Trial and Error

The Outcry for Justice in the Dennis Dechaine Case

Newsletter: Dear Supporters

Jun 17, 2012

The long-delayed hearing on the motion for a new trial based on the revised DNA statute was held in Portland on June 12, 13, and 14.

Dennis will now also go to trial in Rockland on June 19 charged with drug trafficking and possession for his April 2011 suicide attempt. We will send another newsletter out after the verdict.

Many times during this long struggle it has seemed that a critical corner had finally been turned and that a retrial lay close ahead. And many times we have been disappointed. But after the completion of the long-awaited hearing this past week, many of us are once again feeling encouraged. Perhaps someday we will look back on June 2012 as the time when we finally turned that corner, although a long road may yet lie ahead.

This newsletter departs from its usual form. The principal text consists of a summary of the hearings written by T&E board member Bernie Huebner, whose past employment as a newspaper reporter shines forth. This is followed by a more freewheeling overview by T & E VP Bill Bunting.

First, however, we urge everyone to explore our revised website, trialanderrordennis.org. Or just Google “dennis dechaine.” Most of the credit for a job which turned out to be much more difficult than first thought goes to board members Bob MacLaughlin and Genie Nakel, and to our hard-working tech Randy Dufour.

Second, Trial & Error is now undertaking a critical fund-raising drive. As an organization we have refrained from hounding our supporters for funds when there was no pressing need. Now, however, the needs are indeed great, and likely to grow even more so. Were everyone on this e-mail list to chip in a modest amount we would not need any large contributions, although any such would be most welcome! All contributions are tax deductible and should be sent to Trial & Error, c/o Carol Waltman, P. O. Box 153, Madawaska, ME 04756; or made through PayPal, which will be available on our website soon. Thank you.

Bernie’s Summary Report

June 12-14: Summary of the hearing on Dennis’s motion for a retrial filed under the Maine post-conviction DNA Statute

It is difficult to summarize three days of detailed testimony, but here are several highlights that may carry more meaning than a recounting of the lengthy tutorials on DNA testing, the resumes of the witnesses, and such.

One important aspect of the case that received attention was the incineration of potential DNA evidence on June 18, 1992. The state called two witnesses in an effort to explain how this could have occurred only six weeks after Dennis filed a motion for a retrial, on May 5, 1992. Fern LaRochelle, then the director of the criminal division of the AG’s Office, testified that on March 31, 1992, he passed on to the appropriate assistant AGs a list of cases for which evidence un-used at trial was being recommended for incineration to make more storage room. LaRochelle said that it was up to each attorney to indicate if any evidence from a case on the list should not be destroyed. Trial attorney Eric Wright then testified that he did not stop the destruction of unused evidence in the Dechaine trial—the rape kit, eight fingernails, vaginal swabs, and unidentified hairs found on the victim’s body—and that he likely did this before the May 5 filing of the motion for a retrial. The actual incineration took place on June 18, but Wright claimed not to have known the actual date. More significant, perhaps, than responsibility for permitting the incineration (and reasons why) is that now the state argues that there is no DNA to be tested other than the small amount found under one of the victim’s nails, even though it is the state which destroyed any other potential DNA evidence. Of course there may still be DNA found on several articles that were not destroyed because they were used at trial, e.g., the sticks, a scarf, rope.

The focus of most of the hearing was whether the DNA from under the victim’s left thumbnail, of an unknown male who is not Dennis, is a) the result of contamination during storage or testing, as the state maintains, or b) evidence of the actual perpetrator of the crime, still to be identified by comparison to a database of identified DNA profiles or by comparison to the DNA profile of a suspect, as argued by the defense.

William Stokes, head of the AG’s criminal division, called a number of witnesses to advance the state’s theory that the unknown DNA is just the result of contamination, and thus irrelevant to Dennis’s claim of innocence. Robert Goodrich, a medical examiner’s technician present at the victim’s autopsy in 1988, painted a picture of “grunge” as typical in the use and storage of autopsy instruments at that time. Dr. Carl Ladd, from the Connecticut Forensics Lab, argued that it was impossible even now to eliminate all contamination despite state-of-the-art procedures. Dr. Frederick Bieber, of the faculty of the Harvard Medical School, referred to the situation at the time of the victim’s autopsy as “a textbook recipe for the potential for contamination….”

