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Gardner avoids contempt for prosecutor no-show at murder trial

St. Louis Circuit Attorney Kimberly M. Gardner sits behind her attorneys in a St. Louis courtroom on Tuesday, April 18, 2023 in the first hearing of a lawsuit by Missouri Attorney General Andrew Bailey seeking to remove Gardner from office.
David Carson
Pool photo
A circuit judge on Monday declined to hold St. Louis Circuit Attorney Kim Gardner, shown here during an April 18 court hearing in a lawsuit to remove her from office, in contempt after prosecutors did not show up for a murder trial on April 17.

A St. Louis judge has decided not to hold Circuit Attorney Kim Gardner in contempt after attorneys from her office failed to show up for a murder trial scheduled for last week.

Judge Scott Millikan ruled Monday that Assistant Circuit Attorney Alexander Polta was not deliberately absent from court, though he did chastise the prosecutor for failing to communicate with him or with defense counsel about his absence.

“Criminal contempt is a high bar,” Millikan said in issuing his ruling from the bench. “When you look at the facts, there was enough communication” among employees in Gardner’s office “to justify no action. The facts do not meet the burden.”

But Millikan made it clear that the circuit attorney’s office needed to sort out staffing issues that have frequently led to cases being dropped and refiled because prosecutors are not prepared for trial. By some accounts, there are fewer than five attorneys handling serious felony cases.

“I’m trying to bring order to this circuit,” Millikan said, adding that he would not be surprised if additional judges filed similar show-cause orders.

Monday’s hearing had its genesis in an April 17 murder trial. Jonathon Jones, who is facing first-degree murder and armed criminal action charges in the 2021 shooting death of Brandon Scott, was in Millikan’s courtroom on the 6th floor of the Civil Courts building downtown with his attorney, Cecilia Appleberry.

But despite a scheduling order dated Jan. 23 and confirmation of that date in a March 6 order transferring the case from a different judge to Millikan, no one from Gardner’s office showed up. Millikan then filed his own order demanding that Gardner explain why she should not be held in contempt.

In court documents filed on Friday, Gardner placed blame solely on Polta. The attorney, she said, notified the office in a text message on April 6 that he was taking a month off for vacation, then incorrectly told his supervisors that he had nothing but nontrial matters for five weeks. Upon further investigation, Gardner said in her brief, her office discovered that Polta had multiple cases set for trial and scrambled to find coverage. Somehow, the Jones case was lost in the shuffle.

“The CAO [circuit attorney’s office] and Ms. Gardner believe that no one appeared for trial because, with the potential exception of Mr. Polta, no one in the CAO was aware prior to 9:00 A.M. on April 17 that the trial in this matter was still scheduled to begin at 9:00 A.M. on April 17, 2023,” she wrote.

Polta, who has been assigned to the case as a prosecutor since October 2022, told Millikan he has a respiratory infection that required treatment with antibiotics. In text messages submitted by Gardner, he says he has been ill for five months.

Polta said while he notified three other judges on his rotation of his absence, he did not think to notify Millikan because he had forgotten that Millikan was now responsible for the Jones case, despite thatMarch 6 order.

“That does put me on notice. I apologize,” Polta said. “There is no excuse for no one showing up.”

What’s next

Millikan on Monday rejected a defense attempt to dismiss the case, saying a continuance could provide better protection of Jones’ constitutional rights.

“You have legitimate arguments,” he told Appleberry. “My colleagues here have to balance the rights of the defendant, the victim and the victim’s family, and public safety. We’re getting put in positions where it’s more and more difficult.”

More than likely, Millikan said, a dismissal would lead the prosecutor’s office to drop the case and refile charges, which would restart the clock and push a trial date toward the end of the year. Jones has been in custody since the killing, first at juvenile facilities and then at the Criminal Justice Center downtown. He was almost 17 at the time of the killing and was certified to stand trial as an adult on Sept. 7, 2022.

As a compromise, Millikan allowed Appleberry to pick dates for a new trial and indicated that he was unlikely to move it for any reason. He will now hear pretrial matters on June 1, with jury selection beginning June 5.

Rachel is the justice correspondent at St. Louis Public Radio.