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These Five Questions About The Eric Greitens Indictment Must Be Answered


Three members of the Duke lacrosse team were accused of rape in 2006. Tried in the court of public opinion and hung out to dry by their university, the boys were later declared completely innocent. After the fact, it was called a “tragic rush to accuse,” and it left the boys’ reputations ruined, a prosecutor disbarred and jailed, and a country reckoning with how it fell for the narrative the media pushed.

It’s worth keeping that case in mind as another graduate of Duke, Missouri Gov. Eric Greitens, stands in the crosshairs of St. Louis Circuit Attorney Kim Gardner. Greitens was indicted for felony invasion of privacy, in a case with dynamics that seem strikingly similar to the Duke lacrosse case — a prosecutor who may have brought an indictment based more on politics than facts, and a public that may be judging too quickly.

It is my personal opinion that Gardner may be guilty of malpractice and malfeasance on par with the Duke lacrosse case, but with potential to do far greater harm to our nation. Her misconduct is of such a magnitude that she should be investigated and possibly disbarred. If she is found to be guilty of malfeasance, like the infamous prosecutor in the Duke rape case, she too should face criminal charges.

I know Gov. Greitens. I wrote a review for his book, and as a fellow military officer I developed a deep admiration for him. I co-presented with him at a school safety conference in Missouri. I also train police in all 50 states, and I have provided training for all federal law enforcement agencies. My books are required reading in many federal and local law enforcement academies. I have had articles published in the Harvard Journal of Law and Civil Policy and many leading law enforcement journals, and I have been inducted as a “Life Diplomate” by the American Board for Certification in Homeland Security, and a “Life Member” of the American College of Forensic Examiners Institute. From all these perspectives — as a fellow military officer, a law enforcement trainer, and an American citizen — I am simply outraged by what appears to be partisan political bias and egregious injustice represented by this prosecution.

Five questions about the legitimacy of this case demand an answer.

1. Where is the police report?

Our legal system typically works like this: someone commits a crime against someone else. The victim calls the police, who file a report and conduct an investigation. A prosecutor uses the police documents to get an indictment, and a trial begins.

That’s how the system is supposed to work. But in this case, the indictment came down without a police report. It came without a full investigation. And — astonishingly — it came without a victim seeking justice. We know, from prior reporting, that the person who the Circuit Attorney has alleged is the victim never went to the police and never brought an action against Greitens. Indeed, her only complaint has been that this case was brought into the public to begin with. She asked for privacy, and the prosecutor gave her a circus.

Remember how this case first came to light: An aggrieved ex-husband recorded the victim without her consent or knowledge. A television station, Missouri’s KMOV, had shabby enough editorial standards that they chose to run that recording on the nightly news, even as other news organizations passed on it. And that, it turns out, is all that was used by the prosecutor to bring a charge: a secret recording by an angry ex-husband, and a news report.

That’s hardly the stuff of which felony indictments should be made.

2. Where is the evidence?

Gardner’s allegation depends on one question: did Greitens take a compromising photo of the alleged victim in the spring of 2015 and transmit it? Through feints and hints in the media, the prosecution claimed to have such a photo. Some in the media believed them. Not so. Based on discovery delivered to the defense just a few days ago, the prosecution was forced to admit that it has no photo. The damning piece of evidence — the keystone for their entire case — doesn’t exist.

So what other evidence do they have? None. Yes, you read that correctly: There is no other evidence in their possession. The prosecution admitted as much in testimony before the judge this past week. They pleaded with the judge to allow their office to let them have the summer to “gather the evidence.”

Sorry, but Gardner has it backwards. Evidence is supposed to lead to an indictment, not the other way around.

3. Why did the FBI, the U.S. Attorney, and the police refuse to look into this case?

In words she must surely want to take back, the spokesman for Gardner’s office admitted to the St. Louis Post Dispatch, when asked about other law enforcement agencies who looked at this case, “The police, the FBI and the U.S. attorney’s office declined to investigate for various reasons.”

That’s telling: The indictment and takedown of a governor is a big deal for any law enforcement agency. And yet no one bit. Gardner shopped this case to other agencies, and those agencies saw no evidence of a crime and decided not to investigate.

