Fifty-five years ago, a unanimous U.S. Supreme Court in Gideon v. Wainwright determined that indigent criminal defendants in serious cases require counsel: “Lawyers in criminal courts are necessities, not luxuries.” Criminal defense attorneys are entrusted with embodying the promises and protections of our Constitution on behalf of our clients.

I was recently reminded of the lessons of Gideon concerning the necessity of zealous defense representation by the Maine Supreme Judicial Court’s opinion in State of Maine v. Eric Bard. The Law Court held that because of the “potential” of bias of the trial judge, Justice Donald Marden, against Mr. Bard, as evidenced in private conversations between the judge and the prosecutor, Kennebec and Somerset District Attorney Maeghan Maloney, public faith and trust in the process were broken and Mr. Bard’s right to due process was violated. The Law Court overturned Mr. Bard’s convictions. Mr. Bard has been in custody since July 2012. His case will now be presented to another judge on an expedited basis.

Our system of justice works only when all three actors – the judge, the prosecutor and defense counsel – fulfill their duties. This system is not unlike a three-legged stool: If any one of the legs is shorter than the others or broken or missing entirely, the stool will fall. So, too, with our justice system.

A judge’s duty, above all, is to be fair and impartial and ensure due process of law for the accused. We address judges as “Your Honor,” as they should personify honor, reason and fairness to all who appear before them. In the Bard case, Justice Marden’s discussions with the prosecutor revealed that he had prejudged central issues in the case: namely, that Mr. Bard was competent to stand trial and that the prosecutor had not violated her ethical obligations. Justice Marden ordered that the transcript of that conversation be placed “under seal” – and away from the eyes of defense counsel. He compounded his misconduct by repeatedly lying to defense counsel about the subject of his private conversation with the prosecutor. Simply put, Justice Marden did not fulfill his duties to Mr. Bard or the system at large. Unlike the Law Court, I do not feel that Justice Marden should be credited for any of the actions he took in this matter.

Prosecutors are entrusted with doing justice, not merely securing, by any means necessary, convictions and the highest sentences possible. Very early on in this case, District Attorney Maloney leaked sensitive information to the press in defiance of court orders, which information could have tainted the jury pool and public against Mr. Bard.

She encouraged pretrial supervisory organizations to deny supervision contracts to Mr. Bard – in essence, depriving him of any opportunity to remain free on bail while presumed innocent of the charges against him. She provided the judge with prejudicial information about her opinion concerning both Mr. Bard’s competency and the strength of her case against him. District Attorney Maloney failed in her duty not only to the court, but also to the public, as this 6-year-old case is once more reopened, in large part because of her complicity and misconduct.


What professional discipline, if any, may be imposed on District Attorney Maloney and Justice Marden remains to be seen. That either of these people may be disciplined, however, is cold comfort.

Defense attorneys are tasked with advocating for and protecting their clients, no matter how damning the facts or how appalling the charges. For the past six years, attorney Gina Yamartino has steadfastly and vociferously advocated for her client, Mr. Bard. She was the only person in this three-pronged system of justice who executed her duties properly. This conversation between Justice Marden and District Attorney Maloney and its subsequent cover-up never should have happened, but Mr. Bard is exceedingly lucky to have Gina Yamartino by his side. It is because of her perseverance and dedication that he will see his case finally handled fairly and, hopefully, justly.

I’ve spoken with dozens of colleagues throughout the state, and the questions that keep cropping up are: “How many times do these conversations happen without us ever knowing about them?” and “What can we do to make sure it doesn’t happen again?” Rather than resolve these questions, the Law Court’s Bard opinion highlights the problems for us and our clients going forward.

Now we must all be ever more vigilant to ensure that judges and prosecutors play fair, and that our clients – and every person accused of a crime – are guaranteed equal justice under the law.

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