Getting this evidence admitted is another story
By Jordan Bailey | Courier Publications | Jul 14, 2016
This is the first of a three-part series. Part 2 will look at the legal options available in this case. In Part 3, we will publish an interview with Dennis Dechaine himself.
In perhaps the most notorious criminal case in Maine history, then-31-year-old Bowdoinham farmer Dennis Dechaine was convicted in 1989 of the kidnapping, sexual assault and murder of 12-year-old Sarah Cherry of Bowdoin.
The case has been the subject of numerous unsuccessful appeals over the last three decades. The most recent, in September 2015, when the Maine Supreme Court denied Dechaine a new trial, exhausted the last state avenue, except for pardon by the governor. His only option now is a petition of habeas corpus in federal court, which Dechaine plans to submit by the end of the month.
Nearly three decades after the fact, it may no longer be possible to definitively prove Dechaine's guilt or innocence. Evidence has been lost and key players have died. New details have emerged that make it uncertain he could still be proven guilty beyond a reasonable doubt, but it is too late to raise doubt.
Now that he has been convicted, the burden has shifted. Innocence is no longer presumed: The defendant must prove it. To get a new trial, new evidence can no longer be merely "cumulative or impeaching," simply adding weight to the defendant's arguments or shooting down pieces of the prosecution’s. It must be strong enough that considering it, no reasonable juror would convict him.
At Dechaine's March 1989 trial, the state’s case seemed tight. At Knox County Court with Judge Carl Bradford presiding, then-Assistant Attorney General Eric Wright stated in simple terms how on the day of Cherry’s disappearance from her babysitting job, July 6, 1988, Dechaine had been in the woods and came out looking for his truck near where her body was found two days later. Papers bearing his name and a car-repair estimate with a description of his truck were found in the driveway where she was babysitting, near a tread mark matching the left front tire of his truck.
He did not remember what he was doing that day; he lied to police about incidental details. Perhaps most damning, Cherry was found gagged with Dechaine’s bandanna and strangled with Dechaine’s scarf. Her hands were bound with Dechaine's rope and shallow stab wounds to her neck and chest could have been inflicted with Dechaine's missing pen knife. Furthermore, Dechaine had made incriminating statements while in police custody.
Dechaine’s lawyer, Thomas Connolly, argued that Dechaine had gone to the woods to shoot up amphetamines, which would account for his lapses in memory. His truck was unattended; all Dechaine's things later found at the crime scene were there for the taking. Dechaine did not know Cherry or have any motive to abduct her. There was no hint of struggle or evidence Dechaine was in the house where she had been babysitting. In other words, Connolly argued, he was framed.
Before the trial Dechaine had offered to pay for DNA testing, but Bradford denied the request because it was at the time a new science.
During the trial, acquaintances old and new painted a picture of Dechaine as a non-violent, shy, intelligent man. He had an aversion to blood, and was unable to kill his own chickens, paying to have them butchered instead. He started a farm and flower business in Bowdoinham with his then-wife, Nancy Emmons. She testified that she found him shooting up in the bathroom one night and gave him an ultimatum to stop doing drugs or she would leave him.
Dechaine took the stand and answered questions about his life. He grew up in the tight-knit community of Madawaska, where he was cared for by his older brother after both his parents died by the time he was 14 (which is when he began occasionally using drugs). After graduating from Madawaska High School, he got a degree in dairy farm management in Vermont and another in French in Washington state, where he met his wife.
He testified that he bought what was described to him as one dose of "street speed" on a trip to Boston, and, later thinking it was an irresponsible thing to have done, he hid it in his barn. On the day after his return from a trip to Madawaska, with a somewhat daunting error to fix in his greenhouse construction, he decided to take the drug. To hide this from his wife, he went to the woods in Bowdoin. He denied ever confessing or saying the incriminating things attributed to him by detectives and police. The muddy hand prints on his upper back? He was swatting flies. Scratches on his lower back? He got those walking through dense woods.
When he was picked up after Cherry's disappearance, Connolly argued, Dechaine was cooperative with police, though nervous about his drug use and intimidated by their tough questioning about the kidnapped girl. Still, he willingly entered a police vehicle and offered his truck for a search by the Maine Crime Lab, and no trace of the girl was found in it.
