Trial and Error

An Op-Ed piece by James P. Moore,
author of the book Human Sacrifice: on the altar of injustice

When does DNA Matter?
Answer: “It depends.”
What it depends on is chilling.

Deputy Attorney General Stokes boasted to reporter Donna Perry [KJ, 6/24/09] that Thomas Mitchell’s 2009 conviction for murdering Judith Flagg back in 1985 was based on Mitchell’s DNA in blood under his victim’s fingernails.

Stokes listed more convictions based on DNA evidence.

1997: David Fleming for Linda Garland’s murder in 1990.
1999: Albert Cochran for Janet Baxter’s murder, 1976.
2002: Foster Bates for Tammy Dickson’s murder, 1994.
2007: Michael Hutchinson for Crystal Perry’s murder, 1994.

Now for how “it depends.”

1989: Dennis Dechaine, with no record or reputation for violence or perversion, was convicted for the sadistic torture and strangling murder of 12-year-old Sarah Cherry — convicted on circumstantial evidence and dubious allegations that he’d uttered incriminating comments.

Before trial, Dechaine begged the State to test the blood under Sarah’s fingernails for DNA. He even offered to pay the costs.
The AG’s prosecutors already knew that the blood wasn’t Dechaine’s. He’s Type O; the mystery blood is Type A. Sarah Cherry had Type A blood. An official suggested that the blood probably got there when Sarah “clawed at her wounds.”

Strangling victims don’t claw themselves. They claw their attacker the way Judith Flagg clawed Mitchell.

Nevertheless, the AG’s prosecutor persuaded the Court to refuse DNA testing in Dechaine’s case.

After trial, a court clerk mistakenly gave Sarah’s thumbnail to defense lawyer Tom Connolly. An independent lab found DNA, not Dechaine’s or Sarah’s, in blood under that thumbnail.

Prosecutors concealed a retired FBI expert’s report declaring that testing to be reliable.
Prosecutors’ guess: probably DNA from the infant Sarah was babysitting.
Wrong! It’s male DNA. That infant was a girl.
Next: Possibly from a relative Sarah touched that day.
Wrong! Those male relatives were tested and excluded.
Next guess: Maybe from some official who’d touched Sarah’s body.
Wrong! Tested and excluded.
The DNA under that thumbnail is partial. Enough to eliminate Dechaine and others; insufficient to pinpoint its donor. On May 15, 1992, lawyer Tom Connolly, seeking a complete match to identify Sarah‘s murderer, filed a court motion to test those bloody fingernails which remained in the State’s possession.
Would prosecutors risk replacing their impulsive guesses with scientific proof naming the donor of this mystery DNA?
No!
June 18th: On prosecutor’s orders, with no tests conducted, all those nails were incinerated!
Also destroyed: vaginal swabs, and human hairs (not Dechaine’s nor Sarah‘s) found on her body. “Touch DNA” may have been deposited on her jeans when the killer pulled them down. Prosecutors disposed of them, too. The search for that DNA’s owner was effectively sabotaged.

What’s it called if a suspect destroys evidence?
A few years ago, state-paid “experts” found un-sterile items in the autopsy lab. Prosecutors’ new guess: the instrument used to cut Sarah’s nails was probably contaminated with DNA from some unknown, previously autopsied corpse. With all their previous guesses disproved, prosecutors now hope somebody will swallow this feeble supposition.

They never suggested that the DNA found in the Flagg and Garland autopsies (one performed before, one done after Sarah Cherry’s autopsy) were contaminated by instruments or anything else.
Only in Dechaine’s case.

Guesses aren’t facts. There’s no evidence proving contamination by anything or anybody! Only prosecutors’ speculation. Conjecture. Zip!

For these prosecutors, any guess is better than the one obvious, logical, never-disproved explanation: Sarah scratched that blood and DNA (which isn’t Dechaine’s) from her killer!

Soon, the parties will meet in court. Judge Carl Bradford will decide one issue: may jurors hear evidence which might help Dechaine, or is DNA only important when it aids prosecutors?
Prosecutors will tell Judge Bradford to ignore the same scientific evidence they readily used to convict murderers Mitchell, Cochran, Hutchinson, Fleming and Bates. They want him to deny jurors (the legal finders of fact) the evidence prosecutors prevented Dechaine’s first jury from hearing.

Prosecutors can argue any half-baked theory they like to a jury. But any excuse used now, to suppress DNA evidence again, will reinforce widespread suspicions about why they’ve fought relentlessly from Day One to prevent anybody from learning whose scientific signature was in the blood under Sarah Cherry’s fingernails.

Whimsical speculation is worthless. Automatically accepting prosecutors’ self-serving guesses-without-proof destroys citizens’ confidence in Maine‘s administration of Justice.
Dechaine wants a trial where jurors consider all the evidence. In America, that seems so little to ask.
So, does DNA matter?
It’ll depend on what matters most.
Let’s hope that a Legacy of Honor matters most.