The governor’s legal team has offered several reasons a judge should dismiss the felony charges against him. Those reasons are less than compelling.

The governor’s legal team has offered several reasons a judge should dismiss the felony charges against him. Those reasons are less than compelling.

File photo

The governor’s legal team has offered several reasons a judge should dismiss the felony charges against him. Those reasons are less than compelling.

File photo

Dave Helling

Gov. Greitens’ lawyers are on shaky legal ground in fighting grand jury indictment

By Dave Helling


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February 27, 2018 06:20 PM

Missouri Gov. Eric Greitens is in the middle of a horrible political mess . The Missouri House is investigating him, the first step on the road to possible impeachment.

He lacks support from almost every Republican officeholder in Jefferson City . His policy proposals sit lifeless, awaiting a proper burial.

But politics are just part of the equation. Greitens faces enormous legal problems, too — problems that if mismanaged could threaten more than just his job. He could go to prison.

Those issues would disappear if a judge threw out the grand jury indictment before the case went to trial. A dismissal before trial would get him off the legal hook and probably would weaken any impeachment case.

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A full jury trial, on the other hand, would reveal every sordid detail of his admitted affair. And Greitens risks a conviction, as well as real jail time. That’s why he’s hired high-powered lawyers to argue for dismissal of the case.

Sadly for the governor, those lawyers have offered a kitchen-sink tangle of facts and dubious legal arguments to support dismissal.

If I were the governor, I’d be worried.

First, Greitens’ counsel argues Missouri’s invasion of privacy law was meant to punish “third parties” who take pictures and videos of unsuspecting citizens in tanning salons and gyms.

“The law … applies to situations such as voyeurs or peeping toms who take photographs,” the motion says.

But the statute doesn’t mention third parties . It says any person commits invasion of privacy if he or she knowingly takes a picture of another person who is partially or fully nude, who has not agreed to the picture and who has a reasonable expectation of privacy.

Greitens’ motion doesn’t deny the existence of a picture or claim the woman was clothed. It argues the law doesn’t apply because a third party wasn’t involved in the alleged photo.

This seems highly problematic. If I take a picture of my wife in the shower without her consent, have I invaded her privacy? The answer is yes, I have. Same for any other couple. Third parties need not be involved.

Does the situation change if a spouse or paramour agrees to the picture? Sure. But the indictment alleges the woman did not give her consent. That makes it a matter of fact for a jury to decide, not grounds for dismissal.

Greitens’ lawyers also say the woman couldn’t expect privacy in the now-famous basement. “One cannot have an expectation of privacy in a common area of another person’s home,” they argue.

“In such a place,” they continue, “there is an obvious expectation that one would be viewed by the person she is visiting, or even recorded on devices used for routine security.”

Wow. I don’t know about you, but I don’t automatically assume I’m being watched by hidden cameras in someone else’s living room.

But the reasoning is appalling for another reason. It suggests that taking pictures and videos is fine in Missouri, even without consent, if someone has sexual activity in a “common area” inside a private home. That can’t be what lawmakers intended.

Finally, his lawyers claim Greitens had a right to take a picture because he looked at her. “The statute … does not apply to a situation where the photographed party knows he or she is being viewed by his or her partner who takes the photograph,” they say.

Translation? If I see you naked, I can take a picture of you naked, even if you don’t like it.

Greitens’ future hangs on such arguments.

Gov. Greitens isn’t accused of looking at a naked woman. He’s accused of taking a picture of that woman without her knowledge or consent.

Judges don’t usually dismiss indictments. Absent a plea agreement, the governor will likely face a jury, which he should.

If he’s found guilty, the governor’s lawyers can try these arguments on an appeals court while their client prepares for jail.

A St. Louis grand jury on Feb. 22 indicted Missouri Gov. Eric Greitens on a felony charge of invasion of privacy.

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