That’s also important because those institutions, particularly the U.S. Attorney and the FBI, are responsible for dealing with public corruption. In fact, they have a whole unit devoted to just that. Had there been evidence to suggest a crime by a high state official, surely they would have brought action. That none of them have is an important signal.

4. What’s the deal with the private investigators?

For reasons unknown, Gardner’s office did not use police detectives or even its own office investigators to look into the Governor’s actions. That’s highly unusual. Standard operating procedure for a public prosecutor is to use public resources to conduct an investigation. What Gardner did instead was pay a Michigan-based firm $10,000 to come to Missouri and look into the matter.

There are a few troubling elements to this. First, why an out-of-state firm? Surely there are Missouri-based private investigators who could have been contracted to do this work just as well. Second, were these individuals sworn in? That’s done when using private investigators in this sort of action; it ensures that the people doing the question-asking bear a responsibility to the court and to the law. Third, who was paying them? If taxpayer dollars were paid to these individuals, the public has a right to know. And if they were paid for with private funds, that’s an even bigger red flag.

Finally, why did those investigators travel to Jefferson City, the state Capitol, to talk to politicians? The investigators were first introduced to the public because politicians in the state’s Capitol admitted that they had spoken to them. That begs, even screams, the question: What would politicians in Jefferson City have to say about the facts of a felony indictment about an incident that took place three years ago in St. Louis, before the governor was even in office? These politicians had nothing to do with this case, and what’s worse, many of them have already revealed their biases against Greitens.

Who these investigators are, what they were doing, how they were paid, and why they were used in the first place are all important questions. Already a complaint has been filed about this matter from the association that oversees private investigations in Missouri. Hopefully that complaint yields the answers that haven’t yet been delivered by Gardner.

5. Why did the prosecution want so badly to delay the trial until the fall?

Here’s a final and critical question: Why is the prosecution dragging its feet on the trial date? Just this past week, they asked the judge to delay the trial for several months. One likely answer: They just aren’t ready for trial. As mentioned above, they have plainly admitted they need time to gather the evidence and make an actual case against Greitens.

But the real reason may be more nefarious. The prosecution specifically asked the judge to delay the trial date until just before the mid-term elections on November 6th. Why does that matter? Because it means that Democrats running for office throughout Missouri will be able to use the trial to campaign, fundraise, and win votes. As any Democrat knows, dragging this news on through the summer could pay huge political dividends. As an elected Democrat, Gardner surely knows that.

Thankfully, Greitens attorneys reminded the court that the right to a speedy trial is enshrined in our legal system. The judge denied the prosecution’s request, and thus, denied them the political hay they hoped to make.

These five questions matter.

Had they been asked in a rigorous way about the Duke lacrosse case, those young men might have been spared the humiliating, expensive, and unfair treatment they endured. Once accused of rape, a cloud of suspicion forever hangs above their heads, no matter what announcements or restitutions are made after the fact. That case still angers many people — and with good reason.

Let’s also remember: Someone did go to prison in the Duke lacrosse case. The prosecutor, Mike Nifong. Disbarred and jailed, he was also slapped with a multi-million dollar civil suit. So clear were his political motives, so aggressive was his pushing of a narrative in the media, that nothing could save him once it turned out the whole story was fabricated.

The Duke case teaches a vital lesson for the Greitens case: In the rush to judge a governor by a scandal, let’s not lose sight of the facts. Or in this case the complete lack of facts. It is vital that sober-minded people — in the media, law enforcement, and in the legal profession — continue to ask these questions. I believe that the answers could demonstrate a level of partisan character assassination that would enrage any citizen who believes in our legal system and our way of life.

One public safety official has described this case as simply “nuts” and “unlike anything I’ve ever seen in all my years of law enforcement.” If Gardner is successful in harming a state governor with what turns out to be a malicious, politically motivated prosecution, then every politician and all American citizens should fear the harm that can be done to our nation and to our way of life by such “weaponized” prosecutors with a politically-motivated agenda of prosecution and persecution of elected officials.