ST. LOUIS ( -- An attorney representing Mark and Patricia McCloskey has filed a motion to disqualify the St. Louis Circuit Attorney and her office from pursuing their case.


A husband and wife hold a pistol and a rifle as protesters walk past their house enroute to St. Louis Mayor Lyda Krewson's home during a protest march in St. Louis on Sunday, June 28, 2020. The man and woman greeted about 300 protesters, shouting as they broke down a gate in the neighborhood to march past their home. No shots were fired and the protesters moved on. Photo by Bill Greenblatt/UPI

In a court filing, Joel Schwartz claims Circuit Attorney Kim Gardner should not be allowed to prosecute their case because of statements made by her campaign regarding the incident. The McCloskeys were charged by Gardner's office after they were seen pointing guns outside their home in the Central West End last month.

[Read: Charges filed against Mark & Patricia McCloskey]

According to Wednesday's court filing, in one email, sent out before charges were filed, Gardner's campaign literature read: "You might be familiar with the story of the couple who brandished guns during a peaceful protest outside of their mansion” and “...President Trump and the Governor are fighting for the two who pointed guns at peaceful citizens...” The literature contained links to donate to her re-election campaign.

The filing also states campaign literature was sent after the charges, again referencing the McCloskeys' case and links to donate.

Gardner and attorney Mary Pat Carl are facing off in the Democratic primary Tuesday. The winner is the presumptive circuit attorney for the next four years. 

The McCloskeys' attorneys state the campaign emails show Gardner has personal interest in the outcome of the 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," the filing wrote.

[Related: Patricia McCloskey's handgun reportedly inoperable when seized by police]

In asking for Gardner and the entire Circuit Attorney’s Office to be disqualified in the matter, attorney Joel Schwartz requests that a special prosecutor be appointed to handle the case.

News 4 has reached out to the Circuit Attorney's Office comment.

Patricia and Mark McCloskey are each facing one count of Unlawful Use of a Weapon – Flourishing. The charges stem from a June 28 incident where they were seen pointing guns at protesters who were marching outside of their home on Portland Place heading to St. Louis Mayor Lyda Krewson’s home.

They are scheduled for a first appearance in court August 31st. A hearing date for the Motion to Disqualify has not yet been set.

Update [Sept. 10, 2020 at 11 a.m.]

In a supplement motion, the attorney for the McCloskeys allege that Gardener's campaign received $41,017.05 in donations during a three-month quarter that encompassed the campaign emails. During previous reports, Gardner's campaign reportedly received $34,459 in donations. 

Garnder's officer discounts the allegations and says they should not be disqualified from the trial. 

A judge has yet to rule on the allegations. 

Copyright 2020 KMOV (Meredith Corporation). All rights reserved

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