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Judge removes St. Louis prosecutor from McCloskey case


Big win for the gun-toting husband and wife

Laurie Skrivan/St. Louis Post-Dispatch/Tribune News Service via Getty Images

A judge on Thursday dismissed the St. Louis prosecutor from the case against Mark McCloskey. A judge determined that improper fundraising emails by Circuit Attorney Kim Gardner's campaign infringed on the McCloskeys' right to receive a fair trial.

Circuit Judge Thomas Clark II said that fundraising emails from Gardner's re-election campaign to constituents "raise the appearance of impropriety and jeopardize the defendant's right to a fair trial."

"Like a needle pulling thread, she links the defendant and his conduct to her critics," Clark wrote in the 22-page ruling. "These emails are tailored to use the June 28 incident to solicit money by positioning her against defendant and her more vocal critics.

"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, as reported by the St. Louis Post-Dispatch.

"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."

Gardner, a Democrat, contends that the emails were used to defend herself from conservative politicians and media. Gardner claims she was under "national scrutiny from our divisive President, the Republican establishment of Missouri, and the right-wing media, including Fox News," as reported by NPR.

Clark dismissed the reasoning by stating, "Ms. Gardner has every right to rebut criticism, but it appears unnecessary to stigmatize defendant — or even mention him — in campaign solicitations, especially when she purports to be responding to others. In fact, the case law and Rules of Professional Conduct prohibit it."

The ruling was a big legal win for the McCloskeys. The husband and wife's attorney, Joel Schwartz, filed a motion in July to dismiss Gardner from the case because of the fundraising emails.

"The July 17th email drew a direct line from the incident, which had not yet resulted in criminal charges, to Ms. Gardner's political antagonists and from there to a call for donations to further her re-election efforts," Schwartz argued. "It implied that the defendant was among those 'perpetuating a system of systemic racism and police brutality.'"

In July, Missouri Attorney General Eric Schmitt urged Gardner to dismiss the case against the McCloskeys, and asserted that the St. Louis prosecutor is "engaged in a political prosecution."

As far as what happens next, the St. Louis Post-Dispatch reported:

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.

Gardner filed felony gun charges against the McCloskeys in July after the couple brandished firearms as Black Lives Matter protesters marched near their home in Missouri. Clark noted that the fundraising emails suggest that Gardner "initiated a criminal prosecution for political purposes."

In 2016, the St. Louis Post-Dispatch reported that the George Soros-backed Safety & Justice Committee super PAC made contributions to Gardner's campaign of "at least $190,750.73."

KSDK-TV reported in July, "New York-based billionaire George Soros pumped $116,000 into the Missouri Justice & Public Safety Political Action Committee, which is supporting Gardner."

The McCloskeys were indicted in October on felony charges of unlawful use of weapons and tampering with physical evidence. They have pleaded not guilty.

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