Experts: Plenty of reasons for Greitens to seek bench trial

The Associated Press
The Associated Press

ST. LOUIS (AP) — Missouri Gov. Eric Greitens has claimed to be the victim of a political witch hunt since the day a St. Louis grand jury accused him of taking a compromising photo of a woman during a sexual affair.

So it’s only logical that the Republican governor, facing trial in a heavily Democratic city, would request that a judge, not a jury, determine his fate, legal experts said Wednesday.

Greitens was indicted in February on felony fourth-degree invasion of privacy for allegedly taking a partially-nude photo of the woman while she was blindfolded, without her permission. Greitens has admitted to the affair in 2015, before he was elected, but denied criminal wrongdoing. He has declined to say if he took a photo.

Circuit Judge Rex Burlison at a hearing Wednesday will consider the request to move the trial from May 14 up to the first week of April. Burlison also will consider Greitens’ request for a bench trial. Circuit Attorney Kim Gardner, a Democrat, opposes both moves.

In a court filing this week, Greitens attorney James Martin cites concern about “finding jurors untainted by the negative press” against the governor.

Within hours of the indictment, Greitens said he was the victim of an investigation by a “reckless liberal prosecutor”. Asking a judge to hear the case is, in effect, an extension of the political concern, said Cristian Stevens, a former assistant U.S. attorney who is now with the St. Louis law firm Armstrong Teasdale.

“The Greitens team has already identified this basically as a political prosecution,” Stevens said. “Certainly, something to be a consideration is that you have a sitting Republican governor and a case that’s going to be tried in what’s generally considered the most liberal area of the state.”

Greitens’ attorneys may also believe the judge would be more adept in addressing two technical legal points they’ve raised. They contend that because the woman consented to the affair the photo did not violate her privacy. They also say there is no evidence the photo was ever “transmitted.” Without transmission, they say, the crime can be no more than a misdemeanor.

Mary Anne Franks, a University of Miami law professor specializing in privacy law who is advising Missouri lawmakers on the issue, said any photo taken without the woman’s permission would be a violation of the intent of the law.

“Taken to its logical point, what they’re arguing here is that any time you get undressed in front of any other person, it’s perfectly acceptable for that person to take a photo of you,” Franks said.

Peter Joy, a professor at Washington University School of Law in St. Louis, said both arguments would be difficult for a jury to ascertain.

“That sort of technical argument is something you might prefer to have a judge consider rather than a jury,” Joy said.

After a hearing earlier this week, Edward L. Dowd Jr., one of Greitens’ attorneys, said the governor wants to move up the trial date to prove his innocence as quickly as possible.

But the Greitens team may also be seeking a tactical advantage. Prosecutors have said the investigation was rushed because the statute of limitations was about to expire. They’ve said in court they do not have possession of the compromising photo.

“The Greitens team likely looks at this and feels that they (prosecutors) haven’t completed their investigation,” Stevens said. “So obviously, the earlier the trial date, probably the better for the Greitens team.”


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