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Judge allows Greitens accuser to testify in next week’s invasion of privacy trial

Missouri Gov. Eric Greitens helped engineer a freeze on low-income housing tax credits. And that decision is likely to stand unless the legislature makes substantial changes to the program.
File photo I Carolina Hidaglo | St. Louis Public Radio
A St. Louis judge overseeing Missouri Gov. Eric Greitens’ felony invasion of privacy trial has declined to prevent his accuser from testifying.";

A St. Louis judge overseeing Missouri Gov. Eric Greitens’ felony invasion of privacy trial has declined to prevent his accuser from testifying.

That decision Monday was part of a slew of rulings that could end up shaping Greitens’ trial. He’s accused of taking a semi-nude photo of a woman he with whom he had an affair without her consent — and placing it in a position where it could be electronically transmitted. And it also came as St. Louis Circuit Attorney Kim Gardner’s office conceded again they did not have the photo in their possession.

Greitens’ attorneys had sought to strike all witnesses that prosecution investigator William Tisaby interviewed, which include the woman in question and one of her friends. Tisaby has been accused of making false statements during a deposition. Also in a deposition, Tisaby took the 5th Amendment against self-incrimination during a redo deposition.

While stating that the case “reeks of sanctions,” St. Louis Circuit Judge Rex Burlison said he is “not going to deprive the public of the administration of justice to determine the law.”

Greitens attorney Jim Martin said Gardner’s office showed a “total lack of respect to the court, the defendant and system.” And the only recourse, he said, was to strike anything that Tisaby was involved with during the case. He also said the case became intertwined with politics, as evidenced partly by how Missouri Times publisher Scott Faughn delivered cash to the attorney of the man who publicly exposed the affair.

While acknowledging earlier that Gardner’s office was saddled with the “egregious mistake of relying on Tisaby,” Assistant Circuit Attorney Robert Dierker has said his conduct doesn’t detract from the core issue of the case.

Had Burlison prevented the woman and her friend from testifying, it likely would have been a big blow to Gardner’s case. But the hearing still showcased problems with the state’s evidence.

Dierker told Burlison the prosecution did not have a photo or a copy of the photo Greitens allegedly took, a point defense attorneys have raised in multiple filings. Burlison also restricted the testimony from two experts who were intended to help the prosecution get around the lack of a photo.

One was brought on to say that because the woman had an iPhone, she knew what the shutter on the iPhone camera sounded like. Another was expected to explain that the fact an iPhone stores photos into the phone’s memory satisfies the state statute, which requires transmission.

“That’s why the jury is going to be here,” Burlison said.

Burlison also prevented Mary Anne Franks from testifying as a prosecution witness. Franks is a law professor at the University of Miami, and is an expert on what constitutes “revenge porn” — which is the unauthorized release of explicit images.

Other rulings

Jury selection is set to begin  this week. Burlison said Monday that he would reassess a defense motion that he, rather than a jury, decide the case, after that process is complete.  

St. Louis circuit judge Rex Burlison in a head shot provided by the 22nd Judicial Circuit
Credit 22nd Judicial Circuit
St. Louis Circuit Judge Rex Burlison

Greitens’ attorneys argued last week that the publicity surrounding the Greitens trial makes it impossible to get a fair jury.

Burlison stopped a bid from Greitens’ attorneys to find out who was paying for Al Watkins’ legal representation. Watkins is the attorney of the ex-husband of the woman and who also publicly disclosed the affair to KMOV. Watkins told reporters in April that he received $100,000 in cash to deal with the fallout from that revelation.

Faughn personally delivered at least $50,000 to Watkins. The Poplar Bluff native has ties with people associated with low-income housing tax credits. And that interest group was greatly upset after Greitens halted the state incentive in December.

Martin told Burlison on Monday that Faughn delivered two additional $10,000 payments to Watkins. He indicated that Faughn is effectively in hiding to prevent being served with a subpoena.

Burlison also said he will decide on Wednesday whether to allow the media to use audio recording and still photography to cover the trial.

Follow Jason on Twitter: @jrosenbaum

Follow Rachel on Twitter: @rlippmann

Jason is the politics correspondent for St. Louis Public Radio.
Rachel is the justice correspondent at St. Louis Public Radio.

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