ST. LOUIS • Circuit Attorney Kim Gardner’s decision to prosecute two felony cases against former Gov. Eric Greitens has cost taxpayers at least $115,000 so far, with the office contractually bound to pay at least $10,000 more for related litigation, according to an analysis of expense records obtained by the Post-Dispatch.
Greitens was indicted in February on one felony count of invasion of privacy, accused of taking a photo of a semi-nude woman without her consent during their 2015 affair. Greitens was planning a run for governor but hadn’t made a public announcement at the time. He was later charged with computer tampering for allegedly using a charity donor list for political fundraising.
A day before opening statements in a May 14 trial, Gardner dismissed the case rather than subject herself to questioning under oath about perjury allegations against the private investigator she had hired for the case. Two weeks later, Gardner, a Democrat, announced a deal to drop the computer tampering case in exchange for the Republican governor’s resignation.
From: Susan C. Ryan
“It is time for us to move on,” Gardner said on May 30.
Still outstanding are bills related to Gardner’s battle against the appointment of a special prosecutor to investigate perjury allegations. The bulk of the money Gardner’s office spent went to outside consultants and a private investigator, work and testimony that a judge barred from coming into evidence. If the trial had gone forward, the prosecution’s only evidence that Greitens snapped a compromising photo of the woman was her testimony that she had seen a flash and heard the shutter sound an iPhone makes.
Gardner, through her spokeswoman, Susan Ryan, declined an in-person interview. Gardner instead released a statement Friday, after a report about the expenses was posted online.
In the statement, Gardner writes, “We put together a good team that was within my budget, and I am comfortable with how we proceeded. To try to evaluate the terms of the case by whether it was a value to taxpayers is absurd. We make charging decisions based upon evidence and the law. It would be unethical to determine whether to bring charges against someone based upon costs.”
Gardner, however, acknowledged in her dismissal of the Greitens case the “considerable public expense” of a trial and the uncertainty of the outcome.
Gardner’s statement also says her office sought reimbursement of $20,000 from the defense for costs associated with the deposition of two of the experts. The letter seeking the money is dated July 25.
Gardner said there were matters she could not legally discuss because the Greitens criminal case is now legally a closed record and because of an open investigation into perjury allegations against her former lead investigator on the case, William Don Tisaby.
She directed reporters to a Missouri House report on the allegations and comments by Jackson County Prosecutor Jean Peters Baker, who was appointed as a special prosecutor but declined to file charges against Greitens in June.
“Here is the bottom line of this case. We believed the victim and so did the House Committee and the Special Prosecutor. When the media broke this case, if Mr. Greitens had simply apologized to his family, the community AND the victim, he would likely still be the Governor today,” Gardner said in the statement.
Gardner, in a September interview with KWMU host Don Marsh, said she stood by her team and the way the case was handled. Asked if she would do anything differently, Gardner responded, “No.”
A waste of money?
While Greitens’ political foes may be happy with the end result of Gardner’s prosecution — the governor’s resignation — Gardner’s critics say she wasted the public’s time and money.
Alderman Joseph Vaccaro, Ward 23, said he would demand that Gardner provide a complete accounting of the cases.
“If you’re guilty of something, and if what he did was a crime, the case should have been pursued,” Vaccaro said. “But to simply say, ‘He resigned, and that’s good enough for me,’ I’ll never agree with that. That’s been my argument, that the money was wasted, and we don’t have money to waste.”
Gardner’s supporters, such as lawyer Jerryl Christmas, say that the Greitens prosecutions were worth the time and tax money spent, and that the defense team’s aggressive legal strategy forced Gardner’s staff to respond to both legitimate and frivolous pretrial motions.
“She really didn’t have a choice but to spend the money because of the defense team that Greitens assembled — they had so many people working on the case from so many different angles, attacking it,” said Christmas, a former sex crimes prosecutor in the Circuit Attorney’s Office. “I think she was trying to pursue justice for somebody she thought wasn’t going to get justice.”
John Ammann, a St. Louis University law professor who sat through Greitens’ jury selection, was skeptical of Gardner’s attempt to use experts to testify that a picture taken by an iPhone is “transmitted” under the invasion of privacy law.
“It would be like an expert explaining what the jury instructions are.”
He also said Gardner would have had to prove that Greitens knew the picture was being transmitted. And under the law, the picture had to have been taken and had to be a nude or semi-nude image.
“If you tell me you robbed a bank and you didn’t, you don’t get arrested for that.”
Ammann said the limited vetting of the flawed private investigator Gardner hired might have been due to the short time she had to charge Greitens before the statute of limitations expired. Greitens’ defense team also successfully argued for a quick trial.
“Underlying all this is that it’s a use of taxpayer money,” he said.
He said that a conviction on a minor crime never would have meant jail time for Greitens, and that the money was “totally out of whack with the crime they were prosecuting.” It “never would have been spent” had Greitens not been governor, he said.
Where the money went
Gardner’s initial estimate to the city’s budget committee May 31 was about $65,000. Later that day, Gardner’s spokeswoman revised that estimate to about $100,000.
The full estimated amount is at least $25,000 more, according to contracts and expense records that show payments to consultants, bills for travel and research time, meals and the costs of recording and transcribing depositions.
Defense attorney Scott Rosenblum declined to give an estimate of what the defense cost, but he said the budget was “unlimited” and 15 lawyers at times worked nearly around the clock against Gardner’s smaller team.
Here are some of the prosecution’s costs:
• Robert Zeidman and Nikolaus Baer, computer engineers hired to testify about smartphone shutter sounds and how smartphones transmit images, about $27,000. (Their testimony was blocked by judge.)
• Miami Law School professor Mary Anne Franks, who was to testify about “image-based sexual abuse” (more commonly known as revenge pornography), almost $26,000, including $6,000 for the time it took for her to fly to St. Louis in April. Franks billed $600 an hour for her work and was guaranteed a minimum of $2,400 for sitting for a deposition. (Her testimony was blocked by judge.)
• Senior Cole County Circuit Judge Rich Callahan, appointed special master to review data collected from cellphones belonging to Greitens, his accuser and her ex-husband, $13,500 for 49 hours of work.
• Forensic examiner, $3,500 to download and save contents of the phones.
• Court reporting and transcription fees, about $20,000.
Gardner’s spokeswoman said Ronald Sullivan, a Harvard law professor and defense lawyer hired as special assistant prosecutor in the case, never billed the Circuit Attorney’s Office for his work because the case didn’t go to trial. He was reimbursed only for his travel expenses, which records show totaled $2,200.
Perhaps the most significant expense in the case was for William Don Tisaby, the former FBI agent hired by Gardner to lead the investigation into the invasion of privacy case. After his hiring, the Post-Dispatch reported that Tisaby had been accused of bigamy while working for the FBI and had been demoted and suspended.
Tisaby’s company, Enterra, earned more than $16,000 for his work. When defense attorneys claimed Tisaby lied in a deposition, they sought to question Gardner under oath. That request led to Gardner’s dropping the charge against Greitens.
Troubles over Tisaby continue to plague Gardner’s office. The police, at the request of Greitens’ defense team, are investigating Tisaby for alleged perjury. Gardner’s office has agreed to pay private attorney Joseph Bednar at least $10,000 to fight the appointment of a special prosecutor to oversee the Tisaby investigation. His contract guarantees more money if Gardner appeals the decision — and she has — to the Missouri Supreme Court. It is unclear how much more Bednar has been paid.
Tisaby, through his attorney Jermaine Wooten, denied any claims that he had committed perjury.