The Greitens trial: First-term prosecutor gears up for biggest case of her career

May 10, 2018
Originally published on May 10, 2018 8:39 am

Editor's note: This is the first in a series of three stories profiling the main legal figures involved in the trial of Missouri Gov. Eric Greitens. A profile of the defense attorneys will run Wednesday and the judge on Thursday.

St. Louis Circuit Attorney Kim Gardner made history in February when she charged Gov. Eric Greitens with felony invasion of privacy. It was the first time a Missouri governor had been indicted.

In the indictment made public Feb. 22, Gardner said that in 2015, Greitens took a photo of the woman with whom he was having an affair, while she was semi-nude, and then transmitted it so that it could be viewed on a computer.

The announcement sent shock waves through state politics, and put Gardner and her office under a white-hot spotlight.

Gardner did not take a traditional path to the role as the city’s top prosecutor. She has both her law degree and her nursing license, and served two terms as a Democratic state representative from the 77th District, which stretches from just north of downtown to Forest Park. She had also served as an attorney for her family’s funeral home, Eddie Randle and Sons.

Gardner, the first African-American elected to the post, had visions for the prosecutor’s office.

“We have to address not just how we have prosecutors inside the courtrooms, we have to address the community piece,” she said. “The community, the law enforcement, the judicial area, all of these pieces need to come together."

Gardner had been an assistant circuit attorney, but never tried a homicide case. She urged voters to look beyond that at a 2016 candidate forum.

“I feel we’re all adequate to try cases,” she said. “We’ve been using the career prosecutor for decades, and we still have 180 murders, and most of those murders are unsolved, and we still have a lack of trust in the whole system. I would love experience from a variety of resources.”

But even the most high-profile murder trial could not have prepared Gardner for the Greitens case.

“Politicians must know that the Office of the Circuit Attorney will hold public officials accountable in the same manner as any other resident of our city,” she said in a news release announcing the indictment. “Both parties and the people of St. Louis deserve a thorough investigation of these allegations.”

READ: Grand jury indicts Gov. Greitens

Not surprisingly, the Republican governor and his supporters had a much different view of the situation.

“With today’s disappointing and misguided political decision, my confidence in our prosecutorial system is shaken, but not broken,” Greitens wrote in a Facebook post. “I know this will be righted soon. The people of Missouri deserve better than a reckless, liberal prosecutor who uses her office to score political points.”

“I think she’s playing pure politics,” Bruce Buwalda, the chairman of the St. Louis County Republican Party, told St. Louis Public Radio in an interview.

But Gardner had her defenders. Just a few days after the indictment, about two dozen African-American leaders, including defense attorney Jerry Christmas, stood on the steps of the Carnahan Courthouse in a show of support.

“How can she not see this on the front page of the paper and then just turn a blind eye and say, well, you know, I didn’t see it, or I’m not going to do anything,” Christmas said. "Then she’d be accused of favoritism.”

Cassandra Gould, the pastor at Quinn Chapel AME Church and the executive director of Missouri Faith Voices, was one of many to see racism and hypocrisy at work in the governor’s attacks.

“It’s interesting how you just have to wait and let the system do what it has to do when it involves a black person as a victim, but then when it involves the highest-elected official in this state, then justice is out of order,” Gould said. “We will continue to demand justice, and we will stand with her against all attacks.”

Elijah Hankerson, the president of the Metropolitan Clergy Coalition, also urged both sides to let the judicial process run its course.

“We believe that both the circuit attorney, Kimberly Gardner, and our governor are attempting to represent their constituents to the best of their abilities,” he said. “We believe that the legal process should be given ample time to work, void of personal attacks.”

The judicial process

So far, St. Louis Circuit Judge Rex Burlison has done just that, rejecting several attempts by Greitens’ team to throw the entire case out. But Gardner hasn’t gotten off scot-free. For one, there’s still no indication that her office has the photo in question, a point defense attorneys raised in a motion to dismiss filed May 1.

“What is undisputable at this point is that this case is almost entirely about the alleged taking of a photograph — and equally indisputable is that there is no photograph,” they wrote.