The prosecutor’s closing statement acknowledged that the police investigation had focused on Dechaine as a suspect and that the evidence against him was circumstantial, but ridiculed the theory that he was framed.
“There is no evidence, ladies and gentlemen of the jury, in this case, of an alternative perpetrator,” Wright said. “There is only the sheerest of speculation.”
Without any other suspect presented, the defense’s argument seemed far-fetched. The jury returned a guilty verdict on all five counts: intentional or knowing murder, depraved indifference murder, kidnapping and two counts of gross sexual misconduct. He was sentenced to two concurrent life sentences in prison.
Dechaine’s friends, family and other supporters formed the nonprofit group Trial and Error to work on securing him a new trial. They point to destroyed and suppressed evidence, missing files and ignored alternative suspects as at best incompetence and at worst conspiracies involving protected sex-offender drug informants.
"There’s a darkness here that goes deeper,” Trial and Error Board member Bernie Huebner said at his home in Waterville June 23. “I can’t understand after 28 years why the judiciary itself right through the Maine Supreme Court and the media — we are almost blacklisted — bend over backward to prevent any light from being shined on this case.”
One proposed alternative perpetrator, Cherry’s stepsister’s stepfather, was, at the time of Cherry's murder, under investigation for molesting that stepsister. Bradford would not admit evidence against him at Dechaine's trial, but he was the subject of a 1992 hearing for a new trial based on newly discovered evidence.
Trial and Error believes letters from Deputy Attorney General William Stokes to this alternative suspect indicate a friendship or partnership that goes beyond professional courtesies.
“I have good news to report,” one reads, regarding the dismissal of Dechaine’s post-conviction petition in 1999. Another, about the "bad news" of Dechaine's first habeas petition, says "I will keep you informed of developments." Stokes signed several of the letters "with best personal regards, Bill."
Attempts to reach Stokes, now a Superior Court Justice at Franklin County Courthouse, were unsuccessful.
The 'nitwit' and the INTERPOL agent
Trial and Error has gotten a reputation that in some ways has been detrimental to Dechaine and many argue it should put an end to its efforts. Portland Press Herald columnist Greg Kesich wrote in a column titled, “It is time for Dechaine’s champions to lay case to rest” in 2015:
“Not being ‘the type’ doesn’t prove anything. I am convinced that no one really knows anyone else, especially when it comes to questions of sexual desire. We all get surprised at some point in our lives when we learn something about a friend, a relative, a spouse or even about ourselves. If Dechaine was harboring urges to rape and murder a child, we shouldn’t be shocked if he kept it a secret..."
Kesich continues, “Circumstantial evidence? Sure. But a lot of it. Dechaine is either guilty or the unluckiest guy on the planet. It’s time to leave this case alone, and let Sarah Cherry rest in peace.”
Staff at the Attorney General's Office exhibited a weariness with the case when we went in to view the files. "I don't know what you think you're going to find," Deputy AG Lisa Marchese said June 27. "Everything Trial and Error brought up has been answered."
Dechaine's current lawyer, Steven Peterson, who has been working on the case pro bono, drew a contrast between Trial and Error and others working on behalf of Dechaine. "The Trial and Error people are a little more strident about this," he said. "They're more convinced, true believers. That's not my job, I'm more clinical about how I'm handling it in the legal system... I don't form an opinion.”
But his work and Trial and Error's do overlap and he works closely with the group. He has used information from private investigators and DNA testing the group has paid for. He has a poster in his office listing evidence supporting Dechaine's innocence that a jury has never heard, and he hands out copies of a book on the case by an unlikely supporter: a former high level law-enforcement agent.
Carol Waltman of Madawaska has been spearheading the efforts to prove Dechaine's innocence since the trial. Her brother and sister (she was the youngest of 19 children) graduated in Dechaine’s class and her husband, her high-school sweetheart, was good friends with him. She said by phone that she always admired Dechaine; he did well in school, and he was from a family as poor as hers.
She remembered his coming to visit for the Acadian Festival the weekend of July 4, 1988, when he visited her craft fair booth and spoke excitedly about starting another greenhouse at his Bowdoinham farm. When she saw him on the news associated with the abduction of Cherry, she was devastated.
