Attorneys for Falls Church resident Michael Gardner filed an appeal brief, known as an “Assignment of Errors,” to the Virginia Court of Appeals last week. The 61-page brief will be considered over the next months by the court, which will then notify all parties if it will hear a full appeal.
Meanwhile, Gardner, convicted of three counts of child molestation last May based on incidents alleged from the previous June, remains imprisoned, as he has been since that time. Last September, he was sentenced to 22 years.
According to a press release announcing the appeal issued by Gardner’s sister, Maya Jerome, Gardner “steadfastly maintains he did not commit” the crimes he was charged with.
“Michael and his family remain strong, committed to the process, and hopeful that the obvious errors made during the trial will be noted and overturned,” Jerome said in the release. Falls Church residents Bob and Peggy McCan are quoted saying, “Michael continues to have a support group of friends and family who believe in his innocence and that justice will prevail. We continue to support the Gardner family and will do so throughout this ordeal and after.”
“The Gardners remain steadfast in the belief that Michael is innocent and that the Court of Appeals will see the miscarriage of justice that occurred during the trial, and will overturn the conviction,” the statement concluded. Gardner’s wife, Robin Gardner, served 12 years on the Falls Church City Council, including four as mayor.
In the appeal document, there are six “Assignments of Error” identified, and the one legal experts deem the most serious was the decision by Arlington Circuit Court Judge Benjamin Kendrick to declare jury deliberations on one of the four counts a “mistrial” based only on a statement by the jury foreman that there remained a difference among the jurors on that one count.
The judge “erred by intruding on the jury’s deliberations, requiring a partial verdict to be returned, and declaring a mistrial, thereby depriving Mr. Gardner of his right to have one jury completely consider and decide his case,” the filing stated.
“The foreperson…never stated that further deliberations would not be useful on the fourth charge,” it stated. “Moreover the court did not address the question of whether allowing the jury to continue discussing all four charges together may affect the conclusions regarding the first three charges or vice versa.”
It argued, “Interrupting that process interfered with the ability of the jury to deliberate, that is, consider and reconsider its decisions up to the moment all of the verdicts were announced.”
The jury came back with its incomplete verdict after less than five hours of deliberations, two on May 1 and then the morning of May 2. According to the court transcript cited in the appeal, the foreperson told the judge that lacking a unanimous verdict on the fourth count, “There is still a differentiation in view” among the jurors.
The judge decided to accept the guilty verdicts on three of the four counts and released the jurors for lunch, and upon reconvening the court, Judge Kendrick declared a mistrial, ending further jury deliberations.
The other “Assignments of Error” alleged court error in joining the complainants’ cases, court error in overruling the request by Mr. Gardner to have a jury view the Gardner residence, court error in excluding Mr. Gardner’s evidence of his character traits regarding his tendency to not be aggressive or assaultive toward children, court error in admitting the evaluation of DNA evidence “despite its evidence beyond that admitted at trial,” while “not requiring a chain of custody” for the DNA materials used to formulate expert opinion.
It alleged that DNA evaluation of one child’s pajama bottoms “revealed the presence of sperm on the inside of the crotch area. This evidence did not implicate Mr. Gardner but…(the girl’s) father, who was found to be a match for the sperm DNA. Though the…father’s sperm DNA as found in this particular location, the possibility of child abuse was never investigated.”
Finally, court error is alleged in the permission of two parents of the alleged victims to testify to the jury during the sentencing about the impact that uninvolved third parties’ actions had on the children.