ST. LOUIS _ A jury that will decide Missouri Gov. Eric Greitens' invasion of privacy charge this month will hear testimony from his accuser and her friend but not from three state witnesses who prosecutors hoped would strengthen their case.
Circuit Judge Rex Burlison on Monday rejected a move by Greitens' defense team to exclude the woman who claims he took a compromising seminude photo of her while she was bound and blindfolded in his basement in 2015.
Greitens, 44, who was indicted in February on one felony count of invasion of privacy, is set to stand trial May 14. Jury selection starts Thursday from a pool of 160 St. Louis city residents.
The judge Monday precluded testimony of a law professor tapped to talk about "image-based sexual abuse" _ more commonly known as revenge pornography _ and two electrical engineers. The engineers were going to distinguish iPhone's camera shutter sound from that of other smartphones, and discuss what constitutes a transmittal of a picture to a computer under Missouri's invasion of privacy law.
"That's why the jury is going to be here," Burlison said.
Burlison also rejected a second defense motion to dismiss the case.
Defense lawyers claimed testimony from Greitens' accuser had been tainted by misconduct from prosecutors and investigators. They also complain of failures to disclose evidence and perjury. Greitens' lawyers said the woman's version of what led up to and followed a sexual encounter with Greitens three years ago, before he publicly announced his run for governor, has been molded to cast her as the victim, not a willing participant.
Prosecutors denied those claims, saying that her story had been consistent throughout several depositions, interviews and testimony before a grand jury and a House committee investigating Greitens.
In statements to a House committee investigating Greitens, the woman accused Greitens of violent behavior and initiating sexual contact without her consent. She also said Greitens threatened to release the photo if she told anyone about their encounter.
The woman's testimony has been consistent, and investigators did not alter it simply by interviewing her, Chief Trial Assistant Robert Dierker wrote.
Greitens has denied blackmailing the woman and has called the investigation a "political witch hunt."
Dierker acknowledged in court Monday that prosecutors do not have the photograph in question or witnesses who have seen it. Dierker insisted, however, that they have circumstantial evidence of both the photo and its transmittal, as required by the invasion of privacy statute under which Greitens is being prosecuted.
In court filings, Dierker wrote that the woman said she saw a flash and heard the shutter sound an iPhone makes. He said Greitens threatened to spread the picture "everywhere" if she revealed anything about their encounter and later claimed to have deleted that photo.
Burlison said the case calls out for sanctions. But, he said, striking the testimony of witnesses would be the "most extreme" sanction, and he would not impose it. He did grill Dierker about the evidence, and said, "We will see what the weight of that evidence is." He had already allowed defense lawyers to re-depose witnesses in the case after earlier complaints about the conduct of Circuit Attorney Kim Gardner's office.
All parties postponed a hearing on Greitens' second motion for a bench trial, rather than a jury trial. Defense lawyers have complained that publicity surrounding the case has been biased against the governor.
Burlison also refused to allow Greitens to obtain information about who paid the lawyers representing Al Watkins, who represents the accuser's ex-husband.
Defense lawyers say that as-yet-unidentified "political operatives" are pushing Greitens' prosecution, and they are seeking the identity of the person who paid $120,000 to Watkins. Watkins has said he doesn't know the ultimate source, but he identified Scott Faughn, publisher of the Missouri Times, as the man who hand delivered $50,000.
Defense lawyer Jim Martin said in court Monday that Watkins, in a deposition, revealed that Faughn made two additional $10,000 payments to Watkins. Martin said Faughn is now "on the run" because Faughn cannot be found to be served a subpoena.
Martin alleged that Gardner and her top assistant, Robert Steele, knew about the payments to Watkins before the indictment. Steele called the claim "a lie" multiple times and also said there is no evidence the woman's ex-husband knew anything about the money.
Lawyers for Greitens also are trying to block a search of his personal email, court filings made public Monday show.
A defense motion seeks to quash a May 3 search warrant for Greitens' Gmail account, which was sought by Anthony Box, the lead investigator for the St. Louis circuit attorney's office.
The defense motion says Box cited an unusual "uptick in activity" in the email account after an investigation into Greitens was announced. Box also claimed that most, if not all, of the activity was coming from one of the law firms representing Greitens, Dowd Bennett. The motion quotes Box as concluding "that there may have been efforts to access or delete the photo in question."
The defense motion says what Box describes is normal activity when a law firm begins to investigate accusations against a client. It says there's no evidence to support Box's "absurd and unsupportable allegation." It says the search warrant application also is lacking because it provides no evidence that Greitens' accuser had a reasonable expectation of privacy, as required by law.
The search warrant application itself is sealed. It's not clear why the application was filed less than two weeks before trial, or if other accounts had already been searched.
Also in filings, prosecutors said they would agree that references to "expensive defense lawyers" should be excluded at trial; that mentions of Harvard professor Ronald Sullivan's fees paid by the circuit attorney's office or his previous representation of the family of 18-year-old Michael Brown, killed by a Ferguson police officer in 2014, should be left out, except for the possibility asking the jury pool about their knowledge of Sullivan's connection to the Brown family.
In filings that are still to be decided:
_ Prosecutors argued several pieces of evidence should be admissible at trial, including witness observations of Greitens' "bizarre or peculiar behavior" and evidence of the governor's unwillingness to answer questions about certain accusations. Prosecutors also argued that the secret audio recordings made by the ex-husband of Greitens' accuser should be admitted at trial.
_ The state objected to the defense's argument that Greitens' accuser should not be referred to as a victim.
_ Defense lawyers said Greitens shouldn't have to turn his cellphone or military records over to prosecutors. They say prosecutors used an improper motion to seek the records, and the requirement that he do so would violate his "Fifth Amendment right against self-incrimination" by demanding that he "produce objects that contain his own statements" and essentially "be a witness against himself."
