A judge has disqualified St. Louis Circuit Attorney Kim Gardner's office from prosecuting the Mark McCloskey case. Circuit Judge Thom Clark II stated that a special prosecutor will be appointed to take over the case. The judge said that evidence in Gardner's emails violated the McCloskeys' right to a fair trial.
Clark dismissed Gardner and her entire staff on Thursday, noting in the 22-page order that Gardner and her campaign, where she served as both candidate and treasurer, are almost identical. Clark wrote, "In short, the Circuit Attorney's conduct raises the appearance that she initiated a criminal prosecution for political purposes. Immediately before and after charging defendant, she solicited campaign donations to advance her personal interests."
At the time, Gardner, a Democrat, was involved in a heated primary race, running on a platform of criminal justice reform. She eventually won re-election in November. Clark considered this when making his decision, writing, "Seeking to enhance her personal interests, Ms. Gardner distributes these two different emails following the June 28 event. 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."
Gardner maintained she was under "national scrutiny from our divisive President, the Republican establishment of Missouri, and the right-wing media, including Fox News." One campaign email read, "Kim needs your help to fight back!"
Missouri Attorney General Eric Schmitt vowed to have the charges dismissed back in July to protect the rights of Missourians to defend themselves and their property. He said, “The right to keep and bear arms is given the highest level of protection in the Missouri constitution and our laws, which I am charged with protecting.”
In his ruling, Clark explained that Gardner has every right to rebut criticism. Still, it seems unnecessary to mention or stigmatize the defendant in campaign solicitations, particularly when she purports to be responding to others. Clark added, "In fact, the case law and Rules of Professional Conduct prohibit it."
Mark and Patricia McCloskey, both attorneys, made national headlines in June after pointing firearms at a group of protestors who were walking past their home on their way to the home of St. Louis Mayor Lyda Krewson. Cellphone video showed Mark McCloskey in front of the couple's home with an AR-15 rifle and Patricia McCloskey with a semi-automatic handgun. The couple says the protestors had torn down a fence to enter the gated community and insist they believed they would have burned down their home if the two hadn't "stood their ground."
It is unclear whether Clark's decision means that the case will be dropped. The decision does not apply to Patricia McCloskey who is scheduled to appear before a different judge on Jan. 15. The McCloskeys were each indicted by a St. Louis grand jury for unlawful use of a weapon (a felony) and tampering with a weapon (a misdemeanor.) They have each pleaded not guilty.