The district attorney of Kennebec and Somerset counties is facing a disciplinary hearing later this month because of an allegation that she improperly discussed a case with a judge.

Maeghan Maloney is due to answer misconduct charges stemming from a conversation she had with a Superior Court justice that led to the overturning of a Sidney man’s conviction on numerous child sexual assault charges and the granting of a new trial of him. She is scheduled to go before the grievance commission of the Maine Board of Overseers of the Bar on May 20 for a hearing that could result in disciplinary action.

Maloney said Tuesday, however, she is in discussions to resolve the matter without it being the subject of a contested hearing.

A petition filed by the attorney for the Board of Overseers of the Bar charges that Maloney met with Superior Court Justice Donald Marden, who at the time was overseeing the Eric Bard case, and discussed some still-pending aspects of the case without Bard’s attorney present.

Bard was sentenced to 50 years in prison in 2015 for allegedly repeatedly sexually assaulting a 4-year-old girl he was babysitting and recording it on his cellphone.

Last year, however, the Maine Law Court, ruling on an appeal, tossed out Bard’s conviction and deemed he deserves a new trial because his due process rights were violated when the judge and Maloney discussed the case in a June 23, 2014, meeting without his attorney present.

J. Scott Davis, attorney for the Board of Overseers of the Bar, which governs the conduct of lawyers, wrote in an 11-page petition claiming that Maloney had engaged in misconduct by violating portions of the Maine Rules of Professional Conduct about fairness to opposing counsel, ex parte communications, disclosing information to opposing counsel, and engaging in conduct prejudicial to the administration of justice.

Superior Court Justice Donald Marden speaks during Eric Bard’s sentencing hearing on July 24, 2015 in the Capital Judicial Center in Augusta. Kennebec Journal photo by Joe Phelan

“As a prosecutor, DA Maloney is required to properly discharge her professional obligations, given the power responsibilities held and expected of such a public servant,” Davis wrote in the board’s petition. “By her failure to properly perform those duties, DA Maloney caused actual injury to Bard, to the public’s trust and confidence in proper prosecutorial service and discretion, and to the administration of justice.”

Assistant Attorney General Christopher Taub, in a response to the Overseers’ disciplinary charges, filed on behalf of Maloney, writes that she did have a conversation with Marden, without defense counsel present, in which the Bard case was discussed, but said Maloney was responding directly to Marden’s questions. He also wrote that court transcripts show Bard’s defense attorney became aware of the conversation between Marden and Maloney, and the justice offered to provide the defense with the transcript, but the attorney declined. Taub, in the response, requests that the charges be dismissed.

Taub noted Maloney was not the prosecutor in the case, which was prosecuted by Assistant Attorney General Paul Rucha, who initially screened the case when he worked in the Kennebec County District Attorney’s Office.

Maloney said she was called to Marden’s chambers and she responded to his questions.

In a statement Tuesday, Maloney said she was in discussions with the Board of Overseers on a resolution to the charges “and I am optimistic that this matter will be resolved without the need for a contested hearing. The final resolution of this matter will be public.”

Gina Yamartino, Bard’s attorney, who argued for a new trial in front of the Law Court for the successful appeal in 2017, could not be reached for comment Tuesday.

The Law Court decision ordering a new trial be held indicated matters of substance in the Bard trial were discussed between Maloney and Marden, including the mental competency of Bard to stand trial, and at the time a second determination of whether Bard was competent was still pending.

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.

The investigation began when another mother seeking day care services for her child in May 2012 came across an ad on Craigslist offering to babysit, photograph and bathe children. She reported it to Maine State Police, who learned that Bard had placed the ad.

A court clerk said a hearing in Bard’s new trial is scheduled for May 20.

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.

Lawyers for Kellett and the Overseers reached an agreement in which her license was suspended, but she was allowed to continue practicing law if she underwent additional training.

It was the first such complaint in Maine against a prosecutor, according to news media reports at the time.

Rogers said charges of rules violations by attorneys can, following disciplinary hearings, be dismissed or result in an admonition similar to a warning, in a reprimand or, if the grievance commission feels the conduct warrants a suspension or disbarment, can direct the board to seek that through the court system.

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