ST. LOUIS • Attorneys for Gov. Eric Greitens have filed a wide-ranging series of motions seeking to exclude witnesses and evidence from his upcoming trial, including the testimony of the woman who accuses him of taking a nude picture without her permission.
Prosecutors filed their own motion seeking to shield any discussion of the victim’s sexual, counseling or psychiatric history, based on extensive questioning on those topics during her deposition. They say she should be treated the same way as a witness protected under the state’s “rape shield” law.
“The very nature of the defendant’s conduct is sexually abusive as a form of involuntary pornography,” the state’s filing said. “The victim’s sexual conduct with persons other than the defendant is wholly irrelevant to the charge of invasion of privacy in this case.”
Prosecutors also listed evidence they want to introduce, including what appear to be media interviews of Greitens and records from Apple, Google and Verizon.
But the bulk of the motions came from Greitens’ attorneys.
One asks St. Louis Circuit Judge Rex Burlison to bar the woman and her friend from testifying, saying that the former lead investigator, William Don Tisaby, may have tainted their testimony. The defense claims that Tisaby lied about a series of actions he took during the investigation. Tisaby then refused to answer questions in a second deposition, preventing defense attorneys from inquiring about those allegations.
Another seeks to exclude any mention of Greitens’ refusal to answer questions, including during media interviews. That would include any mention by prosecutors that the device that allegedly took the photo is not in evidence and any mention that Greitens and the woman were the only two people present. Any attempt to do so, the defense says, would be an improper reference to Greitens’ invocation of his constitutional privilege against self-incrimination.
The defense also seeks to bar the woman from weighing in on whether Greitens has PTSD, an apparent reference to her suggestion to interviewers that his violent behavior during their sexual encounters may be rooted in his military service. They want prosecutors forbidden from referring to the woman as a “victim,” or using initials for her or anyone else to protect their identity. They also want a ban on any mention of the cost of Greitens’ legal defense, or any of the other investigations swirling around him.
Greitens’ attorneys also reiterated their desire to see the case dismissed.
Greitens’ attorneys say there is no evidence of a photograph, and no evidence that the woman saw a smartphone in Greitens’ possession when she heard a camera noise and saw a flash. The defense seeks to exclude testimony from two computer experts about how someone can distinguish an iPhone’s shutter sound from other smartphones. One of the experts is expected to testify that transmission occurs the moment a photo is taken because data from the photo is stored in the phone’s memory bank and is accessible to other computers even when the device is disconnected from a wireless network or cloud-based storage.
Defense attorneys say the woman had no expectation of privacy, as required by the law, which says “any place where a reasonable person would believe that a person could disrobe in privacy, without being concerned that the person’s undressing was being viewed, photographed or filmed by another.”
They claim she transmitted pictures involving partial nudity to Greitens in June 2015 via Facetime. They said that allegation and her willingness to engage in subsequent sexual activity with Greitens raise questions about her consent to any other pictures, including the one at the center of the case.
They also are seeking to exclude the testimony of a $600-per-hour law professor from the University of Miami School of Law, saying she was unable to specify what she would testify to at trial. On April 25, defense attorneys complained that Circuit Attorney Kim Gardner billed them $13,000 in advance of the professor’s deposition.
Greitens was indicted in February on a felony charge of invasion of privacy. His trial is scheduled for May 14.
In a tape recording of a conversation between the woman’s ex-husband and the woman, she says Greitens threatened to release the photo if she told anyone about their encounter.
Greitens has denied blackmailing the woman and has called the investigation a “political witch hunt.”