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Investigator's 'lies,' prosecutor's dilemma, led to dismissal of Greitens case

Investigator's 'lies,' prosecutor's dilemma, led to dismissal of Greitens case

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Greitens trial jury selection continues Monday

St. Louis Circuit Attorney Kim Gardner (right) and Ronald Sullivan, a Harvard law professor, arrive at the Civil Courts building on Monday, May 14, 2018 as the jury selection process in Missouri Gov. Eric Greitens' invasion of privacy trial continues. Photo by Christian Gooden, cgooden@post-dispatch.com

ST. LOUIS • In dismissing the felony invasion-of-privacy case against Missouri Gov. Eric Greitens on Monday, prosecutors faulted a “scorched-earth legal and media strategy” by Greitens’ team, saying it had “relentlessly attacked the intentions, character and integrity of every person involved in investigating” Greitens.

On Tuesday, prosecutors called a complaint to police about perjury allegations by St. Louis Circuit Attorney Kim Gardner’s former lead investigator, William Don Tisaby, “continued theatrics.”

But it was largely Gardner’s choice of Tisaby — who was recommended to the office by a former FBI investigator, Gardner’s spokeswoman said — her management of him and his missteps that would lead to the dismissal of the case.

The “scorched-earth” strategy began with defense complaints less than a week after Greitens’ indictment on a felony charge of invasion of privacy about the use of an outside investigator and the contract dictating that he communicate only with Gardner about the investigation. Defense lawyers also raised concerns about whether evidence would be turned over, as required.

Greitens was indicted in February. He has acknowledged having an affair with the woman, his hair stylist, more than three years ago. She told her ex-husband, in a conversation that he tape-recorded surreptitiously, that the affair began at Greitens’ Central West End home in March 2015, when Greitens taped her to exercise equipment, blindfolded her and took a picture of her partially nude. When she got upset, she told her ex-husband, Greitens said he had deleted the photo.

During the encounter, she said, Greitens told her: “You’re never going to mention my name, otherwise there will be pictures of (you) everywhere.” Greitens has denied threatening the woman.

Defense lawyers sought to undermine nearly every aspect of the case, forcing prosecutors to acknowledge they had no incriminating photo, later attacking the instructions presented to the grand jury, the alleged politics behind the case and the speed with which prosecutors disclosed evidence. They also assailed Tisaby’s character by dredging up allegations of bigamy while he was a supervisor in the FBI.

After Tisaby’s first deposition, the attacks took on a different tone — directly accusing him of lying about interviews with Greitens’ accuser and other witnesses — claiming he steered the testimony of those witnesses to bolster the case against Greitens, and accusing Gardner of letting him lie under oath.

Gardner continued to deny Tuesday that Tisaby committed perjury, or that she knowingly allowed him to do so. In April, she had also rejected discussions in Circuit Judge Rex Burlison’s chambers of going to police about the Tisaby perjury allegations, according to a court transcript. She called them unfounded.

Gardner’s chief trial assistant, Robert Dierker, has put forth a different view in court, and in a filing Monday, he wrote that “the special investigator … testified untruthfully.” In the same sentence, he wrote that Gardner “corrected all errors and misstatements and provided full and complete discovery to defendant Greitens.”

Dierker also acknowledged in the filing that the “centerpiece of the defense to date” has been Tisaby and Gardner’s “dealings with him.”

Now Tisaby faces a police investigation into the perjury claims, Gardner faces defense claims that she broke ethical rules by withholding evidence and allowing Tisaby to lie, and Greitens could face the same charge if the case is refiled.

Investigator faulted

Defense lawyers have repeatedly accused Tisaby of lying in a deposition about his notes and interviews to cover up attempts to steer the testimony of witnesses.

Burlison on April 19 ordered him to submit to another deposition after defense claims of perjury, but Tisaby asserted his Fifth Amendment right against self-incrimination.

Last week, Greitens’ lawyers sought to call Gardner as a witness, saying that without Tisaby, she was the only one who could testify about what happened during early interviews with Greitens’ accuser.

In secret filings that didn’t appear on the case docket, Gardner’s office argued that it was too late to endorse new witnesses. Prosecutors said there was no “compelling and legitimate reason” to call Gardner, as she had no information crucial to the case. They also said defense lawyers had notes and recordings of interviews and had redeposed witnesses about Tisaby.

