Trial and Error

The Outcry for Justice in the Dennis Dechaine Case

Trial & Error Newsletter - August 2016

THANK YOU, COURIER PUBLICATIONS

Dear Supporters,

Please find here the third installment of Jordan Bailey’s investigative report on Dennis’s case as published in the Courier-Gazette and in other Courier Publications papers; a Courier editorial on the case; and a letter to the editor submitted by Bill Bunting. Jordan Bailey encouraged Bill to submit a letter after he contacted her regarding an issue raised by her report.

For the record, Jordan’s report of the discovery of documentary evidence that sperm had been recovered from Sarah was in error. She had not realized that a document she had found related to another case. 

 

A conversation with Dennis Dechaine

By Jordan Bailey | Jul 28, 2016 

A conversation with dennis dechaine
Photo by: Jordan Bailey Dennis Dechaine gets comfortable while talking about reading during an interview at Maine State Prison June 10. 

Warren — In this final part of a three-part series, we interview Dennis Dechaine at Maine State Prison, where he has served 28 years of a life sentence for a crime he says he didn't commit. The interview took place June 10.

You've had so many denials of your appeals to have your case retried, and you are about to file another federal petition. How do you maintain hope after all these years?

I have my ups and downs. There are times when I like to think that I can choose the hour of my departure because I get so disheartened by the whole process. There are other times when I feel that I can do this for years on end. The bottom line is, I find meaning in my life through my relationships. I have a great number of friends. I've met hundreds of new friends since I've come to prison, and I'm talking about people from the street. At one time I had hundreds of people on my visiting list. I have fewer now; they revamped the system. But I get a lot of visits. I spend a lot of time on the telephone to my family. So I'm very close to my family, and they're very supportive of me and will do anything for me and, you know, I come from a wonderful family.

Of course I find meaning in my work. I work in the upholstery shop. I'm one of three prisoners in the PIE program, which is Prison Industries Enhancement, a [federal] program that allows us to ship products out of state. I work for a high-end patio furniture manufacturer, and we design and sew their cushions. It's a lot of challenging work. It makes it pleasant.

I take great pride in the work; I do the best job I can. I enjoy getting up in the morning and going to work, as many prisoners do. We're basically all normal people. We just want to live our lives as best we can. We all also understand that we'll never reach our potential in a place like this because places like this are designed to essentially deprive you of potential. You're never going to achieve what you could achieve on the street, because the resources aren't here and security is such a big concern that you'll never have access to the things that will allow you to reach your full potential.

But, you know, It could be worse. I talk to people who come from southern prisons, and it's just so much more tenuous there and frightening, in terms of the rates of violence. This place, as violent as it is, is middle-of-the-road compared to other prisons. It could be a lot worse.

What do you do with your time besides working?

One of the things that I do, one of my escapes, is reading. I love to read. I've been reading Don Delillo lately. It’s something that brings me close to a lot of people. You'd be amazed at how many bibliophiles there are in the world. Sharing books and the knowledge of books is one of the great foundations for wonderful relationships.

One of the most wonderful things that you can have in a place like this is the opportunity to share books with fellow prisoners and then discuss them. Books are really important to the prison environment.

I find great comfort to be surrounded by books, and I think that the reason why is because they're filled with ideas. It’s a way to fill your head with ideas that have nothing to do with this place or what led you to land in a place like this. Even fantasy novels are filled with ideas, and when you're reading and absorbing these ideas, you're not here. The idea of prison disappears and the idea that propels a novel is what survives. And that's really what it's all about.

Do you ever write?

I have written. I've gotten some stuff published in the past, but I'd rather read. I'm a better reader than I am a writer. And what's the line? Anything you say can and will be used against you in a court of law? (laughs)

I read you used to grow roses in prison.

I was the gardener landscaper at the old prison. They shut down that program when they found a hook and a rope hidden in the flower beds. (laughs) So someone was using the flower beds for an escape attempt, so they shut it down.

