JEFFERSON CITY — This week, Missouri Gov. Eric Greitens will make history as the first sitting governor in the state to go on trial for a felony crime.
Greitens was indicted Feb. 22 on suspicion of invasion of privacy, a felony charge that carries a maximum sentence of four years in prison. He has denied committing a crime.
The Republican governor is accused of taking a nonconsensual photograph during a sexual encounter with a woman who cut his hair in March 2015 and threatening to disseminate the compromising image if she spoke of their relationship.
The woman, whose involvement with Greitens was first made public by her ex-husband, has asked for privacy and has avoided speaking to the news media. The News-Leader is not naming her because she may be the victim of a sexual crime.
Greitens admitted to infidelity Jan. 10, hours after giving a State of the State speech. That night, KMOV-TV in St. Louis published a report based on an interview with the woman's ex-husband, an audio recording of the woman secretly made by the ex-husband, and off-the-record conversations with the woman.
The recording included the woman's description of how Greitens allegedly threatened to release the image of her, partially naked and bound to exercise equipment in the basement of Greitens' home. Greitens has denied any allegation of blackmail.
The language of the charge requires the St. Louis prosecutor, Democratic Circuit Attorney Kim Gardner, to convince a 12-person jury that Greitens "knowingly" photographed the woman without her "knowledge and consent," while she was in "a state of full or partial nudity" and "was in a place where she would have a reasonable expectation of privacy."
Gardner also has to prove that Greitens subsequently distributed the photograph to someone else or transmitted the image contained in the photograph "in a manner that allows access to that image via a computer."
A grand jury handed down the invasion of privacy indictment against Greitens on Feb. 22. Since then, the governor's well-heeled team of attorneys have investigated the prosecution while unsuccessfully trying to get the case dismissed.
An early motion to dismiss the charge argued that the invasion of privacy law was being misapplied. The statute is meant to punish "peeping toms" and voyeurs, defense attorney Jim Bennett argued in a court filing, and should not apply to "two people engaged in consensual sexual activity."
Gardner's office argued that the motion to dismiss was "wholly based on disputed facts" beyond the scope of the indictment. The charge alleges that the photograph was criminally nonconsensual and unwanted, which may be true even if Greitens and the woman had a consensual sexual relationship, Gardner's team said in a court filing.
The Associated Press reported Friday that Gardner's office had not discovered evidence the photo exists even after Greitens' phone was examined. And overall, Gardner's prosecution has been far from smooth.
A private investigator her office hired, William Tisaby, has been accused by Greitens' team of lying under oath about his actions during an early deposition of the woman. Gardner has been accused of knowingly allowing Tisaby to perjure himself and of withholding information that Greitens' attorneys say could exonerate their client.
Tisaby's contract called for a $10,000 retainer and a $250 per hour fee, and Gardner's office has acknowledged that relying on the private investigator was a mistake.
Gardner's office also has objected to Tisaby being questioned at trial, saying, "an excursion into Mr. Tisaby's shortcomings will inevitably confuse or mislead the jury and inject wholly collateral issues."
Judge Rex Burlison sanctioned Gardner's office in mid-April after Greitens' defense argued prosecutors had withheld a videotape and notes from the early deposition. The judge allowed the defense to question the woman again but denied a second request to dismiss the charge.
Burlison also has denied Greitens' request for a bench trial — where Burlison would decide the case — allowing the historic case to be decided by a jury.
One argument the defense has tried in court — and that Greitens has pushed repeatedly in the court of public opinion — is that some of the woman's memories may be based on dreams.
Asked in one deposition if she remembered seeing Greitens use his phone as a camera, she said: "I haven't talked about it because I don't know if it's because I'm remembered it through a dream or I — I'm not sure, but yes, I feel like I saw it after that happened, but I haven't spoken about it because of that."
Taking the quote out of context, Greitens and his public relations aides have suggested the woman dreamed other aspects of the encounter, prompting the woman's attorney to say: "Gov. Greitens has admitted to my client on multiple occasions that he took her photograph, without her consent, and threatened to release it if she ever told anyone about their relationship."
One unresolved issue, unrelated to what actually transpired between the woman and the governor, has to do with a highly unusual transaction between newspaper publisher Scott Faughn and Al Watkins, an attorney for the ex-husband. Watkins released to the media recordings and documents about the affair, including the crucial recording that spurred early reports of the story in January.
Faughn, a pundit who publishes the Missouri Times, has said he paid $50,000 out of his own pocket to Watkins for the ex-husband's audio recordings. A defense attorney has said Watkins has said Faughn made two additional $10,000 payments, according to the Associated Press, and Watkins declined to comment about another $50,000 he admitted to receiving from an unidentified courier.
The defense has said it wants to talk to Faughn but cannot find him. Faughn has published multiple commentaries online but has not responded to multiple phone calls and text messages from the News-Leader seeking more information about the payments.
The woman's ex-husband could be called to testify as well. Prosecutors have said the only reason for this is to authenticate recordings he made of his ex-wife, but they worry that Greitens' attorneys will press him on the payments to his attorney, which the state says "have gone exclusively to de-fray" the ex-husband's "attorney's fees in connection with disclosure of the original recording of" the woman.
