Trial and Error

Feb 25, 2010

http://www.kjonline.com/news/dechaine-lawyers-doubt-time-of-victim_s-death_2010-02-24.html

KENNEBEC JOURNAL

25 February 2010

They claim the young girl died after he was in custody

BY TREVOR MAXWELL, Portland Press Herald

Lawyers for Dennis Dechaine said Wednesday that two renowned forensic pathologists have provided opinions that could help Dechaine get a new trial in the murder of a 12-year-old girl more than two decades ago.

Dr. Cyril Wecht and Dr. Walter Hofman reviewed the case at the request of Steve Peterson, a Rockport lawyer, and F. Lee Bailey, the famed defense attorney who is a consultant to Dechaine.

In their opinions, Wecht and Hofman agreed Sarah Cherry likely died several hours after Dechaine emerged from the woods in Bowdoinham and was taken into police custody.

Dechaine, 52, is serving a life sentence for Cherry’s kidnapping and murder in 1988.

The time of Cherry’s death has been a point of contention ever since the trial. Wecht and Hofman reviewed the autopsy report, photographs, weather reports and the testimony of the late Dr. Ronald Roy, the state’s chief medical examiner at the time of the murder.

“These are extremely reputable people who have given these opinions. They are putting their reputations on the line,” Peterson said. “Both opinions basically would exclude Dennis from being the perpetrator.”

The state prosecutor in the case has not been provided with the opinions. Nonetheless, William Stokes said Wednesday that any new attempts to pinpoint the time of Cherry’s death should be treated with skepticism.

“It is absolute conjecture,” said Stokes, head of the Criminal Division in the state Attorney General’s Office.

“My point has always been, how do you know when she actually dies? Whoever said she died instantly? Dr. Roy never gave, and the state never relied upon, a precise time of death,” he said.

Stokes said that even if Cherry’s time of death was later than the estimate provided by Roy, that fact alone would not exclude Dechaine as the killer. The jury based its finding on several pieces of evidence, Stokes said.

Cherry disappeared while babysitting on the afternoon of July 6, 1988.

While police were looking for her, Dechaine wandered out of the woods three miles from the site of her disappearance, claiming that he had gotten lost while looking for a fishing hole. He admitted to police that he had been injecting drugs.

A day later, searchers found Cherry’s body in the woods about 400 feet from Dechaine’s truck. She had been raped with sticks, strangled with a scarf and stabbed repeatedly around her throat with a small blade. Her hands were bound with yellow plastic rope.

The rope was made of the same material as a yellow plastic rope found in Dechaine’s truck. A piece of yellow rope matching the rope in the truck and on Cherry’s hands was found in the woods near Cherry’s body. Evidence technicians found that it had been cut from a piece of rope in Dechaine’s barn.

A repair bill and a notebook belonging to Dechaine were found in the driveway at the site of the abduction.

Dechaine’s supporters say he was set up. They note that there was no physical evidence linking Dechaine with Cherry. Someone easily could have taken items from the back of his truck, they say, and investigators failed to consider other suspects.

Dechaine was taken into custody at 8 p.m on July 6.

Roy, the medical examiner, testified at the trial that Cherry likely died 30 to 36 hours before he did the autopsy, at 2 p.m. on July 8. That would have put the time of death between 2 and 8 a.m. on July 7 – well after Dechaine was in custody.

But Roy called the 30 to 36 hours a minimum, adding, “It could well be longer.”

Hofman, who reviewed the case for the defense, practices pathology at Roxborough Memorial Hospital in Philadelphia and serves as coroner for Montgomery County, Pa.

In his opinion, the earliest time of Cherry’s death would have been around noon on July 7, about 16 hours after Dechaine was taken into custody.

“I emphatically disagree with Roy’s opinion that Cherry was dead ‘probably 30 hours or more'” before the autopsy, Hofman wrote.

Wecht, the other pathologist, has gained a national reputation for his reviews of high-profile cases such as JonBenet Ramsey’s killing. He is perhaps best known for his criticism of the Warren Commission’s conclusions in the assassination of President John F. Kennedy.

In Wecht’s opinion, the earliest possible time of death would have been around 3:40 a.m. on July 7. For his calculations, Wecht used an autopsy time of 3:40 p.m. on July 8.

Peterson had not planned to discuss the opinions publicly until later this year. Those plans changed when Bailey mentioned the opinions while speaking with business leaders in Bangor on Wednesday morning.

Peterson did not provide copies of the opinions to the Portland Press Herald on Wednesday because he must submit them first to the Attorney General’s Office. He declined to say how much the defense paid for the opinions.

Peterson filed a petition in August 2008 seeking a new trial for Dechaine based on a change in state law related to DNA evidence. The petition hinges mainly on a single thumbnail that was clipped during Cherry’s autopsy.

Years after the trial, the thumbnail was tested and analysts discovered the DNA of an unknown male.

Supporters of Dechaine say the finding is proof that the one-time farmer is innocent. Prosecutors say the thumbnail is inconsequential when viewed in the context of all the evidence, and the unknown DNA most likely was transferred onto the nail during the autopsy.

Peterson seeks additional DNA testing over the next couple of months on remaining pieces of evidence.

Having lost a series of state and federal appeals, Dechaine could have his last chance for a new trial in the pending petition. Peterson and Bailey must convince Superior Court Justice Carl Bradford that the DNA evidence likely would have led to a different verdict if it had been admitted in the original trial.

A hearing is tentatively scheduled for September.

Peterson said he will ask Bradford to consider the opinions of Wecht and Hofman, as well as the DNA evidence. The lawyer contends that the new state law opens the door for the opinions.

“The judge will have to make a ruling on whether we can introduce this type of opinion evidence into the DNA hearing,” Peterson said.

Stokes declined to give his opinion on the admissibility of the work by Wecht and Hofman.