UPDATED at 4:30 p.m. Thursday with response from spokeswoman for Circuit Attorney Kimberly M. Gardner.
ST. LOUIS — A judge on Thursday cited improper fundraising emails by Circuit Attorney Kimberly M. Gardner’s campaign in disqualifying Gardner and her office from a gun case against Mark McCloskey, who with his wife pointed firearms at protesters outside their Central West End home in June.
Circuit Judge Thomas Clark II’s order said two fundraising emails that Gardner’s reelection campaign sent in response to political attacks before and after she charged Mark and Patricia McCloskey with felony gun crimes in July raised the appearance that she “initiated a criminal prosecution for political purposes.”
“Like a needle pulling thread, she links the defendant and his conduct to her critics,” Clark wrote. “These emails are tailored to use the June 28 incident to solicit money by positioning her against defendant and her more vocal critics.”
The judge’s order deals a political blow to Gardner, whose office has waged numerous legal challenges to defend her practices and reform-minded agenda during her first term.
In a text message, Gardner’s spokeswoman Allison Hawk said the Circuit Attorney’s Office “will review the court order and determine our options.”
The McCloskeys pleaded not guilty in October to charges of unlawful use of a weapon and evidence tampering related to the confrontation with protesters outside their home on Portland Place, a private and gated street. The protesters were walking past en route to a demonstration blocks away outside the home of Mayor Lyda Krewson. The McCloskeys said they felt threatened by the group as it walked by.
The couple was later indicted on charges they illegally brandished weapons at protesters and altered a pistol to make it appear that it was not functioning at the time.
They sought to disqualify Gardner from the case, arguing that she exploited their case for political gain when her campaign mentioned them in fundraising emails weeks before the Democratic primary in August.
Clark’s order, which applies only to Mark McCloskey's case and not his wife’s, also bars the rest of Gardner’s office from prosecuting the case.
“This is a high-profile case, receiving extensive media coverage, eliminating any possibility that any assistant circuit attorney is unaware of Ms. Gardner’s incipient interest, initial involvement and advocacy on this matter,” Clark said.
State law directs the St. Louis Circuit Court’s presiding judge to appoint another prosecutor in the case, the order says. Patricia McCloskey’s case is assigned to Circuit Judge Michael Stelzer, who will replace Circuit Judge Rex Burlison as St. Louis’ presiding judge next year.
Defense lawyer Joel Schwartz said he’ll file a motion requesting that Stelzer adopt Clark’s ruling in Patricia McCloskey’s case.
“This is what we wanted,” Schwartz said. “We would like a fair-minded prosecutor to take a look at the alleged crimes and reassess the evidence and see what they come up with because we don’t believe any of the evidence supports any of the charges. … As long as that happens, then I think we’ll have the right outcome and that would hopefully be no charges.”
Gardner’s lawyers had pushed back on the McCloskeys’ attempt to remove Gardner, saying she has the right to defend against attacks from Republican political foes from Missouri and elsewhere. The campaign emails, her lawyers have said, contained only generic references to the McCloskeys without mentioning them by name, made no promises to prosecute them in exchange for votes and amounted to constitutionally protected “campaign speech.”
Her lawyers said the McCloskeys’ claim that Gardner exploited them for political gain “ties an imaginary line of inference” from Gardner’s criminal justice reform campaign platform to the couple’s case.
Gardner’s campaign emails to supporters July 17 and 22 each mentioned the incident outside the McCloskeys’ mansion. The second email said, “In the last 24 hours, there has been a lot of national attention surrounding Kim’s decision to press charges against a couple that brandished guns at a peaceful Black Lives Matter protest. For merely doing her job, Kim has received death threats, been attacked by Donald Trump, and berated by Missouri’s Governor, Senator and Attorney General.”
The email went on to say that “this is what happens when leaders like Kim stand up against a system that elevates the privileged and powerful.”
Gardner has previously tweeted that “it is extraordinarily rare for the court to order the disqualification of the elected prosecutor’s entire office.” She called the McCloskeys’ allegations “baseless and meritless.”
Clark said Gardner has a right to rebut criticism from political opponents but questioned her decision to raise money while referring to an active criminal case.
“In short, she identifies her critics, links them to (Mark McCloskey), requests the campaign contribution to fight back and forewarns criminal prosecution by holding defendant ‘accountable,’” Clark wrote. “To a reasonable person, this language forecasts prosecutorial action.”Missouri Attorney General Eric Schmitt sought to intervene in the case by filing a brief supporting a motion to dismiss it. Gov. Mike Parson has said he will pardon the McCloskeys if they are convicted.
Joel Schwartz, lawyer for Mark and Patricia McCloskey, provides reporters a summary of his argument seeking to disqualify Circuit Attnorney Kim Gardner from prosecuting the gun and evidence tampering charges against the St. Louis couple. pic.twitter.com/o9l5eVfeoe— Joel Currier (@joelcurrier) October 28, 2020
1/ Regarding today’s hearing on Patricia and Mark McCloskey’s motion to disqualify the CAO and office.— Circuit Attorney (@stlcao) October 28, 2020
Statement from Circuit Attorney Kimberly M. Gardner
It is extraordinarily rare for the Court to order the disqualification of the elected prosecutor's entire office. pic.twitter.com/Bhi5P2ckD5