ST. LOUIS (CN) — A lawyer for the white St. Louis couple who waved guns at Black Lives Matter protesters this summer argued during a hearing Wednesday that the city’s top prosecutor should be dismissed from the criminal case against his clients.
Mark McCloskey, 63, and Patricia McCloskey, 61, drew national headlines after waving an AR-15 rifle and handgun at hundreds of civil rights protesters in front of their St. Louis home in June. They were each indicted by a St. Louis grand jury for unlawful use of a weapon, a felony, and tampering with a weapon, a misdemeanor.
Appearing before St. Louis City Judge Thomas Clark, attorney Joel Schwartz argued that St. Louis Circuit Attorney Kim Gardner’s decision to charge his clients was politically motivated as evidenced by a pair of fundraising emails sent by Gardner’s campaign that alluded to the McCloskey case.
“She used their case in her fundraising for her election, period,” Schwartz, of Rosenblum, Schwartz & Fry in Clayton, Missouri, told reporters afterward. “That’s all that needs to be said. … It shows the appearance of impropriety. It doesn't happen. You don't see politicians referring to specifics when you're charging individuals. She utilized this to rile her base because her base consisted of those protesters, as well as the people who will be voting for her.”
Clark asked Schwartz during the 45-minute hearing if there was any case precedent. Schwartz replied that there wasn’t because it is so rare.
“There's no established precedent because politicians know not to do that,” Schwartz told reporters on the courthouse steps. “In this particular case, she chose to do it and that was simply wrong. It was improper and created the appearance of impropriety which is why we're here today.”
Eusef Huq, who represented Gardner, did not speak to the media after the hearing.
Huq told Clark that this case consists of context and content. He argued that the context of the emails was in response to attacks from Republicans, including President Donald Trump, regarding the McCloskey incident.
Huq also claimed that the content of the emails contained nothing more than information already supplied by the McCloskeys during multiple media appearances immediately following the incident.
“There is nothing that raises the question about a fair trial,” Huq said. “It was standard political speech.”
The McCloskeys were present during the hearing, but Gardner was not. Due to Covid-19 restrictions, attendance in the courtroom was limited to the participants, judge and court personnel. The hearing was broadcast to the media by a closed-circuit feed in another courtroom.
The husband and wife are being tried separately, in different divisions of the court, even though each case has identical motions. Wednesday’s hearing involved only Mark McCloskey’s case.
Patricia McCloskey also had a brief hearing immediately following her husband’s. That took place in Clark’s division with Judge Michael Stelzer coming into the court to conduct a hearing via the closed circuit for the media’s benefit. Stelzer set a status conference for that case on Dec. 10.
Schwartz, in a brief submitted on July 29, argued that Gardner should be dismissed based on two emails that her election campaign sent out in July seeking campaign contributions while referring to the incident involving the McCloskeys.
Gardner, a Democrat, at the time was involved in a heated primary race. She won that election in August and should coast to reelection on Tuesday thanks to a heavily liberal voting base.
“The July 17th email drew a direct line from the incident, which had not yet resulted in criminal charges, to Ms. Gardner’s political antagonists, and from there to a call for donations to further her re-election efforts,” the brief states. “It implied that defendant was amongst those ‘perpetuating a system of systemic racism and police brutality.’ The July 22nd email reiterated this link … Both emails contained a call to arms.”
In an Aug. 5 reply brief, Gardner said that such accusations stretch the emails’ content beyond reasonable interpretation.
“Nothing in either of the two campaign emails the defendant complains about approaches the type or level of misconduct needed to remove the Circuit Attorney or her entire office,” Gardner’s brief states. “The defendants make no argument of an actual conflict of interest that would require a prosecutor to be removed from the case. Their argument of an ‘appearance of impropriety’ falls flat when evaluated against the necessary standard to remove a prosecutor and an application of that standard to any reasonable review of all the facts.”
Gardner claims the emails were in response to Republican rhetoric regarding the case. The brief notes that Rudy Giuliani, an adviser to President Donald Trump, tweeted that Gardner was “undermining our legal system,” that Trump made false statements publicly about the incident, that Missouri’s Republican Governor Mike Parson said he would pardon the McCloskeys and that GOP Senator Josh Hawley called Gardner’s actions an “outrageous abuse of power.”
The attacks from the GOP officials prompted some members of their base to make death threats against Gardner.
According to her brief, “One email to the circuit attorney read, ‘It is YOU who are the racist, unfairly targeting white McCloskeys for exercising their 2nd Amendment rights while your people stormed their property. U really need to be run out of town you black b----!,’ one person even left a note on her car, ‘I hope you hang from a tree.’”
Schwartz fired back in a supplemental brief filed on Sept. 10 that recent discovery showed Gardner directed investigators to tamper with a handgun held by Patricia McCloskey during the incident and that she directed investigators to speed up the investigation of the case despite a backlog of cases.
“While Gardner may feel herself aggrieved by the national media attention, and certainly should not be the target of hateful speech or threats, she does not and cannot point to any reason why that would permit her to use defendant’s case in her fundraising efforts,” the brief states. “Any school child can tell you that two wrongs do not make a right, and any first-year prosecutor can tell you that prosecutors are held to a different standard than both uninvolved parties and criminal defendants.”
The McCloskeys, both attorneys, claim they felt their lives were in danger on June 28, as protesters who were on their way to Mayor Lyda Krewson’s house advanced onto their private street. Cellphone video showed Mark McCloskey in front of the couple’s $1.15 million home with an AR-15 rifle and Patricia McCloskey with a semiautomatic handgun.
The couple claims they are justified through Missouri’s so-called castle doctrine, which allows the use of deadly force against intruders. Conservatives have rallied behind the McCloskeys, who spoke at the Republican National Convention in August.
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