Armed with a new defense attorney, former Ohlone Elementary School teacher Michael Airo, who was found guilty in February for sexually abusing his ex-girlfriend's daughter more than a decade ago, is seeking a new trial.
A jury found Airo, 37, guilty of four felony charges: continuous sexual abuse of a minor under the age of 14 and three counts of lewd or lascivious acts with the use of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim or another person. He was charged in 2016 after the girl, now in her late 20s, told a therapist that he would inappropriately kiss her breasts, stomach and buttocks while she was taking showers at their home in Palo Alto when she was between the ages of 11 and 13 years old.
Beles filed in early August a motion seeking a new trial, arguing that Armstrong allowed for "highly prejudicial testimony" against Airo and that the prosecution committed misconduct during the trial.
Beles and Deputy District Attorney Lindsay Walsh, who prosecuted the case, did not respond to requests for comment.
In the motion, Beles argues that Armstrong erred in calling a forensic psychologist who evaluated Airo, Brian Abbot, to testify that Airo is not disposed to commit sexual offenses against children and is not a pedophile but that he showed sexual interest in underage, developed girls, as the young girl in the case was at the time.
Armstrong's conduct "fell below professional norms" and violated Airo's Sixth Amendment right to an effective lawyer, Beles writes in the motion.
"No reasonably competent defense attorney would knowingly present such incriminating and highly prejudicial evidence," Beles wrote.
He argues that without Abbot's testimony, there is a "reasonable probability" that Airo would not have been convicted.
Beles also asks that the court overturn the three counts related to using force and bar the prosecution from retrying those charges. Beles argues there was insufficient evidence to prove Airo used force or fear, citing differing testimony from the girl. She said during the preliminary hearing that she would sometimes cross her arms to cover her body and and he would pull them away, then during the trial that he would touch her arm to "signal me to move" rather than moving her arms himself.
The attorney also states that Walsh committed "prejudicial misconduct" in violation of a state Supreme Court ruling that prosecutors cannot argue that a "reasonable" view of the evidence meets their burden of proof. Walsh repeatedly asked the jury to "reject the unreasonable" and find Airo guilty beyond a reasonable doubt.
She "told the jury that they should find defendant guilty because the state's evidence was reasonable," Beles argued. "This is a plain misstatement of the burden of proof, a violation of the defendant's constitutional rights and grounds for a new trial."
Airo's sentencing was scheduled for this month but has been postponed until November so Walsh can respond to Bele's new trial motion.
Court files show the state Commission on Teacher Credentialing has requested Airo's plea, probation conditions and other documents for potential mandatory revocation or denial of his credential.