Professional Documents
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Motion For Sanctions Gardner
Motion For Sanctions Gardner
LOUIS
STATE OF MISSOURI
STATE OF MISSOURI, )
)
Plaintiff, )
)
v. ) Case No. 2222-CC09375
)
LAMAR JOHNSON, )
)
Defendant. )
Johnson’s jacket. When the Attorney General requested reports of any forensic
testing, the Circuit Attorney claimed her “Office cannot know” what “forensic
Assistant Circuit Attorney Charlie Weiss stated the Circuit Attorney had
provided all laboratory testing. The Circuit Attorney never disclosed she
Attorney General and from this Court. The concealed evidence is material
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Factual History
On or about March 29, 2022, Circuit Attorney Kim Gardner (“the Circuit
Attorney”) personally spoke on the phone with Scott Hummel, the Quality
Assurance Manager for the Kansas City Crime Laboratory. (Ex. 1 at 1).
Following this phone call, Mr. Hummel provided the Circuit Attorney with a
shipping address and a form for requesting forensic testing. (Id.). The Circuit
Attorney responded, “I appreciate you reaching out and we will send this back
to you.” (Id.). The Circuit Attorney sent the jacket by Federal Express on April
1, 2022, and it was received on April 4, 2022. (Ex. 4). Just over a week later,
the Circuit Attorney’s Chief Investigator emailed Mr. Hummel the completed
laboratory testing form requesting DNA and gunshot residue testing on, inter
alia, Johnson’s jacket seized from the truck of Johnson’s car on the day he was
The Kansas City Crime Laboratory completed the DNA testing and
produced a report indicating there was no DNA on the jacket. The Circuit
Attorney provided that report to the Attorney General, but the Circuit
Attorney never disclosed that the Circuit Attorney had also requested gunshot
residue testing.
Then, on August 31, 2022, the Circuit Attorney moved to set aside
Johnson’s conviction. On September 20, 2022, the Court ordered the Circuit
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Attorney’s Office to “provide the Attorney General with any additional
discovery within 14 days.” (Ex. 5). At the hearing, the Court warned the Circuit
Attorney “don’t you guys try to pull any stuff that you don’t let the AG’s Office
know about.” (Ex. 14, at 18). The Circuit Attorney, Special Assistant Circuit
Attorney Weiss, and counsel for Johnson personally signed the Court’s order.
(Ex. 5). But the Circuit Attorney never disclosed her request for gunshot
residue testing. Then, on October 18, 2022, the Attorney General propounded
interrogatories and requests for production on the Circuit Attorney. (Ex. 6).
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The Attorney General requested “[a]ny written correspondence with any
November 17, 2022, the Circuit Attorney, through her records custodian,
responded:
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(Ex. 7 at 10). Despite knowing that the Circuit Attorney had personally
claimed that her “Office cannot know what is meant by ‘forensic testing . . . .’”
and that forensic testing was not likely to lead to admissible evidence. (Id.).
Even so, the Circuit Attorney admitted she had provided the report of the DNA
and to inspect the file. (Ex. 8 at 8). Four days later, Special Assistant Circuit
discuss. (Ex. 8 at 8). Undersigned counsel responded five minutes later, shared
that he was out of the office for trial preparation on a different case, and added
that he would be in touch soon. (Ex. 8 at 7–8). Later that night, undersigned
Attorney Weiss. (Ex. 8 at 6). The next day, November 28, 2022, Special
November 30, 2022, at 9:30 a.m. in the Circuit Attorney’s Office. (Id. at 6).
