Trial and Error

Nov 11, 2013

Dear Supporters,

Our newsletter this time consists of the report that board member Bernie Huebner wrote up on Friday night, November 8, after coming home from two days spent sitting on hard wooden courtroom benches. (Actually, he had the good sense to bring his own cushion.) Bernie says that board members Bob MacLaughlin and Bill Bunting helped him gather his thoughts.

After reading Bernie’s report and the stories in the newspapers, and hearing the TV and Public Radio stories, you might wonder if Bernie and the reporters attended the same hearing. The reporter for the Press Herald was assigned the story at very short notice, and had no knowledge of this very complex case. He did the best he could, but stated that the scarf belonged to Sarah, a very serious error since it belonged to Dennis, and not only would be expected to have his DNA on it, but could transmit that DNA to her shirt. The reporter for the Bangor Daily News did not understand the provisions of the amended post-conviction DNA statute, which, thanks to the tireless work of then-Representative Ross Paradis, made Dennis’s motion for a retrial even possible. And so on. Bill Bunting recalls trying to give a copy of Human Sacrifice to a neighbor back in 2003, and the neighbor refusing it, saying that he preferred to keep ” an open mind,” and would get his information from the newspapers. Not surprisingly, he was convinced that Dennis was guilty, and probably thought that Bill was a member of the lunatic fringe.

Report on two-day hearing on Dennis’s motion for a retrial…

This report attempts to summarize the two-day hearing, November 7th and 8th, in Cumberland County Courthouse in Portland. The purpose of the hearing was to consider the results of touch-DNA testing performed and reported on by Orchid Cellmark, a DNA lab in Texas. Examined were DNA samples from four different items from the crime scene. In addition, this was the first public release of information on a DNA sample of Douglas Senecal, obtained by private investigators Bill Moore and Tom Cumler in 2008 on a visit for this purpose to Florida. In all there were five Cellmark reports under consideration.

Steve Peterson, Dennis’s attorney for the past decade, called three witnesses. The State called two. Taking them chronologically, the following are the salient points raised or made:

For the Defense

Bill Moore – testified to how a DNA sample of Doug Senecal was obtained from a coffee cup he was witnessed using in a Florida restaurant. Bill also testified to how its integrity was maintained between its collection in Florida and its testing in Texas. It should be noted that an agreement immediately preceding the hearing allowed Doug Senecal’s name to be used in the courtroom. Prior to this only the term “alternative suspect” was permissible.

Dr. Rick Walter Staub – operations director and laboratory director at Cellmark during the 2012 testing; now works for the Plano, TX police and as a private consultant. Staub’s testimony appeared to be so objective as to confuse listeners as to whose witness he was. In short, his interpretations of the testing results were so guarded that they were of little conclusive value.

Dr. Greg Hampikian – DNA expert from Boise State University with a PhD in genetics. Hampikian has worked on hundreds of DNA cases for 13 years including the Amanda Knox trial in Italy. Hampikian had reviewed all five Cellmark reports and made a number of significant observations, both general and specific. Among the former was the statement that “secondary transfer [as from one individual to another or one item of clothing to another] is at the heart of everything we do.” The question remains, he explained, how significant is the likelihood that a given individual was the contributor of the DNA. The DNA expert’s job was to provide the best statistical analysis possible of such a likelihood. It was then “the job of the tryer of fact,”—i.e., not a judge or attorney but the jury—to determine the forensic significance of this likelihood. At another point, Hampikian recounted how he trained his students to challenge immediately anyone’s use of the word “match” by shouting out “statistics.” In other words, the vagueness of claiming a DNA match should always be replaced with a determination of the statistical likelihood of a match. To use numbers, a DNA sample indicating that 1 out of 200 people could have contributed it was not as good as 1 out of 5,000, and that not as good as 1 out of 5,000,000.

The most significant points of Hampikian’s review of the Cellmark reports were as follows:

1) The statistical likelihood that DNA found on the ends of the scarf used to strangle the victim was from Doug Senecal was offered as 1 in 43. The likelihood that DNA found in the same location was from Dennis was given as 1 in 45. Of course the scarf was Dennis’s, so the presence of his DNA is fully explicable without relation to the crime.

2) The DNA of two males was also found on the t-shirt, but Hampikian offered secondary transfer as a possible explanation for Dennis’s DNA in this location, the idea being that the scarf and t-shirt were in contact with each other, thus facilitating the transfer, either during the actual commission of the crime, or at some later point in their maintenance as items of evidence.

3) Without conclusive identification of individuals, Hampikian stated that “there’s clearly more than one [male] contributor to the evidence.” While the DNA under the victim’s thumbnails was that of only one male contributor, who was not Dennis, this suggestion that two (or more) males, neither of whom was Dennis, could have contributed DNA to the crime scene items raised consideration that there was not just a sole perpetrator. For those of you with the newer edition of Jim Moore’s book, Human Sacrifice, it’s worth reading the section beginning on page 211 where Ralph Jones describes seeing a red and white pickup truck containing two men and a girl. Jones says he could identify one of the men by his voice as Doug Senecal. The girl was either laughing or crying. This was supposed to have happened between 7:30 and 8:30 on the evening of the day Sarah Cherry vanished.