Tisaby’s troubles may have grown Tuesday after defense lawyers filed a police report on the perjury claims, and the police department announced its intent to open an investigation. Tisaby’s lawyer, Jermaine Wooten, said the claims are without merit, calling them “a distraction” central to the defense’s legal strategy.

Wooten, who last month said Tisaby refused to answer questions because of insufficient time, said Tuesday that invoking his Fifth Amendment right at the time “only made sense” given the perjury allegations.

“We maintain that Mr. Tisaby has done nothing wrong,” Wooten said.

Gardner as witness

Gardner’s office said in its court filings that the woman’s lawyer was present at a Jan. 29 interview and could testify about what happened.

Other courts have ruled that “forced disqualification” of a prosecutor is improper, they continued, adding that it would set “an extremely dangerous precedent” with an issue that “has been created by the defense.”

Lawyers for Greitens responded that Gardner created the situation by interviewing the woman by herself on Jan. 24 in an Illinois hotel room. They said any prosecutor knows to avoid interviewing someone “except in the presence of a third person so that the third person can testify about the interview,” quoting a 1996 appeals court case.

Gardner was also the only person directing Tisaby and receiving his reports, and therefore the only one who could be questioned about why he didn’t turn over his notes and whether he had gathered any information favorable to Greitens’ defense.

“In summary, the combination of Ms. Gardner making herself a witness and her lead investigator asserting the Fifth Amendment make Ms. Gardner the only witness for many issues in this case,” they argued.

The dismissal

Burlison ruled Gardner could be questioned outside the presence of jurors, but he had yet to decide whether she would have to testify at trial.

In a conversation in his chambers Monday morning, Burlison postponed that questioning until 4 p.m., so prosecutors could appeal.

Defense lawyers pointed out that Gardner had taken no active role in jury selection, and speculated that she would not be involved in the trial.

But First Assistant Circuit Attorney Robert Steele said Gardner was planning to question witnesses and participate in opening statements and closing arguments.

Dierker said prosecutors could offer immunity in exchange for Tisaby’s testimony.

The appeal failed.

Dierker entered the courtroom at 4 p.m., and talked briefly with defense lawyers.

After Burlison dismissed jurors and called a break, Dierker took his colleagues back to Burlison’s office.

About 4:30 p.m., prosecutors called defense lawyers inside, and Greitens’ lawyers returned to the courtroom sporting wide smiles.

Ronald Sullivan, a Harvard law professor working with prosecutors, announced the dismissal, while Gardner sat at the prosecutors’ table.

{p style=”text-align: left;”}{strong style=”font-size: 1.5em; text-align: center;”}Going forward

Still unclear is whether charges against Greitens will be refiled, and what will happen to Tisaby and Gardner.

John Ammann, a St. Louis University law professor who watched most of jury selection, said ethical rules did not require Gardner to dismiss the case altogether and that she could have recused herself and let one of her assistants take over.

The problem for Gardner now, Ammann said, is that “nothing changes. The can’s been kicked down the road a few weeks, but the facts and possibility of sanctions remain. Dismissing the case did not remove all of these issues that surround this case.”

Burlison had vowed several times that the issue of sanctions for the alleged misconduct by prosecutors and Tisaby would be dealt with later.

Sanctions could include fines or court costs to Gardner or her office, a public reprimand or a complaint against a lawyer’s license.

Gardner complained in a statement Tuesday that defense lawyers had twice “threatened my staff and me with the continued barrage of insults and accusations if we continued to pursue charges against the governor.”

The statute of limitations would typically be on hold while a case is pending, allowing prosecutors about a month to refile a charge against Greitens. But Greitens’ lawyers are likely to argue that Gardner caused the dismissal and shouldn’t be able to take advantage of the delay to refile.

Defense lawyer Jack Garvey said Tuesday that even if a special prosecutor was appointed, the defense team was confident that “a real prosecutor” wouldn’t refile the charge.

Sue McGraugh, a St. Louis University law school professor, said the “lack of evidence” might make the case a tough sell for another prosecutor.

“In light of what we know about the lack of evidence, I don’t know who would take it,” McGraugh said.

{p style=”text-align: center;”}Read our coverage of the Greitens scandal.

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