Post last updated at 8:46 p.m. Friday, May 26:

A former Lawrence police officer was found not guilty of rape and numerous computer crimes Friday following a weeklong trial in Douglas County District Court.

Jonathan Mark Gardner, 42, of Tonganoxie, was charged with one count of rape of a person unable to consent because of intoxication and 34 counts of official misconduct and unlawful acts concerning computers.

Gardner was a member of the Lawrence Police Department from June 2013 through Nov. 29, 2021.

A woman reported to Lawrence police in November 2021 that Gardner had sexually assaulted her while on duty in the early morning hours of Jan. 1, 2017. Police asked the Kansas Bureau of Investigation to investigate.

The jury of seven men and five women found Gardner not guilty of all 35 counts after deliberating for about seven hours and into the evening Friday.

New Year’s Day 2017

According to testimony from the woman and the friend who had gone out with her on New Year’s Eve 2016, they had gone to Tonic, a bar on Massachusetts Street that closed in late 2018. They were both underage, but they knew they could get in there, they testified. One said people there were “feeding us shots;” neither remembered ringing in the new year at midnight.

The woman, 20 years old at the time, got separated from her friend, and she ended up walking to nearby SpringHill Suites with a group of people she’d met that night. There was some sort of disturbance at the hotel, and Gardner and another officer showed up.

It’s typically a busy night for law enforcement, Gardner testified — he couldn’t recall working a New Year’s Eve that he didn’t have overtime. His shift was supposed to be over at 3 a.m.

The hotel wanted the police to issue a trespassing order for two people — the woman, and a man who was in the hotel elevator with her, Gardner said. Neither the other officer nor the man were called to testify.

Gardner said they drove the man to the area of 12th or 13th and Ohio streets and dropped him off. The woman didn’t want to get out with him, Gardner said, though the man seemed to think she was planning to.

Gardner testified that he was trying to figure out where the woman needed to go. She was hard to hear and understand because her voice was hoarse and she was slurring her words, Gardner said.

They were parked near Kasold Drive and Peterson Road for at least 12 minutes, according to the GPS in the vehicle Gardner was using that night, but there were no further GPS points after 3:51 a.m. He radioed dispatch when they arrived at a family member’s home near 27th and Iowa streets, about a 10-minute drive away from that location at 4:16 a.m., but the woman was unable to get inside because — she realized at that point — she’d lost her keys, purse and phone.

Finally, another officer picked the woman up from that location and took her back to her home near Kasold and Peterson around 4:30 a.m. Gardner said that officer later informed him of who the woman was. It wasn’t entirely clear from testimony why that officer was able to understand the woman and determine her name and where she needed to go, but Gardner wasn’t. The officer had no recollection of the incident, he testified.

The woman, who sat in the front seat of Gardner’s patrol vehicle, said she only remembered bits and pieces of the night, but she said she remembered his hand being on her thigh during the drive, and that he had “fingered” her.

Under Kansas law, rape includes any vaginal penetration, however slight, with a finger, the male sex organ or any object.

Prosecutors also presented evidence that Gardner had turned off his in-car camera. The department didn’t yet have body-worn cameras, but the dashcam and Gardner’s microphone would have picked up what was going on. Gardner said he didn’t recall turning the camera off.

However, Gardner said he had recalled, between when he was interviewed by the KBI in November 2021 and his testimony this week, that he had also turned off his car’s radio and switched to his portable radio with an earpiece. He said the woman kept putting her hands on the buttons.

The radio log from that night also shows radio silence from Gardner for about 37 minutes, from 3:39 to 4:16 a.m., meaning he had no contact with dispatch for that period.

Gardner testified that it was not possible for a patrol officer to have 40 minutes of radio silence out in the field, because dispatch checks on officers on a timer basis. If they don’t get a response from the officer, they eventually send someone else out or contact a supervisor, he said.

Gardner said a lieutenant who had testified was “misspeaking” in saying it was possible to have 40 minutes of radio silence for a patrol officer. He acknowledged that the radio log showed no contact but said “I don’t have control over” whether dispatch logs contact with him or not.

Gardner testified that he did not have sexual contact with the woman. He said she had put his hand in her lap, but he’d pulled it away. But he said he had been concerned about the man from the hotel, and he thought that they were together.

“I don’t know if something happened to her,” Gardner told the jury. “I know that it was not me.”

Reporting to police

The woman’s initial report to police came almost five years after that night — about four years and 10 months.

When she finally did report, she emailed the Lawrence Police Department’s Office of Professional Accountability on Oct. 31, 2021, with one sentence asking for someone to call her about a complaint regarding the officer. Lt. Mark Unruh, who worked in that unit at the time, called the woman the next day to get more information and set up an interview. He and Lt. Dave Ernst interviewed the woman at her home the same day.

She never reported to law enforcement before that for a number of reasons, she said: She’d gotten arrested for driving under the influence in May 2016, and she was on probation at the time. She was still underage, and she was afraid she’d get in more trouble for drinking. She didn’t know the officer’s name. She felt that she couldn’t go to the police “because he is the police.” And “I didn’t know if it was my fault,” she testified.

