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State v. Bard

Supreme Court of Maine

March 15, 2018


          Argued: September 13, 2016; December 13, 2017

          Gina Yamartino, Esq. (orally), Law Offices of Gina Yamartino, Portland, and Ronald W. Bourget, Esq., Law Offices of Ronald W. Bourget, Augusta, for appellant Eric Bard

          Janet T. Mills, Attorney General, Donald W. Macomber, Asst. Atty. Gen., and Paul Rucha, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State of Maine

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.

          PER CURIAM.

         [¶l] During the pendency of criminal proceedings against Eric Bard, and while Bard's competency to stand trial was under consideration and his motion to dismiss all charges on the basis of alleged prosecutorial misconduct was pending before the court, the trial court (Kennebec County, Marden, J.) held an ex parte conference with the prosecutor to address the alleged prosecutorial misconduct. Defense counsel was not notified of that conference and did not consent to the ex parte communication. After further proceedings, the same jurist found Bard competent to stand trial, denied the motion to dismiss, and denied Bard's motions to suppress. Bard entered a conditional guilty plea, allowing him to challenge the competency determination and the denial of his motions to suppress on appeal.

         [¶2] Following the oral argument on Bard's appeal, we authorized additional proceedings in the trial court while Bard's appeal remained pending so that Bard could obtain the transcript of the ex parte conference and file any further motions with the trial court. Bard then filed, in the trial court, a motion to vacate the judgment of conviction and a motion for Justice Marden's recusal. Justice Marden recused himself, and, after receiving memoranda and hearing the arguments of the parties, the court [Brennan, J.) dismissed Bard's motion to vacate the judgment of conviction. Bard now appeals from the dismissal of the motion to vacate-an appeal that we consolidated with his initial appeal from the competency and suppression determinations. We vacate all adjudicatory action undertaken after the ex parte conference with the District Attorney by the judge who held that conference, we dismiss the appeal from the dismissal of the motion to vacate as moot, and we remand for further proceedings.


         [¶3] Eric Bard was twenty-two years old when he was charged with multiple counts alleging sexual assault, unlawful sexual contact, and sexual exploitation of a child. Early in the proceedings, the arrest warrant and accompanying affidavit were impounded. Following Bard's arrest, given the nature of the charges, the court sought to assure that any release of Bard pending trial would be accompanied by substantial oversight and supervision. Bard's counsel also sought to have his mental status examined.

         [¶4] During the course of those preliminary proceedings, Justice Marden became concerned that District Attorney Maeghan Maloney had released impounded information to the press and had unfairly attempted to interfere with the availability of pretrial supervision services for Bard. Maloney was asked to attend a hearing with defense counsel to address those concerns, but an Assistant Attorney General appeared in her place, and the judge was not able to address the concerns at that hearing. Bard then moved to dismiss all charges on the ground that prosecutorial misconduct in the release of impounded information had negatively affected Bard's right to a fair trial and that the DA had unfairly interfered with Bard's opportunity to be released on bail.

         [¶5] Several days after the motion to dismiss was filed, Justice Marden held a conference with Maloney regarding his concerns about her conduct.

         [¶6] That conference with the DA, however, was held without notice to, or the presence of, defense counsel. The ex parte conference was held in chambers in order to, as the court said, "get things squared away." A court reporter and the court clerk were present. The conference was recorded, although the court considered the record to be "confidential and sealed." Bard's counsel later learned about the ex parte conference, but, after personal assurances from the court that the conference had not included any communications regarding the case itself, counsel did not seek the transcript of the conference and did not, at that time, further object to the ex parte conference.

         [¶7] Bard had been determined competent to stand trial by Justice Marden prior to the ex parte conference, and a second hearing on Bard's competence was held by Justice Marden after that conference. After the second competency hearing, the court again determined that Bard was competent to stand trial. Motions to suppress evidence obtained from Bard's house were also heard and denied by Justice Marden after the ex parte conference. Justice Marden also denied Bard's motion to dismiss for alleged prosecutorial misconduct.

         [¶8] Bard then entered a conditional guilty plea, reserving his right to appeal the determination of competency and the denial of his motions to suppress. That appeal came before us for oral argument. Because of the potential that the ex parte conference included inappropriate discussion between the DA and the court regarding both Bard's allegations of prosecutorial misconduct and his competency, which Bard challenged on appeal, the ex parte conference was discussed during oral argument. Bard's counsel then sought and ultimately obtained the transcript, and moved in the trial court for Justice Marden's recusal and to vacate the judgment of conviction. Upon Bard's motion, Justice Marden recused himself from the proceedings. The newly assigned trial justice [Brennan, J.) dismissed Bard's motion to vacate the judgment of conviction, and we now have both appeals before us.


         [¶9] Because the specifics of the procedural history are important to a complete understanding of the unusual issues in the appeals before us, we now review that history in detail. On July 27, 2012, the State filed a three-count complaint with the court, charging Bard with gross sexual assault (Class A), 17-AM.R.S. §253(1)(C) (2017), sexual exploitation of a minor (Class A), 17-AM.R.S. §282(1)(C) (2012), [1] and unlawful sexual contact (Class B), 17-AM.R.S. §255-A(1)(E-l) (2017). The court [Mills, J.) issued an arrest warrant on the same day. The court [Dobson, J.) granted the State's motion to impound the arrest warrant and its supporting affidavit until further order of the court.[2] Bard was arrested, and his initial appearance was held on July 30. The court set bail at $100, 000 cash bond with multiple conditions designed to prevent Bard from having contact with children or using the internet. No bond was posted, and Bard remained incarcerated.