Democrats knew, didn't push the story
"No huge conspiracy," says Faughn
What topics are fair game in court?
Both sides want to limit what can be discussed at trial.
Greitens' defense has requested that the woman not be permitted to talk about whether the former Navy SEAL suffers from post-traumatic stress disorder "or other impact from military service." Gardner's office agreed not to "solicit lay opinion concerning any medical or psychiatric condition of the defendant" but reserves the ability to have the woman "testify to observed bizarre or peculiar behavior."
Gardner contested Greitens' request to block certain evidence regarding whether his iPhone would be capable of transmitting a photograph — specifically the opinions of the woman and her ex-husband on whether a smartphone can transmit a photograph. Judge Burlison has previously granted Greitens' request to strike expert witnesses Gardner planned to call to testify on matters including the sound a smartphone makes to imitate a shutter's click.
Prosecutors recently asked Burlison to bar evidence of the woman's "sexual history" and "psychiatric or counseling history," Greitens' attorneys noted in a recent filing. Because the woman "has painted a picture that she was less than fully consenting to the activities of March 21, 2015," the defense argues, "the frequency or voluntariness of her sexual activity with Mr. Greitens is relevant to the issue of consent and her credibility if she denies consent for the activities of March 21."
And, noting that she "has testified about supposedly being taped to exercise rings and other activities which have a Fifty Shades of Grey overtone," her "interest in the book and such activities is directly relevant to March 21," Greitens' attorneys said recently. (Some pundits have taken to referring to the case as "50 Shades of Greitens," in reference to the erotic novel.)
Greitens' attorneys also objected to any reference to a "revenge porn" bill — legislation the Missouri General Assembly recently sent to the governor's desk that would criminalize nonconsensual dissemination of intimate images.
Gardner's office agreed with a request from the governor's attorneys that prosecutors "cannot inject into evidence other pending investigations against the defendant," which could include a number of other probes into Greitens' actions.
Greitens faces a second felony prosecution on suspicion of improperly obtaining a donor list from the charity he founded for political fundraising — a charge Gardner filed last month. And Greitens is being investigated on multiple fronts by the House Special Investigative Committee on Oversight, Attorney General Josh Hawley, the Missouri Ethics Commission, a St. Louis university and a Pennsylvania foundation.
The legislative investigation has resulted in reports that describe alleged sexual and physical misconduct and show how Greitens' campaign obtained a list of donors to The Mission Continues, the charity Greitens helped start. Lawmakers will consider whether to impeach Greitens in a special session in late May and early June.
Greitens' attorneys also appear to object to the use of the term "victim" as a description of the woman. Gardner's office considers the woman to be a victim "as a matter of law."
Phones belonging to Greitens, the woman and her ex-husband have been examined, but Gardner's office does not appear to have discovered direct evidence that any photograph taken by Greitens of the woman still exists or that any image was transmitted to a computer.
Greitens has never denied photographing the woman. One of the governor's attorneys, Bennett, told the News-Leader on Jan. 11 that the photograph never existed. But Bennett has not made this claim again, and he has not responded to multiple inquiries about why he said it the first time.
The defense also has asked that prosecutors not reference Greitens' "silence and refusal to answer questions to the media or during public appearances" as well as "various videos of (Greitens) at media events."
Recent court documents show Gardner agrees not to "allude directly or indirectly" to Greitens' hypothetical invocation of his Fifth Amendment right against self-incrimination.
However, "the State fully intends to proffer evidence of (Greitens') silence and evasive statements in the face of accusations of the misconduct here at issue," prosecutors wrote, noting that Greitens' refusal to answer reporters' direct questions may come back to haunt him.
"A press conference of a Governor can hardly be considered a custodial or coercive setting," Gardner's filing said. "The idea that presenting evidence of a defendant's pre-arrest statements evincing consciousness of guilt somehow constitutes an indirect reference to the defendant's silence at trial is supported by neither reason nor authority."
Citing the amount of publicity, Burlison issued a partial gag order earlier in the case. The media and the public have continued to learn details of the case through motions and memos filed by the prosecution and the defense.
Greitens' campaign also has paid to promote Facebook posts that advance various attacks on Gardner, including the theory that she is doing the bidding of liberal billionaire George Soros or that the governor is the victim of a "political witch hunt." At the same time, his attorneys have criticized "constant negative publicity" stemming from the legislative investigation and "continuous one-sided media coverage" of the case.
Will those involved testify?
The political sideshows, media frenzy and associated drama distract from a question at the heart of the case: What really happened between the woman and Greitens in his basement on March 21, 2015?
Two people know best.
The defense has requested the court block the prosecution from "references to the fact that (the woman) and (Greitens) were the only two individuals present during the alleged event." Greitens' attorneys also want to keep the recording on which she confessed her affair to her ex-husband out of the trial, as hearsay.
The woman will be called to testify at Greitens' trial and has so far cooperated in the case.
It remains unclear whether Greitens will testify. After a radio broadcaster reported that he wouldn't, an attorney for Greitens, Ed Dowd, pushed back on the media coverage and left the possibility of Greitens' testimony up in the air.
"There has been no decision made at this time regarding whether the Governor will testify or not," Dowd said in a statement. "We're leaving all options on the table."
Follow Will Schmitt on Twitter: @ws_missouri