Court: Judge And Prosecutor Talks Improper; Man Gets Chance At New Trial

Mar 16, 2018

Maine's highest court has thrown out a Sydney man's guilty plea and 50-year-sentence for child sexual assault because of improper communications between a judge and a prosecutor. That means the defendant, who's been incarcerated for several years, gets a shot at a new trial.

Eric Bard, who's now 28, entered a conditional guilty plea to charges of child sexual assault and exploitation in 2015.  His 50-year-sentence included a lifetime of supervised release if he ever got out of prison. 

But his plea was conditional while he appealed his case.  Bard's attorneys argued that an ex parte discussion between the judge in the case - Justice Donald Marden - and Kennebec County District Attorney Maeghan Maloney, on substantive matters without their knowledge, deprived their client of his constitutional due process rights. 

The Law Court agreed.

"To ensure public trust and confidence in the fairness of the proceedings, and to protect Bard's right to due process, we vacate all rulings by the court that occurred after the ex parte conference with the prosecutor," the Court wrote.

"Every defendant has the right to an impartial judge at his trial," says Gina Yamartino, an attorney for Bard, readhing from a prepared statement. Yamartino declined to answer any questions. 

Yamartino and Assistant Attorney General Paul Rucha, who took over for the prosecution,  argued in front of the Law Court late last year.  Rucha maintained that there was no demonstration of actual bias or unfairness by the judge against Bard and asked that his conviction stand.

Reached by telephone on Thursday, Rucha declined to comment on the Law Court's decision, citing a previous order prohibiting attorneys from discussing the case. 

Tina Nadeau, executive director of the Maine Association of Criminal Defense Lawyers, says the decision has serious implications.

"The judge and the prosecutor are supposed to be the upholders of justice," Nadeau says. "Defense attorneys are supposed to represent their clients zealously and that's exactly what Gina did.  It shows that the system failed on the other side and that's why Mr. Bard is going to get a redo."

Transcripts of the ex parte conversation  between Justice Marden and District Attorney Maloney show that the two discussed the possibility that Maloney's office had disclosed the contents of an impounded police affidavid and may have attempted to intervene with a bail order for Bard.  They also discussed Bard's competency and use of experts in the case. 

Nadeau says what's especially unusual is that the judge had a court reporter record their discussion.  But Nadeau says when it was over the judge then put the transcript under seal. "Meaning the defense did not have access to it until they were alerted to it by the Law Court."

Nadeau says the sealed record was included in the file provided to the Law Court as part of the appeal.  In their opinion, the justices credited Marden for having the conference recorded and for recusing himself from further proceedings at the request of Bard's attorneys. 

The Law Court is now asking that a new judge be assigned to the case and that the matter be expedited given the length of time Bard has  been incarcerated.