It looks like St. Louis Circuit Attorney Kim Gardner got in over her head in her efforts to prosecute Missouri GOP Gov. Eric Greitens, as the case made a major turn Monday.
Prosecutors on Monday dismissed a criminal charge against Missouri Gov. Eric Greitens, bringing a stunning halt to his trial just before it was set to begin and with jury selection already underway.
St. Louis Circuit Attorney Kimberly Gardner dropped the felony invasion-of-privacy charge, stemming from allegations that Greitens took a nude photo of a woman without her consent. The decision came after a judge ruled that the governor’s lawyers could potentially call her as a witness in the trial.
“It’s a great victory and it has been a long time coming,” Greitens, 44, a Republican and a former Navy SEAL, told reporters after his case was dismissed. The governor has repeatedly denied any criminal wrongdoing and dismissed widespread, bipartisan calls for his resignation.
But Greitens’s political and criminal troubles are far from over. The circuit attorney said she intends to refile the charge and may appoint a special prosecutor or one of her assistants to pursue the case. Greitens still faces another felony charge of computer tampering tied to allegations that he improperly used a veterans charity donor list to raise funds for his 2016 campaign for governor.
Not only could Greitens be facing a special prosecutor, but there's still the second set of charges against him over his computer fraud when he allegedly used his charity fundraising list as campaign donor information.
Oh, and he's still going to be impeached, most likely.
Legislative leaders in the Republican-controlled Missouri Senate on Monday renewed calls for the governor to resign. They said they will continue considering impeaching Greitens during a special session that is set to start this week.
The dismissal “does not change the facts” revealed to the House’s special committee investigating Greitens, the Republican leaders said in the Missouri in a statement Monday.
“The members of the House committee have discovered a disturbing pattern of allegations, most of which are completely separate from the case dismissed today,” Senate President Pro Tem Ron Richard and Senate Majority Leader Mike Kehoe said in the statement. “We now hope the governor and his staff are more forthcoming with the facts, and they decide to appear before the special investigative committee.”
“The governor has lost the moral authority and the ability to lead the state going forward, and we reaffirm our call that he resign immediately,” the statement added. Leaders in the Republican-controlled House also urged the governor to “take advantage of our open offer to share his side of the facts” and testify to the House committee.
The dismissal of the case does however look like a complete disaster for Gardner's office.
The circuit attorney’s announcement came on the third day of jury selection for Greitens’ trial. It also followed news that investigators were unable to find evidence in Greitens’s phone, email or Apple iCloud account proving that he took the alleged photo of the blindfolded woman, a hairdresser with whom he was having an extramarital affair in 2015, before his campaign for governor.
On Monday, the defense filed a new motion to dismiss the charge. Scott Rosenblum, one of the governor’s lawyers, accused the circuit attorney of “misconduct from the beginning of this case to the end,” as recently in the last week. Rosenblum rejected the notion that prosecutors would refile the case, saying they had no evidence to support the charge.
Rosenblum told reporters the judge agreed to allow the defense team to name Gardner as a witness based on the possibility that she knew about alleged perjury committed by an investigator pursuing the case.
“The judge allowed us to endorse her as a witness,” Rosenblum said. “She made herself a witness to the perjury that her investigator created throughout the course of this case and his misconduct. She was the only witness.”
Prosecutorial misconduct has sunk many a case against a political figure (remember Alaska Sen. Ted Stevens?) and this case appears to have been bungled so badly that it had to be dropped. When a judge flat out makes it clear the defense can call the lead prosecutor as a witness to answer questions about perjury by the prosecutor's staff, your case is fried like an egg. Josh Marshall:
As for the criminal case, the concerns at issue date back to the first deposition of the woman at the heart of the case on Jan. 29, soon after Gardner’s probe began.
William Tisaby, the investigator who conducted that interview alongside Gardner, later appeared to lie to the defense about key aspects of how it transpired. Tisaby said that he took no notes during the interview — a claim contradicted by a video of the conversation that was belatedly provided to defense lawyers.
Judge Burlison ultimately sanctioned prosecutors for failing to promptly turn over to the defense relevant evidence, like the video and 11 pages of notes Tisaby took while interviewing the woman’s friend.
These missteps helped Greitens’ team frame the investigation as tainted from the start, and Gardner’s office acknowledged that they made a mistake in relying on Tisaby.
Even without those unforced errors, prosecutors had a difficult path towards securing a guilty verdict. Under the relevant Missouri felony statute, they needed to prove that Greitens transmitted the nude photo in a way that would make it accessible via computer. But, crucially, they did not have access to the photo itself.
Searches of the governor’s smartphone and Apple cloud data found no evidence of the image, and no witness, including Greitens’ ex-lover, has ever seen it. The judge barred testimony from three expert witnesses for the prosecution, including two electrical engineers who could speak to the technical issues regarding the photo’s potential transmission, and a law professor slated to testify about revenge pornography.
That left prosecutors with only the woman’s testimony and corroborating accounts from her ex-husband and friend. According to the woman, she saw a camera flash through her blindfold, heard the distinctive click of an iPhone camera shutter, and then heard Greitens threaten that the photo would appear “everywhere” if she told anyone what had transpired.
Greitens’ team moved several times to dismiss the case due to the lack of hard evidence. On Monday, they also called on Gardner to drop an unrelated felony computer tampering charge she brought against Greitens for allegedly misusing a charity donor list to fundraise for his gubernatorial campaign.
“I think anything that this circuit attorney’s office has touched or its investigators should be dropped because it’s tainted. It’s biased,” attorney Scott Rosenblum told reporters outside the courthouse.
Hopefully a more competent hand can take over and refile. Gardner screwed up, and badly. Luckily, it looks like there's still enough evidence in the other case against Greitens and in the General Assembly's investigation to end his political career.
We'll see. It's an epic failure for sure, but not a fatal one. Greitens is still going down.