AUGUSTA — Attorneys representing a Sidney man who had his conviction in a case in which he allegedly raped a young girl sought to have evidence found by police on a digital storage device suppressed in a court hearing Tuesday.
Eric Bard pleaded guilty in 2014 and was convicted on 21 counts, including gross sexual assault and sexual exploitation of a minor, for allegedly sexually assaulting a 4-year-old girl and recording his acts on his cellphone.
He was ordered to serve 50 years in prison followed by a lifetime of supervised release.
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 30, 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.
On Tuesday Bard’s four-member defense team sought to have evidence the Maine State Police Computer Crimes Task Force found on a micro “SD” storage card they found while searching Bard’s bedroom at his mother’s home in Sidney suppressed so it can’t be used at his second trial. Police said the card contained video of the alleged assault.
Attorney Darrick Banda, as he did before the first trial, sought to show the card was improperly obtained by police.
Police searched the home without a search warrant, with multiple members of the computer crimes task force saying they had been given permission by Bard’s mother and a man who lived there to search the premises for evidence. They also said they had permission from Bard himself to search in the porch of the home, which served as his bedroom, at least for computers.
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. Andy Molloy/Kennebec Journal file
But Banda contended police overstepped any consent they may have had to search for computers when they seized the memory card device without specific consent to search for anything other than computers.
Under questioning, Special Agent David Armstrong said he could not recall, for sure, whether he asked Bard for consent to search the home specifically for devices other than computers. He said he thought that had come up when he spoke with Bard, but said he didn’t record that part of their conversation.
Armstrong said while he had recorded part of their earlier conversation, he forgot to turn his recorder back on when they resumed talking, and he asked Bard whether police could take one final search of his bedroom area, to which he said Bard consented. That search turned up a camera case that contained a thumb drive and the SD card.
“I asked if we could take one last look through his room and he said we could,” Armstrong said.
Armstrong said when shown the two devices, Bard consented to the contents of the thumb drive being searched but declined to allow the SD card to be searched, saying it contained his personal photographs and information. Armstrong said he thought that meant there was probably child pornography on the card.
Police seized the card, but Armstrong said they did not search it or discover its contents until 10 days later, after they had obtained a search warrant. Until the warrant was obtained, the card was kept in a folder on which Armstrong wrote that the card should not be searched until a warrant was obtained.
He said they could have obtained a search warrant the day of the June 19, 2012, search, but he chose not to seek one because it would have taken three to four hours. Armstrong said police had already been at the home for hours that, and it would have inconvenienced the family if police stayed at the site until a warrant was obtained.
Armstrong said police feared if they left the card there, it would be hidden or destroyed, and that it would be easy to secure and keep it until a warrant could be obtained. He said at no time did Bard express concern that the card should not be seized.
“You didn’t get the warrant and you made the choice to physically seize the SD card, right?” Banda asked of Armstrong, who said that was correct.
According to a victim impact statement filed in 2015 when Bard was first sentenced, the girl said she had numerous showers a day and wouldn’t sleep alone. She was concerned someone might see the videos of the alleged sexual assaults that Bard recorded.
Investigators said previously Bard had befriended the child’s mother in 2010 and babysat the girl at apartments in Augusta when the sexual abuse occurred. The offenses to which Bard pleaded guilty allegedly occurred between December 2011 and April 2012.
The investigation began in May 2012 when a citizen came across a Craigslist ad offering to babysit, photograph and bathe children. She reported it to Maine State Police who learned that someone at Bard’s address had created the ad, after filing subpoenas of the internet provider to get the address used to open the account.
They went to the Bard residence and, after first denying it, he acknowledged he had placed the ad. Under questioning, Armstrong said Bard admitted he had looked at child pornography on computers in the home.
Initially police looked for child pornography on Bard’s computers, then located the 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. Prosecutor Paul Rucha said some of the photos showed Bard engaging in sexual assaults of the girl.
Bard objected to them viewing items on that device, and that was the subject of suppression motions by defense attorneys, both before his first trial and in the suppression hearing Tuesday.
The judge in the first trial denied them all, ruling that discovery of the images and videos on the device was inevitable.
Attorneys for both sides rested their cases Tuesday but neither delivered closing arguments. Justice Daniel Billings, who presided over Tuesday’s suppression hearing, said he would seek to schedule oral closing arguments later this month, then rule on whether to suppress or allow the evidence on the card at trial.
The diminutive, long-haired Bard attended the proceedings in person, but did not testify.
Several times during testimony Tuesday, police who investigated the case said they could not recall specific details of their 2012 investigation. Rucha said officials understood it had been eight years since the offense occurred, and asked them to remember as best they could but to just say they couldn’t recall if they could not recall the sequence of events.
Due to the coronavirus everyone in court wore a mask. Billings told witnesses to speak loudly on the stand, so they could be heard through their masks.
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