A felony invasion-of-privacy case against Missouri Gov. Eric Greitens will go on despite his attorneys' attempt to have it thrown out, a St. Louis judge ruled Thursday.
Judge Rex Burlison said in court that St. Louis Circuit Attorney Kim Gardner had committed "sanctionable" rules violations by failing to turn over some required evidence. He said he found it "troubling" that prosecutors had called Greitens' attorneys' motion to dismiss "frivolous."
"These rules are not mere rules of etiquette," Burlison said.
Though he didn't throw out the case, Burlison will allow Greitens' attorneys to retake some depositions with limited questions and will consider monetary sanctions at the end of the case. He told attorneys he expected them to follow correct procedures of sharing information.
“I’m not going to enter an order saying, 'Everyone play by the rules.' I’m going to assume everyone plays by the rules,” Burlison said.
Greitens, who is facing growing pressure to resign, was indicted in February after allegations arose that he took a semi-nude photo of a woman and threatened to release it to silence her about their 2015 affair. Greitens has admitted to the affair but has denied allegations of blackmail and says their relationship was "entirely consensual."
Greitens' attorneys wanted to have the case thrown out because prosecutors withheld a videotaped interview of the woman and interview notes, both taken by private investigator William Tisaby, who was hired by Gardner's office. Without the tape, defense attorneys say they were unable to rebut claims the woman made in her deposition or those included in a special House committee report released last week.
The tape, defense attorneys claim, includes information that could benefit Greitens.
After Thursday’s hearing, attorneys for Greitens declined to comment on the case, citing a gag order Burlison issued last week.
Gardner's office hired Tisaby rather than relying on law enforcement, and prosecutors have blamed Tisaby for the delays in handing over evidence.
The defense is in the process of deposing the woman's ex-husband. Burlison decided defense attorneys also will be allowed to retake depositions from the woman herself and Tisaby, but defense attorneys will only be able to ask about information they thought was missing when Gardner withheld the tape or that they believe to be conflicting.
Gardner's office will be on the hook for the costs of those depositions and may face other monetary penalties. Burlison said he might throw the case out in the event of further violations, but only if there is "irreparable" unfairness toward the defendant, Greitens.
In this case, Burlison said, the playing field has been unfairly tilted, but it is "capable of being cured."
“If further conduct is brought to this court’s attention, this motion will be reconsidered,” Burlison said.
Gardner spokeswoman Susan Ryan said that even in cases that are not high-profile, defense attorneys use a similar strategy.
"Their tactic to attack the prosecutor, versus focus on the crime itself, is not an uncommon defense strategy," Ryan said.
She said prosecutors intend to carry on despite the sanctions.
"And we believe we have the evidence we need to prove beyond a reasonable doubt that a crime has been committed," Ryan said.
Burlison also issued an order Thursdsay requiring the woman to turn over any phone "on which she received or has at any time been able to view the text messages" from her ex-husband, as was referenced in her January interview with Tisaby.
Greitens is facing a growing chorus of calls for his resignation, including by Missouri Attorney General Josh Hawley, a Republican running to unseat U.S. Sen. Claire McCaskill, a Democrat.
Hawley announced Tuesday that he had uncovered potential criminal wrongdoing by Greitens stemming from a separate investigation of the governor's alleged use of a charity donor list to raise money for his campaign for governor. Hawley turned the evidence over to Gardner for a possible indictment.
Both Ryan and defense attorneys declined to comment on Hawley's investigation and evidence.
Republican leaders in the Missouri General Assembly have also begun calling for Greitens' resignation, and Senate President Ron Richard, R-Joplin, said he should be impeached if he refuses to resign.