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
AUGUSTA — Whether a key piece of evidence can be used in the retrial of a Sidney man who had his conviction on child rape charges overturned will come down to interpreting his consent to allow authorities to search his computers.
Crucially, the question is whether that consent included seizure of a digital storage device on which police say they later found photos and video of the man sexually assaulting a 4-year-old victim.
Eric Bard, 31, 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 he was babysitting and recording his acts on his cellphone.
He was sentenced to 50 years in prison, followed by a lifetime of supervised release. But his attorneys appealed his case to the Maine Supreme Judicial Court, which ruled in favor of his appeal and granted him a new trial.
The court ruled Bard was deprived of due process because the judge in the first trial, Superior Court Justice Donald Marden, met during the trial with Maeghan Maloney, district attorney for Kennebec and Somerset counties, at Marden’s request, without a lawyer for the defense present.
On Tuesday, one of Bard’s attorneys and a state prosecutor presented their closing arguments on a motion from Bard’s defense to suppress photo and video evidence found by police on a micro “SD” digital storage card located in Bard’s bedroom.
State Police Special Agent David Armstrong testified earlier that Bard consented to a search of his bedroom for computers that might contain evidence, but under questioning said he could not recall, for sure, whether he asked Bard for consent to search specifically for devices other than computers.
Defense attorney Darrick Banda, as he did before the first trial, argued that police did not have consent to seize the SD card, didn’t have probable cause to believe it contained evidence and should have gotten a search warrant, as they searched the Bard family’s Sidney home in 2012.
“Most of the time when these guys go in, normally they have a warrant or they get consent, like nine times out of 10, they get consent to take whatever they want,” Banda said of police searching Bard’s room. “And this is the one time they didn’t. Where the target of the investigation says no, you can’t. And they didn’t know what to do. So they just take it anyway. The problem is, that’s not justified.”
Bard, according to testimony, agreed to let police search for computers containing evidence in his room but when a detective asked him about a thumb drive and SD card they found in a camera case, Bard objected to police searching the card, saying it contained personal photographs.
Prosecutor Paul Rucha, referring to previous police testimony, said police used the terms computer and digital storage device interchangeably and that it is widely understood that when police are looking for evidence in sexual exploitation types of cases, their search would include not just actual computers but also digital devices, such as the SD card in question. He said when considering the totality of conversations between police and Bard, it was clear police were searching for evidence, not just for computers.
“Doesn’t common sense suggest it wasn’t just the term ‘computers,'” Rucha said of the consent he argued was granted by Bard for the search.
Rucha noted police seized the SD card the day they searched Bard’s home, but did not search its contents until 10 days later, after they’d obtained a search warrant specifically for the card. He said case precedent has established that if police have probable cause to believe someone has sexually exploitative material on a device, they’re allowed to seize that device, to prevent the suspect from potentially destroying or hiding the device.
Banda argued police could have obtained a search warrant the day of the search, and remained at the home to make sure potential evidence wasn’t destroyed, until a warrant was obtained.
The judge in the first trial denied similar motions to suppress evidence, ruling that discovery of the images and videos on the SD car was inevitable.
Justice Daniel Billings, presiding over Tuesday’s suppression hearing, said he would consider the final arguments made and issue a written decision on whether the evidence would be allowed at trial.
Bard, who remains in custody awaiting his retrial, has long hair and, like everyone else in the courtroom, wore a mask, to comply with restrictions meant to help prevent the spread of COVID-19. He turned and waved to two adults seated in the public area of the courtroom before the hearing started. As he had in his first trial, he often rocked back and forth in his seat as the hearing proceeded.
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.
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