By Robert Patrick, Erin Heffernan and Nassim Benchaabane
Prosecutors dismissed a criminal charge against Missouri Gov. Eric Greitens after a judge ruled Monday that his lawyers could potentially call Circuit Attorney Kim Gardner as a witness.
The Circuit Attorney's Office said it would refile the felony invasion of privacy charge through a special prosecutor or by Gardner assigning it to one of her assistants.
Lawyers for the governor said they do not think the charge will be refiled.
"The real reason why this case was dismissed was there was no evidence," said defense attorney Jim Bennett.
Greitens and his attorneys lauded the move as a "great victory" as they spoke to media on the courthouse steps Monday afternoon.
"Today prosecutors dropped the false charges against me," Greitens said in brief remarks. "This is a great victory and it has been a long time coming. This experience has been humbling, and I have emerged from it a changed man."
He apologized to his family, friends and the people of Missouri.
"I am tremendously grateful for the extreme courage of family, friends and people of faith who have all recognized that in time comes the truth," the governor said. "We have a great mission before us. At this time I'd ask people of goodwill to come together so that all of us can continue to do good together. Thank you guys, and God bless you."
Reporters shouted questions at the governor, asking about the possible refiling of charges and whether he had taken a photo of his mistress, as alleged in the charge that was dropped.
"I'm going to be with my family right now," Greitens said before walking away.
Prosecutors announced they were dropping the charge about 4:40 p.m. Monday, after about 40 minutes of whispered conferences among lawyers and multiple trips to the chambers of Circuit Judge Rex Burlison. After the final trip, Greitens and his lawyers were smiling.
The move follows several secret filings in state court and the Missouri Court of Appeals over the last several days, and a motion to dismiss filed Monday afternoon.
A spokeswoman for Gardner said the case would be refiled. Gardner left the courtroom just before 5 p.m. She did not answer questions.
Gardner spokeswoman Susan Ryan said in a statement that Burlison's "unprecedented" order "places the Circuit Attorney in the impossible position of being a witness, subject to cross-examination within the offer of proof by her own subordinates."
But St. Louis University law professor John Ammann said Gardner did not have to dismiss the charge. Because she could not be a prosecutor and witness in the same case, she could have simply let other prosecutors take over, he said.
And defense lawyers said Gardner was only facing questions under oath. Burlison would have had to decide whether her testimony would be admitted in the trial.
Prosecutors have less than a month to refile the case under the statute of limitations. Defense lawyers vowed to challenge any attempt to do so, saying the dismissal was due to misconduct by Gardner and should therefore not qualify for more time to refile.
Greitens was indicted in February on a charge that he took a nude photo of a woman, his hairdresser, without her consent. In a conversation with her ex-husband, which he surreptitiously recorded, the woman said the affair began at Greitens' St. Louis home in March 2015, when Greitens taped her to exercise equipment, blindfolded her and took a picture of her partially nude. When she got upset, she told her ex-husband, Greitens said he had deleted the photo.
During the encounter, she said, Greitens told her: "You're never going to mention my name, otherwise there will be pictures of (you) everywhere."
Defense lawyers wanted to call Gardner because for weeks they have accused her of misconduct. They said she allowed a former lead investigator in the case to commit perjury.
The statement from prosecutors called the tactic part of "a scorched-earth legal and media strategy" that included attacks on "the intentions, character and integrity of every person involved in investigating the Governor's behavior including Missouri House Committee members, the Attorney General, the Circuit Attorney and her team, his victim, her family and those who have called for his resignation," Ryan's statement said.
The defense has accused investigator William Don Tisaby of putting "words in the mouth" of witnesses and removing information favorable to Greitens from reports. He said in a sworn statement that he didn't take notes during his interviews, but was caught on video taking notes. Tisaby asserted his Fifth Amendment right against self-incrimination in a second deposition, and Burlison had seemed unwilling to allow the defense to call him. Prosecutors have said Tisaby was used only to locate and interview a few witnesses, and they never planned to call him at trial.
The stunning move came on third day of jury selection for Greitens' trial, which was expected to start Tuesday or Wednesday. And it followed the announcement by defense lawyers that investigators were unable to find data or photographic evidence to bolster their case in Greitens' phone, email or Apple iCloud account. There also was no evidence that a photo had been deleted on the day Greitens' relationship with his hairdresser first became sexual, in 2015, before he publicly announced his run for governor.
The defense filed a new motion to dismiss the charge Monday.
A special master reviewed 16,833 images and 610 videos extracted from Greitens' cellphone and "found none that were associated with" the woman, the motion said.
A forensic examiner found no evidence that any picture taken on March 21, 2015, was deleted, the motion said. That's the day Greitens and the woman had a sexual encounter, and she claims he took a picture while she was bound and nude or semi-nude.
The motion says that the woman never saw a smart phone, a camera or the picture that was purportedly taken. Even if a picture was taken, the motion says "it could have been of the floor, of the ceiling, or of (the woman's) feet."
Defense lawyer Jim Martin said after the dismissal that prosecutors searched every phone, email and cloud storage account and found no evidence of the photo.
Greitens still faces a felony charge of computer tampering for allegedly taking without permission a donor list from a charity he co-founded. Prosecutors have already sought a special prosecutor in that case, but Burlison has not yet ruled on their motion.
In Jefferson City, legislative leaders said they would continue their investigation of the governor. Lawmakers have scheduled a special session to begin Friday that could lead to Greitens' impeachment.
"We owe it to Missourians to have a fair and thorough investigation of the facts," House leaders said in a statement.
Senate Majority Floor Leader Mike Kehoe, R-Jefferson City, told the St. Louis Post-Dispatch that Monday's decision in St. Louis wouldn't affect the legislative investigation.
"There are unfortunately a lot of disturbing allegations surfacing besides the original allegation," Kehoe said. "When the committee is ready, they will present what they found to the full House and they will make a decision based on the facts, and not from what you may or may not be seeing in St. Louis."
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