Shortly after the trial, she put an ad in a Brunswick paper, asking anyone who thought Dechaine had not received a fair trial to come to a meeting at a Unitarian Universalist church in Bowdoin. About 60 people showed up, including an older man in a trench coat who stood at the back of the room. He did not believe the claims Waltman was making about the police and detectives obstructing justice.
"He came up to me after the meeting and said, 'I really think you’re a nitwit; cops in Maine don’t work like that,'” Waltman said. “I told him, ‘Go ahead, do your investigation, and go blow it out your butt!’ But now he's like a father to me.”
That man was James Moore, former Alcohol Tobacco and Firearms agent-in-charge for Maine and New Hampshire, who also served two years on the Federal Organized Crime and Racketeering Strike Force and two years with INTERPOL.
“He was a classic cop, there’s everything there but the doughnut,” said Huebner. “He looked with a cop’s eye at the evidence.”
Through the course of his investigation, including close reading of the trial transcripts, state psychological evaluations, medical examiner’s reports and documents obtained through an extensive Freedom of Access request, Moore came to believe Dechaine is innocent. He outlined his arguments in the book, “Human Sacrifice on the Altar of Injustice” and its supplement “State Secrets: What the Jury Never Heard in the Dennis Dechaine Case.” Proceeds from these are donated to the efforts to secure a new trial for Dechaine.
Moore's investigation highlighted what he found to be sloppy detective work: particularly the laser focus on Dechaine and failure of detectives to investigate any other potential suspects. He believed that at the very least, sex offenders in the area should have been questioned.
One lifetime registrant on the sex offender registry, who had been released on bail nine days before Cherry's murder after being charged with gross sexual misconduct with a 12-year-old, lived in a trailer within the search area. He was released on bail June 27, 1988, and convicted Jan. 31, 1989. Detectives saw bare footprints of different sizes leading to that trailer — Cherry was known to be barefoot — but did not knock on the door. The owner of the trailer had been investigated a month earlier by Alfred Hendsbee, the same Maine State Police detective who later searched for Cherry. Hendsbee did not disclose the trailer owner's criminal history to the defense.
According to records obtained later by Trial and Error from Maine State Police, this suspect had been convicted of rape in 1986 and 1987, and gross sexual misconduct class A between April and June 1988. In court documents obtained by Moore, the victim described to Hendsbee that this potential suspect had penetrated her with foreign objects. (Cherry’s body was found with the same.) Moore wrote that this man became a fugitive from justice in 2003 and was apprehended in 2005 on charges of sex with a 14-year-old girl.
Moore also noted others who should have been investigated, including the father of the infant whom Cherry was babysitting, described by waitresses at a restaurant he frequented as a pervert and a creep. Another was a boarder at the Dechaine home, whom neighbors described as odd and who would have had access to his truck on the day before the murder while Dechaine was in Madawaska, which state witnesses saw in the area of the kidnapping.
During Dechaine's trial, Connolly had tried to bring Cherry's stepsister's stepfather to the stand, the one who was under investigation for molesting that stepsister. The case against this suspect was dismissed by Bradford shortly after Cherry’s death because the victim moved to another state and would not be able to testify.
Bradford would not admit alternative-perpetrator evidence at the trial, Connolly said recently by text message, "even though there was a lot of proof, [much of which] was not turned over until after the trial."
"It is a grave imbalance in the case that undeniably made a difference in the outcome," he said.
The denial in 1990 of Dechaine's direct appeal states that not enough connection was established between the suspect and Cherry, and because Cherry was not being considered as a witness at her stepsister's trial, no motive for the abduction and murder could be established.
Testimony and evidence regarding this suspect was heard in 1992 during consideration of a new trial based on newly discovered evidence. Among the new information were statements about the man's tendency to anger, scratches on his face and chest following the murder, threats he had allegedly made to witnesses, and a recounting of the stepsister's reaction — out of proportion to what was publicly known at the time — when she first heard Cherry was missing.
