Trial ordered in
police sex-assault case

An appellate court reinstate
s charges against former police
officer Jerry Gallardo

The state Intermediate Court of Appeals yesterday reversed the dismissal of charges against a former police officer accused of sexually assaulting a woman while on duty in September 2000, and ordered a trial.

Jerry Gallardo was indicted in March 2001 with second-degree sexual assault and six counts of fourth-degree sexual assault. The assaults allegedly occurred on the North Shore, where Gallardo, who had been in the department for two years, was assigned. He has since left the Police Department.

Two years after the alleged assault, Circuit Judge Wilfred Watanabe dismissed the charges against him with prejudice, meaning the state could not re-indict him.

Watanabe ruled that Gallardo's due-process rights were violated because a tape recording of a conversation that he and the victim had after the alleged assaults had been tampered with.

Watanabe said the tape, which was not produced by the victim until just before jury selection, contained gaps and erasures that could have included statements by Gallardo that could prove his innocence. An FBI expert and a defense expert both testified the tape had been altered and the conversation recorded over.

The state challenged Watanabe's dismissal in the Intermediate Court of Appeals, which agreed that there was substantial evidence of tape tampering. But it disagreed with the Circuit Court that the state was negligent in not producing the tape.

Gallardo's due-process rights were not violated, the appeals court ruled, because he did not establish that the evidence withheld in the recording would have proved his innocence, and if it was not, that it was withheld because the state acted in bad faith. The appeals court said the Circuit Court abused its discretion by dismissing the indictment with prejudice without considering less severe sanctions.

Attorney Daphne Barbee, who represented Gallardo in his motion to dismiss the case, said yesterday it was clear that the victim had tampered with the tape. The tape, which was played to the court, contained moments of silence or background noise after the victim asked a question of Gallardo.

The victim had testified that there were breaks in the recording because she had been fumbling around with the recorder in her purse to make sure it was picking up their conversation, and she may have hit the pause or stop button.