For more than three months, Giardini had communicated both on phone and through the Internet with an undercover FBI agent who posed as a 15-year old girl using voice-morphing technology. Giardini approached the agent posing as one “Diana Gautier” for the first time in an Internet chat room in December 2008.
In the previous mistrial, the defense had argued that Giardini’s conversations with the undercover agent – which included a masturbation session and other lurid descriptions of sexual acts – may be inappropriate, but not illegal.
However, one fact came over strongly for the jury, which was deadlocked: Giardini had repeatedly told the undercover agent that he couldn’t have sex with her until she turned 16.
The defense told the jury, “Phone sex is not a crime … They’re hoping you feel that the phone sex is so offensive that you’re going to put your judgment aside and your objectivity aside … and you’re going to be so inflamed by the phone sex that you’re going to convict him of something.”
On the other hand the prosecution had argued, “The facts are the facts … The defense has even admitted it. He had an abnormal desire to be with a 15-year old girl. At the point when he was caught, it was strictly over the telephone. It’s our position that if you are going to engage in that type of activity – and secretly, with a 15-year-old – it’s illegal. It’s enticement.”
The prosecution further submitted in the earlier mistrial, “He was a sex crimes prosecutor for years after years after years, protecting children … when in fact, he was going home at night in the dark and being something totally different … He lied to the people that came here and testified for him …”
According to the FBI, Girardini had also asked for a topless photo of the girl, which he did not receive. He also did not turn up at an arranged meeting with the girl. Later, on the day of the appointment when he did not show up, the FBI executed a search warrant at his house.
The jury at the first trial was deadlocked; the retrial is scheduled for December.
Earlier this year, the prosecution sought to introduce new evidence showing that Giardini had 20 different online aliases and personas and had a history of using the Internet to solicit sex and photographs from young girls in chat rooms. The motion to admit new evidence at the retrial is still pending.