list to adhere to the department’s principles “and perform their responsibilities as outlined in all established policies and procedures.”
Hayden said his office is consulting with the legal division to “understand what this legally means and more specifically how this actually impacts these individuals.”
In another email obtained by the Post-Dispatch, Maj. Michael Sack, who oversees the Bureau of Professional Standards, told the affected officers to contact Gardner’s Chief Warrant Officer Chris Hinckley if they “have any concerns.”
Sack quoted Hinckley’s email as saying, “warrant applications involving officers (sic) as essential witnesses will be refused if their participation is essential to the successful prosecution of the case. Cases previously issued where the above officers are essential witnesses will be reviewed for viability.”
The move is bound to ratchet up tensions between Gardner’s administration and police over her office’s scrutiny of officer conduct. Previous clashes include city officers refusing to testify in nonfatal police shooting cases over concerns they, too, could be prosecuted. Gardner also announced in June that she was dropping hundreds of traffic cases and about 30 felony and misdemeanor cases brought by a Missouri state trooper whose conduct during traffic stops was called “questionable” and “unacceptable” by Hinckley.
The officers on the list account for about 2.5 percent of the department’s 1,180 commissioned officers, and about 5 percent of front line officers, said Jeff Roorda, business manager for the St. Louis Police Officers’ Association.
“I’m not going to speculate about the Circuit Attorney Office’s motivations for this,” Roorda said, adding that the police union was “surprised and alarmed.”
At a news conference Thursday afternoon, Roorda said he had five lawyers working on both the legality of the list’s creation and an attempt to block it from being shared.
Roorda, who has the list, said some officers were on it because they asserted their Fifth Amendment right against self-incrimination in cases where Gardner’s office was simultaneously reviewing an officer’s conduct in a police shooting and pursuing charges against the person shot. Last year, Gardner’s office dropped an assault case shortly before trial after an officer warned he wouldn’t testify without a guarantee that he would not face charges.
Roorda declined to detail why others are on the list, and said officers and police officials were not told. He said Gardner’s office failed to make a specific disciplinary finding and provide officers “due process,” as required, before they were placed on the list.
Roorda said that cases linked to officers on the list had already been dismissed in state court. He said the full group is linked to “dozens if not hundreds of cases.”
Roorda said the list included “front-line” officers. He blasted it as “dangerous” both to officers’ reputations and public safety when cases are dropped or not charged because of an officer’s inclusion on the list.
The police department, the circuit attorney’s office and Roorda all refused to release the list Thursday.
Kristi Flint, a St. Louis defense lawyer who worked as a prosecutor in the circuit attorney’s office from 2005-2013, said prosecutors see it as a “red flag” when police officers invoke the Fifth Amendment and choose not to testify.
“Why would you not answer the question if you don’t have anything to hide?” Flint said.
But although that may be a reasonable inference for a law enforcement official, she said in this situation it was important to consider the strained relationship between police and Gardner. The officers may be taking the Fifth because they don’t believe they will be treated fairly, she said.
Excluding police officers from being witnesses or bringing cases is not a new thing.
Two prosecutors in St. Clair County also have barred evidence from certain police officers.
In 2015, St. Clair County State’s Attorney Brendan Kelly announced he would no longer accept cases from any Brooklyn police officer. At a news conference announcing his decision, he said he made his decision in “solemnity and sadness” but that officers had botched investigations, mishandled evidence and were reckless with firearms.
Kelly said Thursday that the situation was cleared up in about six months and his office resumed handling Brooklyn cases.
In 2009, then St. Clair County State’s Attorney Bob Haida announced he would no longer use 15 East St. Louis police officers as “essential witnesses” in felony cases. He listed his reasons for doing so in each of the letters to the affected officers. Some officers had been convicted of crimes, and Haida banned others for their conduct during investigations.
In New Hampshire, the attorney general is rejecting requests from media groups and civil liberties groups to release the “Laurie List,” a “statewide list of police officers with credibility issues,” the Union Leader reported Wednesday.
St. Louis University law professor Anders Walker said he has never heard of a prosecutor making an exclusion list but said it is within Gardner’s power to do so.
“She may jeopardize her relationship with the police department,” Walker said. “And it could be a problem politically if the voters of St. Louis don’t agree. It could be a positive, if she has singled out officers she thinks cannot be trusted and is proven correct.”
The danger, Walker said, is if the police department decides it doesn’t like Gardner’s policy and stops investigating certain crimes.
Missouri Attorney General Josh Hawley said Friday afternoon he was “deeply concerned that this action will result in criminals going free (and) being unaccountable and vulnerable communities not getting the protection that they deserve.”
Hawley told reporters at a campaign event in south St. Louis County that he had asked Gardner for a copy of the list and the basis “for each officer’s inclusion.” Hawley is running for the U.S. Senate seat currently held by Claire McCaskill.
Asked what he could do about the situation, Hawley said “we are exploring” potential actions but acknowledged that state law gives Gardner the authority and jurisdiction on whether to investigate or prosecute.
Mark Schlinkmann and Robert Patrick of the Post-Dispatch contributed to this report.