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Byers' Beat: Dissecting the McCloskey plea deal

Special Prosecutor Richard Callahan explains his thinking behind the charges the McCloskeys faced

ST. LOUIS — Richard Callahan believes the McCloskeys have paid the highest price for their famous actions in June 2020.

In case you are among the few who don’t know their name by now, images and videos of them pointing their guns at protesters who were on their way to former Mayor Lyda Krewson’s house have become an international sensation.

The subsequent actions of St. Louis Circuit Attorney Kimberly Gardner – charging them with felonies – also drew national attention, and her use of the case in campaign fundraising emails ultimately got her dismissed from the case.

Enter Callahan.

The 74-year-old was appointed to serve as the special prosecutor in this case.

He has a lengthy history in the legal profession – which includes starting out in the St. Louis Circuit Attorney’s Office as well as serving as the U.S. Attorney for the Eastern District of Missouri.

He dropped the felonies against them in May, charging Patricia McCloskey instead with second-degree harassment. He said he did not believe there was enough evidence to support a tampering with physical evidence charge against her in which Gardner’s prosecutors alleged she had altered the weapon, and he dropped the unlawful use of a weapon charge as well.

He did the same for Mark McCloskey, who pleaded guilty to one count of fourth-degree assault, a class C misdemeanor. Gardner charged him with unlawful use of a weapon.

READ MORE: Mark and Patricia McCloskey plead guilty to lesser charges in gun case

So, was Callahan just going easy on them?

Not as he sees it.

“When I first started in 1972 as prosecutor, the Missouri statues were in five volumes,” he said. “Now there are 24 volumes.

“Anytime somebody commits a crime, you have a menu of charges you can pick from.”

Getting a conviction on the felony charge would make it subject to all of the gun laws that favor self defense in Missouri.

“The state would have to prove those defenses and I don’t think I could have won at trial. The advantage to the harassment charge was, by a quirk in the way law is written, none of those defenses are available, so I knew that’s where I was going and that’s where I would probably win if it went to trial.”

But going to trial is a gamble.

“You never know in a trial, there’s always a chance with Mrs. McCloskey, I was still going to try her on the exhibiting charge because her conduct was much more aggressive than Mr. McCloskey, but the way I charged it gave her the option of ending the matter by simply pleading to the harassment and the felony went away. I didn’t want to play a game of all or nothing, so that was the reason I did the alternative charging. While it made it more likely I would win on a misdemeanor, it also made it more likely I wouldn’t completely lose.”

In her original statement, Gardner said she was open to offering the McCloskeys a chance at a diversion program.

“I didn’t defer prosecution, I actually got a conviction,” Callahan said.

He said his experience working under Attorney General John Ashcroft’s administration also played a role in his decision to reduce the charges.

“He had policy for Department of Justice prosecutors, they had to charge the most serious crime supported by the evidence,” Callahan said. “I never agreed with that policy.

“I think you save the most serious charges for those people with criminal records or exceptional cruelty.

“The exhibiting charge in this case was the most serious charge here, so I thought, by my compass, something less than the most serious would be most appropriate for a couple in their 60s with no criminal record.”

Mark McCloskey pleaded guilty to the fourth-degree assault charge and will pay a $750 fine. Patricia McCloskey was fined $2,000 to the courts and ordered to pay $10 to the crime victims fund.

Callahan also balked at the couple's request to have the guns rendered ineffective and given to a charity for auction as historic artifacts. The judge denied the request.

“I thought the most important aspect was to forfeit and destroy the guns,” Callahan said. “Some groups wanted to buy the gun and use it as a trophy display.”

Credit: KSDK
Patricia and Mark McCloskey, shown aiming their guns at protesters when they walked into their neighborhood in St. Louis on June 28, 2020.

But Callahan said he does wrestle with one aspect: whether he should have pursued a Suspended Imposition of Sentence, or probation, for the couple or the fine. He opted for the maximum fine.

“I was afraid if I did an SIS, it might appear that they had gotten away with the lighter punishment,” he said.

Mark McCloskey defiantly stood on the courthouse steps following the hearing Thursday and told 5 On Your Side’s Sara Machi he is guilty of the crime for which he was convicted and that he would do it again.

Even though Callahan believes he could have won a trial on the lesser charges, so does the McCloskey’s attorney, Joel Schwartz.

“Had this case proceeded to trial, there certainly would have been a different posturing and arguments, the fact that he was in fear being one of them,” Schwartz said of Mark McCloskey. “But he needed to put this behind him to focus on his run for the Senate.”

It would be on Callahan to prove the McCloskeys had no reason to fear the group of mostly Black people holding Black Lives Matter signs.

“If you saw 100 strangers approaching your house this evening and didn’t know the specific reason, would it be reasonable that you were in fear?” Schwartz said.

Schwartz admits Callahan would have been a formidable opponent if the case had gone to trial.

“He is as fair a man as there is out there, and I don’t know that you’ll find anyone in the system who would say anything different,” he said. “If somebody tries to second-guess his decision, they do so at their own peril.”

Gardner’s spokeswoman said she did not have any comment on the outcome.

As for Callahan, he said he will be returning to Jefferson City to resume his hobby – training homing pigeons.

He’s unsure whether this might have been his last trip to a courtroom.

And if it is, he believes he went out on a win.

“I’m comfortable with fading away,” he said.

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