The Tisaby trial is set to begin March 30th in Division 11.
William Don Tisaby was the hand-picked, ex-FBI investigator Circuit Attorney Kim Gardner hired to assist her in her unilateral role of investigating and charging ex-governor Eric Greitens with felony invasion of privacy by allegedly taking a nude photograph of a mistress and then transmitting it. That case was later dismissed by the state on the morning trial was scheduled to begin. And, as it turns out, the state never had any such photo, could not prove one existed (though the alleged victim “believes” one was taken since she heard a “click” while undressed and blindfolded), and had no evidence that if one ever existed it had ever been transmitted to anyone.
Tisaby is now charged with numerous counts of perjury for alleged lies made during his pretrial deposition in the Greitens case.
Some of the alleged lies pertain to discovery materials, evidence that is required by law to be turned over to the defense. Tisaby said under oath that he didn’t take notes of interviews (and so couldn’t turn them over to the defense) and a video-recorded statement by the alleged victim was not made because the recorder malfunctioned. He also denied communicating with Gardner during a break in the deposition.
Here is the deposition video:
As it turned out, however, there actually were notes of interviews taken by Tisaby, there was a working video-recorded statement of the alleged victim, and Tisaby and Gardner had significant communication during the break of the deposition.
The case against Tisaby hinges on whether those lies were material to the Greitens case or not since for a lie under oath to be perjury it must go to a material issue. Tisaby’s defense can only be “yes, I misspoke but none of that was material to the case.”
The real significance of the Tisaby case goes beyond Tisaby’s misconduct, however. More importantly, his actions reflect Ms. Gardner’s ethics. She was present at the deposition. She heard Tisaby’s responses. She knew that many of his responses were false because she was with Tisaby when he questioned the alleged victim and took notes, she was with Tisaby and the alleged victim when a video-recorded statement was made (and had the video), and she and Tisaby engaged in numerous texts and calls during the break. But she did not intervene when “incorrect” answers were provided by Tisaby.
Gardner, however, has told the New York Times that “she did nothing wrong, and that she corrected the former agent’s errors as soon as she learned about them.”
That, of course, is untrue. She personally witnessed Tisaby lie over and over again and said nothing. Unlike Tisaby, however, her conduct wasn’t perjury since she wasn’t being questioned under oath at the time. It’s notable that when it became clear later that she was going to be called as a witness and would be required to testify under oath, she dropped the case.
All of this misconduct became public in a pretrial motion hearing where the Greitens’ defense argued that the charges should be dismissed due to prosecutorial misconduct, and Greitens’ defense counsel James Martin, a former Assistant United States Attorney, told the court that Gardner “sat there and let him lie every time.” Scott Rosenblum reported that “[n]ot only was her behavior grossly, grossly incompetent, under any stretch but she suborned perjury in my presence.”
At that time, the Circuit Attorney’s Office momentarily saved the Greitens case by throwing Tisaby under the bus, with Chief Trial Assistant Robert Dierker arguing to the court that Tisaby was simply incompetent, and comparing him to Inspector Clouseau.
Tisaby will likely piggyback on this “defense” at his upcoming perjury trial: he’s an incompetent whose lies were not material to the case. It may work. However, I don’t think whatever happens to Tisaby is in the big picture all that significant.
What is significant is that this whole affair gives us great insight into who and what Kim Gardner really is.