For the prosecution

1) Dr. Carl Ladd – of the Connecticut Forensics Lab and assigned to the DNA lab. Ladd had been asked to review the Cellmark reports and opine on the challenges or limitations to the integrity of the DNA in the biological samples. Stokes led this witness through the same kind of search for a contamination explanation of the DNA test results. As he did in June of 2012, Ladd referred to the autopsy as “textbook conditions for contamination,” and then proceeded to suggest that the male DNA possibly belonging to Senecal or to some other unidentified male contributor could easily be the result of the amplification of the low-level DNA sample the lab had to work with. Ladd maintained that the same amplification used to make a low-level sample more useable could also amplify a contamination source.

2) Prof. Frederick Bieber of the Harvard Medical School. Stokes appeared to use Bieber as he had used Ladd, to try to establish that the most recent DNA test results had no forensic significance. At one point, Bieber stated that he didn’t think “there’s any way to know whose DNA was on the cup” collected by Moore and Cumler.

In summary, Hampikian made a strong case for the various DNA samples—both the sole male sample from under the thumbnails which is not from Dennis, and the mixed male samples from crime scene items—suggesting the involvement of someone, or two someones, other than Dennis in the perpetration of the crime. This, of course, was without reference to the other factors casting significant doubt on the original verdict: time-of-death; possibility of false confession; lack of motive compared to that of the alternative suspect, et al. In contrast, Stokes had nothing new to add, as has always been the case with the prosecution. Rather, Stokes appeared all the time to be struggling to punch holes in the defense witnesses’ testimony, so much so that at one point he asked Hampikian exasperatedly, “Is it your opinion that ANYTHING should go before the tryers of fact?” Hampikian looked back in mild disbelief and asked almost sarcastically, “ANYthing? Are you being facetious?” At which point Judge Bradford cut in to admonish both to “stick to questions and answers.”

In his sidewalk interview with the media following the hearing, Stokes repeated his claim that there is “overwhelming evidence” of Dechaine’s guilt, which MPBN sadly took as news.

Steve Peterson outlined the next steps as follows: he will write a brief which argues for a retrial, due to Bradford in January; the State’s brief in response, due in February; Bradford’s ruling at some subsequent point; followed, if necessary by appeals to the Law Court (Maine’s Supreme Court) and even the federal appeals courts.

If this was the World Series—and for Dennis it very much is—this was a win of one game for the defense. Judge Bradford remains the all-powerful umpire.

Bernie Huebner

While Bernie was writing up his report, Bob and Bill went to the prison to greet Dennis upon his return “home.” Bill later reported…

Bob and I found Dennis tired and unshaven, and very relieved that the hearing was over. Thanks to the great skills of his lawyer, Steve Peterson, and star DNA expert witness Dr. Greg Hampikian, Dennis thought that the hearing had turned out about as well as it could have. He was pleased to find that not only had his cell not been “tossed” by guards looking for items of “contraband” (such as too many books, etc.) during his absence, but someone had even repaired his malfunctioning cell door. Dennis said that he had been so fascinated by the scientific methodology employed by the expert witnesses that if he could live his life over again he would like to be a biologist. In the college-level course on human evolution that Dennis took a year or so ago he received the highest possible grade.

Thursday morning, when Dennis was told to report to work rather than to prepare for the trip to Portland, had been perplexing beyond comprehension. When the word finally came to the prison that Dennis was to be sent to Portland ASAP, the prison had no staff able or available to drive him there. After a couple of hours he found himself riding shotgun (figuratively, of course) in the front seat of a State Police cruiser dispatched from Augusta. The two troopers aboard were evidently very unhappy about being sent on this errand, and remained stone-faced and silent for the entire trip, not even allowing a glimmer of a smile to appear when Dennis complemented them on their “nice wheels.” Dennis was very impressed by the skill of the trooper who, while driving fast, monitored three screens and punched in numbers on keyboards. Talk about distractions!

On Thursday night Dennis found the Cumberland County Jail to be in its usual state of verbal bedlam, with inmates — mostly young, of both sexes — expressing themselves loudly and profanely at all hours, making sleep impossible. Be it noted that many of the females, in particular, wished Dennis well. Staff-members at the jail have always been kind to Dennis on his various brief stays, and he did enjoy as much of the jail’s excellent homemade bread as he could eat.

Several of Dennis’s good friends from the County had come to the hearing. During a recess, the veteran deputy guarding him allowed Dennis, who remained sitting and shackled, to talk with these folks from but a few feet away, over a low railing. Given the unspeakably cruel and tragic crime at the bottom of this case, and the many acts of official malfeasance and downright meanness directed towards Dennis since, it is important not to forget the many acts of generosity and kindness, both large and small, from all manner of people on both sides of the prison walls — including a mass-murderer or two — which have helped to sustain Dennis through the years.

Bill Bunting

As we await the judges’ decision and order, we ask that you take a few minutes to write your concerns about this case and send your letters to the press. Your LTEs are all important.

Once again, if you can, please help support us with a donation to help us keep up with expert witness expenses. Your donations can be sent to Trial and Error PO Box 153 Madawaska Me. 04756 or via our website under Paypal. Please forward this email/newsletter to everyone on your mailing list.

To those of you who came from far and near to attend the hearing, we thank you once again for your support.

To keep up on any new developments, please log on to our website at www.trialanderrordennis.org.

Carol Waltman Pres.
Bill Bunting V.P
Bob MacLaughlin
Bernie Huebner
Don Dechaine
Eugenie Nakell
Nancy Farrin
Steve Sandau