Updated April 19 at 12 p.m. with comments from circuit attorney's office — A St. Louis judge is allowing the criminal case against Missouri Gov. Eric Greitens to move forward, rejecting a move by the governor's lawyers to dismiss it.
Circuit Judge Rex Burlison on Thursday disagreed with defense attorneys that the conduct by St. Louis Circuit Attorney Kim Gardner and an investigator she hired was so bad that the only way to protect Greitens’ rights to a fair trial was to dismiss the felony invasion of privacy charge.
"Although the conduct that has been seen in the discovery of this case is not to be condoned and it is serious, it is however, in the court’s opinion, capable of being cured," Burlison said in a court proceeding on Thursday morning. "Therefore the court, in considering sanctions, will not dismiss this case. The court will order lesser sanctions."
Burlison said he would allow defense attorneys to take second depositions of two key witnesses — the woman with whom Greitens had an affair, and her ex-husband. He will also allow defense attorneys to re-interview the investigator, William Tisaby. But he made it clear that he would consider dismissing the case in the future if Gardner's office continued to violate court rules around evidence.
Greitens is accused of taking a semi-nude photo without the consent of the woman, K.S., and then transmitting it in a way that it could be accessed by a computer. He has pleaded not guilty to the charge, and repeatedly called the case a “political witch hunt” by a liberal prosecutor.
In multiple motions filed over the last several days, Greitens’ legal team accused Gardner of failing to turn over evidence in a timely fashion — first, a videotape and notes from an interview done with the woman at the center of the case, and then notes from an interview with a confidant of the woman’s. Each time, defense attorneys said, the missing evidence was helpful to their case because it called the woman’s credibility into question.
Prosecutors, led by chief trial assistant Robert Dierker, conceded that Tisaby had created a “terrible appearance,” and they had been “saddled with an egregious mistake of relying” on Tisaby, a former FBI agent who now runs a private investigation service.
But, Dierker said, “we are in danger in missing the forest for the trees,” adding that the “core of the case has remained consistent.” The woman, he said, had never changed her story that she saw the flash of a camera through a blindfold. Prosecutors, however, do not yet have the photo in question.
After the hearing, two of Greitens' attorneys, James Bennett and Ed Dowd, declined to comment citing a gag order restricting what lawyers can say about this case.
A spokeswoman for the circuit attorney's office said it's common for defense teams to attack the prosecutor, even in less high-profile cases. She did not know how many times prosecutors in the office had been sanctioned by a judge.
On the horizon
The case is not Greitens’ only legal woes. Missouri Attorney General Josh Hawley on Tuesday announced that he had found evidence the governor had violated state law when he used a donor list from his charity, The Mission Continues, to help fund his 2016 campaign. Hawley said he had turned the information over to Gardner, the prosecutor, who said she was reviewing the material.
Hawley also may be investigating the governor for violating the state’s laws governing unfair business practices. Attorneys for Greitens on Monday filed court documents in Jefferson City demanding that Hawley recuse himself from any ongoing investigation because Hawley had called for Greitens to step down.
“It is very surprising that an elected public official who is a lawyer and a law enforcement official would not respect the presumption of innocence and wait until the case is concluded before leaping to conclusions,” Greitens’ attorneys wrote. “What makes it less surprising is the transparent fact that AG Hawley clearly has a personal interest in the resignation, impeachment, and prosecution of Gov. Greitens. AG Hawley has announced as much by using the official website of the AGO [attorney general’s office] as a venue to call for Gov. Greitens to ‘resign immediately’ for conduct AG Hawley has prejudged as “certainly impeachable.” AG Hawley clearly cannot be impartial in any investigation related to Gov. Greitens.”
Greitens also continues to face the possibility of impeachment.
On Tuesday night, House Speaker Todd Richardson, R-Poplar Bluff, and several of his top lieutenants demanded that Greitens resign.
“We believe the governor needs to take responsibility for his actions. Leaders at all levels of government are entrusted with an incredible responsibility to the Missourians we represent. When leaders lose the ability to effectively lead our state, the right thing to do is step aside,” the House leadership team wrote.
Ron Richard, the Senate president pro-tem, also demanded Greitens’ resignation, then went a step further.
“Because of the severity of the allegations, it is my wish that we immediately start impeachment proceedings,” Richard, R-Poplar Bluff, said. Republicans had previously said they would wait until after lawmakers complete their work May 18.
Lawmakers from both parties have said the outcome of the criminal trial would not necessarily prevent them from impeaching the governor. The House would be responsible for voting on impeachment, and a panel of seven judges would decide if Greitens violated aspects of the Missouri Constitution.
“There are three distinct branches of government and the legislative branch is going to work through the issues the way it’s designed by the constitution,” said Senate Majority Leader Mike Kehoe, R-Jefferson City.
State Rep. Kathie Conway added that “people have to be very clear about the difference between the criminal trial and impeachment.”
“They are totally separate things,” said Conway, a Republican from St. Charles. “Impeachment doesn’t reach the high standard of beyond a reasonable doubt like a criminal case does. And that’s for a reason. These are people in very trusted positions. They speak for our state, they sign bills into law, they represent the party that they have been elected from. It’s a much different standard than the criminal case."
“I think the impeachment is going to happen. The question is when,” said Sen. Jill Schupp, D-Creve Coeur, “And I don’t want to leave this governor, based on his actions, in place to oversee the bills that are coming forward. I think we should move toward impeachment now, when we’re all here in the legislature — and not wait until the session is over giving him the power to pass or veto bills.”
Reporters Jo Mannies and Marshall Griffin contributed to this story.
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