AUGUSTA — Oral arguments are set for Tuesday in an appeal by a Sidney man serving 50 years in prison for sexually assaulting a 4-year-old girl and recording those attacks on his cellphone.
Eric L. Bard, 26, pleaded guilty in August 2014, the second day of his jury trial, 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.
The offenses occurred between Dec. 1, 2011, and April 30, 2012, while Bard was baby-sitting the girl in Augusta. Investigators say he had befriended the child’s mother in 2010.
Bard, through attorneys Gina Yamartino and Ronald Bourget, is appealing three rulings by a judge in the case — those about Bard’s competence to stand trial, admittance of evidence found on a cellphone memory card, and the length of the sentence.
Bard pleaded guilty on the condition that those rulings would be reviewed.
Yamartino is expected to argue on behalf of the defense Tuesday when the Maine Supreme Judicial Court sits at the Capital Judicial Center in Augusta.
The state, through the prosecutor, Assistant Attorney General Paul Rucha, wants the judge’s decisions and the sentence upheld, although Rucha said the sentence hearing could be reopened to allow the judge to memorialize his reasons for imposing consecutive sentences of 30 and 20 years.
Bard’s appeal hearing is the first of 18 cases set for oral arguments in a three-day session by the high court in Augusta.
Bard, who is serving his sentence at the Maine Correctional Center in Windham, is not expected to attend. Generally prisoners do not attend oral argument sessions of the state supreme court.
Bard’s release date from prison is Feb. 20, 2061, according to the website of the state Department of Corrections.
Justice Donald Marden, who sentenced Bard, ordered him to serve a lifetime of supervised release once he has finished the jail term. “The effect on this young girl is monumental,” Marden said at the sentencing hearing. “When you do this, you destroy the person.”
Bard’s attorneys say in their written brief that Bard was not mentally competent to enter a plea or work with his attorneys and cite expert opinions from those who evaluated Bard. “All the professionals that came into contact with Eric spoke to his questionable abilities,” they wrote.
Several experts said Bard suffers pervasive developmental disorder.
“Whatever rudimentary skills he was able to show at the jail do not make him competent to deal with complex legal issues,” the defense attorneys said in their brief.
They also say the state police investigators overstepped their bounds by taking a memory card while searching Bard’s home and room for computers.
“Eric maintains that any consent given to search his bedroom was consent for the police to look specifically for computers, not a general consent to search his entire bedroom, and certainly not consent for all electronic devices or external memory cards such as the SC card that was a memory card meant for a cellphone, not a computer,” they wrote.
Bard also objected to the seizure of the card at the time. The defense attorneys say investigators kept it for 10 days before seeking a warrant to look at the contents.
In a separate reply brief, the defense attorneys also say that the consent form signature purporting to be Bard’s is not his and does not resemble the signatures on two documents Bard signed in court.
Rucha, in his written brief, maintains that Marden properly concluded that Bard was mentally competent, that the memory card would have been located and eventually searched anyway, and that the sentence was proper. However, Rucha also wrote that the sentence could be sent back to the superior court for the judge to include the reasons he imposed consecutive sentences: 30 years on the gross sexual assault charges and 20 years on the charges of sexual exploitation of a minor under 12.
“Based on the totality of the record and despite Bard’s deliberate attempts to exaggerate his limitations, the court had sufficient evidence that he could meet the standard based on two evaluators’ opinions, previous testing and the observations made outside of the court-ordered evaluations,” Rucha wrote.
He quoted from the July 15, 2014, testimony of Ann LeBlanc, director of the State Forensic Service, which evaluates people for the court.
LeBlanc said “Bard has cognitive limitations and language limitations, but that he is also minimizing the skills that he has with the intent of derailing the legal process that he’s in.”
Rucha said Bard agreed to allow police to search computers at his home to see whether they contained child pornography, but he refused to allow them to search the SD card.
“Seizure was inevitable once the officer had probable cause to believe that the SD card contained evidence of the crime and the search only occurred once the warranted was issued,” Rucha said.
His brief details some of the card’s contents: “When the SD card was examined, it contained photographs and videos of a young girl engaged in sexually explicit conduct with Bard or posing for Bard.”
The investigation in the case began when another mother seeking day care services for her child in May 2012 came across what was termed a “creepy” ad on Craigslist by a person offering to baby-sit, photograph and bathe children. She reported it to the Maine State Police, who learned that Bard had placed the ad.
Initially police looked for child pornography on Bard’s computers, then located a micro SD card used for storing data, which Bard told them contained “personal things,” according to an affidavit filed in court by the chief investigator, Maine State Police Detective Chris Tremblay.
Bard objected to police viewing items on that device, and that was the subject of suppression motions by defense attorneys, the latest of which came just before the start of Bard’s trial.
The judge denied them all, ruling that discovery of the images and videos on the device was inevitable.
Betty Adams — 621-5631
Twitter: @betadams
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