Va. court unseals records in molestation trial involving politician's husband

Transcripts of pretrial hearings in the case of a Virginia man accused of molesting three girls at his daughter’s slumber party were made publicly available by a Virginia state court, reversing an emergency order to seal the records in February.

Judge William T. Newman, Jr. unsealed the records on March 22. He was unavailable for comment and it was not clear why he decided to make them public.

Newman initially signed an emergency order in February to seal the records of two pretrial hearings for Michael Gardner, of Falls Church, Va., who is accused of molesting three girls under the age of 13 in June. The incident caught the media's attention partly because Gardner is married to former Falls Church mayor Robin Gardner, who currently serves on the city council.

Alice Neff Lucan, attorney for the Falls Church News Press, said no reason was given for the original seal on the transcripts, which was requested by Loudoun County Deputy Commonwealth Attorney Nicole Wittmann who could not be reached for comment. Lucan added that the girls' names were already mentioned in open court at the two pre-trial hearings.

“The crime that’s alleged is horrific, and the public simply must see every step of the process,” Lucan said. “The people involved are political figures, and this is inevitably mixed up with politics in the minds of the Falls Church public. It starts to look suspicious when things are sealed. Everyone must be above suspicion, like Caesar’s wife.”

Courts usually extend the First Amendment right of access to pretrial proceedings, and most are presumed open, according to The Reporters Committee for Freedom of the Press' Open Courts Compendium. Where there is a qualified constitutional right of access, judges must, before sealing documents or otherwise restricting public access to cases, articulate specific, on-the-record findings demonstrating that sealing is necessary to serve a compelling government interest, in this case the privacy of the minor victims, and narrowly tailored to serve that interest.

In a brief filed on behalf of the Falls Church News Press asking for the records to be unsealed, Lucan wrote that the Commonwealth failed to prove why the records should remain closed.

“This last minute motion suggests that the impact of widespread knowledge on alleged victims did not concern the Commonwealth at the time of the hearing,” according to the brief. “It is the Commonwealth’s burden to show what incremental harm will impact the alleged victims if the information is now made available to the press.”

Lucan said the newspaper, though it knew the names of the children involved, had not and would not publish the names in order to protect the children’s privacy. The paper sought access to the records because the case involved high-profile local political figures.

In another brief also written by Lucan in support of the paper's motion to intervene for access to the sealed records, the attorney wrote that the multiple public interests were “the fundamental reason behind doctrines of public access” and that “[s]hutting down documents after the fact not only is futile, it flies in the face of established law in Virginia and the [federal appellate court with jurisdiction over federal trial courts in Virginia] that respects and protects this public interest.”

The News-Press’ motion was supported by Gardner’s attorney, Peter Greenspun. The Dec. 20 hearing transcripts contain arguments of Gardner’s defense.

Gardner’s trial is scheduled for April 23 in Arlington County Circuit Court.

Related Reporters Committee resources:

· Virginia – Open Courts Compendium

· News: Sex crime court records now public in Louisiana parish