AUGUSTA — Court hearings in preparation for a new trial for Eric Bard, whose conviction and 50-year prison sentence for allegedly sexually assaulting a 4-year-old girl he was baby-sitting was thrown out by the state’s highest court, began Monday with a competency hearing.
Bard pleaded guilty and was convicted of 11 counts of sexual exploitation of a minor, seven counts of gross sexual assault, two counts of unlawful sexual contact and a single count of assault for allegedly sexually assaulting the girl multiple times, and recording those acts, and sentenced to 50 years in prison, in 2015.
However, in March 2018 the state’s highest court ruled in favor of Bard’s appeal and granted him a new trial. The Maine Supreme Judicial Court ruled Bard, now 29, was deprived of due process because Maeghan Maloney, district attorney for Kennebec and Somerset counties, met with Superior Court Justice Donald Marden, at his request, without a lawyer for the defendant present.
Maloney was admonished, in May, by a Maine Board of Overseers of the Bar panel following a disciplinary hearing, for the meeting with the judge during which she answered questions he posed. Admonishment is the lowest level of sanction the board can issue, other than dismissal.
Whether Marden is also facing disciplinary action is unclear. Unlike complaints against attorneys, complaints against judges in Maine are handled confidentially, unless disciplinary action is taken by the Maine Supreme Judicial Court.
Part of the conversation between Maloney and Marden involved Bard’s mental competency, which was a matter of contention in the trial.
In preparation for his new trial, Bard’s new competency hearing, expected to last about four days, this time before Justice Daniel Billings, got underway Monday at the Capital Judicial Center.
In Bard’s first trial, Marden ruled Bard was competent to stand trial. In that proceeding, Bard’s lawyers argued he had pervasive developmental disorder and would be unable to assist them in his own defense so he should have been found incompetent to stand trial.
Prosecutor Paul Rucha, assistant attorney general, argued in Bard’s first competency hearing, in 2014, that Bard was intentionally misleading psychologists who evaluated him about his intellectual capability, and was not making any effort to show he was competent, and was faking the severity of his mental health problems.
At Monday’s hearing, clinical psychologist Dr. Peter Donnelly testified Bard’s most recent IQ test result was a 71, which he said means he is in the “borderline range of intelligence.” But he said previous IQ tests of Bard included a score of 77 in 2001, 85 when he was in school, and then a low of 49 when he was tested by an evaluator in preparation for his first trial.
Rucha suggested Bard had intentionally scored poorly on the test in which he scored 49, and Donnelly said the doctor who administered that test felt as if the 49 represented “a distinct effort to fake bad.”
Gina Yamartino, one of Bard’s lawyers, said all the clinical workers who evaluated Bard seemed to agree he had significant depression, anxiety, and expressive language learning disorder, and questioned whether he was capable of working with his attorneys on his legal case.
Donnelly said Bard seemed to be able to understand what people are saying to him when they are speaking to him, but is very slow to respond to questions, is not an abstract thinker, and is easily overwhelmed, at which point he, as a coping mechanism, seems to shut down.
He said Bard knows what he is charged with and, when asked about the consequences, had told Donnelly he had already been sentenced to 50 years in prison.
Donnelly said Bard seems much more capable of discussing all matters other than his legal case. He said when Bard’s legal case is being discussed, he rocks back and forth in his seat, as he did in the courtroom during much of his first trial, and as he also did Monday.
Donnelly suggested the rocking back and forth was due to anxiety and the only time Bard seems to completely shut down is when he’s asked about his legal case and alleged crimes. He said when talking to him about his legal case “at times it was like pulling teeth,” but that Bard carried on other conversations, such as about football, freely.
He said during a prison interview, Bard, in response to questions, was rocking in a very childlike manner but, when he was told he wasn’t in trouble and they just wanted to ask him some general questions he stopped.
“It was unusual that when he was given reassurances this wasn’t about him, he was able to stop,” Donnelly said.
Donnelly said Bard reported he has audible hallucinations, including a woman’s voice saying “kill, kill, kill,” another voice telling him to kill himself and sometimes he hears what sounds like voices in a crowded room.
Donnelly, under questioning from Yamartino about whether Bard would be able to collaborate with his attorneys at trial, said he’s likely want to cooperate and help the people who he understood were on his side, but that he’d have a difficult time and questioning would have to take place very slowly, and likely be repeated to him several times. He said he is able to give brief answers to questions but would have a hard time elaborating.
Asked, by Yamartino, if Bard would be able to comprehend legal advice and explore legal alternatives including plea bargains, Donnelly said it would be a challenge and things would have to be presented to him one at a time.
“He has difficulty participating in the process that has anything to do his allegations,” Donnelly said. “My impression is he doesn’t want to go there.”
The alleged 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.
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