LEWISTON — The district attorney for Kennebec and Somerset counties was admonished Monday by a Maine Board of Overseers of the Bar panel following a disciplinary hearing about a June 2014 meeting requested by a Superior Court judge.
Maeghan Maloney was accused of misconduct for meeting with Superior Court Justice Donald Marden, at the judge’s request, without an attorney for the defendant present. That conversation ultimately resulted in the conviction of Eric Bard, of Sidney — on multiple child sexual assault charges — being overturned and a new trial being ordered.
The panel noted in its findings that Maloney met with Marden because he had directed her to come meet with him and answer his questions. 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.
Maloney said at the time it was her understanding that she was required to respond to his request and answer his questions. She said she now recognizes that she could — and should — have said no to the judge’s request.
“I now understand I should not have responded to his request, and I should not have answered his questions,” Maloney said following a roughly 45-minute disciplinary hearing before the three-person grievance panel of the Maine Board of Overseers of the Bar, an organization which governs the conduct of attorneys. “I think it’s an important message that, when you find yourself in a position like that with someone that has power over you, to stand up for yourself.”
Admonishment is the lowest level of sanction the board can issue, other than dismissal. Admonition, according to the Maine Bar Rules, is a non-disciplinary sanction to be imposed “only in cases of minor misconduct, when there is little or no injury to a client, the public, the legal system, or the profession, and when there is little likelihood of repetition by the lawyer.”
“DA Maloney did engage in an improper discussion with the trial court, but she believed she was required to respond to the court’s directive to appear for that meeting,” members of the grievance commission panel wrote in their decision. “The Commission also finds that while DA Maloney did communicate information relevant to a determination of Bard’s competency, she subjectively believed that she was required to provide this information to ensure that she was completely and fully responding to the trial judge’s questions.”
Jacqueline M. Rogers, executive director of the Maine Board of Overseers of the Bar, said it is rare for the board to take disciplinary action against a state prosecutor but not unheard of.
In July 2013, Mary N. Kellett, then an assistant district attorney in Hancock County, was found by the Overseers to have violated rules of conduct, including withholding evidence, while prosecuting a former Gouldsboro man in 2008 and 2009. It was the first such complaint in Maine against a prosecutor, according to news media reports at the time.
Board of Overseers of the Bar’s attorney, Aria Eee, at the grievance commission panel’s session Monday at Lewiston District Court, said the position Maloney was in, being asked questions by a judge without defense counsel present, was a unique circumstance not many attorneys often encounter.
Bard was sentenced to 50 years in prison in 2015 for allegedly sexually assaulting a 4-year-old girl he was babysitting on multiple occasions. But last year the Maine Law Court, ruling on an appeal, vacated his conviction and deemed he deserved a new trial because his due process rights were violated when the judge and Maloney discussed his case without Bard’s attorney present.
Marden could not immediately be reached for comment Monday. Earlier this month, when the complaint against Maloney first came to light, he indicated he did not care to comment about whether he was facing any disciplinary action related to the Bard case.
If he is, it would likely be before the Maine Judicial Responsibility and Disability Committee, which investigates misconduct complaints against judges. Unlike the Board of Overseers of the Bar process, which was open to the public, the Judicial Responsibility and Disability Committee’s process is confidential unless the committee decides to charge the judge in Supreme Court, according to Cabanne Howard, the committee’s executive secretary.
Howard said Monday he could not confirm or deny whether any action was being taken against Marden.
Attorney Thomas Kelley, a member of the grievance commission panel, questioned Eee on why Maloney’s conduct only warranted admonishment, not a more severe action such as a reprimand.
“How is the impact of this conduct minor?” Kelley asked. “It seems like it had a substantial impact on the legal proceeding. I understand the judge was the one who facilitated the ex parte conference and probably went overboard, but it seems to me the DA had some responsibility when realizing perhaps this conference was getting out of hand,” and should have insisted the defense attorney be present.
Eee responded that, upon looking into the incident, it became clear that Marden had “expected DA Maloney to be there and to answer his questions. From bar counsel’s point of view, most of the concern about what happened really is attributable to the court. Yes, the DA participated in the conference, but she’s not the one who initiated the conference.”
Eee said Maloney did take responsibility for the conversation with Marden, which included at least some discussion of Bard’s mental competency, going too far. Bard’s mental competency was a matter of contention in the trial.
Maloney said she was called to Marden’s chambers, and when she went in, there was a court reporter and court clerk, so she thought it was an official proceeding. A transcript of the meeting was kept but was ordered sealed by Marden.
Maloney said the purpose of the conference with Marden was to discuss an accusation by the defense that Maloney had violated a gag order in the case by talking about it to the press, a claim she said was determined to be unfounded.
Later, on Aug. 8, 2014, during jury selection for the Bard trial, a defense attorney remarked that he understood Marden had engaged in ex parte communications with Maloney regarding the case. Marden then told the defense attorney, according to the Board’s findings, that communications he had with Maloney were not relevant to the case, and thus the attorney did not request a transcript of the June 23, 2014, conversation between Marden and Maloney.
Maloney, who as district attorney doesn’t prosecute cases directly and was not the prosecutor in the Bard trial, was not present for jury selection and thus could not address whether her conversation with Marden got into the facts of the case.
Assistant Attorney General Christopher Taub, who defended Maloney on Monday, said she understood if there was a need to provide a transcript of her meeting with Marden to the defense, it would be the responsibility of the court.
A defense attorney later obtained the transcript and appealed the case to the Law Court. The court vacated all action taken after the June 23, 2014, conference, essentially tossing out Bard’s conviction because it determined the conversation between the judge and district attorney did include discussion of several areas of substance in the trial.
Bard’s retrial has not yet been scheduled, according to a court clerk.
Darrick Banda, one of Bard’s defense attorneys, said he could not comment about the Bard case because a “gag order” issued by the court — and still in place — means the attorneys involved may not make statements to the press.
Bard’s 2014 trial was cut short when he entered conditional guilty pleas to 11 charges of sexual exploitation of a minor, seven charges of gross sexual assault on a child under 12, two charges of unlawful sexual contact and one charge of assault. The offenses allegedly occurred in the period from December 2011 to April 2012 while Bard was babysitting a 4-year-old girl in Augusta, the daughter of a friend.
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