I Worked In St. Louis Circuit Attorney Kim Gardner’s Office. Her Indictment of Gov. Eric Greitens is Most Disturbing.

I have served the city of St. Louis for almost 45 years, both as a uniformed police officer and as a prosecutor. I finished out my career as a Special Prosecutor following 13 years as chief of homicide prosecutions. In all those years, serving with five separate Circuit Attorneys — including the current Circuit Attorney, Kim Gardner — I have never seen a Grand Jury be led to return an indictment without evidence of all of the elements of the crime being committed by the accused. The only exception is the case of the indictment brought against Governor Eric Greitens.

I wrestled with keeping my opinions about this case to myself or take the risk of harming the reputation of the Circuit Attorney’s Office, an institution I served and still cherish. After much soul searching, I concluded that expressing these thoughts serves a greater purpose than protecting the reputation of the office.

A bit of background: The State alleges that, almost three years ago, the Governor took a compromising photograph of a woman with whom he had an affair and transmitted it. That’s the charge on which the indictment is based, and that’s why, as a long-time prosecutor, I’m stunned that there’s any indictment in this case at all. Why? Because right out of the gate, in court, the State admitted they do not have the photograph purported to have been taken and no evidence that it was transmitted. They are simply asking you to believe such acts occurred because they wish it so.

Where is the evidence that a photograph exists? Where is the evidence that if a photograph ever existed, that it was transmitted? Without this photograph, essential elements of the alleged “crime” are absent. The lady in question has said that she believes a photo was taken because she detected a flash, but admitted she was blindfolded (apparently of her own volition) while she was engaged in activities with Mr. Greitens. To establish that a crime was committed, it is essential that the evidence be produced. If the State ever had such photograph, it would have seized it as evidence, or risk being accused of incompetence. But they have admitted they don’t have it, which leads to a natural question: if no photo exists, then where is the probable cause to believe that a crime exists? Is it simply the woman’s statement that she believes a photo was taken because she detected a flash while she was blindfolded? And if they don’t have evidence of transmission, how can they charge the Governor under this statute?

In our legal system, the State is under an obligation to surrender “any material or information, within the possession or control of the state, which tends to negate the guilt of the defendant…” — meaning that the State has an obligation, not just to prosecute, but to see that the accused has a fair trial and is accorded justice. In other words, the Circuit Attorney cannot willfully fail to produce evidence that is material and exculpatory to the defendant, simply to secure a conviction. If the State has knowledge of the whereabouts of such evidence, they are required to obtain it and give it to the defense. Not revealing the purported photograph is contrary to all of the principles and requirements which are the foundation of our justice system.

When asked about the evidence in court, the Circuit Attorney told the judge that she needed time to collect it. The time they needed was just until the mid-term elections in November. That date can seem arbitrary, but it’s not. I think this smacks of politics.

There’s more strangeness in this case. In all my years as a prosecutor, I have not heard of a case where the “victim” of this statute — who has expressly begged to be left alone — has nonetheless been required by the State to proceed with a case in violation of her plea for privacy. How does society benefit from coercing an unwilling person to testify? If you talk about an expectation of privacy, certainly this woman has the right to enjoy such expectation without being betrayed by the State, whose primary function is to protect her citizens.

This case gets more puzzling the closer you look at it. For example, why did Circuit Attorney Gardner hire out-of-state private investigators at a cost of $10,000 up front and $250.00 per hour? (I’m guessing this will result in at least another $10,000 when you pay these folks to travel from Michigan to Jefferson City and St. Louis, pay for their travel, time, and lodging.) The Circuit Attorney’s office already has about 20 investigators on the payroll, many of whom had extensive investigative experience before they came to work for the Circuit Attorney. Why are we taxpayers burdened with paying these out-of-state personnel, when very, very competent investigators are already present and paid for?

Here’s the really alarming thing about the deal the prosecutor’s office struck with the private investigators: why were they hired and then told not to produce any written reports? What good could that serve the cause of justice? None. In fact, the prosecution knows that if a report is written it will have to be provided to the defense. Do they really believe that if they receive an oral report that they are not ethically bound to provide that as well?

Ms. Gardner hasn’t just brought in outside investigators into this case. She’s also enlisted outside counsel: She thought it was necessary to bring in Harvard professor Ronald Sullivan to help the prosecution. Big questions remain about why he was brought in and how much he is being paid. According to one news report, his total pay will come out to $120,000. This, apparently, for a 2.5-month length of service! That amounts to $48,000 a month — the equivalent of $576,000 per year.

Whether the final number is higher or lower, how could a public prosecutor justify that kind of expense when she already has experienced trial attorneys on the payroll, including, among others, a former chief prosecutor for a county in Missouri and a very experienced former assistant Missouri Attorney General? On her staff, for instance, is recently retired Judge Robert Dierker, who serves as Chief Trial Attorney and who is recognized as one of, if not the, preeminent expert on Missouri Law. It’s peculiar that Ms. Gardner would hire outside counsel when such distinguished and experienced lawyers are on her staff.

All of this adds up to an uncomfortable conclusion: this prosecution has been and continues to be motivated by politics and not by the evidence. Justice should be the focus, not politics. I have served this office for too long not to speak up — and I hope that other voices do the same.

From 1977 to 2017, Dwight Warren served as a prosecutor in the Circuit Attorney’s office in St. Louis. From 1973 to 1977, he served as a police officer in the city of St. Louis. He also served in the United States Army. He served one tour in Vietnam as an infantryman, and later, as a member of the Army Reserve, served two tours of active duty in Iraq as a JAG. He retired with the rank of Colonel.