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By Frank Bowman

Never a dull moment here in Missouri.  This afternoon brings the news that, on the third day of jury selection, St. Louis Circuit Attorney Kim Gardner has moved to dismiss the invasion of privacy prosecution against Governor Eric Greitens.  This is, at least in theory, what is a called a dismissal without prejudice, meaning that the case can be refiled.  And Ms. Gardner says she will seek to refile.

The stated reason for the dismissal is that the defense named Ms. Gardner as a defense witness, and the trial judge allowed them to do so.  Ms. Gardner claims that she cannot proceed with the trial in a situation where her subordinates would be in the position of cross-examining her.

Ms. Gardner says she is considering either seeking a special prosecutor to handle the case or refiling and asking one of her assistants to lead the prosecution.

I haven’t yet thought through the validity of Ms. Gardner’s assertions about her ethical position.  I may have some thoughts on that later.

For the moment, I have a sneaking suspicion that Governor Greitens’ trial team has been too clever by half, at least if their objective is to preserve Mr. Greitens in the governor’s office.  My own necessarily tentative assessment of the invasion of privacy criminal case has been that it’s a very tough one for the prosecution in the absence of the photograph, or at least forensic evidence that a photograph once existed.  From what can be gleaned from press reports, the government had neither the picture nor any circumstantial forensic evidence. Thus, the state’s entire case rested on the credibility of the victim, who, according to her own statement, was blindfolded at the time the supposed picture was taken. And the state had to prove its case beyond a reasonable doubt and secure votes of guilty from every juror.

Therefore, while the state could have won (and may yet win) this trial based purely on a favorable jury assessment of the victim’s credibility, my money would have been on an acquittal or at most a hung jury.  Politically, either is a great outcome for Greitens.

But the aggressiveness of trial counsel has just deprived the governor of a reasonably likely legal win.  Instead, the criminal trial will either never happen or will be delayed for months by further legal wrangling.  In the meantime, the action shifts to the legislature’s special impeachment session, where the governor is saddled by multiple handicaps:

  • The charges in the legislature probably won’t be limited to invasion of privacy, with the inherent weakness of the absence of the photo.  As noted in an earlier post, if one believes the former mistress victim, Mr. Greitens also arguably committed one or more forms of felony sexual assault.  And, of course, there are now allegations of campaign finance violations.
  • Even if the impeachment case were limited to allegations about Mr. Greitens’ encounters with his mistress, the report of the House special committee on that matter indicates plainly that the committee members unanimously believe her, not him.
  • The burden of proof in impeachment is lower than the “beyond a reasonable doubt” standard of criminal cases.  And those seeking impeachment don’t need a unanimous verdict.
  • The legislators, even in Greitens’ own party, seem not to like him.  The Republicans in particular plainly think he is a political millstone.  And unlike jurors, they can’t be challenged for political bias or for prejudging the case.

It sure looks to me like the governor’s lawyers have outsmarted themselves.