ST. LOUIS _ A day after the release of a Missouri House investigative report on the invasion of privacy case against Gov. Eric Greitens, his attorneys accused St. Louis Circuit Attorney Kim Gardner of misconduct and "gross incompetence."
Defense attorney Jim Martin told the court Thursday that it wasn't until an hour after the release of the committee report that Gardner provided the defense with a videotaped interview of the woman with whom Greitens had an affair. The report, released in Jefferson City, presented new allegations that Greitens struck the woman during their sexual encounters.
Greitens, through a public relations company, issued a statement Thursday afternoon saying that he did not slap the woman and that the video would prove that. He also said the woman did not mention being coerced in the video.
The defense attorneys said they were led to believe that the recording equipment used in the interview had malfunctioned and that no tape or handwritten notes of the interview existed.
"The deposition tells an entirely different story about (the woman's) interactions with the governor," Martin told the judge. "This woman is not a victim. She was a willing participant in everything they did, and the video goes a long way to establish that."
The defense accused Gardner of withholding evidence and said it would ask for sanctions against Gardner and seek to depose the woman and her ex-husband again. In addition, the defense asked the judge to reconsider a defense motion to dismiss the indictment against Greitens.
They also accused Gardner of allowing William Don Tisaby, the investigator she hired, to lie under oath in a March 19 deposition about whether he took notes during an interview with the woman. The defense showed screen grabs from the video of the interview that showed Tisaby taking notes with Gardner next to him.
"I've never in my practice accused a prosecutor of incompetence or misconduct, but I'm doing that this morning," defense attorney Scott Rosenblum said. "Ms. Gardner is guilty of gross incompetence or subornation of perjury. There is no middle ground."
Gardner told the judge that she didn't know until Monday that the recording of the woman's interview existed and had not seen it until this week. The defense alleged that the woman turned to her lawyer during the January interview and laughed when asked about being slapped by the governor.
The interview took place at a St. Louis hotel in January with Gardner, Tisaby, the woman and her attorney Scott Simpson.
"I never saw the tape because we were under the impression that it never recorded," Gardner said.
About 50 minutes into Thursday morning's hearing, Circuit Judge Rex Burlison stopped it and said he wanted to resume arguments of "very serious allegations" against Gardner in chambers.
When the parties returned to court about 20 minutes later, Gardner said that she took the video to an IT person Monday night to see if it could be salvaged. Some audio from the beginning of the video also was missing, she said.
Nothing in the video indicated that the woman consented to having her photo taken, Gardner said. Gardner also accused the defense of calling the woman's attorney in January seeking to persuade her to sign a document that said the woman's March 2015 sexual encounter with Greitens was consensual.
Burlison responded to Gardner's accusation by saying, "Here's the deal, you don't diminish the speck that's in one's eye by pointing out the other."
First Assistant Robert Steele said Tisaby's notes of the January interview contained no exculpatory evidence for Greitens. He said that nothing in the interview changed the woman's account of what happened at Greitens' home in March 2015 and that nothing in the notes disproved elements of the indictment.
"The case should not be dismissed," Steele said. "It should go forward because Mr. Greitens is guilty."
Robert Dierker, Gardner's chief trial assistant, told the judge Gardner had fulfilled her duty by turning over the video to the defense. The judge asked why it hadn't been turned over immediately.
"I confess I can't answer that," Dierker said.
Burlison did not immediately rule on the defense requests but questioned whether prosecutors were arguing that they decide what evidence should be released to the defense.
Greitens faces a felony invasion-of-privacy charge for allegedly taking and transmitting a semi-nude photo of the woman without her consent in the basement of his Central West End home in March 2015. The governor called the legislative investigation into the case a "witch hunt" Wednesday.
From Greitens' initial statement to the release of the indictment, read The St. Louis Post-Dispatch coverage of the governor's scandal.
The House committee's report included new allegations of sexual encounters with Greitens' hair stylist in the year before he was elected governor. They included that he struck her in the face, touched her crotch without her consent and called her a "whore." She also claimed he struck her and shoved her to the ground as they became intimate in his Central West End home. During another encounter, she alleges, he physically restrained her from leaving his home and insisted she give him oral sex, even though she was crying.
