AUGUSTA — Testimony, including in-depth discussion about how difficult it is to play the card game pinochle, wrapped up Thursday in a new competency hearing for a Sidney man convicted and sentenced to 50 years in prison for allegedly raping a 4-year-old girl he baby-sat, but who appealed and was granted a new trial by the state’s highest court.
In 2014 Eric Bard pleaded guilty and was convicted on 21 counts, including gross sexual assault and sexual exploitation of a minor, for allegedly sexually assaulting the girl and recording his acts on his cell phone.
Eric Bard is flanked by his attorneys, Gina Yamartino and Ronald Bourget, during a hearing Jan. 5, 2015, at Kennebec County Superior Court in Augusta. Kennebec Journal file photo by Andy Molloy
In March 2018, however, the Maine Supreme Judicial Court ruled in favor of Bard’s appeal and granted him a new trial.
The high court ruled Bard, now 29, was deprived of due process because Maeghan Maloney, district attorney for Kennebec and Somerset counties, met during the trial with Superior Court Justice Donald Marden, at his request, without a lawyer for the defendant present.
A competency hearing for Bard took place this week and testimony wrapped up Thursday. Justice Daniel Billings is not expected to rule on the case until at least December.
This week lawyers for the state and Bard questioned two witnesses on the stand about pinochle, as they sought to demonstrate whether Bard is capable of abstract thinking and making plans and strategies during the four-day hearing held to determine whether Bard is competent to stand trial and participate in his own defense.
The witnesses who testified about pinochle were Darren S. Moore, an inmate serving 36 years in prison for the gruesome murder of his mother in 1998, who played the game with Bard in prison, and the chief of the natural resources division of the state Attorney General’s Office, Scott Boak, who has never played pinochle with Bard, or in prison, but who said he has played the game for 35 years.
Ronald Bourget, one of Bard’s defense lawyers, objected to the testimony about pinochle by the witnesses as an indicator of Bard’s competency to stand trial.
“I think we’re way far afield, enough that it’s not proper. It borders on ‘ridicularity,'” Bourget said after Moore’s testimony, and before Boak’s. “As a member of the bar, I’m more concerned whether my client can assist me (in his defense), not whether he’s flipping cards with this guy.”
Prosecutor Paul Rucha, an assistant attorney general, countered that the intricacies of playing pinochle help show an ability for abstract thinking, reasoning and planning strategy.
Billings, who will determine whether Bard is competent to stand trial, allowed the pinochle-related testimony, but said as he weighs it, he will keep in mind that the way the game is played in prison may be different or more rudimentary than how it is played elsewhere.
Moore, a large man in prison orange coveralls who was brought into court by guards, testified he befriended the diminutive Bard in prison, where they played spades and pinochle.
He said Bard gave up the first couple of times they played the fairly complex game that involves bidding. With help from other inmates and a “cheat sheet” that explained some of the game’s rules, Bard picked it up and improved at the game.
Moore said he saw Bard rock back and forth often when he was seated, as he did in the courtroom during both of his competency hearings.
Boak testified he taught his 11-year-old son and 13-year-old daughter to play pinochle, and that he plays the game because it is challenging and more complex than hearts or cribbage.
Robert Riley, a psychologist testifying for the state, said his evaluation of Bard, which included review of other psychologists’ reports, concluded he was attempting to appear far more impaired, mentally, than is the case, and understood more about the legal system than he demonstrated during evaluations.
Rucha suggested in both Bard’s first competency hearing and the just-concluded one that the defendant, in an effort to improve his legal situation, was trying to mislead psychologists who evaluated him about his intellectual capabilities.
Ronald Rhodes, a corrections officer and field training officer who, for a time, had Bard housed in the pod he overseas, said from the witness stand Thursday that Bard would play chess and checkers and read while imprisoned. The two would talk about Bard’s mother, for whom Bard cared deeply, Rhodes said.
Prosecutors questioned David Armstrong, a detective with the state Computer Crimes Task Force, who was the lead investigator in the Bard case. Armstrong played two audio recordings he had made of interviews with Bard, during which Armstrong questioned Bard about child pornography in an investigation initiated after a local woman in 2012 reported coming across an ad on Craigslist offering to baby-sit, photograph and bathe children.
Armstrong said police tracked the Craigslist post back to Bard, who had taken out the ad using a fake name.
On the recording played in court, Armstrong is heard talking with Bard and pressing him about looking at child pornography, which Bard acknowledged he had done.
Bard’s responses are often delayed, and at one point he broke into tears. He said he did not want to go to jail, and he had not done anything wrong — beyond looking at pictures.
Video footage allegedly showing Bard with the 4-year-old girl, naked, was later discovered on a memory card found in Bard’s room at his mother’s house, according to a police affidavit.
Lawyers for both sides are expected to file closing arguments in writing for Billings to consider, a process that could last into December.
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