AUGUSTA — An attorney for a Sidney man who reportedly made a video recording of himself sexually assaulting a 4-year-old argued Wednesday that a key piece of evidence supporting the charges against him was improperly obtained and should be thrown out.
The argument was one of several made by attorney Darrick Banda to suppress evidence against his client, 24-year-old Eric Bard, who is charged with 21 counts of gross sexual assault, sexual exploitation of a minor and assault.
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Justice Donald Marden, who heard from the lead detective who investigated the case against Bard, is expected to reach a decision on Banda’s motion in the coming days.
Bard is expected to go on trial in August. All but one of the charges against him carry a potential penalty of 10 to 30 years in prison. On Monday, Marden ruled that Bard is competent to stand trial.
Police say they were led to Bard’s home on June 19, 2012, by a Craigslist ad seeking children to babysit and bathe. Detectives described the circumstances and progression of the interview in which, they said, Bard at first denied placing the ad but eventually admitted he had viewed child pornography.
David Armstrong, who at the time was an investigator with the Maine State Police Computer Crimes Unit, said Bard agreed to let detectives search his computers, but refused to let them view the memory card they found in his room. Ultimately, they learned the card contained video of the alleged assault.
“They took it anyway,” Banda said.
Banda said Bard under questioning only acknowledged looking at child pornography, so detectives lacked probable cause to seize the card because they had no reason to believe it held images or evidence of a sexual assault.
Moreover, Banda said, detectives never found evidence of equipment Bard would have needed to use the memory card on the seized computers.
Banda said detectives should have guarded Bard’s property at the house while attempting to get a warrant to search the card that day.
“I’m not sure they could have gotten a warrant,” Banda said. “You have to have some information that you’re going to find evidence of a crime on an item that’s being searched.”
The prosecutor, Assistant Attorney General Paul Rucha, cited case law that supported the detectives’ decision to seize the card. Police preserved Bard’s right to privacy by securing a warrant before viewing the card. Rucha said discovery of the card and its contents was “inevitable” and that detectives had to ensure that Bard would not destroy or remove the card.
Rucha said information from the card could be easily transferred to any computer without special equipment by simply inserting it into a cellphone or video recorder and plugging it into a computer, which is the standard procedure for moving images and videos from phones and cameras to computers. Detectives later on did seek another search warrant and seized a cellphone from the home.
“A reasonable magistrate would have issued a warrant,” Rucha said. “You have to have some information that you’re going to find evidence of a crime on an item to be searched.”
Banda, who also is seeking to toss statements Bard made to investigators during the June 19 search, argued that his client’s alleged mental deficiencies made him susceptible to investigators leading questions and led him to confess a proclivity for child pornography and suggest that detectives would likely find images on his computers.
Rucha, who has said that psychological testing indicates Bard intentionally misleads evaluators about his intellectual capability, said a tape recording made by police while questioning Bard shows the lengths to which detectives went to both make him feel at ease and to assure him he was not compelled to cooperate.
Rucha said Bard, who rocks in his chair and stares at the floor throughout his court hearings, in the police recording engages with detectives. Banda argued that Bard lacked the mental acuity to understand he was free to leave, or not speak or to rationally and freely cooperate. Banda said it was up to the state to prove beyond a reasonable doubt that Bard cooperated of “his own free will and intellect.”
“Listening to the recording you get a sense of the persistence of the officers,” Banda said. “He’s capitulating. He seems to be going along with everything.”
Rucha commended detectives for trying to make Bard feel comfortable and for stressing that he was not compelled to cooperate. Far from following the detectives’ lead, Rucha said, Bard refused their request to look at the card and then lied when asked if he had ever produced child pornography.
“He knew what was there and he said they couldn’t have it,’ Rucha said. “The Mr. Bard you hear on the audio is not the same Mr. Bard you see in the courtroom. That person was using his own free will and rational intellect.”
Craig Crosby — 621-5642
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