ARLINGTON COUNTY, Va. (WUSA) - It was a grueling four hours on the witness stand for one of three children who accuse Falls Church political activist Michael Gardner of molestation them.
The alleged incidents happened over two nights at a sleepover and a slumber party the next night at the Gardner's home last June.
Gardner is married to Robin Gardner, a Falls Church City Council Member and former Mayor. The two have twins, a boy and a girls ten years old.
The ten year old girl who was the first witness was at the slumber party on June 17. She said she had fallen asleep watching a movie. She said on the stand, "I heard someone opening my sleeping bag." She said she saw Mr. Gardner even though it was dark. She said there was enough light to see him.
She said "He held up the waistband of her underwear and put his hand inside. " She said he touched her "girl parts" and that "she wasn't sure what to do, so I just acted like I was asleep."
She said Gardner then left her and went to someone else. She said she thought she heard another girl's waistband lifting.
Then, the girl said, Gardner came back to her and did the same thing again, and more. She said he put his finger "inside her girl parts." Commonwealth's Attorney Nicole Wittman asked her how that felt and she said "It hurt."
Wittman asked her why she didn't tell him to stop or say anything and the girl said, "I didn't know what he would do if he saw I was awake."
On cross examination, Defense Attorney Peter Greenspun tried to discredit the girl's testimony and credibility. Answering Greenspun's questions, the child could not remember and even denied some statements she had made to detectives. She also seemed unsure whether she actually saw Michael Gardner that night or not.
Wittman tried to repair any potential damage and began reading from the the detective interview statements whereupon Greenspun began objecting. Judge Benjamin Kendrick grew frustrated saying this was a very delicate situation. He said, "We have a 10 year old child with 65 people staring at her." He implored the attorneys to get along and be calm.
Witness testimony is critical in the case, but so it DNA evidence. A DNA expert is set to testify this week about Gardner's DNA that was found on two of the girls' clothing, including on the inside crotch of underpants.
Gardner, 48, is charged with two felony counts of aggravated sexual battery and one count of object sexual penetration. The alleged incidents happened on June 16 and 18, 2011, in two separate incidents at Gardner's home. Both involved sleepovers for their Gardner's daughter.
Three of the daughter's then-friends, aged 10 and 9, accuse Michael Gardner of touching their vagina, and breasts. In one alleged case, there was finger penetration.
There was no DNA evidence collected in the June 16 case because the family washed her clothes before they heard the accusations.
Gardner's DNA was found on the clothes of the two girls who were at the slumber party in the early hours of June 18th. Two of the girls were allegedly abused at a slumber party at Gardner's home on June 18th. The third incident allegedly happened on the 16th at his home.
The DNA report found a match between one of the girl's underpants and Michael Gardner is "20.7 quadrillion times more probable than a coincidental match to an unrelated Caucasian person."
Defense Attorney Jonathan Shapiro told prospective jurors that they would hear evidence of Mr. Gardner's DNA found on two of the girls' clothes. Shapiro told jurors they would hear evidence of how evidence was collected and stored.
Before jury selection began, defense attorney Peter Greenspun requested of Judge Benjamin Kendrick that the jury be taken on a bus trip to the Gardner's home to see where the alleged crimes happened. Greenspun argued that the basement, scene of the second incident, is so dark, it's hard to believe the girls could have actually seen Gardner.
The Commonwealth's attorney objected saying that the Gardners could easily 'stage' the house with pictures of Michael Gardner and his twin children. She also said it was unclear exactly how much light there was at the time, and whether there had been a night light on or now.
Greenspun also argued again for the information about two of the girls' therapy sessions before the incidents. Judge Kendrick said he'd make a decision later during the trial on both matters.
The DNA report also found sperm on one of the girl's pajama pants. The sperm is not Gardner's but the girl's father's. No semen was found, and there is no allegation of abuse by the father. A previous judge ruled the defense cannot allege any sexual abuse by that father.
But, how the sperm got there may be an important question during the trial. The father of that girl says a DNA expert has and will explain for the jury that if clothes soiled with semen are washed with other clothes, while the semen may wash away, dozens if not hundreds of microscopic sperm are distributed in the wash and cling to all the clothes. "It's in the wash, that's all it is," he said. A Canadian study on the matter is referenced in the NCJRS.