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'An abuse of judicial discretion' | Gardner appeals judge's decision to disqualify her from Mark McCloskey case

Filing of the appeal could postpone appointment of special prosecutor to the case

ST. LOUIS — Should Judge Thomas Clark II’s order disqualifying Circuit Attorney Kimberly Gardner from the Mark McCloskey case stand, it will set “an extremely low standard,” by which a judge can remove an elected prosecutor from a case, according to an appeal Gardner filed Tuesday.

Missouri Court of Appeals Eastern District Judge Robin Ransom gave Clark until Jan. 4 to respond to Gardner’s appeal, which could delay the appointment of a special prosecutor to the case.

The appeal follows Clark’s Dec. 10 ruling granting Mark McCloskey’s motion to disqualify Gardner from his case. In his ruling, Clark argued two campaign emails soliciting money from supporters sent days before and after charges were filed “raise the appearance of impropriety and jeopardize the defendant’s right to a fair trial.”

Gardner charged McCloskey and his wife Patricia with gun crimes after photos of the two pointing guns at protesters in front of their Central West End home June 28 went viral. Gardner referred to the protesters as “Black Lives Matter” protesters in her campaign fundraising emails.

“The reference to the incident in Relator’s campaign emails amounts to little more than nothing,” she wrote in her appeal. “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.”

The Realtor is the name of the person filing the appeal, which is know as a “writ of prohibition.”

McCloskey’s attorney, Joel Schwartz, said: “Judge Clark’s ruling was thorough and well-reasoned and we expect his ruling to be upheld by the Court of Appeals.”

Clark’s ruling only applied to Mark McCloskey’s case.

His wife Patricia McCloskey has a case pending before Judge Michael Stelzer. She’s been charged with unlawful use of a weapon and evidence tampering, as Gardner’s office has accused her of disabling the handgun she was seen pointing at protesters. 

Patricia McCloskey told police the gun was inoperable because it had been used as a prop during a trial. 

Crime lab experts noted in a report obtained by 5 On Your Side that the gun was inoperable when it arrived in their custody, but Gardner’s Assistant Prosecuting Attorney, Chris Hinckley, ordered them to fix it.

McCloskey's attorney argued Hinckley made himself a fact witness in the case by doing so. 

Stelzer gave Gardner’s office until 5 p.m. Wednesday to file a motion explaining why he should not adopt Clark’s ruling and disqualify Gardner from Patricia McCloskey’s case, too. Gardner's office filed a motion about an hour before that deadline rehashing the arguments made to the appeals court as to why she should remain on the case as well as mentioning she had appealed Clark's ruling. 

She also argued Hinckley is not a fact witness in this case because he "carried out standard investigative procedures in determining what charges to issue." 

Should Stelzer adopt Clark's ruling, he would then be added to Gardner's appeal. Or, he can wait until the Court of Appeals makes its ruling. 

It’s unclear how Gardner’s appeal will affect the timing of the appointment of a special prosecutor.

Presiding Judge Rex Burlison’s term ends Dec. 31, at which point Stelzer will move into the position and be charged with appointing a special prosecutor.

In her appeal, Gardner wrote Clark’s conclusion is “not only incorrect but factually and legally unsupported and thus warrants correction from this Court because Relator has no personal interest in this case, actual or perceived and because defendant’s right to a fair trial remains unspoiled.”

She calls her campaign emails make “passing reference to the incident while entirely responding to the widespread attacks from Gov. Mike Parson, President Donald Trump, Sen. Josh Hawley and Missouri Attorney General Eric Schmitt, who each drew upon the incident to politically chastise relator while trying to circumvent her statutorily authorized discretion.”

Clark’s ruling also “overemphasized the incident’s reference in each email, unreasonably overstating it as critical to the emails’ purpose.”

Clark’s ruling also “unreasonably equated the emails to relators vilification of defendant," and demonstrates, "clear overreach,” according to Gardner’s writ.

Gardner pointed to a 1976 case known as State v. Burton in which a prosecutor stated in a news article that she had information indicating a defendant’s mental competency and she intended to request he be tried on the charge pending against him. In that case, the Court of Appeals concluded the prosecutor’s statements did not raise a need or disqualification where there was no suggestion that she acted “overzealously, with a personal interest, or in relationship that would bring her conduct within.”

Gardner wrote, “Like Burton, Relator’s conduct was neither overzealous nor indicative of a personal interest in defendant’s prosecution.”

She also took issue with Clark’s reliance on the State v. Hohman case from 1980 in which a prosecutor was disqualified after publishing a campaign ad identifying a defendant by name an vowing to “vigorously” re-prosecute the defendant for murder.

“Relator’s emails, meanwhile, made no such promises or commitments with respect to either the investigation or the prosecution of the defendant’s conduct.”

Gardner also called Clark’s ruling, “an abuse of judicial discretion.”

Gardner notes her office has taken “rather exceptional steps” to accommodate McCloskey, including the issuance of a summons and not an arrest warrant as well as a “willingness” to recommend non-traditional prosecution that would enable McCloskey to avoid criminal conviction, according to the writ.

Clark’s ruling stated Gardner’s emails gave the appearance that she “initiated a criminal prosecution for political purposes,” and “to advance her personal interests” – “A notion that is not only a far cry from the truth, and entirely unsupported by information submitted to the court, but that also does not reasonably appear from a straightforward reading of the emails.”

“Any reasonable reading of the emails reveals that they wholly were responses to political attacks.”

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