	

MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2018	ME	38	
Docket:	   Ken-15-400	
Argued:	   September	13,	2016;	December	13,	2017	
Decided:	  March	15,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HJELM,	JJ.	
	
	
                                  STATE	OF	MAINE	
                                          	
                                         v.	
                                          	
                                    ERIC	BARD	
	
	
PER	CURIAM	

	     [¶1]		During	the	pendency	of	criminal	proceedings	against	Eric	Bard,	and	

while	Bard’s	competency	to	stand	trial	was	under	consideration	and	his	motion	

to	 dismiss	 all	 charges	 on	 the	 basis	 of	 alleged	 prosecutorial	 misconduct	 was	

pending	before	the	court,	the	trial	court	(Kennebec	County,	Marden,	J.)	held	an	

ex	parte	conference	with	the	 prosecutor	to	address	the	 alleged	 prosecutorial	

misconduct.		Defense	counsel	was	not	notified	of	that	conference	and	did	not	

consent	to	the	ex	parte	communication.		After	further	proceedings,	the	 same	

jurist	found	Bard	competent	to	stand	trial,	denied	the	motion	to	dismiss,	and	

denied	 Bard’s	 motions	 to	 suppress.	 	 Bard	 entered	 a	 conditional	 guilty	 plea,	

allowing	him	to	challenge	the	competency	determination	and	the	denial	of	his	

motions	to	suppress	on	appeal.			
2	

      [¶2]	 	 Following	 the	 oral	 argument	 on	 Bard’s	 appeal,	 we	 authorized	

additional	proceedings	in	the	trial	court	while	Bard’s	appeal	remained	pending	

so	that	Bard	could	obtain	the	transcript	of	the	ex	parte	conference	and	file	any	

further	motions	with	the	trial	court.		Bard	then	filed,	in	the	trial	court,	a	motion	

to	vacate	the	judgment	of	conviction	and	a	motion	for	Justice	Marden’s	recusal.		

Justice	Marden	recused	himself,	and,	after	receiving	memoranda	and	hearing	

the	arguments	of	the	parties,	the	court	(Brennan,	J.)	dismissed	Bard’s	motion	to	

vacate	the	judgment	of	conviction.		Bard	now	appeals	from	the	dismissal	of	the	

motion	to	vacate—an	appeal	that	we	consolidated	with	his	initial	appeal	from	

the	competency	and	suppression	determinations.		We	vacate	all	adjudicatory	

action	undertaken	after	the	ex	parte	conference	with	the	District	Attorney	by	

the	judge	who	held	that	conference,	we	dismiss	the	appeal	from	the	dismissal	

of	the	motion	to	vacate	as	moot,	and	we	remand	for	further	proceedings.	

                           I.		BACKGROUND	SUMMARY	

      [¶3]	 	 Eric	 Bard	 was	 twenty-two	 years	 old	 when	 he	 was	 charged	 with	

multiple	 counts	 alleging	 sexual	 assault,	 unlawful	 sexual	 contact,	 and	 sexual	

exploitation	 of	 a	 child.	 	 Early	 in	 the	 proceedings,	 the	 arrest	 warrant	 and	

accompanying	 affidavit	 were	 impounded.	 	 Following	 Bard’s	 arrest,	 given	 the	

nature	 of	 the	 charges,	 the	 court	 sought	 to	 assure	 that	 any	 release	 of	 Bard	
                                                                                         3	

pending	trial	would	be	accompanied	by	substantial	oversight	and	supervision.		

Bard’s	counsel	also	sought	to	have	his	mental	status	examined.			

      [¶4]		During	the	course	of	those	preliminary	proceedings,	Justice	Marden	

became	 concerned	 that	 District	 Attorney	 Maeghan	 Maloney	 had	 released	

impounded	 information	 to	 the	 press	 and	 had	 unfairly	 attempted	 to	 interfere	

with	 the	 availability	 of	 pretrial	 supervision	 services	 for	 Bard.	 	 Maloney	 was	

asked	to	attend	a	hearing	with	defense	counsel	to	address	those	concerns,	but	

an	Assistant	Attorney	General	appeared	in	her	place,	and	the	judge	was	not	able	

to	address	the	concerns	at	that	hearing.		Bard	then	moved	to	dismiss	all	charges	

on	 the	 ground	 that	 prosecutorial	 misconduct	 in	 the	 release	 of	 impounded	

information	had	negatively	affected	Bard’s	right	to	a	fair	trial	and	that	the	DA	

had	unfairly	interfered	with	Bard’s	opportunity	to	be	released	on	bail.			

      [¶5]		Several	days	after	the	motion	to	dismiss	was	filed,	Justice	Marden	

held	a	conference	with	Maloney	regarding	his	concerns	about	her	conduct.			

      [¶6]		That	conference	with	the	DA,	however,	was	held	without	notice	to,	

or	 the	 presence	 of,	 defense	 counsel.	 	 The	 ex	 parte	 conference	 was	 held	 in	

chambers	 in	 order	 to,	 as	 the	 court	 said,	 “get	 things	 squared	 away.”	 	 A	 court	

reporter	 and	 the	 court	 clerk	 were	 present.	 	 The	 conference	 was	 recorded,	

although	the	court	considered	the	record	to	be	“confidential	and	sealed.”		Bard’s	
4	

counsel	 later	 learned	 about	 the	 ex	 parte	 conference,	 but,	 after	 personal	

assurances	 from	 the	 court	 that	 the	 conference	 had	 not	 included	 any	

communications	regarding	the	case	itself,	counsel	did	not	seek	the	transcript	of	

the	 conference	 and	 did	 not,	 at	 that	 time,	 further	 object	 to	 the	 ex	 parte	

conference.			

      [¶7]	 	 Bard	 had	 been	 determined	 competent	 to	 stand	 trial	 by	 Justice	

Marden	 prior	 to	 the	 ex	 parte	 conference,	 and	 a	 second	 hearing	 on	 Bard’s	

competence	was	held	by	Justice	Marden	after	that	conference.		After	the	second	

competency	hearing,	the	court	again	determined	that	Bard	was	competent	to	

stand	trial.		Motions	to	suppress	evidence	obtained	from	Bard’s	house	were	also	

heard	 and	 denied	 by	 Justice	 Marden	 after	 the	 ex	 parte	 conference.	 	 Justice	

Marden	 also	 denied	 Bard’s	 motion	 to	 dismiss	 for	 alleged	 prosecutorial	

misconduct.			

      [¶8]		 Bard	then	entered	a	conditional	guilty	plea,	reserving	his	right	to	

appeal	 the	 determination	 of	 competency	 and	 the	 denial	 of	 his	 motions	 to	

suppress.	 	 That	 appeal	 came	 before	 us	 for	 oral	 argument.	 	 Because	 of	 the	

potential	 that	 the	 ex	 parte	 conference	 included	 inappropriate	 discussion	

between	 the	 DA	 and	 the	 court	 regarding	 both	 Bard’s	 allegations	 of	

prosecutorial	 misconduct	 and	 his	 competency,	 which	 Bard	 challenged	 on	
                                                                                                          5	

appeal,	 the	 ex	 parte	 conference	 was	 discussed	 during	 oral	 argument.	 	 Bard’s	

counsel	then	sought	and	ultimately	obtained	the	transcript,	and	moved	in	the	

trial	court	for	Justice	Marden’s	recusal	and	to	vacate	the	judgment	of	conviction.		

Upon	Bard’s	motion,	Justice	Marden	recused	himself	from	the	proceedings.		The	

newly	assigned	trial	justice	(Brennan,	J.)	dismissed	Bard’s	motion	to	vacate	the	

judgment	of	conviction,	and	we	now	have	both	appeals	before	us.			

