Sex assault conviction overturned

Posted March 04, 2010, at 5:12 p.m.

PORTLAND, Maine — The Maine Supreme Judicial Court on Thursday unanimously overturned the conviction of Jack Dempsey Bailey II for sexually abusing two friends of his daughter in Bangor between 2003 and 2005 because some evidence was obtained illegally.

The justices sent the case back to Penobscot County for further proceedings before Superior Court Justice William Anderson.

Bailey, the former owner of a Bangor restaurant, was convicted in January 2009 after a jury-waived trial on 10 counts of gross sexual assault, one count of sexual exploitation of a minor and two counts of unlawful sexual contact.

A month later, Anderson sentenced Bailey, 48, of Bangor to 20 years in prison with 10 years suspended for repeatedly having sex with one girl when she was between the ages of 11 and 13, inappropriately touching a second girl, and videotaping a victim exposing herself to the camera.

Bailey, who is incarcerated at the Maine State Prison in Warren, is not expected to be released, his attorney, F. David Walker IV of Bangor, said Thursday. In the near future, he most likely will be moved to the Penobscot County Jail until his case is resolved.

Anderson, who presided over the trial, must decide how the Supreme Court’s decision affects the admissibility of the remainder of the evidence presented during the trial, Michael Roberts, deputy district attorney for Penobscot County, said Thursday. The judge could decide to hold a new trial and find the testimony of the victims is enough to convict Bailey.

“I’m not terribly concerned [about Bailey being set free],” Roberts said. “I have two human beings as part of my evidence. I find it hard to believe we could not go forward on their testimony alone.”

Bailey maintained his innocence throughout the trial and sentencing, Walker said Thursday.

“This decision validates what we’ve been saying,” the defense attorney said. “His home was subjected to a warrantless and illegal search. The decision was clear that any evidence taken out of his apartment in connection with the unlawful search cannot be used [against him]. If the state has some evidence that is not connected to that illegal search, [it is] free to bring it up at a new hearing, but Mr. Bailey’s conviction has been overturned.”

Walker in November argued before the Supreme Court in Portland that his motion to suppress evidence should have been granted because:

ä Bailey did not consent to the search of his computer.

ä The officer deceived Bailey so his computer could be searched.

ä The officer exceeded the scope of the consent Bailey gave him.

“The officer clearly exceeded that scope when he ran a general search for all of the video files on Bailey’s computer,” Justice Ellen Gorman wrote for the court in an 18-page opinion.

The justices rejected Walker’s other two arguments.

The investigation that led to the charges against Bailey began when child pornography was found on an Internet protocol address in Bangor, according to court documents. After obtaining a warrant, Bangor police Detective Brent Beaulieu found no child pornography on computers at that residence but determined that someone outside the house was using an unsecured wireless router in the home.

On Feb. 1, 2008, Beaulieu canvassed neighbors, including Bailey, in range of the router. The detective asked if he could examine Bailey’s computer because people in the area had gained access to a neighbor’s computer and he wanted to make sure Bailey did not have the same problem. Bailey said yes, according to court documents.

Beaulieu then, without Bailey’s consent, searched for video files that might contain child pornography. What he found in those files led him to the videotapes of a victim exposing herself to the camera, according to court documents.

Walker said the Supreme Court’s decision sets an important precedent in the evolving area of cyberlaw.

“When it comes to the laws of search and seizure in the computer age, we’re in a whole different ballgame,” he said Thursday. “Searching a computer is not like searching a purse. A computer is a complicated storage system. Just because the owner has consented to a limited search, doesn’t mean he’s consented to having the entire hard drive searched.”

Beaulieu should have asked for Bailey’s consent before searching the video files, the court found. If Bailey had refused, the detective would have had to end his search, according to Bailey’s attorney.

Walker predicted that in the near future the Supreme Court would be ruling on more cases in which computer searches are challenged.

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