         [¶10] Less than a month later, on August 9, 2012, the State filed a twenty-one-count indictment alleging multiple counts of each of the three initially charged crimes and also alleging assault (Class D), 17-A M.R.S. §207(1)(A)(2017).

         [¶11] The court [Mills, J.) granted Bard's motion for mental examination on September 7, 2012. Nearly a year later, in August 2013, the court [Marden, J.) held a hearing and found Bard competent. See 15 M.R.S. § 101-D(1) (2017). A second mental examination was ordered by the court [Humphrey, C.J.) in December 2013, requiring Bard to spend sixty days in the hospital for the examination. Before the second competency hearing was held, the court [Marden, J.) entered pleas of not guilty and not guilty by reason of mental disease or defect on Bard's behalf after Bard indicated at his arraignment that he could not understand what was being asked of him. See M.R. Crim. P. 11(a)(1) (Tower 2014) (addressing court action when a defendant declines to plead at arraignment).[3]

         [¶12] On June 4, 2014, almost two years after the filing of the original indictment, the court held another bail hearing. On the issue of conditions of release, the court indicated that Bard would not be released "unless there is some pretty strict supervision." Bard asked that he be released under the supervision of an assistance program called Fullcircle Supports. The court ordered Bard placed on bail at $10, 000 unsecured bond, subject to a number of conditions, including that Maine Pretrial Services agree to the arrangement with Fullcircle.

         [¶13] On June 6, 2014, Maine Pretrial Services filed a letter with the court indicating that it could not approve the arrangement. On June 11, 2014, Fullcircle filed a letter with the court indicating that it was unable to provide services to Bard.

         [¶14] On June 12, 2014, the court held another bail hearing. The owner of Fullcircle was present to answer questions regarding Fullcircle's inability to supervise Bard. She indicated that the program was ultimately unable to supervise Bard because he did not meet the criteria for acceptance. She also stated that she had been contacted by the DA twice. The owner informed the court that the first time the DA called, she asked Fullcircle's secretary if Fullcircle was going to accept Bard as a client, but Fullcircle had not yet decided. This call from the DA, which came directly after Fullcircle had been contacted by a news station, was a factor in Fullcircle's decision not to work with Bard. The second time the DA called, the DA again asked if Fullcircle was going to work with Bard. When the owner answered that Fullcircle was not going to work with Bard, the DA asked that the owner provide something to that effect in writing. At some point, according to Fullcircle's owner, the DA told her that Bard had "23 counts against him and it wasn't safe for him to be in the community."

         [¶15] Also during the June 12 bail hearing, Bard asked a representative of Pillars Community Outreach, a program similar to Fullcircle, to speak to the court. The representative stated that his organization also was not able to supervise Bard and that he also had received a call from the DA before determining that Pillars was unable to assist Bard. According to the Pillars representative, the DA asked about the pending meeting with the court and told the representative that the State had evidence against Bard, including video recordings showing what Bard had done.

         [¶16] Defense counsel then voiced concerns regarding pretrial publicity and the bail status. The court noted that prosecutorial statements to the press about the case would have been inappropriate, given that the arrest warrant affidavit had been impounded. Assistant Attorney General Paul Rucha, at that point representing the State, argued that the DA's efforts regarding community supervision were designed not to thwart bail but instead to ensure that the supervision entities understood the pending charges. The court had asked the DA to attend that bail hearing to discuss the communications with the media or community supervision entities, but she did not attend.

         [¶17] The court declined to comment regarding the DA's phone calls to potential community supervision organizations without her being present but indicated that the available information was "troubling." The court then issued an order from the bench prohibiting the parties, attorneys, representatives, witnesses, law enforcement, and State employees from making any statement to the press, other than regarding matters of public record, that could interfere with a fair trial or prejudice Bard, the State, or the administration of justice.

          [¶18] On June 13, 2014, Bard filed four motions: two motions to suppress evidence, a motion to change venue, and a motion to dismiss based on allegations of prosecutorial misconduct by the DA. The State objected to or opposed all of the motions.

         [¶19] On June 23, 2014, without notice to or the presence of defense counsel, the court met with the DA in chambers. A court reporter and clerk of court were present, and the conversation was recorded. The court spoke with the DA regarding her office's possible disclosure of the contents of the impounded police affidavit and interference with the court's bail order. The court stated that "the only purpose of this is to get things squared away so we can proceed with this case and get [Bard] tried and find out if he is guilty or not." Pending at that time were a second consideration of competency and Bard's motions to suppress, to change venue, and to dismiss the charges because of prosecutorial misconduct.

         [¶20] At the ex parte conference, the court asked the DA to explain specifically why she made the calls to Fullcircle and Pillars, and the nature of her conversations with those organizations. The DA explained that she had learned from a reporter that Fullcircle would not supervise Bard and had called to inquire about that. The following colloquy then ensued:

MS. MALONEY: Okay. And I talked to [the owner of Fullcircle] at that point, but that was after she had made her decision. She told me her reason for the decision was that they weren't set up to do pretrial and she didn't feel that they could adequately supervise him, and then she gave me another reason that she told me that she didn't want me disclosing. I assume I can tell you, I don't know.
THE COURT: Well, this isn't going anywhere. Go ahead.
MS. MALONEY: Okay. So she told me that the other reason is that she hired someone who used to work at the jail who saw Eric Bard acting completely normal at the jail and then saw how he changed his behavior in Court, and-
THE COURT: Pretty obvious.
MS. MALONEY: -that person-
THE COURT: From every report I ...

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