Attorneys for Falls Church resident Michael Gardner, found guilty on three counts of child molestation last spring and facing sentencing in the Arlington Circuit Court on Sept. 7, filed an 11-page motion for an acquittal or a new trial backed by 36 pages of facts in the case, in the court yesterday. “From the earliest stages of the investigation, there were assumptions of guilt on the part of law enforcement…The lynchpin of the American justice system, the assumption of innocence until guilt is proven beyond a reasonable doubt, never attached in this case due to the perceptions about the case from the earliest stages,” the motion states.
The evidence presented in the trial, it states, “even with all the procedural defects that impermissibly tilted the outcome in favor of a conviction, never rose to the level of proof beyond a reasonable doubt.” Gardner was subject to prejudice, it states, as “every aspect of the pretrial proceedings was highly publicized with law enforcement and the City of Falls Church giving ready access to any reporter who would ask about sensitive case-related information,” allowing “unsubtantiated prejudicial and false information” to be circulated throughout the region.
The motion challenges the “leading and suggestive questions” with the “overarching goal of having the children…corroborate the investigators’ and Commonwealth’s presupposition that Mr. Gardner committed the crimes charged. It notes that in September 2011, when DNA results had been returned, despite appeals to the contrary, “the Commonwealth immediately made the results part of the public record. Somehow the press was instantly aware of the filing and there was a firestorm of media attention. However, the media reports were gravely inaccurate, claiming that Mr. Gardner’s sperm had been found in the pajama bottoms of (one alleged victim–ed.). In fact, the forensic report said the contrary: the results indicated that Mr. Gardner was excluded as a contributor of the sperm.” It states that when a follow-up examination occurred, “Ironically, it was the sperm of (parent’s name–ed.) the father of the complainant, whose sperm was found.
“To this date, the Falls Church Police Department, Child Protective Services, and every other local and state agency has abstained from conducting an investigation into how and why (parent’s name–ed.) sperm was found within the internal crotch of his daughter’s pajamas.” The motion also cites the parents of the alleged victims “willfully misleading the prosecution and providing false statements, the one-sided handling of the child witnesses in the trial, the court’s limiting of testimony attesting to Gardner’s “lack of abusive propensities and good character,” and the court’s swift decision to order a mistrial in the case of the jury’s indecision on a fourth count, “depriving Mr. Gardner of his opportunity for having this jury deliberate the proper outcome of the counts charged, in contravention of his rights,” given that “the jury had not indicated it was irreversibly hung.”
The filing on behalf of Gardner was made by his attorney Peter D. Greenspun.