A witness named Ralph Jones who went to high school with the suspect testified that on the day of the murder, he heard the man's voice shouting angrily to another man in a truck at the end of his driveway, along with the sound of a young girl inside the truck "either laughing or crying." He said he told police, but that they lost interest when he was shown a picture of Dechaine’s truck and didn’t identify it as the one he’d seen. Connolly said this report was not turned over to the defense until after the trial.
Jones’ testimony was dismissed as not credible — he admitted he had only heard the suspect's voice five times in 20 years, and other testimony offered at the hearing for a new trial was dismissed as hearsay and speculation. The motion for a new trial based on new evidence was denied, and the Law Court upheld this decision, finding that no motive or opportunity had been established, with the evidence presented, for the suspect to have committed the crime.
After that hearing, Denise Whitmore of Monmouth began contacting Dechaine and members of Trial and Error with more evidence against this potential suspect. Calls to Whitmore were not returned by press time.
Whitmore wrote to Waltman in 2012:
“When I drove into [the suspect’s sister’s driveway], a man was taking boxes out of his truck and putting them into her shed… She told me that [the suspect] was heading to South Carolina... I asked [her] why he was going down south and she said wait a minute and went outside like she was in a hurry to catch her brother before he left. She was only gone a couple of minutes but came back in crying. My thoughts were that she was going to miss her brother when she said he was leaving because detectives were questioning him about killing Sarah Cherry. I asked did he do it and she said yes and started crying harder.”
The sister Whitmore refers to, who has since died of diabetes complications, made a statement to Detective Steven Drake a few days before the 1992 hearing, but it was not revealed to the defense. Drake’s June 29, 1992, narrative report refers to the statement as “attached,” but we were not able to find this document in the State Police investigation files at the AG's Office, and requests to Marchese for a copy were not responded to by press time.
Whitmore wrote to Dechaine: "I did my duty by calling the police and left it at that. When I realized you were convicted, I started telling your lawyers and anyone else that would listen, but of course you'd already been convicted and all I was told [was] that it is hearsay."
Trail and Error members suggested and Peterson, Dechaine's current lawyer, confirmed that the sister's exclamation as related by Whitmore would have fallen under the “excited utterances” exception to the hearsay rule if she had testified at the 1992 hearing for a new trial. Hearsay, a statement made out of court by someone other than the witness, is not admissible as evidence, but an excited utterance by someone other than the witness, made in a moment of stress without time for reflection, is. This evidence has never been heard in court.
Time of death
Moore cites opinions of expert forensic doctors that would put the time of death after Dechaine had been picked up by police. The state’s medical examiner said rigor mortis was present but passing off when he performed the autopsy at 2 p.m. on July 8, 1988, and estimated the time of death to be 30 to 36 hours before that, or 2 a.m. July 7, 1988. Moore cited textbooks and expert opinion that the heat July 6 to 8, 1988 (temperatures were in the 90s), would have hastened the process, making the time of death even later. Dechaine was in police custody or his whereabouts had been known since approximately 8:30 p.m. July 6, 1988.
Since Moore’s book came out, several other forensic experts have added their weight to that assessment, including world-famous forensic pathologist Cyril Wecht, who has worked on high-profile cases including the John F. Kennedy assassination, Robert F. Kennedy, Tammy Wynette, Elvis Presley, Sunny Von Bulow, Ron Brown (secretery of commerce), Vincent Foster (White House counsel), the Waco Branch Davidian fire, O.J. Simpson, JonBenet Ramsey, Anna Nicole Smith and Michael Jackson.
Some officials in the AG's Office refer to an assessment by Vermont forensic consultant Eleanor McQuillen, who finds the body could have been dead two days to counter the opinions cited by Moore and Trial and Error. Though the body was found covered in leaves and brush, not buried, with the head exposed, McQuillen’s report repeatedly refers to her assumption that the body was buried in cool earth as an explanation for why many of the markers one would expect to see in a body dead two days were not present and why the the onset and passage of rigor mortis and the progress of liver mortis, in which the liver changes from red to purple (it was found red), would have been delayed. Her report also states the body’s “good preservation,” with no discoloration of the lower abdomen is explained by "burial in cool earth."
These forensic opinions on time of death were not admitted in any hearings for Dechaine's petitions for new trials.