I quietly lobbied support staff, substance abuse counselors and all different types of support staff, to see if they can convince the warden to let us do this again. It took two years of lobbying till I was called down to the dep's [deputy's] office and was told the warden had given the green light to start growing flowers again. This was Warden Jeff Merrill. But with the understanding that I be the one to grow them.

We had very, very small budgets initially, there was hardly anything to work with, so they allowed me to rally my old suppliers because I was in business on the street, so that I could get seeds and other materials for growing. We turned the place — I didn't do this alone, I had plenty of help — we turned Maine State Prison in Thomaston into what I considered to be a world-class horticultural paradise. It was gorgeous.

At one time we had well over 100 rose bushes and loads of perennials and annuals and trees. We had lilac bushes, apple trees. The place was just wonderful. So from a horticultural point of view, it was extraordinary.

I remember one night, at dusk, I was finishing up my work near the dep's office and the guards were bringing in a new prisoner who was shackled in three-point restraints. He was looking at the ground, he was clearly depressed for being brought into this prison.

When he got to the end of the sidewalk in front of the dep's office, he stopped, looked up and looked around and he turned to one of the guards and said, “Have I died and gone to heaven?” and that's when I knew my work was done. I've accomplished what I needed to accomplish.

Shortly after that I passed it off to somebody else. I had plenty of other things on my plate. But it was magnificent. We had hanging baskets and window baskets and planters and we had these abutments that had cascading nasturtiums — oceans of nasturtiums — the most magnificent thing you've ever seen. All kinds of really, really wonderful stuff. The variety was staggering. So it was really quite a pleasure to work with that.

How did you know about that? It was really an extraordinary opportunity. I did that for several years.

I just finished taking a horticulture class that Warden Liberty set up. I'm really pleased that he's agriculturally oriented. He's a master gardener. He wants to see Maine State Prison in Warren produce sufficient vegetables to make a difference in our chow hall while providing substantial donations to local food banks. I think that's just a wonderful goal and I'm willing to do whatever I can to help him reach that goal.

This will all be inside the fence. We've already had some land tilled. There's a bunch of tomatoes planted, a bunch of peppers planted. We have a nice greenhouse.

Do you have any trouble in the prison environment?

I live in a pod that's different than other pods. I've been there for almost a year now. It's the only "honor" pod in the prison, and as a result dogs are allowed inside the living area. And we have dog trainers that train shelter dogs and make them more adoptable through that training. Because I live in that pod, I am a beneficiary of this program in that I get to play with dogs every day. I can tell you that no matter how foul my mood, 30 seconds with a dog changes it 180 degrees. So it's a wonderful gift and I'm very grateful for it.

Do you train the dogs or just play with them?

I get all the benefits but none of the responsibility. When they moved me into this pod I went from a single cell, which I've enjoyed since I've been incarcerated, to being double-bunked. I just didn't see any way that I can possibly share 80 square feet with another person. Eighty square feet is a tiny space —with a bathroom in it, obviously — so to put a dog in there would be to crowd ourselves to such a degree that it would be stressful. It's already bad enough. I'm slowly working my way back toward a single cell. Somebody at the administration decided I needed to have that taken away from me, and be made to earn it over again, and it will take me four or five years of patience to get back to where I was.

You are about to file a federal writ of habeas corpus. Do you think this will give you the opportunity to present all the evidence supporting your innocence?

No, the second successive application is actually the narrowest appeal that I've ever been subjected to. The only thing that I can bring in is newly discovered evidence that supports a claim of actual innocence. It can only be brought in if I exercised due diligence according to the court, which is obviously a subjective measure. In other words, if I failed, according to the courts, in exercising due diligence, then no matter how exculpatory the information, they don't need to allow it in, they don't need to give me a second chance. So it's very difficult, very narrow.

I have put in a request to view the case files at the Attorney General's Office.

Well I hope you can pull that off. I don't think that at any time that I can recall, and certainly I've talked to other people about this, in the history of criminal law in the state of Maine has the Legislature filed an order essentially demanding the opening of a sealed file in the Attorney General's Office. That's how much controversy this case caused. And some very disturbing things were found there, things that I've never really quite gotten over.

