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Greitens' invasion of privacy trial to center on accuser's testimony

Greitens' invasion of privacy trial to center on accuser's testimony

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ST. LOUIS • After three months of an almost-daily barrage of courtroom fireworks, the public will hear for the first time next week from a woman who has accused Missouri’s sitting governor of physical and sexual abuse, of taking a semi-nude picture of her without her consent and threatening to distribute the photo if she told anyone about their encounter.

The indictment of Gov. Eric Greitens on a felony invasion-of-privacy charge in February has triggered an investigation by a Missouri House committee as well as calls for Greitens’ resignation and impeachment. He also faces a second felony charge of computer tampering for allegedly taking without permission a donor list from a charity he founded.

The outcome of the trial, if favorable to Greitens, could mute some of those calls, and carry consequences for prosecutors and investigators.

Opening statements in what is arguably the state’s biggest trial of the year are expected by midweek, once a jury is picked from a pool of 160 St. Louisans.

Greitens, 44, has admitted the affair but denied blackmailing the woman. Greitens has dismissed the committee report as “lies” and “tabloid trash.”

Lawyers on both sides have been forbidden from making public statements about the case outside of court.

It’s a high-stakes criminal trial that may hold even greater political consequences for the governor and the elected St. Louis prosecutor, regardless of its outcome, said John Ammann, a St. Louis University law professor who watched the first two days of jury selection Thursday and Friday. Ammann and other lawyers say a conviction in such a case, for any defendant, probably would result in probation.

In response to multiple defense claims about perjury and misconduct by prosecutors, and requests for sanctions, Circuit Judge Rex Burlison vowed Wednesday that “the issue of sanctions (against prosecutors) has not been concluded.”

The sides

The prosecution and defense teams handling the Greitens case each have lawyers with decades of trial experience on both sides of the courtroom, although the defense team has more combined experience working as prosecutors than the prosecution team.

First Assistant Circuit Attorney Robert Steele, who will be acting as lead prosecutor at the trial, was a public defender for 24 years before joining St. Louis Circuit Attorney Kim Gardner’s office last year. Since then, he has primarily handled murder cases, including the closely watched trial of former St. Louis police Officer Jason Stockley, who was acquitted.

Before taking office, Gardner was a Democratic state representative. She worked as a St. Louis prosecutor in the property crimes unit from 2005-2010.

Harvard law Professor Ronald Sullivan, a special assistant circuit attorney, has represented high-profile clients in the past, including the family of Michael Brown, 18, fatally shot by a Ferguson police officer in 2014. Two other senior staffers also have assisted during pretrial hearings.

The defense team has six main lawyers, although it’s not clear how many will play a role in the trial. Prospective jurors have been questioned by well known lawyer Scott Rosenblum, who has been practicing for more than three decades and tries dozens of criminal cases a year. The team also includes three former federal prosecutors, including former U.S. Attorneys Jim Martin and Ed Dowd.

Prosecutors’ evidence

Prosecutors have acknowledged in filings and in court that they do not have the photo. To date, prosecutors have not revealed evidence of a photo being transmitted outside the phone, whether to a computer, to someone else or into “cloud” storage.

No images of the woman were found so far in a search of Greitens’ phone and email data, and investigators found no evidence that a picture was deleted on the day that Greitens and the woman had their sexual encounter, according to court testimony Friday.

But Chief Trial Assistant Robert Dierker insisted in recent court hearings that there is circumstantial evidence of the photo’s existence. The woman has told investigators that she saw a flash and heard the sound an iPhone makes when it takes a picture.

The woman told the House committee that Greitens threatened to release the picture if she revealed their affair and later told her he had deleted the photo.

Criminal defense lawyer Kristy Ridings, who is not involved in the case, said she expects the woman’s testimony to also include “the chain of events” that led up to the alleged photo.

