The city’s top prosecutor could be recused if defense attorney Joel Schwartz has his way.
Schwartz represents Mark McCloskey, 63, and Patricia McCloskey, 61, a couple thrust into the center of the Black Lives Matter (BLM) controversy this summer when they pulled firearms and waved them at protestors who had trespassed onto their property.
“They dissuaded these people by using firearms in order to protect their property after these people had broken into their neighborhood, which was private,” Schwartz told the St. Louis Record. “Under Missouri law and the Homestead Act or Castle doctrine, these people had every right to defend themselves and I don't think there's any argument that these people defended themselves.”
Schwartz filed a motion to recuse St. Louis Circuit Attorney Kim Gardner, a Democrat, after discovering she had referred to the case in fundraising emails, according to media reports.
“None of the trespassers were charged, which is Kim Gardner's base, but she charged the people who were her opposition’s base and it did exactly as she wanted it to do, which was rile her supporters and it virtually doubled her fundraising, much of which was from out of state," Schwartz said in an interview. "That's fine. She can make those charging decisions. However, she utilized it in her ads to campaign and to raise money.”
Gardner opposed Schwartz’s motion to disqualify her, alleging that she received violent, racist, and threatening messages from Republicans in Missouri and out of state.
“To suggest the emails decrying attempts to stymie ordinary and fair prosecutorial process evidenced a financial or improper personal interest in the outcome of this specific case or any other improper motive tied to this case is stretching the content beyond reasonable limits,” Gardner wrote in her Aug. 5 response to Schwartz’s Motion to Disqualify. “Moreover, any such suggestion is consistent with a pattern of prior efforts to attack the Circuit Attorney that began long before the charging decision.”
Although it isn’t an election violation, Schwartz said using the case in advertisements to campaign and raise money gives the appearance of impropriety.
“It's an ethics violation or at the very least and, according to case law, there's the appearance of impropriety that the procedure is unfair,” he said. “I don't know how you get around the appearance of this proceeding being unfair.”
If she is recused, Gardner would likely be replaced by an elected prosecutor from another county or a private attorney who litigates could be assigned as special prosecutor, according to Schwartz.
“What's been done in the past in different jurisdictions is appointing the Missouri Association of Prosecuting Attorneys and then that association, which consists of all the elected prosecutors in Missouri, would select someone,” Schwartz said. “The judge could also appoint an independent prosecutor as a special prosecutor to investigate the claim.”