The most disturbing was the order requesting the incineration of crime scene evidence. I believe that evidence would have resolved all controversial matters in this case, had they opted to preserve that evidence and/or have it tested as I requested repeatedly.

What was destroyed?

There was clothing, a rape kit, there was hair, you know, everything that was found at the crime scene, and on top of that, the Attorney General's Office apparently has lost a fingerprint card from the location from where Sarah Cherry was abducted and that was found on the door jamb and didn't belong to anybody living in the house and it didn't belong to me. I assume they incinerated that fingerprint card as well.

Why in heaven's name would they do that? It's beyond comprehension. Anyway, that's gone.

I tried to get this tested prior to trial, at my expense, and the judge said no. Who's ever heard of such a thing? That is just beyond belief. It's mind-boggling. They didn't want to delay the trial. To hell with guilt or innocence, expedience is what it's all about. It's beyond belief.

But anyway, you know, I was hoping I would finally have the opportunity to test that stuff and I had appealed repeatedly, asking for permission to test it. Finally when the truth became known that there was nothing to test because they'd incinerated it all — you would probably be as aghast as I was. What's the reason? The stuff could fit in a small space, it's not like it was taking up a lot of room. That's when I realized that the justice system wasn't interested in justice as much as expedience or procedure. That made me realize, sadly, that I was looking at an uphill battle.

A recent court denial said you waited to file your petition for post-conviction review until after your former lawyer, George Carlton, whom the state said knew of your guilt, suffered a stroke.

No, essentially I had a block of time in which to do this, and I made the deadline. The only thing that I was concerned about was filing the petition within the timeframe demanded by the courts. That's it. I made the deadline. George Carlton never entered my mind. He had nothing to do with the post-conviction review.

It's ridiculous; there's no way that I could have known he had suffered a stroke. I hadn't had contact with him in years. I had no idea about where he was. They're the ones who put words in his mouth after he suffered this stroke. I never did. And I can tell you in all honesty that George Carlton always treated me favorably and kindly and wished me the best. Every time he saw me, he wished me the best. He never would have said the things that they attribute to him. Never.

There's so many details in this case it is going to be hard to present this without confusing people.

I think if I were writing an article about this, and if I did the very best job I possibly could knowing what I know, I would only succeed in confusing people, because this has been going on for 28 years, and every passing year adds to the muddle. That's the confusion and it gets to a point where it's almost impossible to discern what is real, what's true and what's not. So I would urge you when you're writing this article, to focus on what I consider to be the most important aspect of this case which is the science. There's so many people that have a vested interest in this case at this particular juncture, including myself, that the best thing that you can do as an objective reporter is to rely on science, which has no vested interest in this case one way or the other.

What we have is the most reliable DNA sample that was found, at the crime scene, that was tested, was Sarah Cherry's thumbnail. We tested two thumbnails because that was the only thing that was left after the state was done destroying evidence. One of the thumbnails yielded a partial result that identifies Sarah Cherry's DNA and an unknown male’s, and that unknown male is not me. That is by far the most significant piece of DNA in this case.

The second thing that I would urge you to consider is the time of death, which is also scientific. Ronald Roy, their own medical examiner said that Sarah Cherry died 30-36 hours prior to being found. A doctor, [Cyril] Wecht, and Dr. Hoffman confirmed those numbers as did a doctor from Eastern Maine Medical, so four separate doctors have concluded that I was in police custody or my whereabouts were known at the time that Sarah Cherry was killed. This is scientific evidence, immutable, factual scientific evidence which should have been sufficient to keep me from ever seeing the inside of a prison, but here I am 28 years later. Those are probably the two most important scientific facts in this case.

Another fact I think is important which is just as objective but somewhat less scientific, I think, that I have been in the most violent place in the state of Maine in the past 28 years, a place where there are more acts of violence than there are people living in it. And not once have I been dragged into this nonsense. It is not in my nature. It is not who I am.

