Friday, March 16, 2018

Ex Parte Meeting Requires Remand

An ex parte meeting between a judge and prosecutor doomed a criminal conviction and requires a remand, according to the Maine Supreme Judicial Court. 

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.

...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.

The alleged prosecutorial misconduct

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.

The prohibited meeting

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.

The defendant had entered a conditional guilty plea.

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.

Central Maine  reported

A Sidney man serving 50 years in prison for child rape has won an appeal from the state’s high court that will toss out his conviction and get him a new trial.

Attorney’s for Eric L. Bard, now 28, argued in December that he deserved a new trial on the basis that a judge discussed the case with the prosecutor without the defense present.

On Thursday, the Maine Supreme Judicial Court, sitting as the Law Court, agreed with that argument.

“We are persuaded that Bard was deprived of the fair process to which he was entitled,” says the opinion published Thursday on the court’s website. No specific associate justice was listed as its author.

Gina Yamartino, Bard’s attorney, who argued in front of the Law Court on Dec. 13, 2017, said Bard, who is being held at the Maine Correctional Center in Windam, knows about the Law Court’s decision, and that she plans to meet with him Friday. She also said she is likely to seek bail for Bard.

The Law Court’s decision dealt largely with the June 23, 2014, conversation between Marden and District Attorney Maeghan Maloney, whose office prosecuted the case.

Maloney could not be reached immediately for comment Thursday.

Transcripts of the meeting show the conversation centered on the release of an affidavit that had been impounded and calls by Maloney to agencies considering supervising Bard while he was free on bail. The judge had issued a gag order in the case a week or so earlier that prohibited attorneys, court personnel, potential witnesses and law enforcement officers from commenting on Bard’s case.

“Had the conversation at issue here occurred in the presence of defense counsel, with an opportunity for counsel to be heard on any of the factual or legal positions presented by the DA, the asserted claim of a due process violation would hold little merit,” the Law Court’s opinion says.

“Every defendant has the right to an impartial judge at his trial,” said Yamartino, in a prepared statement that she read over the phone. “The court was persuaded that our client was deprived of the fair process to which he was entitled. … The court based their decision on our client’s due process rights and the importance of public trust and confidence in the procedures used by the courts.”

 The prosecutor in the case, Assistant Attorney General Paul Rucha, who initially screened the case when he was part of the Kennebec County District Attorney’s Office, had asked the Law Court to keep Bard’s conviction intact.

On Thursday, Rucha said, “We’re reviewing the decision, but we believe the court’s previous order prohibiting comment by us is in effect.” He declined to say anything else.

Bard’s trial in August 2014 in Kennebec County Superior Court was cut short when he entered conditional guilty pleas to 11 charges of sexual exploitation of a minor, seven charges of gross sexual assault on a child under 12, two charges of unlawful sexual contact and one charge of assault. Those pleas were conditional on the issues being appealed to the Law Court.

The trial judge, Superior Court Justice Donald Marden, explained at the time that if the rulings by the Law Court indicated he was wrong in pre-trial decisions, Bard could withdraw his guilty pleas.

The offenses occurred in the period of Dec. 1, 2011, to April 30, 2012, while Bard was baby-sitting the 4-year-old girl in Augusta. Investigators say he had befriended the child’s mother in 2010.

The investigation began when another mother seeking day care services for her child in May 2012 came across an ad on Craigslist offering to babysit, photograph and bathe children. She reported it to Maine State Police, who learned that Bard had placed the ad.

It quotes from a court reporter’s transcript of that conversation and says, “Here, a due process infirmity arose when the court held an ex parte conference, without Bard’s knowledge or consent, on a subject directly related to the viability of the charges against Bard and the process for adjudication of those charges.”

The opinion also includes a footnote regarding Marden, the trial judge: “In the matter before us, the trial court must be credited for taking precautions by having the conference recorded and stating at the outset that its purpose was only to alert the prosecutor about her office’s possible ethical violation in contravention of the court’s impoundment order or bail order.”

The Law Court also indicated that the matter should be specially assigned to one judge and dealt with expeditiously “given that this matter has now been pending for more than five years, that the alleged victim is young, and that Bard has been incarcerated for several years.”

Rulings in the case have been appealed several times, and Bard has had a number of hearings to determine whether he was competent to enter a plea and stand trial.

(Mike Frisch)

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