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At the conference, Special Assistant Circuit Attorney Weiss did not
disclose the request for gunshot residue testing. Instead, Special Assistant
Circuit Attorney Weiss stated that the Attorney General had the results of all
testing and continued to insist that the Circuit Attorney did not know what lab
notes were.
afternoon of November 30, 2022, at the Circuit Attorney’s Office, reviewing the
Circuit Attorney’s file.1 Johnson’s jacket was not present for the review.
residue testing that same day at 2:43:32 p.m. (Ex. 9 at 33). The report was
released at 3:53:14 p.m. (Id.). And the report was sent directly to Circuit
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(Id. at 3) (emphasis added). The Kansas City Crime Laboratory’s tracking
system shows that the report was delivered to the Circuit Attorney’s personal
previously missing portions of the Circuit Attorney’s file. At no time did the
existence of the gunshot residue report. On top of sending the report to Circuit
2022, to discuss returning the evidence. (Ex. 10). In that email, Mr. Hummel
her Office “cannot know” what lab notes are, contacted the Kansas City Crime
Laboratory on December 6, 2022, and requested the lab notes. Upon making
that request, Mr. Hummel revealed that there were two reports. Undersigned
counsel then requested that Mr. Hummel send the lab notes and files to all
2Counsel for Johnson appear to have instigated the request for testing.
(Ex. 13). And counsel for Johnson and the Circuit Attorney have asserted the
“common interest” exception to their communications. (Ex. 7 at 8). Johnson is,
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Argument
fails to produce it has troubled Anglo-American courts for nearly 300 years.”
Marmaduke v. CBL & Associates Mgmt., Inc., 521 S.W.3d 257, 268 (Mo. App.
E.D. 2017). The same is true in Missouri, where “[s]ince the beginning of our
State government, courts have had the authority to allow the pretrial discovery
typical case is to “facilitat[e] and expedit[e] the preparation of cases for trial,
“imposed on those who disobey the rules.” Id. at 271 (citing Combellick v.
Rooks, 401 S.W.2d 460, 464 (Mo. 1966)). Although the Court has wide
purposes of discovery. . .” Id. (citing Cosby v. Cosby, 202 S.W.3d 717, 722 (Mo.
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In this case, the Attorney General managed to locate the evidence
despite the Circuit Attorney’s intentional efforts to conceal it. And the Circuit
Attorney’s objections to producing the report were, and still are, frivolous. For
instance, the Circuit Attorney claimed she “cannot know” what “forensic
testing” meant in the context of the case despite having personally requested
the forensic testing she was concealing. The Circuit Attorney’s objection that
producing lab notes and reports was not reasonably calculated to lead to
The Circuit Attorney’s actions are not mere mistake or oversight. The
months ago for violating Rules 4–3.3(a), 4–3.4(a), and 4–3.4(d). (Ex. 12). Rule
Rule 4–3.4(a). Meanwhile, Rule 4–3.4(d) prohibits a lawyer from failing “to
request by an opposing party.” Rule 4–3.4(d). That is precisely what the Circuit
Attorney did.
Given the Circuit Attorney’s recent reprimand for very similar conduct
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requesting, receiving, and concealing the gunshot residue test, this Court is
left with only one possibility: the Circuit Attorney personally concealed the
If the Court does not sanction the Circuit Attorney for doing all of that, then
the discovery rules and this Court’s discovery order are meaningless.
Requested Sanctions
The Attorney General does not request sanctions lightly and is mindful
Attorney General managed to discover the gunshot residue testing and results
before the hearing weighs in favor of a reduced sanction. On the other hand,
the Missouri Supreme Court, and the repeated concealment of the testing
together, along with the circumstances of the case, the Attorney General
The Attorney General be granted leave to amend his witness and exhibit
the jacket and the gunshot residue test be limited by the Court;
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The Court draw an adverse inference from the Circuit Attorney’s
For any other relief the Court deems necessary and proper.
Conclusion
guilt while publicly proclaiming his innocence. Her actions are prejudicial to
and to the public perception of our justice system. Sanctions must issue.
Notice of Hearing
The Attorney General gives notice that he will call the above motion for
reasonably be heard. There is good cause for shorting the time for hearing
given that the trial is scheduled to begin on December 12, 2022, and the motion
could not be heard sooner because the Circuit Attorney intentionally concealed
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Respectfully submitted,
ERIC S. SCHMITT
Attorney General
Certificate of Service
I certify that I filed this document using the Missouri case.net system
on Thursday, December 8, 2022, and that all counsel will be served thereby.
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