                            II.		DETAILED	PROCEDURAL	HISTORY	

	       [¶9]		Because	the	specifics	of	the	procedural	history	are	important	to	a	

complete	understanding	of	the	unusual	issues	in	the	appeals	before	us,	we	now	

review	 that	 history	 in	 detail.	 	 On	 July	 27,	 2012,	 the	 State	 filed	 a	 three-count	

complaint	 with	 the	 court,	 charging	 Bard	 with	 gross	 sexual	 assault	 (Class	 A),	

17-A	M.R.S.	 §	253(1)(C)	 (2017),	 sexual	 exploitation	 of	 a	 minor	 (Class	 A),	

17-A	M.R.S.	 §	282(1)(C)	 (2012),1	 and	 unlawful	 sexual	 contact	 (Class	 B),	

17-A	M.R.S.	 §	255-A(1)(E-1)	 (2017).	 	 The	 court	 (Mills,	 J.)	 issued	 an	 arrest	

warrant	on	the	same	day.		The	court	(Dobson,	J.)	granted	the	State’s	motion	to	

impound	the	arrest	warrant	and	its	supporting	affidavit	until	further	order	of	




    1		This	statute	has	since	been	amended.		See	P.L.	2015,	ch.	394,	§	1	(effective	July	29,	2016)	(codified	

at	17-A	M.R.S.	§	282(1)(C)	(2017)).	
6	

the	court.2		Bard	was	arrested,	and	his	initial	appearance	was	held	on	July	30.		

The	court	set	bail	at	$100,000	cash	bond	with	multiple	conditions	designed	to	

prevent	Bard	from	having	contact	with	children	or	using	the	internet.		No	bond	

was	posted,	and	Bard	remained	incarcerated.			

	        [¶10]	 	 Less	 than	 a	 month	 later,	 on	 August	 9,	 2012,	 the	 State	 filed	 a	

twenty-one-count	 indictment	 alleging	 multiple	 counts	 of	 each	 of	 the	 three	

initially	 charged	 crimes	 and	 also	 alleging	 assault	 (Class	 D),	 17-A	 M.R.S.	

§	207(1)(A)	(2017).			

	        [¶11]		The	court	(Mills,	J.)	granted	Bard’s	motion	for	mental	examination	

on	 September	 7,	 2012.	 	 Nearly	 a	 year	 later,	 in	 August	 2013,	 the	 court	

(Marden,	J.)	held	a	hearing	and	found	Bard	competent.		See	15	M.R.S.	§	101-D(1)	

(2017).	 	 A	 second	 mental	 examination	 was	 ordered	 by	 the	 court	 (Humphrey,	

C.J.)	in	December	2013,	requiring	Bard	to	spend	sixty	days	in	the	hospital	for	

the	examination.		 Before	the	second	competency	hearing	was	held,	the	court	

(Marden,	 J.)	 entered	 pleas	 of	 not	 guilty	 and	 not	 guilty	 by	 reason	 of	 mental	

disease	or	defect	on	Bard’s	behalf	after	Bard	indicated	at	his	arraignment	that	

he	 could	 not	 understand	 what	 was	 being	 asked	 of	 him.	 	 See	 M.R.	



     2		A	second	order	of	impoundment	was	signed	by	the	court	(Murphy,	J.)	on	July	31,	2012,	although	

only	one	warrant	and	affidavit	appears	in	the	record.			
                                                                                                                  7	

Crim.	P.	11(a)(1)	 (Tower	 2014)	 (addressing	 court	 action	 when	 a	 defendant	

declines	to	plead	at	arraignment).3		

	        [¶12]		On	June	4,	2014,	almost	two	years	after	the	filing	of	the	original	

indictment,	the	court	held	another	bail	hearing.		On	the	issue	of	conditions	of	

release,	 the	 court	 indicated	 that	 Bard	 would	 not	 be	 released	 “unless	 there	 is	

some	 pretty	 strict	 supervision.”	 	 Bard	 asked	 that	 he	 be	 released	 under	 the	

supervision	 of	 an	 assistance	 program	 called	 Fullcircle	 Supports.	 	 The	 court	

ordered	Bard	placed	on	bail	at	$10,000	unsecured	bond,	subject	to	a	number	of	

conditions,	 including	 that	 Maine	 Pretrial	 Services	 agree	 to	 the	 arrangement	

with	Fullcircle.			

         [¶13]		On	June	6,	2014,	Maine	Pretrial	Services	filed	a	letter	with	the	court	

indicating	 that	 it	 could	 not	 approve	 the	 arrangement.	 	 On	 June	 11,	 2014,	

Fullcircle	filed	a	letter	with	the	court	indicating	that	it	was	unable	to	provide	

services	to	Bard.			

	        [¶14]		On	June	12,	2014,	the	court	held	another	bail	hearing.		The	owner	

of	Fullcircle	was	present	to	answer	questions	regarding	Fullcircle’s	inability	to	

supervise	 Bard.	 	 She	 indicated	 that	 the	 program	 was	 ultimately	 unable	 to	



    3	 	 The	 Maine	 Rules	 of	 Unified	 Criminal	 Procedure	 are	 now	 in	 effect.	 	 See	 M.R.U.	 Crim.	 P.	 1(e),	

11(a)(1).	
8	

supervise	Bard	because	he	did	not	meet	the	criteria	for	acceptance.		She	also	

stated	that	she	had	been	contacted	by	the	DA	twice.		The	owner	informed	the	

court	 that	 the	 first	 time	 the	 DA	 called,	 she	 asked	 Fullcircle’s	 secretary	 if	

Fullcircle	was	going	to	accept	Bard	as	a	client,	but	Fullcircle	had	not	yet	decided.		

This	call	from	the	DA,	which	came	directly	after	Fullcircle	had	been	contacted	

by	a	news	station,	was	a	factor	in	Fullcircle’s	decision	not	to	work	with	Bard.		

The	 second	 time	 the	 DA	 called,	 the	 DA	 again	 asked	 if	 Fullcircle	 was	 going	 to	

work	 with	 Bard.	 	 When	 the	 owner	 answered	 that	 Fullcircle	 was	 not	going	 to	

work	with	Bard,	the	DA	asked	that	the	owner	provide	something	to	that	effect	

in	writing.		At	some	point,	according	to	Fullcircle’s	owner,	the	DA	told	her	that	

Bard	 had	 “23	 counts	 against	 him	 and	 it	 wasn’t	 safe	 for	 him	 to	 be	 in	 the	

community.”			

	     [¶15]		Also	during	the	June	12	bail	hearing,	Bard	asked	a	representative	

of	Pillars	Community	Outreach,	a	program	similar	to	Fullcircle,	to	speak	to	the	

court.	 	 The	 representative	 stated	 that	 his	 organization	 also	 was	 not	 able	 to	

supervise	 Bard	 and	 that	 he	 also	 had	 received	 a	 call	 from	 the	 DA	 before	

determining	 that	 Pillars	 was	 unable	 to	 assist	 Bard.	 	 According	 to	 the	 Pillars	

representative,	the	DA	asked	about	the	pending	meeting	with	the	court	and	told	
                                                                                       9	

the	 representative	 that	 the	 State	 had	 evidence	 against	 Bard,	 including	 video	

recordings	showing	what	Bard	had	done.			

	     [¶16]		Defense	counsel	then	voiced	concerns	regarding	pretrial	publicity	

and	the	bail	status.		The	court	noted	that	prosecutorial	statements	to	the	press	

about	the	case	would	have	been	inappropriate,	given	that	the	arrest	warrant	

affidavit	had	been	impounded.		Assistant	Attorney	General	Paul	Rucha,	at	that	

point	representing	the	State,	argued	that	the	DA’s	efforts	regarding	community	

supervision	 were	 designed	 not	 to	 thwart	 bail	 but	 instead	 to	 ensure	 that	 the	

supervision	entities	understood	the	pending	charges.		The	court	had	asked	the	

DA	to	attend	that	bail	hearing	to	discuss	the	communications	with	the	media	or	

community	supervision	entities,	but	she	did	not	attend.			

