ST. LOUIS • Circuit Judge Rex Burlison set on Wednesday a May 14 trial date for Gov. Eric Greitens’ invasion of privacy trial despite pleas from St. Louis Circuit Attorney Kim Gardner for a November trial.
“This case affects the course of business of the state of Missouri,” Burlison said. “And I don’t think there’s a case that affects the people of the state of Missouri more than this one.”
At the court hearing, a lawyer defending Greitens said that the photo of the alleged victim described in the indictment “does not exist.” The photo was allegedly taken by Greitens while the woman was partly nude and taped to a piece of exercise equipment.
In response, First Assistant Circuit Attorney Robert Steele said of the photo: “We do not have it in our possession at this time,” but said that prosecutors planned to obtain it.
The judge said the case should proceed in May because it’s one of the lowest-level felony charges on the books and there are just three witnesses; he estimated that three to five lower-level felonies routinely go to trial every week in St. Louis.
“I’m assuming that whatever investigation is still going on is not going to affect this case,” Burlison said, and he thought additional charges, if any, would be filed as a separate case.
Defense attorneys for Greitens said they had wanted a trial as early as April because the governor has a right to a speedy trial.
“We’re ready to go on that May date and we need it,” defense lawyer Jim Bennett told the judge.
Gardner and Steele said Monday that they wanted an August trial date but revised their request for a November trial. Steele said Wednesday that the average amount of time between an indictment and trial is 366 days and that the Circuit Attorney’s Office’s investigation had been “somewhat condensed based on the statute of limitations” of March 21. The allegation of a crime that took place in March 2015 surfaced in January. Gardner and Steele argued that the office had other trials set in the months ahead that need prosecutors’ attention.
“We don’t want to fall short on those other cases,” Gardner said.
Steele said the office needed only probable cause, rather than evidence beyond a reasonable doubt, to secure an indictment.
Greitens’ defense team offered to pay for grand jury transcripts to expedite the process. Gardner said that she would turn over transcripts as soon as she received them but that it might take a couple of weeks.
Lawyers did not take up a motion filed Tuesday complaining that St. Louis prosecutors may be concealing evidence in the case by employing private investigators from Michigan. Gardner’s office paid a Enterra LLC a $10,000 retainer and agreed to pay investigators at a rate of $250 an hour plus expenses. Those investigators report only to Gardner, and make written reports only if she requests them, according to a contract included with a defense motion filed Tuesday to preserve evidence.
Prosecutors said they hired an outside firm because the city police, FBI and U.S. Attorney’s Office declined their requests to investigate for various reasons. The federal agencies declined to comment. A police spokeswoman said that no one had reported a crime to city police and that “the department was not asked then or now to investigate Eric Greitens.”
Revealed Tuesday was the state’s list of evidence, including transcripts of taped recordings of Greitens’ former lover and her ex-husband, emailed questions and answers from a KMOV-TV interview with the ex-husband, public statements of Greitens, emails between the couple, taped statements made by the woman and a photo of her. Greitens’ defense team said Tuesday that “the photo the prosecution references is a publicly posted professional headshot,” not one at the center of the case.
Legal scholars say the case will be more difficult to prove without the alleged photo in hand, but not impossible.
Anders Walker, a St. Louis University law professor, said that if the prosecution did not have the photo, “the defendant has a much stronger case.”
“My guess is they have a witness who is going to appear at trial with the photo,” he said. If the photo has been deleted, he said, the prosecution would need a witness to testify to having seen it and to describe it.
He speculated that prosecutors must feel their case is strong enough to get a conviction even without the alleged blackmail photo. Other evidence that might strengthen the case could include testimony about Greitens’ smartphone’s backup to a computer or cloud storage.
“If you’re going to kill the king, you’d better do it,” Walker said. “You’re not going to poke him in the eye and run away.”
Molly J. Walker Wilson, another SLU law professor, said that without the photo, the woman’s testimony claiming that Greitens took the picture would be critical to the state’s case. But she said a jury probably would want something more than just her testimony to find Greitens guilty.
“In this case, especially since it’s so high profile, I would think the jury would want that smoking gun,” she said.
The investigation began in January after allegations that Greitens took a picture of the woman nude or partially nude without her consent, then threatened to release it if she mentioned his name. Greitens has denied blackmailing the woman. His attorney has denied that a photo was taken. Greitens subsequently has refused to answer questions about it.
The scandal has prompted calls for Greitens’ resignation, as well as an investigation by legislators.