I am currently 58 years old and never in my life have I ever engaged in violence, ever. I'm telling you, whoever brutalized Sarah Cherry is a violent person, or violent people. We don't know if it is one person or not, it could be more. The bottom line is, there is no way that a peaceful, nonviolent person can engage in such a horrid thing. It's an impossibility.

Is there anything else you'd like to say?

Were it not for ethical, conscientious people, this case would have fallen by the wayside a long time ago. It is only because of people who care deeply about justice and fairness that this case moves forward through the courts, and they're myriad. It is important that they know that I'm deeply grateful for their help and support through the years.

Hopefully we'll know by fall how the courts feel about this. I'm really hopeful that that would work out.

EDITORIAL – Courier-Gazette

Dechaine's case highlights need for more reform

Jul 28, 2016

This week we end our series on the case of Dennis Dechaine, who was convicted in 1989 for the murder of 12-year-old Sarah Cherry. Without solid proof either way, his story forces us to consider the possibility of wrongful conviction.

Since DNA testing began, 342 people have been exonerated in the United States. None of these has been in Maine, possibly because of the restrictions on post-conviction review.

Evidence has mounted since Dechaine's conviction that points to his innocence, including testimony from forensic experts about the time of death occurring after Dechaine was picked up by police, discrepancies between detectives' trial testimony about Dechaine’s alleged admissions and their notes on those statements, and statements implicating potential alternate perpetrators with histories of sexual assault — we found statements to police from 2004 implicating two more sex offenders in a review of the case files on Monday.

The evidence against Dechaine has been repeatedly called "mountainous," "voluminous" and "substantial" in denials of his appeals. But it can all be explained by his contention that he was framed. The state has not taken that argument seriously enough to rebut it. Is it inconceivable that a killer would plant items at the scene implicating another person?

Many have argued that after numerous proceedings and denials, Dechaine and his supporters should lay the case to rest. But those denials were based on the technicalities of the post-conviction review and DNA statutes, a narrow interpretation of which allows only DNA evidence to be admitted in court hearings.

While Dechaine has been locked up, the state has blocked any new evidence from coming before a jury in two ways that also illustrate a double standard at work in this case.

First, the state destroyed all the DNA evidence associated with the case — the one codified way for a convict to prove his innocence — as part of a routine cleaning. This has seriously hindered Dechaine's ability to get a new trial. The only DNA evidence that remained was blood on a thumbnail clipping. Tests excluded Dechaine as a source, but the blood could not be definitively connected to the crime. Further attempts by the defense to scrape Cherry's clothing for bits of DNA 25 years after the murder yielded only degraded strands. A technician from the lab that did the DNA analysis said at a hearing the DNA obtained from the clothing items was “of low quality,” leading to "confusing interpretations" and “inconclusive results.”

Dechaine had been denied the chance to test the actual biological evidence connected to the crime — when it was still available — because of testimony on the low likelihood of getting good results. But when inconclusive test results of low-quality, degraded DNA appeared not to rule out Dechaine (1 in 374 Caucasian men could be a source), that was used against him as a reason to deny him a new trial.

Second, the state successfully moved to dismiss Dechaine's 1995 petition for a new trial by invoking a statutory amendment written by the Attorney General's Office allowing a petition to be dismissed on technicalities deemed to put the state at a disadvantage. The state made the dubious claim that a former defense lawyer had spread rumors of Dechaine’s guilt. Because that lawyer had recently suffered a stroke and could no longer testify, the state claimed a disadvantage.

The courts accepted these allegations as reasons to dismiss the petition, yet in Dechaine's 1992 hearing for a new trial, they rejected testimony regarding out-of-court statements implicating an alternative suspect as "hearsay."

State workers revisit the case with a certain weariness, while high-ranking officials have lashed out at those who insist Dechaine is innocent. Former Attorney General Michael Carpenter wrote in a letter to two Dechaine supporters, “I have never seen a case in which I have been more persuaded of a defendant’s guilt. The matter is simply not open to rational debate.”

