Article updated at 2:50 p.m. Tuesday, May 24:
Prosecutors agreed Tuesday morning to allow the case against a former Lawrence police officer charged with raping a woman in his patrol vehicle to move to criminal mediation.
Jonathan M. Gardner, 41, of Tonganoxie, was charged with one count of rape and 34 counts of official misconduct and unlawful acts concerning computers after a woman filed a complaint in November with the Lawrence Police Department’s Office of Professional Accountability. Gardner was a member of the LPD from June 4, 2013, through Nov. 29, 2021.
Appearing via Zoom in court on Tuesday, Douglas County District Attorney Suzanne Valdez said the decision to move the case to criminal mediation came after discussion with the woman.
“We reached out to the survivor, and everyone is agreeable to this happening,” Valdez said.
LPD forwarded the woman’s complaint, which led to the investigation of an assault that allegedly took place at 3:30 a.m. New Year’s Day in 2017, to the Kansas Bureau of Investigation.
According to a probable cause affidavit released earlier this month, Gardner picked up the then 20-year-old woman after she had been drinking with friends on New Year’s Eve. During the ride home, the woman alleged that Gardner placed his hand on her thigh and penetrated her with fingers while he was driving.
The woman told the KBI that she had been afraid to report the incident in 2017 “as the officer was in a position of power and she was nervous about other potential consequences given that she was on probation, had consumed alcohol and was under the legal drinking age,” according to the affidavit. She also didn’t have the officer’s name, but she recognized him when he took a report about an unrelated issue from her at the police department in April 2021.
On Tuesday morning, Pokorny removed Gardner’s May 31 preliminary hearing from the docket.
Pokorny told Gardner that a preliminary hearing would require the state to present evidence to bind him over for trial. By choosing mediation, he would be relinquishing his right to a preliminary hearing.
“It’s for your protection,” Pokorny said. “… If you give up your right to the preliminary hearing today and down the road, things don’t go as you expected, you cannot come back here and ask to have that preliminary hearing reset.”
Gardner, who appeared with defense attorney John DeMarco, responded that he understood the ramifications and wanted to move forward.
Mediation will be overseen by retired Johnson County District Judge Kevin Moriarty. Moriarty has mediated more than a dozen Douglas County cases.
Deputy District Attorney Joshua Seiden explained via email Tuesday how the mediation process generally works, though he said nothing is etched in stone.
“Ret. Judge Moriarty will confer with counsel for the State and the defense, as well as victim-survivors and defendants. Additionally, he wants to hear from people who hold significant roles in the lives of the victim-survivors and defendants, as he works to gain as much insight as possible regarding the affected parties,” Seiden said.
“Many of these meetings have occurred via Zoom, but there will be monthly in-person mediation sessions beginning in June. Ret. Judge Moriarty may offer recommendations as to resolution, and he also provides an independent assessment of the strengths and weaknesses of the case.
“Ultimately, it is up to the State and the defense to come to an agreement. Some cases still proceed to trial, but the involvement of a skilled, trauma-informed facilitator such as Ret. Judge Moriarty greatly enhances the usefulness of the negotiations.”
If no agreement is reached through mediation, a case may still proceed to trial, Seiden said. “This has happened in a couple of recent instances, but the process was still useful in that it allowed those most significantly impacted to be heard.”
Most commonly, the resolution of mediated cases would be a plea agreement, Seiden said, and the only difference between a mediated case versus a non-mediated case that resulted in a plea would be the process by which the case was resolved.
“We are constantly looking for ways to streamline the criminal justice process while providing affected parties a way to have their voices heard,” Valdez said. “Criminal mediation can meet those needs, resulting in both accountability and closure.”
A status conference in court is scheduled for July 20.
Gardner has been out of custody on a $50,000 signature bond since March 4, the same day he was arrested.
All arrestees and defendants in criminal cases should be presumed not guilty unless and until they are convicted.
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Andrea Albright (she/her), reporter, can be reached at aalbright (at) lawrencekstimes (dot) com. Read more of her work for the Times here. Check out her staff bio here.
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