St. Louis, MO – The attorney for the St. Louis couple who was charged after they waved weapons at protesters in defense of their home has filed a motion to disqualify St. Louis Circuit Attorney Kim Gardner and her entire office from prosecuting them.
Joel Schwartz, the attorney for St. Louis homeowners Mark and Patricia McCloskey, has called for a special prosecutor to be appointed to handle the case, KMOV reported.
Schwartz argued in his motion that Gardner shouldn’t be allowed to prosecute the couple because of statements that had been made by her campaign regarding the case.
The court filing showed that Gardner sent an email out to potential donors before charges were filed against the couple that condemned the McCloskeys, KMOV reported.
“You might be familiar with the story of the couple who brandished guns during a peaceful protest outside of their mansion,” the letter read.
It also said “…President Trump and the Governor are fighting for the two who pointed guns at peaceful citizens…” along with links to donate money to her campaign, KMOV reported.
The McCloskeys’ attorney said the campaign emails showed Gardner had a personal interest in the outcome of their case.
“Here, a reasonable person with access to all the facts would find that there was at least the appearance of impropriety, in that Ms. Gardner’s decision may have been affected by her personal, political, financial, and professional interests, and that her neutrality, judgement, and ability to administer the law in an objective manner may have been compromised,” Schwartz wrote in his motion to the court.
Gardner is facing off in a hotly-contested primary on Tuesday, KMOV reported.
This was not the first impropriety that Gardner has been accused of in connection with this case.
The gun that Patricia McCloskey waved at protesters who stormed her neighborhood was an inoperable prop from a court case until prosecutors reassembled it and charged her with a crime.
Gardner’s staff ordered the crime lab to disassemble and reassemble the handgun Patricia McCloskey had voluntarily surrendered to police via an attorney, KSDK reported.
Patricia and Mark McCloskey had told investigators beforehand that the weapon had been rendered inoperable so it could be used as a prop inside a courtroom for a lawsuit against a gun manufacturer. However, in order to charge Patricia McCloskey under Missouri law, the gun had to be “readily” capable of lethal use, KSDK reported.
St. Louis Assistant Circuit Attorney Chris Hinckley ordered the crime lab to field strip the pistol.
Documents showed the techs found the gun been assembled wrong and the firing pin spring was put in backward, in front of the firing pin, rendering the weapon inoperable, according to KSDK.
The documents also showed that firearms experts disassembled the weapon and reassembled it properly, then test-fired it to confirm it worked.
Staff in the crime lab photographed the weapon’s disassembly and reassembly, according to KSDK.
But there no was no reference to the fact the gun didn’t work in the charging documents against Patricia McCloskey that were written by Hinkley.
“It is illegal to wave weapons in a threatening manner — that is unlawful in the city of St. Louis,” Gardner said in a statement on July 20.
She didn’t issue warrants for the arrest of the McCloskeys though, and instead sent them summonses to appear in court, FOX News reported.
The prosecutor has said she would consider the couple for a diversion program which would enable them to later have the charge removed from their records, The Washington Post reported.
“I believe this would serve as a fair resolution to this matter,” Gardner said.
However, to take advantage of a diversion program, a defendant must first plead guilty to the charge.
The McCloskeys are facing anything from probation to four years in prison if they are convicted on the charges.
Investigators had also determined that Mark McCloskey’s semi-automatic rifle was not loaded during the incident, FOX News reported.
Joel Schwartz, attorney for the McCloskeys, expressed dismay regarding the handling and reporting on the handgun, KSDK reported.
“It’s disheartening to learn that a law enforcement agency altered evidence in order to prosecute an innocent member of the community,” Schwartz said.
Missouri Attorney General Eric Schmitt said he would move to have the charges against the couple dismissed shortly after Gardner announced them.
Schmitt submitted a brief that respectfully requested the judge dismiss the charges against Mark and Patricia McCloskey as quickly as possible on the grounds their Second Amendment rights had been violated, FOX News reported.
“The right to keep and bear arms is given the highest level of protection in our constitution and our laws, including the Castle Doctrine, which provides broad rights to Missourians who are protecting their property and lives from those who wish to do them harm,” the attorney general said in a written statement.
“Despite this, Circuit Attorney Gardner filed suit against the McCloskeys, who, according to published reports, were defending their property and safety,” he continued. “As Missouri’s Chief law enforcement officer, I won’t stand by while Missouri law is being ignored.”
Missouri Governor Mike Parson said that he was ready to pardon the couple.
Parson told a radio station that he thinks a pardon is “exactly what would happen” if the couple is charged, according to FOX News.
“I don’t think they’re going to spend any time in jail,” the governor said.
The initial incident occurred June 28 as Mark McCloskey said he was having dinner outside with his family at about 7:30 p.m. when they heard the mob approaching, KMOV reported.
The McCloskeys live in a gated community well marked with “Private Street” and “No Trespassing” signs.
The incident occurred after a month of protests and rioting in the city where four St. Louis police officers were shot and buildings were torched and looted.
But protesters were angry with St. Louis Mayor Lyda Krewson for releasing the names of activists who had sent her letters demanding she defund the police department, and they were trying to make their way to her home to protest, KMOV reported.
“A mob of at least 100 smashed through the historic wrought iron gates of Portland Place, destroying them, rushed towards my home where my family was having dinner outside and put us in fear for our lives,” Mark McCloskey said.
So he and his wife grabbed weapons and went to defend their home and property, KMOV reported.
Videos posted to social media by participants showed protesters breaking the locked wrought iron pedestrian gate into the tony private neighborhood and marching right in.
“This is all private property,” Mark McCloskey explained to KMOV. “There are no public sidewalks or public streets. I was terrified that we’d be murdered within seconds, our house would be burned down, our pets would be killed. We were all alone facing an angry mob.”
“[They said] that they were going to kill us,” Patricia McCloskey told FOX News. “They were going to come in there. They were going to burn down the house. They were going to be living in our house after I was dead, and they were pointing to different rooms and said, ‘That’s going to be my bedroom and that’s going to be the living room and I’m going to be taking a shower in that room.’”
Video showed the McCloskeys standing on his porch facing off with protests, a semi-automatic rifle and a pistol.
The video showed Mark repeatedly told the protesters to get out and that they were trespassing on private property.
Neither of the McCloskeys appeared to be concerned about what direction their weapons were pointing, the video showed.
In the video, protesters reacted with shock to the sight of the armed couple and others can be heard encouraging them to keep walking and not engage.
However, some of the protesters stayed in front of the McCloskeys home antagonizing and challenging them, yelling obscenities and threats, the video showed.
The group eventually made its way down the street.
They painted the word “resign” in giant letters on the street in front of the mayor’s home.
Afterwards the McCloskeys filed a police report about the trespassing incident with the St. Louis Metropolitan Police Department, the Associated Press reported.
They told officers that some of the protesters were armed.
The McCloskeys have a personal injury law practice together that is also based in the Central West End, KMOV reported.
The home which they planned to defend is valued at $1.15 million and was featured in St. Louis Magazine, the Associated Press reported.