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Judge to decide Thursday if Greitens trial continues

Missouri Gov. Eric Greitens helped engineer a freeze on low-income housing tax credits. And that decision is likely to stand unless the legislature makes substantial changes to the program.
File photo I Carolina Hidaglo | St. Louis Public Radio
The judge in charge of Gov. Eric Greitens' felony invasion of privacy trial will decide on Thursday whether to dismiss the case.

The judge in charge of Gov. Eric Greitens’ felony invasion of privacy trial said he will rule on Thursday whether to dismiss the case.

The governor’s defense team is asking for the dismissal, claiming misconduct by the prosecution team.

Prosecutors with St. Louis Circuit Attorney Kim Gardner’s office acknowledged that an investigator they hired created a “terrible appearance,” but added that his actions don’t change the fundamentals of the case. Greitens is accused of taking a semi-nude photo of a woman with whom he was having an affair and placing it in a position to be electronically transmitted.

Monday’s dispute again focuses on notes written by William Tisaby, the investigator Gardner hired to look at the case. Tisaby claimed several times in his March 19 deposition that he does not take notes during interviews, but a videotape of a Jan. 29 interview he did with the woman, K.S. shows him taking notes. Prosecutors eventually provided defense attorneys with that document.

In a court hearing on Monday, Greitens’ attorney Jim Martin accused prosecutors of failing to turn over a second set of notes — this time from an interview with a confidant of K.S. Defense attorneys received a page of notes from the interview on March 21. But Martin told St. Louis Circuit Judge Rex Burlison that on Sunday, after he emailed prosecutors demanding all the notes from that interview, defense attorneys turned over an additional 10 pages.

The notes, he said, revealed that an important sentence was left out of the final document — K.S. had told her friend that she thought Greitens cared about her. That information, Martin said, was favorable to the defense and should have been turned over much earlier. “It exposed information that doesn’t fit the narrative of what the circuit attorney wants out there,” Martin said.

Martin said Tisaby’s actions, and Gardner’s failure to do anything about them, warrant the case being dismissed. Burlison said he would rule Thursday morning in open court about whether to throw the case out.

“It has too many other warts,” said Martin, referring to how there hasn’t been a photo produced or proof that it was transmitted. “This is just the final straw.”

Assistant Circuit Attorney Robert Dierker conceded to Burlison that “we are saddled with an egregious mistake of relying” on Tisaby, a former FBI agent who now runs a private investigation service. He also said Tisaby created a “terrible appearance.”

Gardner hired Tisaby after local and federal officials declined to investigate, but St. Louis police have said they were never asked.

Dierker said “we are in danger in missing the forest for the trees,” adding that the “core of the case has remained consistent.” In a filing sent to Burlison last week, Gardner said the “discovery dispute giving rise to the defense motion has little or nothing to do” with the basis “of the offense: invasion of privacy by taking a photograph of the victim without her knowledge and consent.”

In response, Martin said on Monday “you’re stuck with the horse you rode in on” in terms of what an investigator does. He added that “every one of the witnesses that Mr. Tisaby has touched has been tainted.”

Impact on legislative fate

The twists in Greitens’ criminal trial come as lawmakers are considering whether to impeach him after the release of a House report Wednesday. That document did not have the woman’s videotaped deposition to Gardner and Tisaby, though Dierker said in court that the committee investigating Greitens requested it. 

Credit File photo I Erin Achenbach | St. Louis Public Radio
Senate Majority Leader Mike Kehoe, R-Jefferson City, called on Greitens to step down after a House report on his conduct was released.

Lawmakers from both parties said last week, though, that the outcome of Greitens’ legal trial doesn’t necessarily prevent him from being impeached. The House would be responsible for voting on impeachment, and a panel of seven judges will decide if Greitens violated aspects of the Missouri Constitution.

“There are three distinct branches of government and the legislative branch is going to work through the issues the way it’s designed by the constitution,” said Senate Majority Leader Mike Kehoe, R-Jefferson City.

State Rep. Kathie Conway added that “people have to be very clear about the difference between the criminal trial and impeachment.”

“They are totally separate things,” said Conway, a Republican from St. Charles. “Impeachment doesn’t reach the high standard of beyond a reasonable doubt like a criminal case does. And that’s for a reason. These are people in very trusted positions. They speak for our state, they sign bills into law, they represent the party that they have been elected from. It’s a much different standard than the criminal case."

The committee looking into Greitens’ conduct is continuing its work, which may mean they may have more information before making any formal recommendation. Conway said as that committee finds out more, “some of the issues that have been swirling around almost since the governor took office, the legislature is going to have to do something.”

“We can’t turn a blind eye to this kind of conduct from our chief executive officer of our state,” said Conway, who called on Greitens to resign earlier this year. “I think we’d be derelict in duty if we did.”

Sen. Jill Schupp added: “I think impeachment is going to happen, the question is when.”

“And I don’t want to leave this governor, based on his actions, in place to oversee the bills that are coming forward,” said Schupp, D-Creve Coeur. “I think we should move toward impeachment now, when we’re all here in the legislature — and not wait until session is over giving him the power to pass or veto bills.”

Schupp was alluding to how House Speaker Todd Richardson, R-Poplar Bluff, is laying the groundwork for a special session after May 18 to consider Greitens’ fate. Some Democrats want that process to begin immediately.

Follow Jason on Twitter: @jrosenbaum

Follow Rachel on Twitter: @rlippmann

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