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Judge Denies Prosecution Motion to Exclude DNA Evidence in Gardner Trial

Arlington Circuit Court Judge Joanne Alper today denied a motion by the prosecution to prevent admission of certain DNA evidence in the upcoming trial of Falls Church resident Michael Gardner, charged with three counts of child sexual abuse.

The prosecution sought to exclude evidence of DNA found by state labs of spermatozoa on the pajamas of one of the girls allegedly abused by Gardner, because it was not Gardner’s DNA but that of the girl’s father. Although Judge Alper denied the prosecution’s motion, she limited the applicability of the evidence in the trial set to begin next Monday. In her ruling, Judge Alper stated the evidence “cannot be used for the defense to argue that the girl’s father had sexually abused her.” She added that the limitation would necessarily have to be altered “if something comes up in court that we don’t expect,” if, for example, the girl remarked in testimony that her father had abused her. Prosecuting attorney Nicole Wittman argued that the father’s spermatozoa was transferred to the child’s pajamas in the laundry, and that the defense will “want the jury to look away from what Mr. Gardner has done and look at speculation of what they allege her father has done.” Defense attorney Peter Greenspun called the child’s pajamas akin to a “crime scene.” It’s the child’s “body, clothing and sleepwear…that is a crime scene…It’s more than a little curious that where the father’s DNA shows up is in the interior crotch area of the pajama,” he said. Judge Alper said seeking to exclude this evidence is “an attempt to unnecessarily sanitize the evidence that came out of the lab tests,” adding, “Isn’t that unfairly tying the hands of the defense?” Both attorneys agreed that witnesses won’t be called until April 26. Wittman asked that the parents of the three girls involved be allowed to stay in the courtroom throughout the trial, including when the three children testify. She said that she has “cautioned them (the parents) that they must not make facial expressions, cry or show emotion while in the courtroom.” Greenspun said that would be acceptable. – Reporting by Hillel Kuttler.