Dechaine’s confessions were vague and none was recorded, signed or witnessed. Some testimony by detectives about statements he made to them was not backed up in their notes. When Trial and Error requested detectives' notes on Dechaine's confessions, they were told they were not available. But when the Maine Legislature ordered in 2003 that the files be opened, the notes were found, with some discrepancies.
In Detective Mark Westrum's notes the words “How did” were crossed out and "Why did,” written above them, so that “How could I kill her?” became “Why did I kill her?” We viewed the notes with these alterations in the files at the AG's Office.
Just below this in Westrum's notes is the statement, “I went home and told my wife something bad had happened,” which he quoted during the trial as, “I went home and told my wife I had done something bad.”
Westrum responded to a request for an interview in an email. "Trust me," he wrote. "I have plenty I'd like to say in response to the misinformation Trial and Error keeps putting out. I have referred your request to Lisa Marchese from the AG's office and will await her response regarding your request for an interview. I've got nothing to hide but because of the sensitivity of the issues and various appeals I generally don't do interviews regarding the matter but will certainly await her response as I said and will let you know."
However, Marchese said when we asked about whether Westrum's interview had been approved, "You will find that not many people want to talk about this case."
Trial and Error members were also told by Assistant AG Wright during a 1994 meeting with Attorney General Michael Carpenter that Dechaine had confessed to state psychologists and that the confession had been recorded. But when they viewed the recording, the only thing close to a confession was a statement that he may have thought he did it, briefly, while he was being questioned by police.
Even if Dechaine did make incriminating statements, Moore cites extensive research into "persuaded confessions," in which a suspect has become convinced despite having no memory of the act, that he committed the crime. Character traits common to those who make such confessions include low self-esteem, great respect for authority, and a compliant personality, making the suspect vulnerable to suggestion.
Evidence related to confessions was not admitted during any petitions for a new trial.
Psychology and probability
Moore also wrote about the psychological evaluation not admitted at trial. We read the report at the AG's Office. It found him to have no problems with drug dependency, sexual expression, aggressiveness, hostility, or anti-social behavior.
“In summary, the overall picture of Dennis is one of a highly intelligent man who, in spite of some negative experiences, particularly having to cope with the death of his parents while a teenager, has turned out to be a well-functioning individual who shows no signs of a significant mental illness or personality disorder,” the report stated.
He also pointed out the ways probability works against the prosecution’s arguments. The tire tread in the driveway consistent with Dechaine’s tire? Tens of thousands of trucks in Maine had tires that were consistent with those tread marks. And he noted how unlikely it was that of the more than 180 items in the truck, the only two to fall out were the only two items, other than his registration in the glove compartment, with his name and vehicle description on them.
Trial and Error argues that since Cherry could not be connected to Dechaine's truck (a police report not revealed to the defense shows dogs did not find her scent in the vehicle), Dechaine couldn't have committed the crime. "He didn't march her three miles down the road in broad daylight," said Bill Bunting, another Trial and Error board member.
In Dechaine's last federal petition, U.S. Magistrate Judge David Cohen reviewed the case and recommended in 2000 that the petition be dismissed. However, even he pointed out what he called troubling aspects of the case:
“How could the professedly non-violent Dechaine have randomly abducted a 12-year-old child and committed this atrocious crime? Dechaine denied under oath that he did it. No fingerprints, hairs or fibers matching those of Dechaine were found on or near the victim or matching those of Cherry were found on Dechaine or in or on Dechaine’s truck. Debris including a pink synthetic fiber was found near the crime scene that had no apparent connection to Dechaine or Cherry. The Maine State Police tracking dog did not pick up a track from one side of Dechaine’s truck to the other, evidence that the state conceded was a little ambiguous. Cherry had been warned not to let a stranger into the house, and there was no evidence of a struggle there. Dechaine’s purported confessions contained no details of the crime. Dechaine was cooperative with police officers, allowing his person and his truck to be searched (although he admitted both that he had hid his keys and at various points lied.)
“Nonetheless,” Cohen continued, “the evidence of Dechaine’s guilt remains substantial.”
Read Part 2 next week to find out about the state's destruction of DNA evidence associated with the case and the legal options available to Dechaine post-conviction.
Click to read: Part 1, Part 2, Part 3 and Related Editorial