Updated at 8:00 p.m. May 10 with more information from the first day — Missouri Gov. Eric Greitens was in a St. Louis courtroom Thursday watching jury selection for his upcoming invasion of privacy trial slowly unfold.
Wearing a business suit and a purple tie, Greitens spent most of the day quietly conferring with his attorneys. He’s accused of taking a photograph of a woman with whom he had an affair without her consent — and placing it in a position to be accessed by a computer.
Over the next few days, 160 potential jurors are expected to come through St. Louis Circuit Judge Rex Burlison’s courtroom. On Thursday and Friday, attorneys will focus on how much each person has heard about the case, and whether they can leave the information they have heard behind. More detailed questioning will take place on Monday.
Everyone had hoped to bring in two groups of 40 per day, but Thursday took a bit to get going. By lunchtime Thursday, just three jurors had made it through to the second round. Some were struck because the judge ruled they could not be fair, like one juror who told the court he thought Greitens was guilty, but "he's not in jail because he's got money." Others were excused for medical reasons, or because they had travel or family commitments.
The pace picked up a bit in the afternoon, and by the time the first day wrapped up, 17 of the 40 jurors questioned had been asked to come back on Monday. Burlison told the attorneys to confer on Friday morning and see if they could agree on seating or striking some jurors without needing further inquiry.
Attorneys on both sides spent Thursday laser-focused on what potential jurors had heard about the governor’s case in the media. Scott Rosenblum, a member of Greitens' defense team, was also looking to see if they were aware of Greitens’ other felony charge for using a fundraising list from a charity without its permission.
John Ammann of Saint Louis University Law School said pre-trial publicity will end up being an important factor in how the jury is selected.
“It’s going to be hard to find people who have not heard anything,” said Ammann, who was present in the courtroom during the jury selection process on Thursday. “I think what the judge has to look for is people who have a causal knowledge of the case. And that they have not thought about it; it’s not on their radar screen, and they’re not forming any opinions.”
Burlison said this week that he would consider a defense motion to have him, instead of a jury, rule on the case at the end of jury selection. The final jury is supposed to be seated by Monday.
Computer technology looms large
Assistant Circuit Attorney Robert Dierker said on Wednesday that prosecutors do not have the photo they claim Greitens took. They also don’t have any proof that Greitens sent the photo to the iCloud. The prosecutors wanted to have an expert testify about how taking a photo on an iPhone stores it in the device’s memory and therefore meets the statutory definition of “transmission” necessary to make Greitens’ alleged offense a felony. Burlison has balked about letting that expert testify, but added that it’s up to the jury to decide on that point.
“They’re arguing that your iPhone is a computer, I’m not sure there’s any dispute about that,” Ammann said. “And that you don’t have any choice in it. If you take a picture with your iPhone, it’s automatically transmitted in some shape or form. … Right now the judge has put it in the hands of the jury. But keep in mind: Even in a jury trial, the judge has the ability at any point in the process to take it out of the hands of the jury by saying, ‘There’s not enough evidence to proceed’ or, ‘I’m going to instruct the jury in a certain way.’”
Without a photo to show jurors, the woman’s testimony will end up looming large when the trial gets underway, said Kathryn Banks, a former public defender and a faculty member at Washington University.
“It goes back to the credibility of the witness,” Banks said. “And there are many cases that are proven based on, essentially, circumstantial evidence. And so, if she testifies in a way that the jury finds believable and to be credible, certainly they can believe that burden was met by the prosecution.”
Woman gets support outside courtroom
While jury selection was happening Thursday afternoon, a group of demonstrators expressed support for the woman at the center of the case.
Since Greitens admitted to an extramarital affair in January, the woman has not spoken publicly. It was her ex-husband who exposed the story by playing audio recordings that he took without her permission. Since January, it’s been revealed that the ex-husband’s attorney received $120,000 from an unknown source before a KMOV story aired following Greitens’ State of the State address.
A House report on the governor’s conduct featured the woman testifying about physical and sexual abuse she experienced during the 2015 affair. Greitens has strongly denied those accusations.
Pamela Merritt was one of the people at the rally that NARAL Pro-Choice Missouri and Reproaction organized. She said this case “is bigger than Gov. Greitens and a single felony count,” adding that she wanted to show support for the woman if her sexual history and counseling may be brought up in court.
“I am so impressed by the fact that she had to courage go under oath before multiple different bodies,” Merritt said. “So, she’s already told this story under oath. But it so critical that she be supported, but also that she hear we are so proud of her and that this is an amazing achievement. Facing the same consequences, I think lots of people would buckle.”
“Even though she knows it’s going to be her word against somebody else’s word, that they still make the system force that final verdict,” she added.
Follow Jason on Twitter: @jrosenbaum
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