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Michael Gaby

Other Child Sex Abuse Exonerations
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In April 2009, 15-year-old M.C. told a teacher in Lafayette, Indiana that her neighbor, Michael Gaby, sexually molested her in the mid-1990s when she was about three years old.

Lafayette police interviewed Gaby in May 2009. Gaby, who was 27 at the time of the alleged incident, first denied ever being alone with M.C. He eventually admitted, however, that there had been a time when he babysat her at the request of M.C’s mother, who lived in the same townhouse complex as Gaby.

Detective Joseph Clyde said that Gaby said M.C. had vomited on her clothes, and that he helped her change into some of his daughter’s old clothes. Gaby said he may have unintentionally touched her, but he denied M.C.’s claim that he inserted his finger into her vagina. According to the detective, Gaby said that he didn’t remember any such incident and asked if the officer could “help him remember if he had molested (M.C.)”

On July 10, 2009, Gaby was arrested on a felony charge of child molesting. The charge said that M.C. was molested between 1997 and 1998 when she was about 11 years old. But that was impossible—she was born in 1993 and would have been only four or five years old in 1997 and 1998.

So, in March 2010, as Gaby was preparing for trial, the prosecution filed a motion to amend the charge to change the date range of the molestation to 1997 to 2002 when M.C. was between four and eight years old. Gaby’s defense attorney objected, but the judge allowed the prosecution to amend the charge.

Gaby went to trial on April 6, 2010 in Tippecanoe County Superior Court. M.C. testified that her mother asked Gaby to babysit because she had to go to work. M.C. told the jury that she was on the third floor of Gaby’s residence when he had her try on some clothes that his daughter no longer wore. M.C. testified that while she was wearing only a shirt, Gaby told her to sit down, put a blanket over her, and then inserted his finger into her vagina.

The prosecutor asked M.C. if Gaby said anything at that time.

“No,” M.C. said.

“Okay, was he making any sounds or noises or anything while he was doing this,” the prosecutor asked.

“No,” M.C. said.

“Okay, did he say anything afterwards?”

“He just told me to get dressed,” M.C. replied.

“Did he ever explain to you or—what he was doing or why he was doing this?” the prosecutor asked.

“No,” M.C. said.

“Did (he) touch anywhere else besides your vagina?”

“No,” M.C. said.

“Ever touch your bottom, your chest, anything like that?”

“No,” M.C. testified.

"Okay, did you ever see his genitals, his private parts?”

“No,” M.C. said.

“Did he ever have you touch his private parts?” the prosecutor asked.

“No,” M.C. declared.

The prosecutor then sought to refresh M.C.’s recollection by showing her a transcript of a pre-trial deposition that Gaby’s defense attorney conducted under oath in 2009.

Gaby’s defense attorney objected that showing her the deposition was improper because M.C. had not shown a lack of recollection. The judge overruled the objection, and the prosecution was able to elicit testimony that during the deposition, M.C. said that Gaby had asked her “if it felt good,” that he also touched her chest, and that he was breathing heavily.

When M.C. then denied that Gaby ever forced her to touch him, the prosecutor showed M.C. a portion of the deposition in which M.C. said Gaby had her touch his penis, although she did not know what it was at that time.

The detective testified about his interview with Gaby and his request that the detective “help him remember” the molestation.

Gaby did not testify in his own defense.

During closing argument, the prosecutor said she was “confident” that the jury would “come to the same conclusion” that the prosecutor and the police detectives had reached. The prosecutor also said, “I cannot and would not bring charges that I believe were false….I can tell you that with a guilty verdict on this case, I will be able to sleep fine tonight. Just fine. In fact, better than fine. You will be able to also.”

On April 7, 2010, the jury convicted Gaby of sexual molestation. He was sentenced to 20 years in prison.

In June 2011, the Court of Appeals of Indiana reversed the conviction and ordered a new trial. The appeals court ruled that the judge had erroneously permitted the prosecution to use M.C.’s pre-trial deposition testimony to refresh M.C.’s recollection.

“We agree with Gaby that the transcript clearly shows that M.C. did not testify as to any lack of recollection regarding the events before the prosecutor showed her the transcript of her previous statement,” the appeals court said. “M.C. simply gave answers the prosecutor neither expected nor desired. The prosecutor attempted to rectify this by having M.C. read the transcript of her previous statement, after which M.C. still struggled to give the prosecutor the desired answers.”

The appeals court also ruled that the prosecutor had engaged in improper argument to the jury by vouching for M.C.’s credibility as well as the credibility of the prosecution and the police. The court noted that although the prosecutor was responding to the defense closing argument that M.C.’s allegations were false, “the prosecutor’s response still crosses the line” as the comments were “not based solely on reasons which arose from the evidence, but rather, from asserted personal knowledge of the facts at issue.”

In March 2012, Gaby went to trial a second time in Tippecanoe County Superior Court represented by attorney Mark Fryman, who had handled Gaby’s appeal. Fryman, during cross-examination, pointed out M.C.’s varying and inconsistent statements under oath about what happened. And for the first time, Fryman presented evidence that Gaby’s residence did not have a third floor—none of the units in the complex where M.C. and Gaby lived had a third floor.

At the conclusion of M.C.’s testimony, the jury presented the judge with a written question for M.C. After conferring with the defense attorneys and prosecution, the judge asked M.C. “Are you sure this happened?”

M.C. then testified that she was no longer sure.

Gaby testified in his own defense and denied improperly touching or molesting M.C.

On March 28, 2012, after 15 minutes of deliberation, the jury acquitted Gaby.

– Maurice Possley and Jorge Ponce

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Posting Date: 11/6/2017
State:Indiana
County:Tippecanoe
Most Serious Crime:Child Sex Abuse
Additional Convictions:
Reported Crime Date:1996
Convicted:2010
Exonerated:2012
Sentence:20 years
Race:Caucasian
Sex:Male
Age at the date of crime:27
Contributing Factors:Perjury or False Accusation, Official Misconduct, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No