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Governor’s attorneys say prosecutors misled grand jurors about the law

Missouri Gov. Eric Greitens speaks with reporters in the Missouri Governor's Mansion on Thursday, Feb. 8, 2018.
File photo | Erin Achenbach I St. Louis Public Radio
Attorneys for Gov. Eric Greitens, pictured here speaking to reporters in February, want a judge to dismiss the charges against their client because prosecutors gave the grand jury bad information about the law.

Attorneys for Gov. Eric Greitens are again asking a judge to throw out the felony invasion of privacy charge against their client, saying grand jurors heard no evidence that he had committed a crime.

“In answering a grand juror’s concern about the lack of a photograph, Assistant Circuit Attorney Robert Steele, whether intentional or not, flagrantly misstated the applicable law — misleading the entire grand jury as to the essential elements of the crime on which it was asked to vote,” defense attorney James Martin wrote in a motion to dismiss filed late Monday. For that reason, he said, the charges should be dismissed.

Greitens pleaded not guilty in February to the charge for allegedly taking a semi-nude photo of his then-mistress. In order to get an indictment, said Washington University law professor Peter Joy, prosecutors would needed to have presented “some evidence” of each element of the crime — a nude or semi-nude photo taken of a person without their consent, in a place where they have an expectation of privacy. That photo would then have had to be transmitted in a way that it could be accessed by a computer.

Though prosecutors admit they do not yet have the photo in question, Joy said it wouldn’t have been necessary to bring charges. The woman’s testimony would have been enough.

“I think it is unusual if all we have is someone saying, ‘I think there is [a photo]’” he said. “Just saying 'I think there is' might make the probable cause, but is not going to make beyond a reasonable doubt,” which is the level of proof needed for a conviction.

But defense attorneys said Steele gave the grand jury several pieces of incorrect information. First, they said, Steele led grand jurors to believe that a nude photo being taken without someone’s permission is the same thing as the person having an expectation of privacy. Second, they said, he told the grand jury that it doesn’t matter what Greitens did with the photo when state law requires that it be transmitted.

“To instruct the grand jury that what a defendant did with the alleged photo is irrelevant is even more egregious when the prosecution fails to present any evidence whatsoever of an actual transmission, (let alone of an actual picture),” Martin wrote.

In court on Monday, the circuit attorney’s chief trial assistant, Robert Dierker, called the allegations in the motion “patently without merit.” Prosecutors had no further comment on the motion, which St. Louis circuit judge Rex Burlison will hear on Monday.

Speedy trial

Also on Monday, defense attorneys filed the expected motion to move the trial to the first week in April. They want to have it done by the April 9 deadline the special House committee investigating Greitens has set to complete its report.

“Resolution of the pending indictment before the issuance of any report by the Committee would be significantly influential in the conclusions reached by the committee,” Martin wrote.

In requesting that Burlison hear the case instead of a jury, he wrote, “defense counsel is well aware that obtaining a proper jury pool for an April trial would be extremely difficult,” especially given the publicity surrounding the trial.

A spokeswoman for the circuit attorney called the request for an earlier trial date “ridiculous,” saying the case is already on an expedited schedule. Prosecutors had originally asked for the trial to start in the fall.

Follow Rachel on Twitter: @rlippmann

Have questions about the Greitens indictment? Ask them here.


Rachel is the justice correspondent at St. Louis Public Radio.