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Gardner alleges Greitens could have used text-erasing app in invasion of privacy case

Supporters greet Circuit Attorney Kim Gardner after the swearing-in ceremony on Jan. 6, 2017.
File photo | Carolina Hidalgo | St. Louis Public Radio
Circuit attorney Kim Gardner, shown here in Jan. 2017, says Gov. Eric Greitens may have used an app that deletes messages to send a semi-nude photo of his then-mistress.

St. Louis Circuit Attorney Kim Gardner is alleging that Gov. Eric Greitens may have used a text-erasing app to transmit a photo of his former mistress.

That photo is at the center of Greitens’ felony invasion of privacy case, where he’s accused of taking a revealing photo of the woman without her consent.

The allegation came in a filing seeking to disqualify Edward Dowd and James Bennett from defending Greitens against a felony charge of invasion of privacy. Until earlier this month, Dowd and Bennett represented Greitens in his role as governor in a lawsuit over the use of Confide, an application that deletes messages as soon as they are read.

The problem, prosecutors say, is that Confide may have been used in the invasion of privacy case. They allege in Friday’s brief that it’s one of the ways the governor may have transmitted a semi-nude photo of his mistress. The governor has pleaded not guilty to the charge.

“Defendant is charged with having ‘knowingly photographed’ the victim and then having subsequently ‘transmitted the image,’” the filing said. “Thus, the application Confide is at the very heart of both matters. On information and belief, Confide is one of the applications that Defendant used to violate Missouri’s invasion of privacy law. The quintessential reasons for using an application like Confide is to exchange messages and photographs which one does not want others to see.”

State law prohibits attorneys from working on cases where confidential information regarding one case would be beneficial in another.

“On information and belief, Defendant’s use of Confide, Signal and/or other similar applications to engage in criminal behavior is alleged in the indictment,” the motion states. “The law imposed is an irrebuttable presumption that confidences are disclosed during an attorney-client relationship. Therefore, even though not necessary to show, the fact that the matters are related increases the need for disqualification.”

In a statement, Dowd said there is no conflict of interest, and said the motion reflects "a certain level of desperation" on the part of Gardner. 

“Having already acknowledged that they lack proof of any crime beyond reasonable doubt, the Circuit Attorney now says that they have ‘information and belief’ that someday they might have proof based on an app,” said a statement attributed to Greitens’ legal team. “The term ‘information and belief’ is defined as ‘language used in legal proceedings to qualify a statement and prevent a claim of perjury’ and it should not be understood in any way to suggest there is any proof behind the statement.  Rather, this is another example of the Circuit Attorney making an allegation supported by no evidence.”

This is not the first fight over who should be in the courtroom. Greitens’ attorneys want to kick Harvard professor Ron Sullivan off the prosecution team, because he is still defending clients in federal court while working for the circuit attorney.

Gardner’s motion caps off a week where both prosecutors and defense attorneys jousted in the courtroom. St. Louis Circuit Judge Rex Burlison denied Greitens’ attorney’s request to move the trial from mid-May to April. Burlison has yet to rule on whether he, or a jury, will hear the case.

Follow Rachel on Twitter: @rlippmann

Follow Jason on Twitter: @jrosenbaum

Rachel is the justice correspondent at St. Louis Public Radio.
Jason is the politics correspondent for St. Louis Public Radio.