	     [¶17]		The	court	declined	to	comment	regarding	the	DA’s	phone	calls	to	

potential	community	supervision	organizations	without	her	being	present	but	

indicated	that	the	available	information	was	“troubling.”		The	court	then	issued	

an	 order	 from	 the	 bench	 prohibiting	 the	 parties,	 attorneys,	 representatives,	

witnesses,	law	enforcement,	and	State	employees	from	making	any	statement	

to	the	press,	other	than	regarding	matters	of	public	record,	that	could	interfere	

with	a	fair	trial	or	prejudice	Bard,	the	State,	or	the	administration	of	justice.			
10	

	     [¶18]		On	June	13,	2014,	Bard	filed	four	motions:	two	motions	to	suppress	

evidence,	 a	 motion	 to	 change	 venue,	 and	 a	 motion	 to	 dismiss	 based	 on	

allegations	 of	 prosecutorial	 misconduct	 by	 the	 DA.	 	 The	 State	 objected	 to	 or	

opposed	all	of	the	motions.			

	     [¶19]	 	 On	 June	 23,	 2014,	 without	 notice	 to	 or	 the	 presence	 of	 defense	

counsel,	the	court	met	with	the	DA	in	chambers.		A	court	reporter	and	clerk	of	

court	were	present,	and	the	conversation	was	recorded.		The	court	spoke	with	

the	 DA	 regarding	 her	 office’s	 possible	 disclosure	 of	 the	 contents	 of	 the	

impounded	 police	 affidavit	 and	 interference	 with	 the	 court’s	 bail	 order.	 	 The	

court	stated	that	“the	only	purpose	of	this	is	to	get	things	squared	away	so	we	

can	proceed	with	this	case	and	get	[Bard]	tried	 and	find	out	if	he	is	guilty	or	

not.”	 	 Pending	 at	 that	 time	 were	 a	 second	 consideration	 of	 competency	 and	

Bard’s	 motions	 to	 suppress,	 to	 change	 venue,	 and	 to	 dismiss	 the	 charges	

because	of	prosecutorial	misconduct.			

	     [¶20]	 	 At	 the	 ex	 parte	 conference,	 the	 court	 asked	 the	 DA	 to	 explain	

specifically	why	she	made	the	calls	to	Fullcircle	and	Pillars,	and	the	nature	of	

her	 conversations	 with	 those	 organizations.	 	 The	 DA	 explained	 that	 she	 had	

learned	from	a	reporter	that	Fullcircle	would	not	supervise	Bard	and	had	called	

to	inquire	about	that.		The	following	colloquy	then	ensued:	
                                                                                     11	

      	      MS.	MALONEY:	Okay.		And	I	talked	to	[the	owner	of	Fullcircle]	
      at	that	point,	but	that	was	after	she	had	made	her	decision.		She	told	
      me	her	reason	for	the	decision	was	that	they	weren’t	set	up	to	do	
      pretrial	 and	 she	 didn’t	 feel	 that	 they	 could	 adequately	 supervise	
      him,	and	then	she	gave	me	another	reason	that	she	told	me	that	she	
      didn’t	want	me	disclosing.		I	assume	I	can	tell	you,	I	don’t	know.	
      	
      	      THE	COURT:	Well,	this	isn’t	going	anywhere.		Go	ahead.	
      	
      	      MS.	MALONEY:	Okay.		So	she	told	me	that	the	other	reason	is	
      that	she	hired	someone	who	used	to	work	at	the	jail	who	saw	Eric	
      Bard	 acting	 completely	 normal	 at	 the	 jail	 and	 then	 saw	 how	 he	
      changed	his	behavior	in	Court,	and—	
      	
      	      THE	COURT:	Pretty	obvious.	
      	
      	      MS.	MALONEY:	—that	person—	
      	
      	      THE	COURT:	From	every	report	I	get.	
      	
      	      MS.	MALONEY:	So	she	told	me	that	person	got	to	her	after	the	
      hearing	and	said,	you	need	to	know	what	I	have	seen	.	.	.	.	
	
The	court	further	commented,	“we	have	got	a	competency	hearing	the	15th	of	

July,	and	I	am	hopeful	from	then	that	we	can	maybe	try	this	at	the	end	of	July.		I	

found	 him	 competent	 once.	 	 I	 don’t	 know	 if	 they	 are	 going	 to	 come	 up	 with	

another	so-called	expert,	they	already	have	[Doctor	Charles]	Robinson.		I	don’t	

know	why	I	approved	another	expert,	I	guess	I	didn’t	realize	that	I	already	had	

Robinson’s	report.”			

	     [¶21]		 The	court	 and	the	 DA	continued	 to	discuss	what	 had	 previously	

happened	with	the	press	 as	the	court	sought	assurances	that	the	DA	had	 not	
12	

intentionally	violated	the	court’s	order	sealing	the	affidavits.		The	conversation	

then	evolved	into	discussing	one	of	Bard’s	attorneys,	Gina	Yamartino:	

       	      MS.	MALONEY:	.	.	.	I	need	to	be	very	careful	about	talking	with	
       Gina,	 Gina	 Yamartino,	 we	 had	 a	 good	 conversation,	 it	 must	 have	
       been—I	can’t	remember	what	day	it	was,	she	was	really	trying	to	
       convince	me	that	Eric	Bard	should	go	to	Riverview	and	I	told	her	I	
       would	look	into	it.		I	read	through	the	evaluation	from	Doctor	[Ann]	
       LeBlanc	that’s	in	the	file	and	then	I	called	her	up	and	I	said,	Gina,	
       this	is—I	don’t—I	disagree	she	was	absolutely	furious.	
       	
       	      THE	COURT:	She	is	pretty	intense	about	this.	
       	
       	      MS.	MALONEY:	I	think	if	I—there	is	no	question	I	completely	
       set	her	off	when	I	said	that	I	wouldn’t	consider	it.	
       	
       	      THE	 COURT:	 You	 need	 to	 let	 the	 Court	 be	 a	 buffer	 in	 that	
       situation.	
       	
After	 discussing	 how	 the	 Assistant	 Attorney	 General	 would	 be	 handling	 all	

aspects	 of	 the	 prosecution	 going	 forward,	 the	 DA	 and	 the	 court	 had	 the	

following	exchange:	

      	     THE	COURT:	We	need	to	get	this	thing	tried	and	get	it	over	
      and	done	with.	
      	
      	     MS.	MALONEY:	Child	sex	abuse	cases	are	the	hardest	for	me.	
      	
      	     THE	COURT:	They	are	very	difficult.	
      	
      	     MS.	MALONEY:	They	are	the	hardest	ones	for	me.	
      	
      	     THE	 COURT:	 When	 I	 was	 County	 Attorney	 we	 didn’t	 have	
      victims	advocates,	we	didn’t	have	any	of	those	things,	and	the	only	
      way	 I	 could	 overcome	 mother,	 which	 was	 most	 of	 the	 case	 the	
                                                                                    13	

      biggest	 problems	 we	 had,	 because	 if	 he	 was	 convicted	 mother’s	
      husband	or	boyfriend	was	going	to	go	away,	lose	their	bread	and	
      butter,	 so	 you	 just	 went	 to	 extraordinary	 measures	 to	 bring	 the	
      child	in,	put	her	on	the	stand	in	an	empty	courtroom	trying	to	get	
      her	to	be	comfortable,	teddy	bears	and	screens	between	they	and	
      the	 defendant,	 it	 is	 really	 all	 that	 stuff	 we	 went	 through,	 so	 I	
      understand	that.	
      	
