ST. LOUIS (CN) — Citing a pair of political fundraising emails, a city judge on Thursday disqualified Circuit Attorney Kim Gardner from prosecuting Mark McCloskey on gun charges, in a case that made national headlines after the white attorney waved an AR-15 rifle outside of his mansion amid protesters.
The order by Circuit Judge Thom Clark II stated that a special prosecutor shall be appointed to take over the case.
Mark McCloskey, 63, and Patricia McCloskey, 61, became folk heroes in GOP circles after waving the rifle and handgun at hundreds of civil rights protesters in front of their St. Louis home on June 28. 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.
Joel Schwartz, representing the McCloskeys, argued in October that Gardner should be disqualified because her decision to charge his clients was politically motivated. He argued two emails she sent soliciting campaign donations that highlighted the case showed a conflict of interest.
Judge Clark found that Gardner and her campaign are almost indistinguishable. He noted in the 22-page order 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.”
A Gardner spokeswoman issued a statement stating, “We will review the court order and determine our options.”
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 took that into context when considering 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 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.
Schwartz was pleased with the decision.
“We believe that there is no evidence of criminality and were hopeful that it would be dismissed,” he said in an interview.
The McCloskeys are being tried separately, in different divisions of the court, even though each case has identical motions. Clark’s decision only applies to Mark McCloskey’s case.
Schwartz plans to file a motion on Patricia McCloskey’s case to adopt this ruling.
“The way we looked at it is given all of the information regarding Mrs. McCloskey and the operability of her gun and the facts surrounding her case, is that if a judge would disqualify the circuit attorney’s office on Mr. McCloskey’s case, it would be much easier to request a judge to adopt that ruling and do the same thing on Mrs. McCloskey’s case,” Schwartz said.
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.