Missouri Court Upholds Removal of Prosecutor From McCloskey Gun Case

The appeals court, without explanation, refused to toss a decision that found the prosecutor had a conflict of interest because she sent fundraising emails highlighting the charges around the same time she brought them.

Mark and Patricia McCloskey stand armed in front of their home in St. Louis on June 28, 2020, confronting protesters marching to the mayor’s house. (Laurie Skrivan/St. Louis Post-Dispatch via AP)

ST. LOUIS (CN) — A Missouri appeals court upheld the decision to disqualify St. Louis Circuit Attorney Kim Gardner from prosecuting gun charges against Mark McCloskey, the white attorney who waved an AR-15 rifle at civil rights protesters in front of his mansion last summer.  

The one-page order issued Friday by the Missouri Court of Appeals’ Eastern Division denied, without explanation, Gardner’s writ of prohibition seeking to overturn a decision by St. Louis Circuit Judge Thom Clark II in December. Citing a pair of political fundraising emails, Clark’s order stated that a special prosecutor shall be appointed to take over the case.

Gardner would now have to appeal to the Missouri Supreme Court to get reinstated to the case. Her spokeswoman was unavailable for immediate comment.

Mark McCloskey, 63, and Patricia McCloskey, 61, made national headlines and became folk heroes in GOP circles after waving the rifle and a handgun at hundreds of Black Lives Matter protesters passing by their St. Louis home on June 28, 2020. 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.

Gardner filed separate cases against the husband and wife, and the dispute at issue only pertains to Mark McCloskey’s case. The couple’s attorney is expected to file a motion to have the ruling apply to Patricia McCloskey’s case too.

Joel Schwartz, representing the McCloskeys, argued in October that Gardner should be disqualified because her decision to charge his clients was politically motivated. He said two emails she sent highlighting the case while soliciting campaign donations showed a conflict of interest.

Schwartz was also not immediately available for comment on Friday’s ruling.

Clark found that Gardner and her campaign are almost indistinguishable. The judge noted in his 22-page order last month that she served as both candidate and treasurer.

“In short, the Circuit Attorney’s conduct raises the appearance that she initiated a criminal prosecution for political purposes,” Clark wrote. “Immediately before and after charging defendant, she solicited campaign donations to advance her personal interests.”

Gardner, a Democrat, at the time was involved in a heated primary race. She won that election in August and ultimately won reelection in November, running on a platform of criminal justice reform.

Clark considered that context in his decision.

“Seeking to enhance her personal interests, Ms. Gardner distributes these two different emails following the June 28 event,” Clark wrote. “Importantly, the emails solicit donations while highlighting defendant and the event surrounding his alleged criminal conduct. Both emails are created within a five-day window of her decision to charge defendant on July 20, linking her prosecutorial discretion to money solicitations.”

Eusef Huq, who represented Gardner at the October hearing, argued that the emails should be considered within context and content. He told the judge that the context of the emails was in response to attacks from Republicans, including President Donald Trump, regarding the McCloskeys 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.

The McCloskeys are being tried separately, in different divisions of the St. Louis Circuit Court, even though each case has identical motions.

The McCloskeys, both attorneys, claim they felt their lives were in danger 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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