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Judge dismisses McCloskey prosecutor over politically driven charges

Armed homeowners Mark T. and Patricia N. McCloskey. (Laurie Skrivan/St. Louis Post-Dispatch/TNS)
December 11, 2020

A St. Louis judge dismissed the prosecutor leading the charge against Mark McCloskey, the man who, along with his wife Patricia McCloskey, was accused of unlawfully pointing a firearm at demonstrators who trespassed on a private, gated street in front of their home in June.

On Thursday, Circuit Judge Thomas Clark II found two fundraising emails related to Circuit Attorney Kimberly M. Gardner’s reelection campaign appeared to show that she “initiated a criminal prosecution for political purposes,” disqualifying the attorney, the St. Louis Post-Dispatch reported.

“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 emails were reportedly a response to political attacks both prior to and following felony gun charges she filed against Mark and Patricia McCloskey.

While the judge’s order is considered a setback to the attorney, Gardner’s spokeswoman said her office “will review the court order and determine our options.”

In October, the McCloskeys pleaded not guilty to evidence tampering and unlawful use of a weapon charges, asserting that they felt threatened by a large group of demonstrators who broke down a gate in front of the McCloskey’s residence en route to a protest outside of Mayor Lyda Krewson’s home.

The couple argued that Gardner should be disqualified from prosecuting the case, alleging that the attorney used the case for political gain after she mentioned the defendants in a fundraising email prior to the Democratic primary in August.

Gardner’s entire office is also barred from prosecuting the case, but the judge’s order only applies to Mark McCloskey’s case, not his wife’s.

“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.

Joel Schwartz, a defense lawyer, plans to file a motion extending the ruling to 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 argued that the emails amounted to constitutionally protected “campaign speech,” comprised of vague references to the McCloskeys without making any promised to prosecute the couple in exchange for votes.

Missouri law allows the St. Louis Circuit Court judge to appoint a different prosecutor.