An Arlington Circuit Court jury reached unanimous verdicts this morning on three charges against Falls Church resident Michael Gardner, but was ordered to continue deliberating on the fourth charge before releasing any verdicts.
The jury had deliberated just under four and a half hours – two and a half hours yesterday afternoon and less than two hours this morning – before passing on this written message to Judge Benjamin Kendrick at 11:20 a.m.: “We have reached a unanimous verdict on three of the four counts. We have not reached a unanimous verdict on the fourth count. What do we do?”
Kendrick suggested to prosecutor Nicole Wittman and defense attorney Peter Greenspun that the jury be allowed to announce the three verdicts, be read the Allen charge – instructing jurors holding a minority view to reconsider its positions – and return to decide the fourth count.
Wittmann agreed to the suggestion, while Greenspun preferred that the panel remain in the jury room until reaching verdicts on all four counts. Wittman replied that she would not object to the defense’s stance.
Kendrick suggested that his written response to the jury read, “Please continue until you reach a verdict,” which Greenspun wanted amended to read, “Please continue with your deliberations.” Kendrick considered the matter, then wrote a message on yellow-lined paper that he handed to a bailiff for delivery to the jury.
The 48-year-old Gardner was tried on four charges of aggravated sexual battery and penetration against one then-10-year-old and two then-nine-year-old girls who visited overnight to celebrate the birthday party of Gardner’s daughter. The six-day trial began on April 23 and concluded yesterday.
Prosecutors had built their case on the girls’ testimony about the assaults in the daughter’s bedroom on the night of June 16 and in the basement in the early hours on June 18, along with DNA analysis of two of the girls’ underwear and pajamas. Defense arguments centered on several inconsistencies in the girls’ testimonies and the unreliability of the DNA evidence.
