Family of murder victim claim prosecutors mishandled the case, sue Kim Gardner

Published: Apr. 17, 2023 at 11:03 PM CDT
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ST. LOUIS, Mo. (KMOV) - While St. Louis Circuit Attorney Kim Gardner defends her job from Missouri Attorney General Andrew Bailey’s attempt to remove her office, concerns about Gardner’s office have been going on for years.

The family of James Scales Jr. claims prosecutors mishandled their son’s murder case, something they’re suing Gardner over.

News 4 Investigates spoke with the family about their case last year.

On Sept. 5, 2017, James was shot at his bus stop while he waited to go to school. Investigators and prosecutors believe 17-year-old James was murdered to keep him from testifying after he was the sole witness to another murder.

“My child is gone now when you could have prevented it,” James’ mom told News 4 Investigates.

James’ parents claim his death marked a series of failures by the St. Louis Circuit Attorney’s Office. They said James didn’t receive witness protection, something he’s entitled to under Missouri law and the prosecutor’s office oversees.

James’s family is suing several city employees, including members of the police department and Gardner.

“I think it’s very disappointing that nobody took the opportunity to learn from his death,” said one of the family’s lawyers, Andrea McNairy.

When McNairy learned about the Attorney General’s court case attempting to remove Gardner from office, she said she wondered where the outcry was in the six years since James’ murder. The Attorney General’s filing came in the wake of the tragic February 2023 crash that caused 17-year-old volleyball player Janae Edmondson to lose both legs. Edmondson, who lives in Tennessee, was in downtown St. Louis leaving a volleyball tournament when 21-year-old Daniel Riley is accused of causing the crash. Riley was violating his bond in a 2020 armed robbery case. News 4 Investigates found he had violated his bond more than 100 times.

“What are the circumstances where someone will say there’s a problem here?” McNairy questioned.

James’ case dates back to December 2016. The day after Christmas, James witnessed his friend Dwayne Clayton get shot and killed.

James’ parents said their son came forward thinking his name and identity would be protected. James told police and prosecutors Keith Graham pulled the trigger.

Graham was arrested and held in the St. Louis City Justice Center.

James was a cooperating witness and was supposed to testify against Graham.

Over the next year, James’ family claims he dealt with threats including people confronting James and the family’s home being shot up.

“It really is at every turn where you see these opportunities it could have been corrected it could have been righted and it just wasn’t,” McNairy said, referring to their claim that James was never given witness protection despite reporting the threats to the Circuit Attorney’s Office and police.

After James died, investigators learned the plot to kill James was hatched inside the City Justice Center and on recorded phone calls.

The case went to trial, but no one was convicted of James’ murder; his parents blamed that on prosecutors.

“[We] heard them on the tapes, the perpetrators from the jail saying what they was going to do, I just don’t understand,” James’ dad said.

Prosecutors claim while Graham was in jail he called friends on the outside, planning how to “hunt down and kill James.”

Those friends are William Pearson Jr., Terez Cook, and Devion Gordon. All three were arrested and charged with James’ murder.

While their jailhouse calls with Graham are public records, the Circuit Attorney’s Office won’t release them despite News 4 Investigates requesting the records months ago.

News 4 Investigates was able to obtain some of the call recordings from the court.

In one call, prosecutors claimed in court filings that Graham asked Gordon for help getting out.

Graham: “So all they need is a witness and I’m f***** huh? I’m dead, huh?”

Gordon: “Yeah”

Graham: “I’m dead then.”

There are dozens of what prosecutors believe are planning calls.

On the day of James’ murder, prosecutors claim in court records that Gordon acknowledged the plan worked.

Gordon: “Just come on home, man.”

Graham: “Alright

Other evidence includes cell phone records that put Pearson and Cook in the “immediate area” when someone killed James, according to court filings.

The case went to trial in April 2022, more than four years after James died. At that point, the case had passed through multiple prosecutors

The judge found prosecutors did not provide defense lawyers with all of the evidence and said those records could not be used during the trial.

The judge also ruled that the defense could make an adverse inference claim, meaning they could tell the jury there may be evidence that could clear their clients’ names.

The jury did not find anyone guilty of murder, but they did believe Graham was involved in James’s death and on two lesser felonies. Graham was convicted of conspiracy to commit murder and tampering with a witness. He is currently appealing that convection.

“The facts of James’ case are, I’m surprised more people don’t talk about it,” McNairy said.

The Circuit Attorney’s Office claims they can’t talk about the case because of the lawsuit filed by James’ family.

Gardner, as long as that protecting witnesses is a priority, including when she was sworn into office in 2017.

“We are not tolerating violent crime it has to stop people prey on our communities prey on victims and witnesses,” Gardner told News 4 during a 2017 interview.

In recent court filings, Gardner responded to the Attorney General’s claims blaming her employees if the allegation is true. In court filings, Gardner claimed there have been “unfortunate failures by subordinates.”

“The buck stops with the circuit attorney, and the elected prosecutor ultimately is responsible,” said St. Louis University Law Professor Dr. Anders Walker.

According to Walker, Gardner runs the office, and management falls on her.

“Maybe out of this whole thing, we might get some insight into what this office was like was it being managed, was it not being managed, was anybody flying the plane?” Walker added.

Initially, the Scales family was suing Gardner personally and professionally. The family dropped part of their lawsuit and is now only suing Gardner personally since Missouri immunity laws protect her job.

James’ parents said out of all this they want to see changes and for their son’s life to make a difference.

The claim of St. Louis prosecutors not providing defense lawyers with all the evidence is something News 4 Investigates reported in multiple recent cases. It’s also one of the claims being made in the Attorney General’s case.

Gardener’s defense in the Scales lawsuit is being paid for by taxpayers. The latest record News 4 Investigates obtained puts the total cost at more than $40,000 as of last summer.