She didn’t tell the officer who ended up getting her home that night what had happened.

“Why would he believe me?” she said quietly from the witness stand.

She learned his name in April 2021 when she accompanied a friend to the police headquarters to make an unrelated report about a neighbor. Gardner took that report, and he recognized her, though she was masked the whole time. Gardner told her that he had given her a ride home on New Year’s a few years ago.

“It all just clicked,” the woman testified.

She decided to come forward because she had moved out of Lawrence, and she’d been looking for jobs out of state, the woman testified. She said she wasn’t sure how far it would go, but she wanted to make a report so that there would be a trail. She also told the KBI investigator that a friend of hers had been assaulted and didn’t make a police report, and she was angry that her friend hadn’t done so; she didn’t want to be a hypocrite, she said.

‘Her story to tell’

Defense counsel John DeMarco told jurors that the 1,764 days that passed before the woman reported the incident were reason to doubt, as were the witnesses who failed to report to police what the woman had told them, including her own mother.

“Eight witnesses, seven of which the state produced, did nothing, ever. That is reasonable doubt,” DeMarco said in his closing arguments.

The woman’s mother is a mental health professional who specializes in caring for people who have been traumatized.

The mother tearfully recounted her daughter coming home “a mess” that night, telling her with a blank stare and no emotion that she had been sexually assaulted by a police officer. And she didn’t want to talk about it anymore. The mother said her daughter crawled into bed with her and she just held her.

Her mother didn’t push her, and she didn’t report it to police. “It’s her story to tell,” the mother said.

DeMarco asked the mother whether she’s a mandatory reporter, meaning someone who is legally required to report sexual abuse or dangerous situations, but the mother said that only applies for children and elderly people.

The mother said the thing victims of assault and rape need most is to have the power over their stories, because “that is what was taken from her.”

A therapist and several friends also testified about the woman telling them, at various times in the years that followed, what had happened. None reported to law enforcement; all said they just wanted to support her, or they didn’t feel it was their place to make a report.

Deputy Douglas County District Attorney Joshua Seiden said in his closing arguments that the “real failure to report here” was when Gardner didn’t call dispatch or anyone else on patrol that night when he had what Gardner had described as a “handsy,” “flirtatious” woman with whom he could not communicate sitting in his patrol vehicle in a vacant parking lot.

Database searches

Gardner was charged with nearly three dozen counts of computer crimes or official misconduct, alleging that he had inappropriately used his law enforcement credentials to search for the woman’s information in criminal information databases.

He admitted to using the databases and performing the searches, but the jury did not convict him of any charges in connection with the searches.

Multiple law enforcement officers testified about how they ran reports and culled data on Gardner’s searches of the Lawrence Police Department’s database, called Spillman, and the statewide Kansas Criminal Justice Information System, or KCJIS, which is linked to the FBI’s databases. Altogether, he searched for the woman in Spillman on 12 occasions, and KCJIS five, according to reports presented to the jury.

In his interview with the KBI, the only reason Gardner gave for conducting the searches, even when pressed for more specificity, was “law enforcement purposes.”

On the witness stand Thursday, Gardner said he’d been concerned about the woman. He searched for her in LPD’s system a couple of times in January 2017 after learning the woman’s name from the officer who drove her home, then several more times. He said he’d seen her in a gas station at one point, and he’d run her name then, and he said at one point he thought she’d been a reporting party in a car burglary incident. The searches continued into October 2020.

Gardner said he believed it was “absolutely” a legitimate law enforcement purpose to use the systems to search someone if they gave him a “dirty look.”

“You don’t know why you’re getting a dirty look,” he said. Someone might have a warrant for their arrest, they “generally don’t like police,” or there might be something else that you should be aware of, Gardner said.

Seiden said during his closing arguments that Gardner had “kept tabs on” the woman. If her address changed, Gardner would know it. If she ever made a report about him, he’d know it, Seiden said.

Gardner was not asked whether there were any other individuals whose names he’d searched in the databases for similar reasons.

Verdict

Jurors heard evidence for most of the day Tuesday, Wednesday and Thursday. The attorneys made closing arguments Friday morning, and the jury began their deliberations shortly before 11:30 a.m.

They continued until almost 6 p.m., then asked for a read-back of some of Gardner’s testimony when Seiden was cross-examining him about his searches of the criminal information databases.

Judge Sally Pokorny told them she could allow a few more minutes if they were close. The foreperson said they were, and they returned shortly after 6 p.m.

Several of Gardner’s family members were overcome with emotion. At least one sobbed as the judge read through each of the numerous “not guilty” verdicts.

DeMarco said that Gardner “is innocent, was innocent and will always be innocent.”

“We are pleased with the results of the jury’s decision,” he said outside the courthouse Friday evening.

Prosecutors asked the judge to poll the jury. Each juror confirmed their verdict as Pokorny asked them individually.

“The survivor showed immense strength and grace, and this office will continue to fight sexual assault through the criminal justice system,” Seiden said after the courtroom cleared out.

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Mackenzie Clark (she/her), reporter/founder of The Lawrence Times, can be reached at mclark@lawrencekstimes.com. Read more of her work for the Times here. Check out her staff bio here.

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