ST. LOUIS _ Missouri Gov. Eric Greitens' defense team claims in a new filing that the grand jury that indicted him for felony invasion of privacy was presented no evidence that the governor transmitted a compromising photo of his lover.
Transmission is a key element of the indictment because that makes the crime a felony instead of a misdemeanor.
Greitens was indicted last month on the felony charge after allegations that he took a nude picture of his former lover without her consent and threatened to release the photo if she ever mentioned his name. Greitens admitted the affair but denied blackmail.
The argument that the grand jury never heard evidence that a felony was committed came in Greitens' request for a trial in the first week of April. The case is currently set for trial May 14.
The filing, giving a view into the testimony presented to the grand jury, says Greitens' lover testified to hearing the sound of an iPhone camera but not seeing the device. There was no further evidence presented that an iPhone was used and no evidence of transmission, the filing says.
"No witness was asked if there was a transmission, no witness was asked if they saw the alleged picture on social media, no witness was asked if they had even heard that the alleged photograph was somehow 'transmitted,'" the filing says.
In Missouri, the invasion of privacy statute says a person commits felony invasion of privacy if he or she "disseminates or permits the dissemination" of a compromising photo "to another person." But the indictment against Greitens cites a different part of the law that references transmitting such photos "in a manner that allows access to that image via computer" _ which could be invoked whenever a modern cellphone is involved.
A spokeswoman for Circuit Attorney Kim Gardner said in an email Tuesday that Gardner "believes the matter was handled appropriately with the grand jury, and the investigation is ongoing." Gardner's office filed a response Tuesday opposing Greitens' request for an earlier trial date, saying the state "is entitled to a fair trial" and that "the defendant should not be permitted to rearrange the court's scheduling order to secure a tactical advantage."
Last week, prosecutors said they turned over transcripts of the grand jury testimony of the governor's former lover as well as a month of his phone records. Also turned over were photos of the Central West End home Greitens and his family occupied at the time.
In the latest court filing, Greitens asks for a trial date the first week of April instead of May 14 in light of a Missouri House committee's expected report to be released by April 8.
"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," Greitens' filing says.
Greitens also asked for a hearing Wednesday on a motion to dismiss the case "based on false and misleading grand jury instructions." The motion claims First Assistant Robert Steele "flagrantly" misled the grand jury on the elements of the crime of invasion of privacy by telling jurors all they needed to consider was whether the governor took a nude or semi-nude photo of the woman without her knowledge or consent.
Steele told grand jurors it was "irrelevant" what Greitens did with the photo, the filing says.
At a hearing Monday where defense lawyers announced they would be making such a claim, Chief Trial Assistant Robert Dierker called any such filing "patently frivolous."
Lawyers spent several hours Monday deposing William Don Tisaby, a private investigator from Michigan and former FBI agent who was hired to investigate the case.
According to the defense filing, Tisaby said in his deposition that he isn't aware of anyone who has sought to find evidence of the photo's transmission or of any witness with information about it being shared.
"In fact, he also testified that he is unaware of any witness who has seen any photo as alleged in the indictment," the filing says.