      	      MS.	MALONEY:	Well,	it	is	difficulty	if	the	child	is	telling	you	
      something	that	happened,	particularly	if	there	has	been	a	divorce	
      or	 there	 is—and	 so	 I	 am—I	 have	 try	 to	 evaluate	 it	 very	 critically	
      until	I	know	a	hundred	percent	this	is	what	happened,	but	when	I	
      know	a	hundred	percent	this	is	what	happened	particularly	when	
      there	is	images,	it	is	the	absolute	hardest	cases	for	me,	it	is	very,	
      very	hard	when	I—	
      	
      	      THE	COURT:	They	are,	and	they	are	terrible	things	to	think	
      people	would	do	that.	
      	
      	      Do	you	still	use	Doctor	[Lawrence]	Ricci?	
      	
      	      MS.	MALONEY:	Yes,	absolutely.	
      	
      	      THE	COURT:	That’s	very	important	because	he	is—	
      	
      	      Okay.	I	am	taking	up	your	time.		I	thank	you	very	much	for	
      coming	in.	
      	
	     [¶22]		Defense	counsel	was	not	informed	by	the	court	that	the	ex	parte	

conference	 had	 taken	 place.	 	 On	 July	 15,	 2014,	 the	 court	 held	 the	 second	

competency	hearing.		After	hearing	testimony	from	Robinson,	who	prepared	a	

competency	 evaluation;	 LeBlanc,	 the	 director	 of	 the	 State	 Forensic	 Service;	 a	

corporal	at	the	Kennebec	County	Correctional	Facility;	and	a	police	detective,	
14	

and	receiving	in	evidence	LeBlanc’s	report,	audio	recordings	of	Bard’s	arrest,	

and	 video	 footage	 of	 Bard	 in	 jail,	 the	 court	 continued	 the	 hearing	 to	 July	 28,	

2014.		On	that	date,	the	court	found	Bard	competent.		It	also	denied	the	motion	

to	dismiss	that	Bard	had	filed	based	on	allegations	of	prosecutorial	misconduct	

without	 disclosing	 that	 it	 had	 held	 an	 ex	 parte	 conference	 concerning	 those	

allegations.			

	      [¶23]		On	August	8,	2014,	after	the	court	had	held	a	hearing	and	denied	

one	 of	 Bard’s	 motions	 to	 suppress,	 the	 court	 held	 a	 recorded	 in-chambers	

conference	with	the	Assistant	Attorney	 General	and	one	of	Bard’s	 attorney’s,	

Ronald	Bourget,	in	anticipation	of	jury	selection.		Bourget	told	the	court	that	he	

had	learned	that	the	court	had	communicated	with	the	DA	about	issues	related	

to	the	motion	to	dismiss	for	prosecutorial	misconduct.		The	court	stated	that	it		

     had	a	meeting	with	Ms.	Maloney	.	.	.	on	the	record	having	to	do	with	
     the	 issue	 that	 arose	 in	 the	 motion	 to	 dismiss	 but	 not	 on	 the	
     matter—not	 on	 any	 adversary	 action	 in	 this	 case.	 	 It	 was	 strictly	
     whether	or	not	there	was	an	ethical	breach	by	her	interfering	with	
     the	order	of	the	Court	for	bail	under	certain	supervision.		
     	
            .	.	.	.	[M]y	discussions	with	her	had	absolutely	nothing	to	do	
     with	the	motion	to	dismiss.	
     	
Bourget	opined	that	he	and	co-counsel	Yamartino	were	concerned	that	neither	

of	them	had	been	made	a	party	to	that	discussion.		The	court	repeated	that	the	
                                                                                        15	

conversation	had	“nothing	to	do	with	this	case.		It	strictly	had	to	do	with	the	

conduct	of	the	district	attorney.”		The	court	stated,		

     I	had	two	choices.		One	is	to	refer	to	the	Board	of	Overseers.		The	
     other	 is	 to	 handle	 it	 directly	 and	 determine	 and	 give	 her	 an	
     opportunity	to	explain	the	situation,	which	she	did.		Because	I	did	
     not	 want	 it	 to	 have	 anything	 to	 do	 with	 this	 case,	 I	 did	 it	
     confidentially	 and	 with	 only	 the	 clerk,	 herself	 and	 the	 court	
     reporter	present.	
     	
The	court	informed	counsel	that	the	 meeting	was	“held	confidentially	but	on	

the	record,	so	if	there’s	any—if	there’s	a	need	that	can	be	disclosed.”			

	      [¶24]		Bourget	told	the	court,	“just	with	my	colloquy	with	co-counsel	as	

to	whether	there	was	any	impropriety,	which	you’ve	cleared	that	with	me.		You	

have	disclosed	to	me	what	that	is,	and	I’m	not	going	to	go	forward.		I’ve	tried	

many	cases	with	you,	Judge,	and	quite	frankly,	I	sort	of	know	how	you	try	cases.”		

In	response,	the	court	reiterated,	“There’s	also	nothing	that	came	out	of	there	

that	would	have	anything	to	do	with	any	pending	motion—any	motions	for	me	

to	decide	brought	by	either	side.	 	So	there	was	 no	discussion	there	of	any	of	

that,	 for	 good	 and	 obvious	 reasons.”	 	 Bard’s	 attorneys	 had	 not,	 at	 this	 point,	

requested	 or	 seen	 a	 transcript	 of	 the	 conference	 between	 the	 court	 and	

Maloney.	

       [¶25]	 	 Within	 the	 following	 week,	 the	 court	 denied	 Bard’s	 remaining	

motion	 to	 suppress.	 	 On	 August	 26,	 2014,	 the	 court	 took	 additional	 evidence	
16	

after	 Bard	 moved,	 and	 the	 State	 agreed,	 to	 reopen	 the	 record	 on	 one	 of	 his	

motions	to	suppress.		The	court	again	denied	the	motion	to	suppress.			

      [¶26]	 	 On	 the	 following	 day,	 August	 27,	 2014,	 the	 parties	 presented	 a	

conditional	 plea	 agreement	 to	 the	 court,	 which	 the	 court	 accepted.	 	 See	 M.R.	

Crim.	 P.	 11(a)(2)	 (Tower	 2014).	 	 Bard	 conditionally	 pleaded	 guilty	 to	 all	

charges,	 subject	 to	 his	 right	 to	 appeal	 from	 “the	 Court’s	 determination	 of	

competency	on	August	16,	2013	and	July	28,	2014;	Motion	to	Suppress	dated	

June	13,	2014	decided	in	writing	on	August	14,	2014	and	reopened	and	denied	

on	 August	 26,	 2014;	 and	 Motion	 to	 Suppress	 Evidence	 Resulting	 from	 Time	

Warner	Subpoena	dated	June	13,	2014	and	denied	on	July	28,	2014.”			

	     [¶27]		The	court	signed	an	order	requiring	a	presentence	psycho-sexual	

evaluation	on	August	31,	2014,	and	in	January	2015,	it	granted	Bard’s	motion	

to	continue	sentencing	so	that	the	report	resulting	from	that	evaluation	could	

be	 completed.	 	 The	 court	 held	 a	 sentencing	 hearing	 on	 July	 24,	 2015,	 and	

accepted	 memoranda.	 	 The	 court	 imposed	 consecutive	 sentences	 of	 twenty	

years	on	Count	4	(sexual	exploitation	of	a	minor)	and	thirty	years	on	Count	20	

(gross	 sexual	 assault),	 and	 imposed	 sentences	 of	 ten	 or	 twenty	 years	 on	 all	

remaining	charges,	each	to	run	concurrently	with	either	Count	4	or	Count	20,	

except	for	a	six-month	concurrent	sentence	for	the	assault	to	run	concurrently	
                                                                                                     17	

with	Count	4.		The	court	imposed	fines	and	surcharges	amounting	to	$375	and	

imposed	 lifetime	 supervised	 release	 with	 a	 number	 of	 conditions.	 	 The	

judgment	of	conviction	was	entered	on	July	28,	2015,	almost	three	years	after	

the	filing	of	the	indictment.			

	       [¶28]	 	 Bard	 timely	 filed	 the	 anticipated	 notice	 of	 appeal.	 	 Bard	 also	

applied	 for	 leave	 to	 appeal	 from	 the	 sentence—an	 application	 that	 was	

ultimately	denied.		See	15	M.R.S.	§	2151	(2015);4	M.R.	App.	P.	20	(Tower	2014);5	

State	v.	Bard,	No.	SRP-15-399	(Me.	Sent.	Rev.	Panel	Sept.	29,	2015).			

	       [¶29]	 	 Although	 Bard	 had	 not	 requested	 a	 transcript	 of	 the	 ex	 parte	

conference	in	2014	when	the	trial	court	first	informed	counsel	that	it	had	been	

recorded,	 Bard	 moved	 for	 production	 of	 that	 transcript	 after	 we	 held	 oral	

argument	on	his	appeal	in	September	2016.		We	ultimately	ordered	the	release	

of	 the	 transcript	 to	 him	 and	 to	 the	 State,	 and	 stayed	 the	 appeal	 to	 allow	 for	

further	proceedings	in	the	trial	court.			

	       [¶30]		On	December	9,	2016,	Bard	moved	for	the	trial	court	to	unseal	the	

transcript	of	the	chambers	conference,	for	Justice	Marden	to	recuse,	and	for	the	



    4		The	statute	has	since	been	amended	to	refer	to	the	Maine	Rules	of	Unified	Criminal	Procedure.		

See	P.L.	2015,	ch.	431,	§	26	(effective	July	29,	2016)).	
    5		We	cite	to	the	rule	in	effect	at	the	time.		See	M.R.	App.	P.	1	(providing	that	the	restyled	Maine	

Rules	of	Appellate	Procedure	apply	to	appeals	commenced	on	or	after	September	1,	2017).	
18	

court	to	vacate	the	judgment	of	conviction	whether	by	granting	a	motion	for	a	

new	trial,	see	M.R.U.	Crim.	P.	33	(“The	court	on	motion	of	the	defendant	may	

grant	a	new	trial	to	the	defendant	if	required	in	the	interest	of	justice.”),	or	as	a	

form	of	post-conviction	relief,	see	15	M.R.S.	§§	2129-2130	(2017).			

	       [¶31]		The	court	(Marden,	J.)	granted	the	motion	to	recuse.		The	State	then	

filed	its	responses	to	the	pending	motions.		After	receiving	reply	materials	from	

Bard	 in	 March	 and	 May	 2017,	 the	 court	 (Brennan,	 J.)	 granted	 the	 motion	 to	

unseal	the	transcript	and	dismissed	the	motion	to	vacate	in	orders	entered	on	

September	14,	2017.			

	       [¶32]		In	dismissing	the	motion	to	vacate,	the	court	reasoned	that	(1)	a	

new	 trial	 could	 not	 be	 granted	 because	 no	 trial	 had	 been	 held	 and	 Bard	 had	

entered	a	guilty	plea	that	had	not	been	withdrawn;	and	(2)	the	matter	was	not	

presented	properly	to	be	considered	as	 a	post-conviction	review	proceeding,	

and	it	would	be	premature	to	act	on	the	apparent	request	for	post-conviction	

relief.			

	       [¶33]		Bard	timely	filed	a	notice	of	appeal,	and	we	consolidated	the	appeal	

with	the	initial	appeal	from	the	judgment	of	conviction	on	the	conditional	plea.			
                                                                                       19	

                                   III.		DISCUSSION	

      [¶34]		Bard	contends	that	the	judgment	of	conviction	is	constitutionally	

infirm	 due	 to	 evidence	 of	 an	 unconstitutional	 bias	 or	 potential	 for	 bias.	 	 He	

argues	that	the	risk	of	bias	is	evident	from	(1)	the	discussion	of	the	contested	

competency	issue	during	the	ex	parte	conference;	(2)	the	judge’s	suggestion	of	

things	 that	 the	 prosecutor	 might	 do,	 including	 identifying	 a	 witness	 that	 she	

should	call,	to	try	to	win	a	conviction;	and	(3)	prosecutorial	comment	on	the	

emotional	impact	of	child	sexual	abuse	cases	and	her	suggestion	that	she	was	

one-hundred-percent	certain	of	Bard’s	guilt.		He	contends	that	he	was	deprived	

of	 due	 process	 due	 to	 the	 risk	 that	 he	 was	 deprived	 of	 a	 fair	 and	 impartial	

decision-maker.		He	further	contends	that,	because	his	plea	was	conditional,	he	

need	not	withdraw	his	plea	to	obtain	relief	pursuant	to	M.R.U.	Crim.	P.	33	and	

that	 because	 his	 appeal	 is	 still	 pending,	 he	 need	 not	 proceed	 through	

post-conviction	review	for	the	judgment	of	conviction	to	be	vacated.			

      [¶35]		The	State	argues	that	the	court	properly	dismissed	Bard’s	motion	

to	 vacate	 the	 judgment	 of	 conviction	 because	 Bard	 chose	 to	 plead	 guilty	 and	

waived	his	right	to	a	trial.		It	contends	that	Bard	waived	his	bias	argument	by	

failing	to	raise	the	issue	when	he	became	aware	of	the	ex	parte	conversation	

and	that	the	record	fails	to	demonstrate	actual	bias	undermining	the	reliability	
20	

of	 the	 judgment	 of	 conviction.	 	 The	 State,	 minimizing	 the	 appearance	 of	

unfairness,	argues	that	any	apparently	“new”	facts	presented	to	the	court	in	the	

ex	parte	proceeding	had	been	heard	by	the	court	previously.			

A.	   Preservation	of	Issues	Arising	from	the	Ex	Parte	Conference	

	     [¶36]		Defense	counsel	did	not	request	a	transcript	when	they	were	first	

made	 aware	 of	 the	 ex	 parte	 conference	 in	 August	 2014,	 and	 Bard	 did	 not	

initially	 raise	 the	 due	 process	 issue	 on	 appeal—facts	 that	 could,	 viewed	 in	

isolation,	suggest	a	waiver	of	the	issue.		See	State	v.	Jandreau,	2017	ME	44,	¶	14,	

157	 A.3d	 239.	 	 Bard’s	 decision	 not	 to	 request	 a	 transcript	 earlier	 was	 based,	

however,	on	the	court’s	assurances	that	the	ex	parte	conference	“had	absolutely	

nothing	to	do	with	the	motion	to	dismiss”	and	had	“nothing	to	do	with	this	case.”		

These	 assurances	 in	 part	 form	 the	 basis	 for	 the	 due	 process	 issue	 that	 Bard	

raises	on	appeal—an	appeal	that	has,	from	its	inception,	challenged	the	court’s	

determination	 of	 competency.	 	 Given	 the	 court’s	 assurances,	 and	 given	 that	

Bard	expressly	preserved	his	right	to	appeal	from	the	court’s	determination	of	

competency,	 Bard’s	 choice	 not	 to	 pursue	 the	 matter	 earlier	 cannot	 be	

understood	as	a	knowing	waiver	of	a	right	to	raise	arguments	concerning	the	

possible	 effect	 of	 the	 ex	 parte	 conference	 on	 the	 court’s	 competency	

determination.	 	 See	 M.R.	 Crim.	 P.	 11(a)(2);	 M.R.U.	 Crim.	P.	11(a)(2);	 see	 also	
                                                                                                                 21	

People	v.	Jones,	70	N.E.3d	1264,	1272-73	(Ill.	App.	Ct.	2017)	(“[T]he	waiver	rule	

is	applied	less	rigidly	where	the	conduct	of	the	trial	judge	is	the	basis	for	the	

appeal.”	(quotation	marks	omitted)).			

B.	      Appellate	Review	and	the	Issue	of	Waiver	

	        [¶37]		Bard’s	most	recent	appeal	is	from	the	dismissal	of	his	motion	for	a	

new	 trial	 or	 for	 post-conviction	 relief,6	 but	 he	 also	 continues	 to	 press	 his	

appeals	 from	 the	 court’s	 determination	 of	 competency	 and	 its	 subsequent	

rulings	 on	 his	 motions	 to	 suppress.	 	 Although	 the	 State	 contends	 that	 Bard	

cannot	seek	a	new	criminal	trial	because	he	entered	a	conditional	plea	of	guilty,	

the	record	reflects	that	he	entered	that	plea	after	a	determination	of	competency	

that	 may	 have	 been	 based	 on	 prejudgment,	 as	 reflected	 in	 the	 ex	 parte	

conference,	and	that	he	has	preserved	his	right	to	challenge	that	competency	

determination.	 	 See	 Godinez	 v.	 Moran,	 509	 U.S.	 389,	 396	 (1993)	 (“A	 criminal	

defendant	may	not	be	tried	unless	he	is	competent,	and	he	may	not	waive	his	

right	to	counsel	or	plead	guilty	unless	he	does	so	competently	and	intelligently.”	

(citations	omitted)	(quotation	marks	omitted)).		If	we	vacate	the	competency	




    6	 	 We	 ordinarily	 review	 a	 trial	 court’s	 decision	 on	 a	 motion	 for	 a	 new	 trial	 “for	 an	 abuse	 of	

discretion	and	any	findings	underlying	its	decision	for	clear	error.”		State	v.	McNaughton,	2017	ME	
173,	¶	45,	168	A.3d	807	(quotation	marks	omitted).	
22	

decision	 that	 Bard	 has	 appealed,	 he	 must	 also	 be	 allowed	 to	 withdraw	 his	

conditional	guilty	plea.		See	M.R.	Crim.	P.	11(a)(2);	M.R.U.	Crim.	P.	11(a)(2).	

	      [¶38]	 	 Thus,	 the	 question	 is	 whether,	 to	 ensure	 due	 process,	 we	 must	

vacate	the	decisions	reached	by	the	judge	after	he	held	the	ex	parte	conference.		

Those	 decisions	 include	 the	 court’s	 determination	 of	 competency	 and	 its	

subsequent	denial	of	Bard’s	motions	to	suppress	and	to	dismiss.			

C.	    Due	Process	

       [¶39]		A	defendant	has	“the	right	to	have	an	impartial	judge.”		Tumey	v.	

Ohio,	273	U.S.	510,	535	(1927);	see	also	In	re	Cox,	553	A.2d	1255,	1256,	1258	

(Me.	 1989)	 (stating	 that,	 where	 a	 judge	 indicated	 that	 the	 sentence	 to	 be	

imposed	on	a	defendant	would	be	lighter	if	the	defendant	entered	a	plea	than	it	

would	be	if	he	were	found	guilty	after	a	trial,	the	judge	no	longer	was	“a	neutral	

arbiter,”	 which	 struck	 “at	 the	 heart	 of	 the	 public’s	 perception	 of	 judicial	

impartiality”).		If	a	jurist	is	biased,	that	error	in	the	proceedings	is	“structural,	

and	 thus	 subject	 to	 automatic	 reversal.”	 	 Neder	 v.	 United	 States,	 527	 U.S.	 1,	 8	

(1999)	(quotation	marks	omitted).		“Judicial	bias	is	one	of	the	few	trial	errors	

that	may	not	be	deemed	harmless,”	Jones,	70	N.E.3d	at	1272	(quotation	marks	

omitted),	 because	 “[p]re-judgment	 is	 the	 antithesis	 of	 a	 fair	 trial,”	 People	 v.	

Heiman,	675	N.E.2d	200,	207	(Ill.	App.	Ct.	1996)	(quotation	marks	omitted).	
                                                                                     23	

      [¶40]	 	 The	 actual	 bias	 of	 a	 decision-maker,	 however,	 is	 not	 the	 only	

concern.	 	 “[O]ur	 system	 of	 law	 has	 always	 endeavored	 to	 prevent	 even	 the	

probability	of	unfairness.”		Withrow	v.	Larkin,	421	U.S.	35,	47	(1975)	(quotation	

marks	omitted).		“[E]very	procedure	which	would	offer	a	possible	temptation	

to	the	average	[person]	as	a	judge	.	.	.	not	to	hold	the	balance	nice,	clear	and	true	

between	the	State	and	the	accused,	denies	the	latter	due	process	of	law.		Such	a	

stringent	rule	may	sometimes	bar	trial	by	judges	who	have	no	actual	bias	and	

who	 would	 do	 their	 very	 best	 to	 weigh	 the	 scales	 of	 justice	 equally	 between	

contending	parties.		But	to	perform	its	high	function	in	the	best	way	justice	must	

satisfy	the	 appearance	of	 justice.”		In	re	Murchison,	 349	U.S.	133,	136	(1955)	

(citation	omitted)	(quotation	marks	omitted).	

      [¶41]		Thus,	we	ask	“not	whether	a	judge	harbors	an	 actual,	subjective	

bias,	 but	 instead	 whether,	 as	 an	 objective	 matter,	 the	 average	 judge	 in	 his	

position	is	likely	to	be	neutral,	or	whether	there	is	an	unconstitutional	potential	

for	bias.”		Williams	v.	Pennsylvania,	579	U.S.	---,	---,	136	S.	Ct.	1899,	1905	(2016)	

(quotation	marks	omitted);	see	also	Charette	v.	Charette,	2013	ME	4,	¶	21,	60	

A.3d	1264	(stating	that	a	judge	must	recuse	on	motion	made	by	any	party	to	a	

proceeding	in	which	the	judge’s	impartially	“‘might	reasonably	be	questioned,’”	

or	in	which	the	judge	has	“‘personal	 knowledge	of	disputed	evidentiary	facts	
24	

concerning	the	proceeding’”	(quoting	DeCambra	v.	Carson,	2008	ME	127,	¶	8,	

953	A.2d	1163)).		

      [¶42]		To	be	sure,	“judicial	rulings	alone	almost	never	constitute	a	valid	

basis	for	a	bias	or	partiality	motion.”		Liteky	v.	United	States,	510	U.S.	540,	555	

(1994).		“That	a	court	has	decided	disputed	issues	of	law	and	fact	against	a	party	

is	not,	without	more,	evidence	of	lack	of	impartiality.”		Dalton	v.	Dalton,	2014	

ME	108,	¶	25,	99	A.3d	723.			

      [¶43]		Nor	does	a	decision-maker’s	expression	of	an	opinion	or	judgment	

formed	 in	 the	 course	 of	 adversarial	 proceedings	 ordinarily	 require	 recusal.		

Indeed,	in	a	functioning	system	of	justice,	“opinions	formed	by	the	judge	on	the	

basis	 of	 facts	 introduced	 or	 events	 occurring	 in	 the	 course	 of	 the	 current	

proceedings,	 or	 of	 prior	 proceedings,	 do	 not	 constitute	 a	 basis	 for	 a	 bias	 or	

partiality	motion	unless	they	display	a	deep-seated	favoritism	or	antagonism	

that	 would	 make	 fair	 judgment	 impossible.”	 	 Liteky,	 510	 U.S.	 at	 555.		

Furthermore,	 “[s]tatements	 made	 by	 a	 judge	 during	 the	 same	 or	 other	

judicial	proceedings	 will	 not	 constitute	 bias	 or	 prejudice	 except	 in	 the	

extraordinary	circumstances”	in	which	those	statements	reveal	“a	deep-seated	

favoritism	 or	 antagonism	 that	 would	 make	 fair	 judgment	 impossible.”	 	 In	 re	

William	S.,	2000	ME	34,	¶	9,	745	A.2d	991	(quotation	marks	omitted).	
                                                                                       25	

       [¶44]	 	 Accordingly,	 judicial	 rulings,	 preliminary	 assessments,	 and	

comments	 regarding	 evidentiary	 challenges	 or	 other	 disputes	 raised	 in	 the	

course	of	adversarial	proceedings	do	not	ordinarily	provide	a	basis	for	a	claim	

of	bias	when	all	parties	have	an	opportunity	to	be	present	and	inform	the	court	

of	facts	or	arguments	leading	to	those	rulings,	assessments,	or	comments.		Had	

the	conversation	at	issue	here	occurred	in	the	presence	of	defense	counsel,	with	

an	opportunity	for	counsel	to	be	heard	on	any	of	the	factual	or	legal	positions	

presented	by	the	DA,	the	asserted	claim	of	a	due	process	violation	would	hold	

little	merit.	

       [¶45]	 	 A	 due	 process	 challenge	 may	 be	 supported,	 however,	 if	 judicial	

remarks	 demonstrate	 conclusions	 or	 opinions	 that	 derive	 from	 extrajudicial	

sources	 untested	 through	 adversarial	 advocacy.	 	 See	 Liteky,	 510	 U.S.	 at	 555;	

Charette,	 2013	 ME	 4,	 ¶	21,	 60	 A.3d	 1264.	 	 “[I]t	 is	fundamental	 that	 the	 court	

should	resolve	disputed	issues	of	fact	only	after	hearing	all	of	the	evidence	with	

an	open	mind.”		People	v.	Johnson,	281	N.E.2d	451,	453	(Ill.	App.	Ct.	1972).		“If	

this	most	basic	and	fundamental	right	is	not	afforded	a	defendant	during	trial,	

that	defendant	has	been	denied	due	process	of	law	and	is	entitled	to	a	new	trial.”		

People	v.	McDaniels,	494	N.E.2d	1275,	1278	(Ill.	App.	Ct.	1986).	
26	

	     [¶46]		Here,	a	due	process	infirmity	arose	when	the	court	held	an	ex	parte	

conference,	without	Bard’s	knowledge	or	consent,	on	a	subject	directly	related	

to	the	viability	of	the	charges	against	Bard	and	the	process	for	adjudication	of	

those	charges.		Bard	had	argued	that	he	was	not	competent	and	had	explicitly	

moved	for	the	dismissal	of	all	charges	based	on	the	allegations	of	prosecutorial	

misconduct	 that	 the	 court	 sought	 to	 address	 in	 the	 ex	 parte	 conference.		

Whether	or	not	the	claims	of	prosecutorial	misconduct	had	merit,	and	whether	

or	not	the	prosecutor	had	made	some	of	her	statements	regarding	competency	

previously	in	an	adversarial	setting,	the	court’s	obligation	was	to	address	the	

matters	in	a	proceeding	in	which	both	parties	had	an	opportunity	to	be	heard.		

See	State	v.	Bilynsky,	2008	ME	33,	¶	7,	942	A.2d	1234	(stating	the	fundamental	

due	 process	 guarantee	 of	 “an	 opportunity	 to	 be	 heard	 upon	 such	 notice	 and	

proceedings	as	are	adequate	to	safeguard	the	right	at	stake”	(quotation	marks	

omitted)).	

	     [¶47]		We	note	that	the	court	in	this	instance	took	some	care	to	minimize	

the	potential	due	process	infirmity.		The	court	began	the	ex	parte	conversation	

with	 the	 DA	 intending	 to	 engage	 in	 what	 it	 apparently	 understood	 to	 be	 an	

accepted	practice	of	inquiring	of	counsel,	in	an	ex	parte	setting,	about	potential	

ethical	breaches	to	address	a	possible	wrong	immediately	and	provide	counsel	
                                                                                                                27	

with	prompt	warnings.7		It	is,	however,	difficult—if	not	impossible—for	a	court	

to	 intercede	 and	 provide	 such	 guidance	 to	 counsel	 when	 proceedings	 are	

actively	underway.		Except	in	specifically	defined	circumstances,	and	with	the	

consent	of	the	opposing	party,8	judicial	comments	or	advice	to	counsel	should	

be	delivered	in	the	presence	of	opposing	counsel	or	after	the	proceedings	have	

concluded.9	

        [¶48]	 	 As	 is	 now	 evident,	 the	 ex	 parte	 conversation	 at	 issue	 here	 did	

include	 a	 discussion	 of	 several	 areas	 of	 substance	 pertaining	 to	 the	 pending	

criminal	case.		It	is	an	example	of	the	challenges	involved	in	attempting	to	hold	

any	significant	discussion	on	an	ex	parte	basis	while	a	matter	is	pending.		Given	

the	pendency	of	the	motion	to	dismiss	and	the	open	issue	of	competency,	when	

the	conversation	at	issue	here	moved	into	discussions	of	prosecutorial	conduct	


   7		Given	that	the	motion	to	dismiss	was	filed	only	ten	days	before	the	ex	parte	conference	and	that	

multiple	 judges	 had	 been	 involved	 in	 the	 case,	 it	 is	 possible	 that	 Justice	 Marden	 was	 not	 initially	
aware	that	the	motion	to	dismiss	was	pending.		However,	the	court	was	aware	that	a	competency	
hearing	was	to	be	held,	and	the	DA	alluded	to	the	motion	to	dismiss	by	mentioning	her	office’s	efforts	
to	draft	a	“written	response	to	what	Ron	Bourget	wrote.”			
   8		Settlement	conferences,	where	the	parties	are	aware	of	and	consent	to	individualized	and	ex	

parte	communications,	represent	an	example	of	an	exception	to	the	general	prohibition.		M.	Code	Jud.	
Conduct	R.	2.9(A)(5);	see	also	M.R.U.	Crim.	P.	11A(a),	18(b).	
   9		In	the	matter	before	us,	the	trial	court	must	be	credited	for	taking	precautions	by	having	the	

conference	recorded	and	stating	at	the	outset	that	its	purpose	was	only	to	alert	the	prosecutor	about	
her	office’s	possible	ethical	violation	in	contravention	of	the	court’s	impoundment	order	or	bail	order.		
The	court	also	did	eventually	inform	defense	counsel	that	the	conference	had	occurred	and	that	a	
record	of	the	conference	could	be	made	available.		Finally,	as	noted	above,	when	Bard	moved	for	the	
judge’s	recusal,	the	judge	promptly	recused	himself	from	further	proceedings.			
28	

with	respect	to	bail	conditions,	engagement	with	the	press,	and	Bard’s	behavior	

related	to	competency,	it	moved	squarely	into	the	substance	of	the	case.		The	

court	 responded	 to	 one	 of	 the	 DA’s	 comments	 by	 reference	 to	 a	 “so-called	

expert”	in	addition	to	Dr.	Robinson;	it	remarked	that	Bard’s	allegedly	falsified	

behavior	was	“obvious”;	it	expressed	regret	for	granting	Bard	a	second	expert	

for	his	competency	hearing;	and	it	stated	that	the	matter	was	headed	for	a	July	

2014	trial	despite	an	upcoming	competency	hearing	that	could	obviate	the	need	

for	a	trial.			

       [¶49]	 	 Following	 that	 ex	 parte	 conversation,	 the	 same	 judge	 presided	

over	the	second	competency	hearing,	concluded	that	Bard	was	competent,	and	

denied	 the	 motion	 to	 dismiss.	 	 The	 judge	 also	 affirmatively	 assured	 Bard’s	

counsel	that	the	ex	parte	conference	did	not	include	discussion	of	any	matters	

pertaining	to	the	pending	motions,	resulting	in	counsel’s	decision	not	to	request	

a	transcript	of	the	ex	parte	conference	at	that	time.			

       [¶50]		On	these	facts,	we	are	persuaded	that	Bard	was	deprived	of	the	fair	

process	to	which	he	was	entitled.		Whether	or	not	the	jurist	held	an	actual	bias	

in	 determining	 Bard’s	 competency,	 the	 court’s	 rulings	 after	 the	 ex	 parte	

conference	 must	 be	 vacated	 because	 that	 conference	 addressed	 substantive	

matters	in	the	case	to	such	a	degree	that	it	undermined	the	public’s	trust	and	
                                                                                        29	

confidence	in	the	fairness	of	the	proceedings.		See	Williams,	579	U.S.	---,	---,	136	

S.	Ct.	at	1905;	Withrow,	421	U.S.	at	47.			

D.	    Remedy	

       [¶51]		The	trial	judge	to	whom	the	case	was	assigned	after	the	original	

judge	 recused	 himself	 concluded	 that	 Bard	 could	 have	 no	 remedy	 unless	 he	

successfully	moved	to	withdraw	his	plea	or	filed	a	petition	for	post-conviction	

review.	 	 The	 court’s	 ruling	 is	 understandable	 given	 that	 it	 did	 not	 sit	 in	 an	

appellate	capacity.		We,	however,	have	the	authority	to	vacate	the	competency	

determination	 in	 deciding	 Bard’s	 appeal	 from	 the	 judgment	 of	 conviction	

because	of	his	express	preservation	of	the	right	to	challenge	that	competency	

determination	on	appeal.		See	M.R.	Crim.	P.	11(a)(2);	M.R.U.	Crim.	P.	11(a)(2);	

Williams,	579	U.S.	at	---,	136	S.	Ct.	at	1905;	Neder,	527	U.S.	at	8;	Withrow,	421	

U.S.	at	47;	Murchison,	349	U.S.	at	136.	

       [¶52]	 	 Although	 in	 ordinary	 circumstances,	 resolution	 might	 have	

awaited	 post-conviction	 review,	 we	 cannot	 in	 good	 conscience	 countenance	

further	delay	in	the	resolution	of	these	challenges.		We	do	not	await	additional	

process	 when	 (1)	 the	 competency	 determination	 has	 been	 challenged	 in	 the	

pending	appeal;	(2)	the	ex	parte	conference,	held	while	the	criminal	proceeding	

was	 pending,	 directly	 addressed	 the	 substance	 of	 matters	 raised	 in	 Bard’s	
30	

motion	to	dismiss	and	the	determination	of	competency;	and	(3)	the	process	

employed	 sufficiently	 undermines	 the	 public	 trust	 in	 the	 fairness	 of	 the	

proceedings	that	the	decisions	made	after	the	ex	parte	conference	cannot	stand.		

To	be	clear,	no	adjudication	or	determination	of	actual	bias	has	occurred,	and	

we	 do	 not	 reach	 any	 such	 finding	 here.	 	 Rather,	 we	 base	 our	 decision	 on	 the	

defendant’s	 due	 process	 rights	 implicated	 by	 the	 potential	 for	 bias	 and	 the	

importance	of	public	trust	and	confidence	in	the	procedures	employed	by	the	

courts.	

        [¶53]		Moreover,	the	matter	has	been	pending	for	more	than	five	years,	

and	 we	 conclude	 that,	 on	 these	 unique	 facts	 and	 in	 this	 unusual	 procedural	

posture,	 we	 must	 provide	 an	 immediate	 remedy.	 	 See	 M.R.U.	 Crim.	 P.	 2	

(requiring	 the	 courts	 construe	 the	 rules	 “to	 secure	 simplicity	 in	 procedure,	

fairness	 in	 administration,	 and	 the	 elimination	 of	 unjustifiable	 expense	 and	

delay”);	 see	 also	 M.R.	 App.	 P.	 1	 (Tower	 2016)	 (requiring	 that	 the	 rules	 “be	

construed	to	secure	the	just,	speedy,	and	inexpensive	determination	of	every	

appeal”).10			

	       [¶54]	 	 To	 ensure	 public	 trust	 and	 confidence	 in	 the	 fairness	 of	 the	

proceedings,	and	to	protect	Bard’s	right	to	due	process,	we	vacate	all	rulings	by	


    10		The	restyled	Maine	Rules	of	Appellate	Procedure	include	the	same	language.		See	M.R.	App.	P.	1.	
                                                                                       31	

the	 court	 that	 occurred	 after	 the	 ex	 parte	 conference	 with	 the	 prosecutor,	

including	the	competency	determination,	the	denial	of	the	motion	to	dismiss,	

and	the	denial	of	the	motions	to	suppress.		Because	we	have	vacated	the	court’s	

rulings	 that	 followed	 the	 ex	 parte	 conference,	 Bard	 “shall	 be	 allowed	 to	

withdraw	 [his]	 plea.”	 	 M.R.	 Crim.	 P.	 11(a)(2);	 M.R.U.	 Crim.	 P.	 11(a)(2).	 	 Our	

decision	renders	moot	Bard’s	appeal	from	the	dismissal	of	his	motion	to	vacate,	

and	we	dismiss	that	appeal.		See	State	v.	York,	1999	ME	100,	¶	5,	732	A.2d	859.	

      [¶55]		Given	that	this	matter	has	now	been	pending	for	more	than	five	

years,	that	the	alleged	victim	is	young,	and	that	Bard	has	been	incarcerated	for	

several	years,	we	are	confident	that	the	trial	court	chiefs	will	specially	assign	a	

judge	to	address	the	matter	in	an	expedited	manner.	

	     The	entry	is:	

                    Second	 competency	 determination	 and	 rulings	
                    on	 the	 motion	 to	 dismiss	 and	 motions	 to	
                    suppress	by	the	court	(Marden,	J.)	following	the	
                    court’s	conference	held	ex	parte	with	the	District	
                    Attorney	vacated.		Appeal	from	the	ruling	of	the	
                    court	(Brennan,	J.)	on	motion	to	vacate	dismissed	
                    as	 moot.	 	 Remanded	 for	 further	 proceedings	
                    consistent	with	this	opinion.	
	
	     	      	      	      	      	
	                          	
32	

Gina	 Yamartino,	 Esq.	 (orally),	 Law	 Offices	 of	 Gina	 Yamartino,	 Portland,	 and	
Ronald	 W.	 Bourget,	 Esq.,	 Law	 Offices	 of	 Ronald	 W.	 Bourget,	 Augusta,	 for	
appellant	Eric	Bard	
	
Janet	T.	Mills,	Attorney	General,	Donald	W.	Macomber,	Asst.	Atty.	Gen.,	and	Paul	
Rucha,	 Asst.	 Atty.	 Gen.	 (orally),	 Office	 of	 the	 Attorney	 General,	 Augusta,	 for	
appellee	State	of	Maine	
	
	
Kennebec	County	Superior	Court	docket	number	CR-2012-602	
FOR	CLERK	REFERENCE	ONLY	