The woman told the House Committee that she thought she and Greitens were going to work out in his Central West End basement. Greitens gave her clothes to wear, she said, then taped her hands to pullup rings, blindfolded her and spit water into her mouth in an attempt to kiss her. He touched and kissed her body without her consent, she told the committee, then ripped open her shirt and pulled down her pants before taking the picture. She has claimed he then called her a “whore” and spanked her, the report says.

Greitens’ lawyers say she was a willing participant in the sexual encounter.

Ridings said that the woman can expect an attack on any inconsistencies in past statements.

The defense is likely to question the woman about her willingness to continue a relationship with Greitens after the alleged photo was taken.

“Cross-examination will be longer than direct testimony because you know the Greitens team is going to dig up everything they can,” Ammann said.

If defense lawyers attack her story, prosecutors could introduce as rebuttal witnesses people who were reportedly told of the affair at the time, including the woman’s friend and her ex-husband, said longtime defense attorney Terence Niehoff, who is not connected to the Greitens case.

Prosecutors have said in court that the woman’s testimony has been consistent throughout the investigation.

Prosecutors are also trying to introduce media interviews of Greitens, during which he repeatedly refused to answer reporters’ questions about whether he took a photo.

Defense evidence

Defense attorneys are expected to move for a dismissal of the case at the close of the state’s evidence. They already have twice asked Burlison to dismiss the case, saying the law doesn’t support the invasion-of-privacy charge. They say without evidence of a picture or what a picture showed, the state’s case must be thrown out. They also have said the woman had no expectation of privacy, as required by the law, during consensual sexual contact. And they say there was no transmittal to a computer, which is required.

Burlison has ruled that prosecutors will not be allowed to present witnesses who would testify about how a picture is saved within a smartphone, insisting that jurors understand how an iPhone works.

Niehoff said Greitens’ accuser also would not be allowed to testify about her speculation regarding transmission of the image. “There’s no evidence of transmission. So how could the judge not throw it out?” he asked.

If defense lawyers fail to get the case dismissed, they are likely to try to introduce testimony about $120,000 in payments to the lawyer for the woman’s ex-husband. They have said that the cash payments were politically motivated payoffs that may have altered the testimony of the woman or her ex-husband or encouraged the ex-husband to publicize the affair. Defense lawyers have said they may call the ex-husband and Al Watkins, his lawyer.

Niehoff said the money “smells to high heaven” and could show witnesses are biased against Greitens.

Ridings said St. Louis Police Chief John Hayden, who has also been named as a defense witness, could be used to bolster defense claims about political motivations for the prosecution. They have claimed that Gardner avoided using St. Louis police to investigate the case so she could maintain control through a hand-picked private investigator, William Don Tisaby.

Gardner has said Hayden declined to investigate, which Hayden denied.

The defense has accused Tisaby of putting “words in the mouth” of witnesses and removing information favorable to Greitens from reports. He said in a sworn statement that he didn’t take notes during his interviews, but was caught on video taking notes. Tisaby asserted his Fifth Amendment right against self-incrimination in a second deposition, and Burlison has seemed unwilling to allow the defense to call him. Prosecutors have said Tisaby was used only to locate and interview a few witnesses, and they never planned to call him at trial.

Defense lawyers can still use the testimony of other witnesses to try to show, as they’ve claimed, that Tisaby “tainted” witnesses and made the woman seem more of a victim. They may try to call as witnesses counselors or psychologists that the woman has seen, according to court filings.

Asked whether she thinks Greitens will testify, Ridings said Greitens may have concerns about testimony that could be used against him in other proceedings, and added, “I don’t think they’ll need him to.”

Niehoff said he would lean toward recommending against Greitens testifying. “But it’s Greitens’ choice. And he’s a politician. He might want to get up and clear the air.”

Jerryl Christmas, a defense attorney not involved in the case, said he would “probably just put him on the stand” and “roll the dice.”

“She’s going to get on the stand and detail all this stuff and start crying and talking about it,” Christmas said. “Jurors always want to know: ‘What do you have to say about all this?’ And if you don’t say anything, that’s a problem.”

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