Trial and Error

Jul 7, 2011

There are several reasons why so many months have passed since our last newsletter. Thank you all for being patient. In addition to working 50 hours a week, I have had various other responsibilities to attend to, one after the other. However this does not mean that our efforts to help Dennis ever slowed down. It seemed that every time we were about to put out a newsletter there was about to be an agreement reached between the state and Dennis’s lawyers over what remaining evidence was going to be tested for DNA, and also how and where it was going to be tested. At the end of March an agreement was finally reached, and the evidence has now been, or is now being, tested. The results could be of great importance if new DNA is discovered. We in Trial & Error do not know the details of these past two and a half years of negotiations, but we believe that if the state had wanted these materials to be tested it would have been done years ago.  But better late than never.

BREAKING NEWS —  We have just learned that a preliminary hearing has been set for July 29th at 9:00am at the Cumberland County Courthouse in Portland.  This hearing will be about what evidence will be allowed at the hearing on Motion for New Trial based on DNA.  The hearing will be open to the public and we urge all supporters to attend.  The courthouse may be packed but please stay outside to show your support.

We ask that there are no banners, buttons, etc. We presume that a news conference will be held outside the courthouse afterwards.

For some months this past Spring we delayed putting out a newsletter because we thought it would be best not to attract attention to two bills before the legislature which were intended to correct some of the problems we saw in the post-conviction DNA statute. We hoped that the hearings would not be turned into a circus like there was in 2006.

The Judiciary Committee held a public hearing on LD824 Tuesday, 5/10/11. This was the bill to amend certain provisions regarding evidence in the state’s post-conviction DNA statute, and also to respond to Judge Bradford’s ruling as to what  evidence was allowable.   Rep. John Martin, of Eagle Lake and the bill’s sponsor, made a strong and balanced case for the bill, stating that it was needed to help bring closure about the Sarah Cherry murder in 1988 for everyone on both sides of the issue.  WABI-TV was there, and used a clip from his opening statement on the 6 pm news.

Presenting for the bill was Walt McKee, the legislative liaison for MACDL, the Maine Association of Criminal Defense Lawyers.  Walt walked the committee through the technical aspects of the bill, at the same time he advanced a clear and simple argument for why a broader consideration of evidence relating to DNA test results would improve the existing statute.

Former Attorney General Jon Lund spoke next, pointing to the increasing role and value of DNA evidence in criminal justice.

Bernie Huebner drew from Judge Carl O. Bradford’s ruling of last November denying Dennis’s submission of evidence related to DNA evidence (time of death; alternative suspects; law enforcement investigative notes contradicting their trial testimony that Dennis confessed to them), and used the judge’s own statements that his denial was required under the current statute as a reason for this Legislature to amend the law.

Bill Bunting offered a comparison to the JonBenet Ramsey case as an argument for amending the existing statute to give more weight to DNA evidence that was not identified with a defendant.

Finally, Shenna Bellows, executive director of the Maine Civil Liberties Union, offered support for the bill, specifically for the provision to broaden the scope of allowable evidence in a court hearing.

One part of the bill stipulated that DNA evidence material to a crime but not identified with the defendant should be treated as prima facie evidence, rebuttable by the state, that it belonged to the perpetrator, and that this presumption should be allowed as evidence in favor of the defendant.  Similarly, DNA evidence material to the crime but which the state had not preserved was also to be so regarded. Jan. 1, 1988 was given as the retroactive date for the law to take effect because July 1988 was when the state first did DNA testing, even though the AG opposed DNA testing in Dennis’s case in 1989.

Among those opposing the bill, Commissioner of Public Safety John Morris made a point of saying how important it was not to rely completely upon DNA evidence, but that it should be weighed in the context of other evidence, a position remarkably similar to part of our bill’s proposed amendments.  Assistant Attorney General Macomber told the committee that the AG also opposed the bill, but in explaining why, he, too, made our case for a broadening of admissible evidence. His statement that the passage of the bill would “open the flood gates” indicated that he did not understand the many steps that are required before the post-conviction DNA statute can apply to a petitioner.

The rest of the hearing was devoted to members and supporters of the Cherry family.  Sadly, their testimony consisted mostly of a recounting of the understandable pain and suffering they have endured for so long.  Equally sadly, their testimony did not really address either the existing statute or LD 824’s proposed amendments.  Instead, it continued to demonize Dennis while offering no acknowledgement of all the new evidence developed over the years.

LD824 was rejected on May 13, 2011. It would have been nice if the Judiciary Committee could have looked at LD824 without sensationalism, but that was not to be. It is unfortunate that news reports were very inaccurate. LD824 if passed would NOT have automatically given Dennis a new trial, despite what the media said. Also, it had nothing to do with allowing testing of untested DNA.

Trial & Error was also the source of LD373, which, unlike the revised post-conviction DNA statute, was intended to give the the petitioner equal rights of appeal with the state. This bill received a unanimous ought to pass from the committee. It was signed into law by Governor Paul LePage on June 6, 2011. So our legislative efforts did produce some positive results.

Our thanks to the sponsors and co-sponsors  Rep. John Martin, Rep. Ken Theriault, Sen. Troy Jackson and Sen. Stan Gerzofsky.  Also to former AG Jon Lund, who testified in favor of LD824, and especially to Walt McKee, the lobbyist for the Maine Criminal Defense Lawyers Association who volunteered his valuable time and great skill to give expert testimony on behalf of both bills.   Also, a super “Thank You” to Bill and Bernie for their continued hard work and total dedication with the 2 bills, LD824 and LD373.

Please forward this letter to everyone on your mailing list and ask them to attend the hearing on the 29th at 9am in Portland at the Cumberland County Courthouse.  It may be a full house but please stay outside if you have to and show your support since the press may have questions for supporters of a new trial.

Also, please send letters to the press in support of justice and a new trial with ALL the evidence.

Sincere thanks for your continued support!

Carol Waltman, on behalf of Bill Bunting, Bernie Huebner, Steve Sandau, Don Dechaine and the membership of Trial and Error