Downtown Courthouse St. Louis

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Will Judge Toss Greitens Sex Case?

Judge Rex Burlison to make announcement Thursday

April 18, 2018 - 4:36 pm

ST. LOUIS (KMOX) - Like a man with a nuclear secret, Judge Rex Burlison was walking around his courtroom Wednesday, working on other things, and giving no hint by the routine look on his face whether he has decided to throw out the invasion of privacy case against Missouri Gov. Eric Greitens.

Burlison has called a pre-trial hearing for 9 a.m. Thursday to announce his response to a motion from the governor's lawyers to drop the case.

Lawyers for the governor have argued the case is tainted beyond repair by the prosecutor hiding notes and video taped evidence, and by a hired investigator for the prosecutor lying under oath about the evidence.

Responding for the prosecutor, Chief Trial Assistant Robert Dierker said in court earlier this week that the outside investigator lied to him, too, and he compared the man's work to "Inspector Clouseau."

But Dierker also stressed that the central premise of the case -- that the governor took a compromising photograph of his lover and transmitted it without her permission -- has not been affected by any of the alleged missteps.

The prosecutor, Circuit Attorney Kim Gardner, filed a memorandum in opposition to sanctions, saying "there is absolutely no prejudice to the defense in any of this."

Both sides are under a gag order, unable to comment on the possibility of the case being thrown out.

So what's Judge Burlison likely to do?

Outside Attorney Brand Young, with Harris, Dowell, Fisher and Young, says it's "extremely rare" for a case to get tossed for prosecutorial misconduct.

"If he were to dismiss it, it would be the same as him saying, 'I'm taking this away from the people to decide for myself,'" Young said. "We'll, he's already said he doesn't want to do that, because he's denied a defense motion for a bench trial."

Young says in order for the judge to drop the case, he would have to conclude that evidence that would have been helpful to the governor was hidden from his lawyers. 

But Young says even if the case is dropped, Gardner has another option.

"We could see a scenario where Kim Gardner really doesn't want this case to go forward," Young said, "because even if this does get dismissed, she's got a double-barrel shotgun. The second barrel involves the evidence from the Mission Continues mailing list."

On Tuesday, Missouri Attorney General Josh Hawley asked Gardner to file a felony charge of computer tampering against Greitens, alleging he illegally obtained a donor list from a veterans charity without permission.

Gardner issued a statement Tuesday saying "no decision has been made" on filing a new charge, and the investigation is ongoing.

It's not clear, either, whether Gardner would have time to run the evidence through a grand jury or be forced to file the charge herself.

Both Gardner and Hawley have said there's a statute of limitations deadline approaching.  But they won't say when it is, for fear of identifying the source of the complaint.

Media reports have suggested the deadline is fast approaching -- April 22.