The Virginia Supreme Court heard competing arguments Wednesday on whether a judge erred in conducting a single trial for a former Democratic Party official charged with molesting three children.
In May 2012, an Arlington County Circuit Court jury convicted Michael Armin Gardner of molesting two girls who attended a slumber party for his daughter's 10th birthday. The jury was unable to reach a verdict on a charge that Gardner molested another child the previous night when his daughter called him into her room to comfort her during a thunderstorm. A mistrial was declared on that count.
Gardner, 50, had been chairman of the Democratic committee in Falls Church and his wife is a former mayor. He was sentenced to 22 years in prison for aggravated sexual battery.
Gardner's attorney, Peter Greenspun, told the justices that the accusations on consecutive nights should have been the subject of two separate trials because they were not part of a common scheme. Evidence presented on the charge related to the thunderstorm would not have been admissible in the slumber party accusation, he said.
"There is no connectedness,'' Greenspun said. "There are distinct differences between the thunderstorm incident and the slumber party incident.''
Assistant Attorney General Benjamin H. Katz argued that Greenspun was focusing on "minute differences,'' such as how the children were fondled, and obscuring the similarities.
"All of the offenses occurred under the defendant's own roof on consecutive nights,'' he said. "He took advantage of the lateness of the hour when they were most vulnerable.''
Greenspun and Katz also disagreed on whether the trial judge improperly excluded character witness testimony on whether Gardner had a reputation of being trustworthy around children.
Garner has repeatedly stated his innocence. "A cry for help from one distressed child visiting my home has been hijacked and that miscarriage has cast us into darkness," he said at his sentencing hearing.
Gardner's wife, former Falls Church Mayor Robin Gardner, said she believed her husband. "Yes I do [believe him], and I will fight for him with every fight that I have in me."
But the father of one alleged victim said, "I don't think he has the ability within himself to admit what he truly is."
During Gardner's trial, the two victims, then 11 years old, testified that Gardner came into the basement where the girls were sleeping several times around 4 a.m. on June 18, 2011.
One victim said she was awakened when Gardner unzipped her sleeping bag and began touching her inappropriately. She said he later returned to molest her again. DNA with a high probability of being Gardner's was found on her underwear.
The second victim testified that Gardner knelt down next to her mattress several times and touched her genital area. She said at first she pretended to be asleep, but eventually let him know she was awake, after which he left.
The Supreme Court is likely to issue a ruling in June.
PREVIOUS COVERAGE ON NBCWashington.com: