AUGUSTA — A defense attorney warned jurors Tuesday that they will see “terrible pictures, terrible videos” in connection with the case of a Sidney man who faces 21 charges, including rape and sexual exploitation of a 4-year-old girl.
That attorney, Ronald Bourget, also asked jurors to keep an open mind, saying that his client, Eric L. Bard, 24, has an abnormal condition of mind and lower intelligence than they have. He said at least one psychologist would testify during the trial about Bard’s mental limitations, signaling a defense that Bard didn’t understand the wrongfulness of his actions.
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“Mr. Bard only has so much aptitude; he only has so much cognitive ability,” Bourget said in his opening statement. “He suffers from pervasive developmental disorder.”
In Bourget’s opening statement, he described his client as “a 24-year-old man from Sidney sitting at the defense table, bobbing and weaving, with long hair, who has the attention span of maybe an hour,” and who was the subject of investigations by a number of Maine State Police agencies.
The prosecutor, Assistant Attorney General Paul Rucha, already had told the jurors in his opening argument that they would see disturbing images of an adult engaging in a sexual assault on a young girl. Rucha outlined the elements of the offense the state says Bard committed, including the gross sexual assault charges. In this case, Rucha said, Bard was 22 and the victim 4. Because the victim was under 12, the crime is a class A offense carrying a maximum penalty of 30 years.
“The defendant knew that having child pornography would get him in trouble,” Rucha said.
Rucha said the child would not testify during the trial, but her mother planned to take the stand. Rucha said Bard identified the girl in the photos for police and said he used to baby-sit for her.
Jurors spent little more than an hour in the courtroom before lunch Tuesday, hearing first the indictment, then the two opening statements and finally testimony from two witnesses. The jury — 10 women and four men, including two alternates — returned for a few minutes after lunch to hear the judge send them home at 2:45 p.m., telling them to call the court at 9 a.m. on Wednesday to see when they should return.
That followed a flurry of activity by attorneys talking among themselves and then with the judge.
Previously, Bard had pleaded not guilty and not criminally responsible to all 21 charges in the indictment against him, most of which carry 30-year maximum prison terms.
He is accused of sexually assaulting the child he was baby-sitting in 2011 and 2012 and of recording the acts on his cellphone.
Before the jurors entered the courtroom, Bard withdrew the not criminally responsible plea and went forward to trial with a plea of not guilty to all the charges.
Bard answered “yeah” several times in response to the judge’s questions. Jurors on Tuesday were assembled in an adjacent room as the final pretrial motions were handled in front of Justice Donald Marden in Kennebec County Superior Court.
Before the trial started, Bourget tried to get the judge to reverse his order refusing to suppress evidence seized by police.
Two detectives with the Maine State Police Computer Crimes Unit, David Armstrong and Justin Kittredge, testified about receiving consent to search the Bard home two years ago for computers and other items that might contain child pornography.
For the start of the trial, Bard, who has long, wavy brown hair, was not shackled or in handcuffs.
He watched his mother, Jeanne Bard, testify about the June 19 search of her home. She said police wanted all the computers in the house. She carried out her daughter’s computer for them.
“Actually, I didn’t know what was going on,” she said on the witness stand.
Bourget sought again to keep images found on a memory card from coming into evidence.
“The charge of sexual exploitation of a minor is an issue of images. … Memory devices could also contain images,” Marden said from the bench in denying Bourget’s request to throw out as evidence the photographs and videos on the memory card found in Bard’s residence.
Marden said once Bard told officers some computers might contain illicit child pornography, “any device that could contain it was within scope of the search.”
He said the officers took temporary custody of the card and applied for a search warrant rather than securing the entire premises.
“Everything within the scope of Mr. Bard’s converted porch was consented to by Mr. Bard,” Marden said, adding that it included cameras, disks and other items that could contain child pornography. “The court denies the revisited motion to suppress.”
The investigation into Bard began with a tip about an ad on Craigslist in June 2012 offering baby-sitting services. The tipster, Amy Forbus, described the ad to police as expressing interest in “young children” and “indicated interest in giving the children baths.”
Forbus testified Tuesday that she was on Craigslist in May 2012 seeking day care for her son because she and her husband were both working full time.
“I came across an ad I just thought was creepy,” she said. She contacted the state police and later forwarded the ad to them because it was flagged and then removed from Craigslist.
Police traced the ad to Bard’s residence in Sidney, where he initially denied and later admitted placing the ad, according to Maine State Police Detective Michael Joseph Chavez, who was one of several investigators who spoke to Eric Bard on June 19, 2012, the day the computers and other devices were seized.
Chavez testified Bard was rocking in a recliner chair, his fingers interlaced as he responded to questions, but was getting more disturbed when they asked him about child pornography. “At one point he lifted up his glasses and wiped a tear from his eye,” Chavez said.
Chavez identified Bard in the courtroom and told one of the prosecutors, Assistant District Attorney Kristin Murray-James, that his appearance Tuesday was different from the way he looked during their first encounter more than two years ago.
“His hair is longer,” Chavez said. “It appears he has facial hair, and he may have put on a couple of pounds.”
Bard is accused of sexually assaulting the girl between December 2011 and April 2012 in Augusta and recording it on his cellphone. As the clerk read all the charges in the indictment to the jury, she included numbered references to specific photographs and videos related to the charges of sexual exploitation of a minor. The charges say Bard did “employ, solicit or entice, persuade, use or compel” the child to engage in sexually explicit conduct with the intention of photographing it.
Bard has been held in jail or at Riverview Psychiatric Center, where he has undergone a series of competency evaluations, since his arrest in late July 2012.
In the two years since Bard was charged, he has been to court a number of times as Bourget and his other attorneys, Gina Yamartino and Darrick Banda, sought to have him found incompetent to enter a plea and then incompetent to stand trial.
Bard was evaluated by psychologists with the State Forensic Service and private forensic psychologists and found competent to proceed to trial. The prosecutor, Assistant Attorney General Paul Rucha, maintained that Bard was competent to stand trial on 11 charges of sexual exploitation of a minor, seven charges of gross sexual assault, two charges of unlawful sexual contact and one charge of assault.
Bard, who is 4-foot-10 with long hair and a beard, typically keeps his head down and his face hidden by his hair in the courtroom. Most of the time he rocks slowly forward and back, appearing to take little interest in courtroom proceedings.
Bard’s attorneys argue their client was not competent to answer questions when he told officers that his computers contained child pornography.
Marden’s ruling said he viewed a recording of the June 19 questioning that took place in Bard’s bedroom and on the lawn of the house he shared with his mother.
“While his answers were slow in coming, he responded in a conversational tone with details that were appropriate to the questions. … It took some time for the defendant to realize that the interest of the officers was in finding something ‘inappropriate’ on his computers. At this point he started asking questions about the seriousness of the conduct and length of jail sentences. Nevertheless, he continued to answer questions and was completely cooperative until the SD card came into play.”
Marden ruled that “the court is satisfied the defendant’s constitutional rights have not been violated or any violations were harmless under the doctrine of inevitability.”
Betty Adams — 621-5631
Twitter: @betadams
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