St. Louis Circuit Attorney Kimberly Gardner has appealed a judge’s decision to dismiss her and her office from prosecuting the case of Mark and Patricia McCloskey, who were charged with gun crimes after threatening Black Lives Matter activists who broke into the couple’s gated community in June.
Last week, Gardner appealed the decision of Circuit Judge Thomas Clark II to remove her from the case over the “appearance of impropriety” raised after Gardner sent out fundraising emails that mentioned the McCloskey case, according to 5 On Your Side. Gardner argued that the judge’s ruling set “an extremely low standard” by which prosecutors could be removed from cases.
“The reference to the incident in Relator’s campaign emails amounts to little more than nothing,” Gardner wrote. “If respondent’s order is allowed, it sends a clear message to defendants that an acceptable pre-trial strategy is to drum up coverage in the media in order to paint the picture that a prosecutor has an improper interest in a case.”
McCloskey attorney Joel Schwartz filed to have Gardner removed in June after she sent out two fundraising emails, one before and one after charges against the McCloskeys were filed. Clark bumped her off the case in a Dec. 10 order.
“This court does not seek to ‘interfere with the democratic process’ but strongly believes the present ‘circumstances’ justify disqualification,” Clark wrote. “Deference to precedent, acknowledging the will of the voters, and respecting separation of powers are all vital to a representative government, an equitable criminal justice system and the rule of law. Likewise, campaigning without tainting the right to a fair trial is equally compelling and constitutionally sacred.”
“After considering the arguments of counsel, the pleadings coupled with the attachments, the applicable case law and the relevant statute, the court finds the emails raise an appearance of impropriety and warrant disqualification,” he continued. “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.”
Prior to the judge’s decision, Gardner defended her use of the McCloskey case in her fundraising emails by citing criticisms directed at her by Republicans such as President Trump and Missouri Sen. Josh Hawley. She also accused the McCloskeys of turning their case into “political theater.”
Gardner’s filing defending her conduct said in part:
Nothing in either of the two campaign emails the Defendant complains about approaches the type or level of misconduct needed to remove the Circuit Attorney or her entire office. The Defendants make no argument of an actual conflict of interest that would require the prosecutor to be removed from the case. (Def. Mot. at 6). Their argument of an “appearance of impropriety” falls flat when evaluated against the necessary standard to remove a prosecutor and an application of that standard to any reasonable review of all the facts. Applying the legal standard, this Court must therefore deny the motion and must instruct the defense to cease its attempts to turn these criminal proceedings into political theater.
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