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Circuit Attorney’s Removal From McCloskey Prosecution ‘Highly Unusual,’ Experts Say

Mark and Patricia McCloskey are now facing felony charges for unlawful use of a weapon. Our legal roundtable will discuss the merits of the charge.
File photo / Bill Greenblatt / UPI
Mark McCloskey, left, faces a felony charge of unlawful use of a weapon. The judge has said the office of Circuit Attorney Kim Gardner cannot prosecute the case against him.

A judge ruled earlier this month that St. Louis Circuit Attorney Kimberly Gardner can’t prosecute one of the attorneys who infamously brandished a gun at protesters this summer.

Gardner’s initial prosecution made headlines around the world — and made the attorneys, Mark and Patricia McCloskey, public figures. They even made an appearance at the Republican National Convention.

But now their prosecution is in doubt. The fact that Gardner cited the case against Mark and Patricia McCloskey in two fundraising emails, wrote Circuit Judge Thomas Clark II in Mark McCloskey’s case, could give the appearance that she brought the criminal prosecution “for political purposes.” Clark also barred other prosecutors in Gardner’s office from taking the case.

Clark’s order says that the court’s presiding judge must now appoint “some other attorney” to prosecute Mark McCloskey. Meanwhile, attorneys for Patricia McCloskey seek to have the judge in her case similarly disqualify Gardner’s office. The circuit attorney had a deadline of Dec. 23 to respond.

Susan McGraugh, director of the Criminal Defense Clinic at St. Louis University School of Law, said on St. Louis on the Air that it was unusual to see a prosecutor forced off a case. Often, prosecutors accused of conflicts will themselves decide to step back. “It’s highly unusual that a judge has to step in and do it,” she said.

Nicole Gorovsky, a former prosecutor now in private practice at Gorovsky Law, echoed McGraugh’s surprise at the judge’s ruling.

“In my entire career I don’t think I’ve seen this,” Gorovsky said. “I think judges are generally very hesitant to get involved in these types of issues. … I was pretty surprised by the ruling, actually.”

Mark Smith, a vice chancellor and dean for career services at Washington University, noted that the judge was in some ways overriding the voters, who handed Gardner a second term this fall.

“I do think it’s a close case. I think it’s a pretty unusual situation,” he said. “Circuit Attorney Gardner is a controversial figure. But, the citizens of St. Louis, we elected her as our prosecutor. And part of that was, she represents a particular approach to criminal law enforcement. Part of that is going after someone like the McCloskeys.”

But McGraugh, a longtime defense attorney, said she sees merit to the decision, however unusual.

“For me, it’s important that there be an appearance of impartiality,” she said. “No one is saying Kim Gardner only did this to make money. They’re saying it doesn’t look fair. As a member of the criminal defense bar, I support giving everyone a fair shot, and I think this is part of that.”

Now, she noted, the question becomes whether any other prosecutor will be willing to take the case and actually prosecute it, rather than deciding there’s simply not enough evidence. She suggested other prosecutors might decline rather than step into a political minefield, especially in a case where Gov. Mike Parson has already indicated he will pardon the defendants.

On the show’s legal roundtable, the attorneys also discussed the dismissal of criminal charges in a fatal duck boat accident, funding for the public defender’s office in Missouri and the state’s medical marijuana regulations.

Panelists agreed that, following the lead of other states, Missouri may have to change its rule requiring that anyone holding a state license to sell or grow cannabis be a resident. The current requirement likely violates the U.S. Constitution’s Commerce clause. “I could see this being unconstitutional,” Smith said.

The attorneys also touched on the case of Wiley Price, a state representative accused of covering up a sexual encounter with an intern. Price’s attorney, who has not been named, has been accused of leaving his phone in a hearing room in an attempt to record closed-door deliberations.

“It’s underhanded,” Gorovsky said. “That attorney’s Bar license could be in jeopardy.”

Smith said he could even see potential criminal charges, perhaps related to wiretapping laws.

St. Louis on the Air” brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill and Lara Hamdan. The audio engineer is Aaron Doerr.

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Sarah Fenske served as host of St. Louis on the Air from July 2019 until June 2022. Before that, she spent twenty years in newspapers, working as a reporter, columnist and editor in Cleveland, Houston, Phoenix, Los Angeles and St. Louis.