ST. LOUIS — When it comes to the decision on who will prosecute the McCloskeys, that ball is now in two courts, so to speak.
And exactly when the decision will happen is anyone’s guess.
Two trial court judges have now dismissed Circuit Attorney Kimberly Gardner from prosecuting Mark and Patricia McCloskey — the Central West End couple now infamous for pointing guns at protesters in June.
The couple’s attorney, Joel Schwartz, argued Gardner’s campaign fundraising emails, which referenced the McCloskey case, jeopardized their right to a fair trial and met the legal threshold of “an appearance of impropriety.”
Gardner argued her fundraising emails were responses to attacks from conservative politicians all the way up to President Donald Trump, and she made "passing reference" to the McCloskeys in them.
But Judge Thomas Clark agreed with the McCloskeys, and dismissed Gardner and her office from Mark McCloskey’s case.
Judge Michael Stelzer has since followed suit by adopting Clark’s ruling, effectively dismissing Gardner from Patricia McCloskey’s case, too.
Their decisions mean a special prosecutor must be appointed to oversee the cases — and, typically, the presiding judge in St. Louis appoints the special prosecutor.
But the presiding judge in St. Louis, whose term took effect Jan. 1, is Stelzer — the judge who just dismissed Gardner from Patricia McCloskey’s case.
One of the final acts of Stelzer’s predecessor, Judge Rex Burlison, was appointing Judge Steven Ohmer to find a special prosecutor.
But Gardner has appealed Clark’s ruling to the Missouri Court of Appeals, claiming Clark “abused his discretion,” when he disqualified her from the case.
The appeals court gave the McCloskeys until Monday to file a response, which their attorney did.
It read, in part, “There is no question that (the judge) had the statutory and inherent authority to disqualify (Gardner) and her subordinates, if he found an appearance of impropriety exists. Exercising statutory authority cannot constitute a usurpation of executive authority. Nor can exercising the inherent authority of the judiciary.”
But it is unclear when the Missouri Court of Appeals will rule or whether it will ask for more briefings.
There's also no deadline as to when Ohmer must name a special prosecutor — or, for that matter, which one must come first.
Ohmer has not indicated whether he plans to wait until the Court of Appeals makes its ruling.
And, there could be even more delays ahead.
Should the Missouri Court of Appeals deny Gardner’s appeal, she could appeal it to the state’s supreme court.
And that court doesn’t have a deadline to respond, either.
