IN THE CIRCUIT COURT OF THE CITY OF ST.

LOUIS
STATE OF MISSOURI

STATE OF MISSOURI, )
)
Plaintiff, )
)
v. ) Case No. 2222-CC09375
)
LAMAR JOHNSON, )
)
Defendant. )

State’s Motion for Sanctions

Against the Circuit Attorney for Concealing Evidence
and Notice of Hearing

The Circuit Attorney has simultaneously alleged that Lamar Johnson is

actually innocent and concealed forensic testing showing gunshot residue on

Johnson’s jacket. When the Attorney General requested reports of any forensic

testing, the Circuit Attorney claimed her “Office cannot know” what “forensic

testing” means in this case. Then, at the discovery conference, Special

Assistant Circuit Attorney Charlie Weiss stated the Circuit Attorney had

provided all laboratory testing. The Circuit Attorney never disclosed she

received the positive results of a gunshot residue test on Johnson’s jacket

seized from his trunk when he was arrested.

The Circuit Attorney has personally concealed evidence from the

Attorney General and from this Court. The concealed evidence is material

because it tends to prove that Johnson is guilty. Sanctions must issue.

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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

arrested. (Ex. 2 at 1; Ex. 3).

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

forensic laboratory or its employees . . . regarding any forensic testing or

analysis that relates to Lamar Johnson’s convictions . . . .” (Ex. 7 at 10). On

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

requested gunshot residue testing of Johnson’s jacket, the Circuit Attorney

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

testing on the same jacket. (Id.).

After reviewing the Circuit Attorney’s responses, the Attorney General

requested a meet-and-confer conference to work through the discovery issues

and to inspect the file. (Ex. 8 at 8). Four days later, Special Assistant Circuit

Attorney Weiss asked which responses the Attorney General wanted to

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

counsel identified the forensic testing request, among others, after

undersigned counsel returned to his office in Jefferson City. (Ex. 8 at 7).

After waiting five days for a response, undersigned counsel again

requested a meet-and-confer conference from Special Assistant Circuit

Attorney Weiss. (Ex. 8 at 6). The next day, November 28, 2022, Special

Assistant Circuit Attorney Weiss agreed to a meet-and-confer conference on

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.

After the conference, assistant attorneys general spent hours on the

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.

Meanwhile, the Kansas City Crime Laboratory completed the gunshot

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

Attorney Gardner by email:

1 In fact, Special Assistant Circuit Attorney Weiss complained to the

assistant attorneys general that they were spending too long reviewing the
Circuit Attorney’s file.

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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

email address at 4:00:01 p.m. on November 30, 2022. (Ex. 15).

The next day, December 1, 2022, the assistant attorneys general

returned to the Circuit Attorney’s Office for a deposition. Afterward, the

assistant attorneys general remained at the Circuit Attorney’s Office to review

previously missing portions of the Circuit Attorney’s file. At no time did the

Circuit Attorney or Special Assistant Circuit Attorney Weiss reveal the

existence of the gunshot residue report. On top of sending the report to Circuit

Attorney Gardner, Mr. Hummel emailed her chief investigator on December 1,

2022, to discuss returning the evidence. (Ex. 10). In that email, Mr. Hummel

again referenced the existence of the report. (Id.).

Undersigned counsel, confused by the Circuit Attorney’s instance that

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

counsel of record, which he did on December 7, 2022.2 (Ex. 11).

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

“What to do when a party is deprived of evidence relevant to a civil suit

because the opponent has destroyed it, allowed it to be destroyed, or simply

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

of evidence in preparation for a trial.” Id. at 270. The purpose of discovery in a

typical case is to “facilitat[e] and expedit[e] the preparation of cases for trial,

guard[] against surprise and concealment, reduc[e] delay, and assist[] in

determining the truth.” Id. at 270–71.

Discovery rules are meaningless unless “appropriate sanctions” are

“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

discretion in fashioning the appropriate sanction, “the trial court is without

discretion to refuse to require compliance with the discovery rules.” Id.

Sanctions should not go beyond “that which is necessary to accomplish the

purposes of discovery. . .” Id. (citing Cosby v. Cosby, 202 S.W.3d 717, 722 (Mo.

App. E.D. 2006)).

therefore, not blameless for the Circuit Attorney’s actions.

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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

admissible evidence is plainly frivolous.

The Circuit Attorney’s actions are not mere mistake or oversight. The

Circuit Attorney was reprimanded by the Missouri Supreme Court four

months ago for violating Rules 4–3.3(a), 4–3.4(a), and 4–3.4(d). (Ex. 12). Rule

4–3.4(a) mandates that a lawyer shall not

unlawfully obstruct another party’s access to evidence or

unlawfully alter, destroy, or conceal a document or other material
having potential evidentiary value. A lawyer shall not counsel or
assist another person to do any such act

Rule 4–3.4(a). Meanwhile, Rule 4–3.4(d) prohibits a lawyer from failing “to

make reasonably diligent effort to comply with a legally proper discovery

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

in an unrelated case, and given the Circuit Attorney’s personal involvement in

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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

results of gunshot residue testing she ordered performed on Johnson’s jacket.

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.

Marmaduke, 521 S.W.3d at 271 (citing Combellick, 401 S.W.2d at 464).

Requested Sanctions

The Attorney General does not request sanctions lightly and is mindful

of the need for sanctions to be proportional to the misconduct. That the

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 Circuit Attorney’s history of discovery violations and recent reprimand by

the Missouri Supreme Court, and the repeated concealment of the testing

results warrants a more serious sanction. Considering all these factors

together, along with the circumstances of the case, the Attorney General

requests these sanctions:

 The Attorney General be granted leave to amend his witness and exhibit

list in order to present the concealed evidence;

 The Circuit Attorney and Johnson’s attorney’s cross-examination about

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

intentional non-disclosure of the positive gunshot residue test; and

 For any other relief the Court deems necessary and proper.

Conclusion

The Circuit Attorney has intentionally concealed evidence of Johnson’s

guilt while publicly proclaiming his innocence. Her actions are prejudicial to

the Attorney General, to this Court, to the orderly administration of justice,

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

sanctions for hearing on December 9, 2022, at 2:00 p.m. or as soon as he may

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

the facts underlying the motion from the Attorney General.

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 Respectfully submitted,

ERIC S. SCHMITT
Attorney General

/s/ Gregory M. Goodwin

GREGORY M. GOODWIN
Assistant Attorney General
Mo. Bar No. 65929
P.O. Box 899
Jefferson City, MO 65102
573-751-7017
[email protected]
Attorneys for State

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.

/s/ Gregory M. Goodwin

Assistant Attorney General

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