Former Attorney General William Stokes wrote in a letter that Dechaine's claim of innocence was "bogus" and that his timing of the filing of his petition for post-conviction review was a “transparent and cynical” attempt to disadvantage the state.

Attorney General Janet Mills in a misleading letter to the Portland Press Herald in February said, “DNA evidence has been exhaustively analyzed at Mr. Dechaine’s request, but the results do not help him."

No court reviewing this case has acknowledged that the state's routine destruction of biological evidence is the reason Dechaine's post-conviction review process is spinning in circles. His chances for freedom, if he is innocent, have been hanging on the thumbnail clipping of a 12-year-old girl and a few threads from her shirt.

The unfolding of this case over the past 28 years has highlighted a number of ways convictions can be uncertain, and has prompted several changes to Maine law to help counteract that uncertainty: confessions must now to be recorded, for one example.

Our legislators should take another look at the post-conviction review statute and add provisions recommended by the Innocence Project: Courts should be allowed to vacate convictions or grant a new trial — where all the evidence can be heard — when DNA evidence of a case has been destroyed.

========

Below is a letter to the Editor from Trial and Error VP Bill Bunting

To the Editor,

The Courier-Gazette and Jordan Bailey deserve great credit for their ambitious investigation of the Dennis Dechaine case. It would be nearly impossible to write an overview of this complicated saga entirely free of error or of points in want of greater clarification or emphasis. My comments, therefore, are offered in support of Bailey’s excellent work, and not as criticism.

Bailey wrote that Assistant State Medical Examiner Roy “estimated the time of death to be 30 to 36 hours before [the autopsy] or [at the earliest] 2 a. m. July 7 . . . .”  While Roy cited this parameter he did not explain that this placed the time-of-death after Dechaine was in police hands, thereby destroying the State’s case. What the jury heard instead was repeated statements that Sarah Cherry died two to four hours after she had eaten hotdogs, or, in the afternoon of the 6th. While Roy added that digestion could slow or stop under great stress or terror, he did so only once.

In part 1 Bailey correctly stated that the scarf used to strangle the victim belonged to Dechaine, having been taken from his truck. But this explanation for the presence of a partial DNA profile on the scarf from which Dechaine could not be excluded was omitted in a segment in part 2 regarding DNA testing.  When contacted, Bailey explained that this omission was due to an editorial misunderstanding. This DNA could have readily been transferred to other clothing from contact or during handling. Also not mentioned was the presence of degraded DNA on the scarf from which the profile likely belonging to the prime alternative suspect could not be excluded.

For the record, these critical omissions also appear in the Maine Supreme Court’s 2015 denial of Dechaine’s final state appeal.

Regarding the State’s opposition to, and Judge Bradford’s denial of, Dechaine’s pre-trial request for DNA testing of evidence from the crime scene, it is significant that the State had already engaged in DNA testing in the Judy Flagg case, a case eventually solved by DNA found under fingernails. The State also knew that Dechaine’s blood was not under the victim’s nails. By not being allowed to show that he was not the donor of the DNA Dechaine was deprived of powerful evidence arguing for acquittal. 

Bailey wrote that it may no longer be possible to prove Dechaine’s guilt or innocence. However, the evidence that Sarah was never in Dechaine’s truck, combined with the finding by renowned forensic pathologist Dr. Cyril Wecht that Sarah died after Dennis’s whereabouts were known, considered along with the thumbnail DNA from an unknown male, would today surely make the task of proving Dechaine guilty beyond a reasonable doubt difficult indeed. This likely explains the unrelenting fervor of the State’s opposition to a retrial. 

Finally, the figure given in the editorial of 342 exonerations nation-wide since 1989 is only for DNA exonerations. Total exonerations are now up to 1,855. Maine alone among all states has not exonerated a single felon.

William Bunting

Whitefield 

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Sincere Thanks

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

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