Michael Gardner’s Conviction Overturned, New Trial Slated

MICHAEL GARDNER had his 2011 conviction of child molestation overturned by the Virginia Supreme Court last week. (Photo: News-Press)
MICHAEL GARDNER had his 2011 conviction of child molestation overturned by the Virginia Supreme Court last week. (Photo: News-Press)

The Virginia Supreme Court, by a 6-1 margin, reversed the conviction of Falls Church resident Michael Gardner on charges of child molestation in a ruling issued last week.

Gardner, former chair of the Falls Church City Democratic Committee and husband of former Falls Church Mayor Robin Gardner, was convicted of molesting two girls at a birthday party at his house in 2011 and sentenced to 22 years in prison in 2012.

The Supreme Court ruled that the Circuit Court trial judge, Benjamin Kendrick, improperly barred two character witnesses from testifying about whether Gardner had a reputation as a good caretaker of children. Their testimony was limited to Gardner’s general reputation for honesty and peacefulness.

A statement from the Gardner family, issued by Gardner’s legal team, was released last Friday. It read, “We have always known that Michael’s trial had many errors. We are very pleased that the Supreme Court of Virginia came to the same conclusion. This has been a very difficult three years and we look forward to seeing Michael out of prison and in our home. We want to thank all of our family and friends who have stood by us during this ordeal and look forward to their ongoing support as we continue this battle.”

According to Gardner’s attorney, Peter Greenspun, in a news release, “Michael Gardner and his family are ecstatic that the Supreme Court has ruled what we have known since the trial, that his convictions were based on a flawed prosecution and trial process…(such that) the convictions must not stand.”

He stated, “Mr. Gardner will be prepared to challenge these charges in a trial based on the proper application of the rules of evidence.”

The next step, according to Greenspun, “will be for Mr. Gardner to return to the Arlington County Circuit Court.” He added, “We will request that Mr. Gardner be released on bond as he was before the last trial.”

Since the ruling fell short of finding Gardner innocent of the charges, the “double jeopardy” rule does not apply, and the Commonwealth Attorney’s office has made it clear a new trial will ensue, the News-Press has learned. Commonwealth attorneys consulted with the parents of the girls involved in the case before deciding to go for a re-trial.

The original charges arose from events alleged to have taken place during sleepovers at Gardner’s home on June 16 and June 18, 2011, and involve pre-teen girls who were friends of Gardner’s daughter. After a jury trial, Gardner was found guilty of two counts of aggravated sexual battery and one count of object sexual penetration.

Gardner appealed his conviction to the Virginia Court of Appeals, which denied his petition in June 2013. Then the State Supreme Court granted his petition last week on June 5, saying in a 22-page opinion written by Justice S. Bernard Goodwyn, “The dispositive issue for purposes of this appeal is whether the Court of Appeals erred in affirming the judgment of conviction despite the circuit court’s refusal to permit Gardnder to elicit evidence of his good character through two witnesses.”

“While presenting its case at trial, the defense called six character witnesses,” the opinion read. “In addition to presenting evidence of Gardner’s character for truth and veracity, Gardner also attempted to question two of those character witnesses about his reputation in the community for being a good caretaker of children and for not being sexually assaultive or abusive toward them.”

When Gardner’s counsel asked one of the witnesses, “Do you know what Mr. Gardner’s reputation is, among those who know him well, for being someone who would be a good caretaker of children, as opposed to someone who would harm or abuse or be neglectful of them?”

The Commonwealth attorney objected, arguing that Gardner’s attorney was limited to presenting character evidence “relating to a reputation for truthfulness and veracity or for peacefulness,” only.

Gardner’s attorney argued that his client was entitled to present evidence regarding his reputation for possessing traits related to the crimes charged. Nonetheless, Judge Kendrick upheld the objection.

There were a number of other procedural grounds upon which the Gardner team based its appeal, but the Supreme Court declined to even hear or comment on them, given the demonstrative nature of this defect.

As of press time, no dates had been established for the expected relocation of Gardner within the prison system, his appeal for bond, or the date for a new trial.