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Prosecutor in Greitens case accused of 'gross misconduct'

Supporters greet Circuit Attorney Kim Gardner after the swearing-in ceremony on Jan. 6, 2017.
File photo | Carolina Hidalgo | St. Louis Public Radio
Defense attorneys for Gov. Eric Greitens say prosecutor Kim Gardner, shown here in 2017, has committed gross misconduct by failing to turn over evidence in a timely fashion.

Updated April 16 with timeline on ruling  St. Louis Circuit Judge Rex Burlison says he'll rule in open court on Thursday about the defense motion to dismiss the felony invasion of privacy trial against Missouri Gov. Eric Greitens.

Original story from April 12:

Attorneys representing Missouri Gov. Eric Greitens in his felony invasion of privacy trial asked the judge Thursday to throw the case outsaying St. Louis Circuit Attorney Kim Gardner committed “gross misconduct” by failing to turn over videotapes and notes of interviews in a timely fashion.

“I’ve practiced law for 35 years,” defense attorney Scott Rosenblum said. “I’ve never once accused a prosecutor of incompetence. I am doing that this morning.”

Prosecutors said there is nothing in the video or notes that affect the criminal charge.

At issue is a Jan. 29 interview Gardner and a private investigator, William Tisaby, had with the woman at the center of the case, identified in court documents as K.S. They had originally told defense attorneys that a video recorder malfunctioned, and that Tisaby had taken no notes during the conversation. But defense attorneys told Judge Rex Burlison they received the tape and notes Wednesday night, just after the release of a report from the special state House committee investigating Greitens’ conduct. The woman told the committee that the encounter at the heart of the felony case was coerced. The committee found her testimony credible.

The tape shows that there are “major flaws in K.S.’s story, more than we were aware of,” said defense attorney Jim Martin. “Her story is just that — a story.”

The defense team also accused Gardner of encouraging Tisaby, the investigator, to lie under oath during his March 19 deposition. They quoted numerous portions of the transcript in which he said he took no notes during the January interview, including once after a question from Gardner. But in the video, Martin said, Tisaby can clearly be seen taking notes, which were also turned over on Wednesday night.

“She sat there, and allowed him to lie under oath” during the deposition, Martin said.

Assistant Circuit Attorney Robert Steele told the court that nothing in the notes, or the video, contradicts the story at the heart of the charges — that Greitens took a photo of the woman without her consent, and then transmitted in a way that it could be accessed by a computer.

“All the allegations are that it changes something,” he said. “It changes nothing. We’re asking you to focus on the substance of the notes, rather than the fact that they didn’t get the notes. They already had all the information that’s in the notes from [K.S.’s] deposition.”

Burlison, however, seemed to take issue with Steele’s contention that prosecutors can decide what evidence is relevant to the defense. Martin pointed out that the fact that K.S. changed her story on other elements of the affair with Greitens raises serious questions about her credibility.

Burlison did not immediately rule on the defense request to dismiss the case. The criminal trial is set for May 14, with jury selection beginning May 10.

Follow Rachel on Twitter: @rlippmann

Have questions about the Greitens case? Ask them here.

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