Second, Burlison agreed with defense attorneys that the prosecutor's office had been slow to turn over evidence that could bolster the governor’s claims of innocence, and allowed them to depose again two key witnesses — the woman of whom Greitens allegedly took the photo, and a confidant of hers.

READ: Judge refuses to throw out felony charge against Greitens

There’s also been fallout from the actions of a private investigator Gardner hired to look into the case after she said the St. Louis Metropolitan Police Department declined. Department officials have said they were never formally asked.

The defense team has accused the investigator, William Tisaby, of lying under oath. Burlison also ordered Tisaby to undergo a second deposition, but the former FBI agent exercised his 5th Amendment protection against self-incrimination. Defense attorneys wanted to throw out any evidence he collected, which would block the woman from testifying. On Monday the judge allowed her testimony.

The defense team is doing what they’re paid to do, Christmas said, but called most of the court filings propaganda aimed at potential jurors, rather than attacks on the allegations at the heart of the case.

“If they can make the prosecutors seem incompetent, then they can try to inject that in potential juror’s minds and maybe win some favor for the governor,” he said. “What happens with defense attorneys is, if the law isn’t going in your favor, then you have to pick another issue to address and kind of pound the table on that.”

The rest of the team

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The big question now, if the case goes forward, is who from the prosecution will actually present the case to the jury. Gardner has been in court for most of the hearings in the run-up to trial, which starts with jury selection Thursday. But two of her newer hires — Robert Dierker and Robert Steele — are likely to play significant roles as well.

Dierker retired as a circuit judge to become Gardner’s chief trial assistant. Steele joined Gardner’s office after 20 years as a public defender, most recently handling death penalty appeals.

Dierker was generally considered one of the most conservative judges in the 22nd Circuit, and came under fire in 2006 for a book in which he was harshly critical of liberals and women: "The Tyranny of Tolerance: A Sitting Judge Breaks the Code of Silence to Expose the Liberal Judicial Assault." But he is also a fount of legal knowledge, said Dave Roland, the litigation director at the Freedom Center of Missouri.

“He brings a very principled perspective on the law,” Roland said. “He also, I’m sure, has great insight as to the different ways that cases can play out, and he’ll certainly be able to help Ms. Gardner anticipate perhaps moves that the defense might make.”

Phil Heagney, who retired from the bench around the same time Dierker did, said he was always impressed by his colleague’s commitment to following the rule of law.

“I was surprised at the end of this past year when I heard that Bob was leaving the circuit court and going to the circuit attorney’s office,” Heagney said. “But I think my main reaction to that was, that could be a very good thing for the circuit attorney’s office. I think Dierker will be a good person for insisting that the other assistant circuit attorneys follow the rules and set up their cases and their arguments in ways that really fit what the system says you’re supposed to do.”

Christmas also applauded Dierker’s hiring, but was more impressed that Gardner was able to lure Steele away from the public defender. As a prosecutor, Christmas tried cases against Steele.

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“We used to call him Ironside,” Christmas said. “He’s always been a tough, and very good trial attorney. And I thought it was a smart move to go outside the box and bring somebody in who had worked on the defense side, especially at that level, to bring a different perspective.”

Gardner has also looked to counter the big names on the defense side with a high-profile hire of her own. She has signed a contract with Ronald Sullivan, the director of the Criminal Justice Institute at Harvard Law School, a move that was not without controversy. Sullivan helped represent Michael Brown’s family in their wrongful death case against the city of Ferguson, and was a member of the team that defended former New England Patriots tight end Aaron Hernandez in his murder trial. He is described by colleagues as a tough advocate for his clients.

Roland, for one, is looking forward to the trial.

“It’s kind of like a star-studded cast on either side, and that has the making of a battle royale in the courtroom,” he said.

The opening salvo of the battle is Thursday — that’s when attorneys are set to start picking the jury.

Follow Rachel on Twitter: @rlippmann

Read all of our coverage of Eric Greitens’ legal and political woes.

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