Defense lawyer Joel Schwartz said he’ll file a motion requesting that Stelzer adopt Clark’s ruling in Patricia McCloskey’s case.
U.S.A. –-(AmmoLand.com)- On 10 December 2020, in the Missouri Circuit Court, the Twenty-Second Judicial Circuit (City of St. Louis), Judge Thomas Clark, II, removed Circuit Attorney Kim Gardner from the prosecution of the criminal case against Mark McCloskey. The case before the court did not include Mark’s wife, Patricia.
“This is what we wanted,” Schwartz said. “We would like a fair-minded prosecutor to take a look at the alleged crimes and reassess the evidence and see what they come up with because we don’t believe any of the evidence supports any of the charges. … As long as that happens, then I think we’ll have the right outcome and that would hopefully be no charges.”
The Court cited both statutory law and rules of conduct for prosecutors. From the Court order, Rule 4-3.8(f) states:
Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can and should avoid comments that have no legitimate law enforcement purpose and have a substantial likelihood for increasing public approbrium of the accused.
Understandably, Ms. Gardner has every right to rebut criticism, but it appears unnecessary to stigmatize Defendant – or even mention him – in campaign solicitations, especially when she purports to be responding to others. In fact, the case law and the Rules of Professional Conduct prohibit it. These expectations are real. For these collective reasons the court grants Defedant’s motion and orders that the Circuit Attorney shall be disqualified from prosecuting this matter.
Then the Court disqualifies the entire Circuit Attorney’s office from prosecuting the matter as well, saying they are all tainted because they all work for the Circuit Attorney, Kim Gardner. The case has been so public they cannot escape an appearance of impropriety.
In the conclusion, the Court shows they have balanced the will of the voters with the rule of law. From the Court Order:
The court does not seek to disregard the will of the voters and does not make this decision lightly. Ms. Gardner enjoys the honor of representing the citizens as their elected official but she is equally bound by the applicable court precedent and the Revised Statutes of the State of Missouri. She assumed these obligations when she was elected as a public official as well as when she first entered the legal profession. She is accountable – not just to the voters but to the rule of law. The court is similarly obligated to follow the law.
The statute is explicitly clear and without any ambiguity, allowing the court to remove the prosecutor if the prosecutor has a personal interest in a particular case. §56.110 RSMo. The campaign emails demonstrate the Circuit Attorney’s personal interest in this case, raise the appearance of impropriety and jeopardize the Defendant’s right to a fair trial. Among other previously described concerns, these email solicitations aim to raise money using the Defendant and the circumstances surrounding the case to rally Ms. Gardner’s political base and fuel contributions.
The entire ruling is beautifully written. It is a fun read.
The concept that prosecutors can be thrown off a case because of a personal conflict is an important part of the rule of law. It happens very seldom, but it does happen. It is a refreshing difference from prosecutors being given absolute immunity from lawsuits by the Supreme Court in the 1980s.
The fundraising email sent out by Kim Gardner before she brought charges against the McCloskeys is reminiscent of communist propaganda.
For example, fundraising email claims:
“President Trump and the Governor are fighting for the two who pointed guns at peaceful citizens during the Black Lives Matter protests.”
“isn’t afraid to stand up and hold those accountable who are perpetuating a system of systemic racism and police brutality.”
In a later email:
“This is what happens when leaders like Kim stand up against a system that elevates the privileged and powerful.”
It is likely voters in St. Louis will continue to re-elect Kim. She is adept at playing the victim card and the race card. She will likely continue to get money from George Soros and similar left-wing funds. It seems probable, with a different prosecutor, the charges will be dropped. They never were rational under Missouri law.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.