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Appeals court upholds decision to dismiss Gardner from McCloskey case

Circuit Attorney Kimberly Gardner can now only appeal to the Missouri Supreme Court
Credit: UPI / KSDK

ST. LOUIS — The Missouri Court of Appeals has denied St. Louis Circuit Attorney Kimberly Gardner’s appeal of a St. Louis judge’s dismissal of her and her office from the McCloskey case.

The move means Gardner will have to appeal Judge Thomas Clark and Judge Michael Stelzer’s decision to dismiss her from the case to the Missouri Supreme Court.

In a statement, Gardner's office said only she planned to appeal to the state's highest court.

The McCloskeys' attorney, Joel Schwartz, said: "The circuit judge Clark made a well reasoned legal decision that we fully expected to be upheld and he has been proven right by the court of appeals."

As for Gardner's decision to take this matter to the state's highest court, Schwartz said simply, "That's something she has the right to do."

Mark and Patricia McCloskey have become household names across the country after pointing guns at protesters in June.

In campaign fundraising emails, Gardner mentioned the president and governor’s criticisms, accusing them of “fighting for the two who pointed guns at citizens during the Black Lives Matter protests.”

One of the emails was sent 48 hours after she announced she was charging the couple. She raised more than $17,000 between July 17 and July 23, which is when the emails were sent.

The couple’s attorney, Joel Schwartz, argued Gardner’s campaign fundraising emails jeopardized the couple’s right to a fair trial and met the legal threshold of “an appearance of impropriety.”

Gardner argued her fundraising emails were responses to attacks from conservative politicians, and she made "passing reference" to the McCloskeys in them.

But the St. Louis judges agreed with the McCloskeys and dismissed Gardner and her office from both cases.

READ MORE: Dismissals and appeal put prosecution of McCloskey case on hold, for now

Their decisions mean a special prosecutor must be appointed to oversee the cases — and, typically, the presiding judge in St. Louis appoints the special prosecutor.

But the presiding judge in St. Louis, whose term took effect Jan. 1, is Stelzer — the judge who just dismissed Gardner from Patricia McCloskey’s case.

One of the final acts of Stelzer’s predecessor, Judge Rex Burlison, was appointing Judge Steven Ohmer to find a special prosecutor.

No word yet on when Ohmer will act.

Sources tell me Burlison asked “multiple” public and private attorneys to take the case and was turned down.

Sounds to me like it’s time to stop asking, and just make an appointment.

But Gardner’s fight to keep the case isn’t quite over just yet.

She can appeal to the Missouri Supreme Court, which her office Friday afternoon said she plans to do. 

Or whether Ohmer will be waiting on making a decision about a special prosecutor until he knows all of Gardner’s appeal options are over.

There is no deadline for the supreme court to make a ruling on the matter should it come before them, either.

So, as they say in television, stay tuned.

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