Countering all this testimony, however, was the insight and observation by one of Steve Peterson’s witnesses called for the defense: that through sheer luck, the collection of the unknown male DNA from the victim’s left thumbnail was a classic example of a completely controlled experiment, as follows. The one nail that was found to hold the DNA of an unknown male, as well as that of the victim, was actually cut in half as part of the testing, but both halves had undergone exactly the same collection, storage, and finally testing procedure by the same technician at the same time. Yet only one half had the unknown male DNA; the other did not. If this DNA were the result of contamination during initial collection—the nail clippers theory of the state—or storage, it is entirely likely that it would have been found on both halves. That it was found on only one half of the nail, and no other unknown DNA on the other, supports the idea that it came to be there during the original struggle with the perpetrator. As Dr. Greg Hampikian, the defense witness from Boise State University, explained, this was an example of a well-designed scientific experiment, where all but one variable is controlled.

Dr. Rick Staub, of Cellmark, the DNA testing lab in Texas, testified that one would get better results from touch DNA testing using a combination of scraping and swabbing than from one using swabbing alone, as has been the case so far. The hearing has thus been continued by Judge Bradford to allow for this further touch DNA testing using scraping and swabbing of the remaining un-tested articles of evidence: the sticks, scarf, rope, and items of the victim’s clothing. This is likely to take several months, so Judge Bradford’s ruling will not be given until the results have been determined.

If this testing produces DNA that matches that from under the victim’s left thumbnail, it would dismantle the state’s theory that the DNA of an unknown male is contamination and support the idea that it belongs to the real perpetrator, who is not Dennis. Similarly, if this testing produces no DNA at all, this would argue against the nail DNA having been the result of contamination since one would expect contamination under the circumstances described by the state to be widespread.

Perhaps indicative of the bias in the state’s theory is how the state, in the Dechaine case and the recent Thomas Mitchell case, has used two different terms to describe what is likely the same thing. In the Mitchell case, DNA evidence collected in 1983 was used in 2009 to convict Mitchell of murder. The state calls this DNA “a match,” which it in fact was, between the sample collected from under the victim’s nails and a sample from Thomas Mitchell. In the Dechaine case, however, the state insists on calling the DNA of the unknown male “contamination” simply because the state has not yet made a specific identification of the contributor.

In all of this, however, it should not be forgotten that typing of blood taken from under the victim’s nails has already excluded Dennis as the perpetrator. In addition, supporting Dennis’s claim of innocence are the time-of-death exclusion and alternative suspect theory, which were already ruled inadmissible last July to this hearing by Judge Bradford.

Bill’s Impressions

I drove back to Whitefield Thursday afternoon both encouraged and drained. My intentions were to mow several acres of hay but after cutting through about one hundred yards of rank orchard grass which threatened to plug the mower-conditioner, I realized that I was not mentally fit to proceed safely, and shut down the tractor and left it right there. I staggered back to the house in a daze and collapsed on a couch. If the hearings had affected me this strongly I tried to imagine how Dennis must have been feeling.

The verbal and mental sparring that had taken place that day between Deputy AG Bill Stokes, Dennis’s attorney Steve Peterson, and the expert witnesses, was as dramatic as anything portrayed on the screen, only much more so because there was no script, and the stakes were huge for Dennis.

Supporter Weld Henshaw, a retired Boston attorney of note, who was sitting next to me, called the final flurry between Stokes and our expert witness, Dr. Greg Hampikian, the most riveting courtroom exchange he could ever recall.

As it was obvious that Dr. Hampikian, in his quiet but resolute manner, was scoring major points against the increasingly frantic and even badgering Deputy AG, Steve Peterson wisely did not interfere, nor ask for the opportunity to rebut. The fact that Stokes did not call back any of his expert witnesses, whom Hampikian had previously deflated, was most telling. It was a once-in-a-lifetime show.

Also vivid in my memory is the flawless performance on the stand on Tuesday of our own Carol Waltman. Calmly and authoritatively, she reviewed the chain of possession of the two thumbnails on their delivery to the CBR labs, and the process of obtaining Dennis’s blood sample, despite a lack of cooperation from Maine officials. Backed by her pages upon pages of minutely detailed logs, she convincingly removed these issues from any contention.

Friday night I visited Dennis at Warren, where he had returned that day. His stomach was still upset from nerves, but he was greatly relieved to have it all behind him. He said he could not find sufficient words to describe the superlative performances of Steve Peterson and also Greg Hampikian. He knew that he could not have hoped for more brilliant and competent representation.

He expressed sincere sympathy at the sight of the suffering from Parkinson’s disease of one of his chief tormentors from his 1989 trial. He had had his first good look at the night stars in 24 years from the window of his cell at the Cumberland County Jail. And on one of his nights there a high jail official had come to his cell for the express purpose of shaking his hand and wishing him well. That meant a very great deal to him.

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