Trial and Error

By Jordan Bailey | Courier Publications | Jul 20, 2016

http://waldo.villagesoup.com/p/dechaine-applies-for-federal-review-of-1989-murder-conviction/1550625

Part 2 of a separate three-part investigative report on this case is running in papers July 21.

Dennis Dechaine, the Bowdoinham farmer who was convicted in 1989 for the kidnapping, sexual assault and murder of 12-year-old Sarah Cherry and has been held at Maine State Prison ever since, submitted an application to file a second writ of habeas corpus at U.S. First Circuit Court in Boston on July 16, in which he asserts his innocence and presents ten grounds on which his constitutional rights have been violated.

Writ of habeas corpus, literally “produce the body,” is a court order compelling the jailer to appear in court with the prisoner in his custody, so that the court may determine the legality of the prisoner’s incarceration.

Dechaine’s first habeas petition was filed in 2000, but it was denied in part because he had not exhausted state options to have his case reviewed; his 1995 petition for post-conviction review had been dismissed by Maine courts before being heard. Dechaine filed another state petition for post-conviction review in 2008. This was accepted and hearings were held in June and November 2013, but it was denied by Knox Superior court in April 2014, and by the Maine Supreme Court on July 21, 2015. Habeas corpus has a one-year statute of limitations from the date of the last judgment, and Dechaine just made the deadline.

Case documents were made public on July 18. In his application Dechaine writes, “It has always been my contention that Sarah Cherry’s murderer(s) accessed my truck, acquired items to implicate me while removing themselves from suspicion.”

To support this he points to the statistical improbability that out of 180 items in his truck, two of the three items with his name on them fell out in the driveway where Cherry was babysitting and the greater likelihood that they were placed there. He noted that there were no tire treads matching the deep snow treads of his back tires found in the driveway, and that police photographs showed that his truck had been ransacked. Furthermore, he argued, no trace of Cherry was found in his truck by the Maine Crime Lab, and fingerprints lifted from the front door at the abduction site did not match his.

He asserts several constitutional violations in his 10 grounds for relief.

His first ground is that Cherry’s time of death excludes him as the perpetrator, according to analysis by forensic experts conducted after the trial. He says his attorney for his 2000 habeas petition was ineffective in raising this issue, and his trial lawyer did not call forensic experts to clarify time of death, violating his 6th amendment right to effective counsel.

In his second ground, he states that because [he] had not been permitted to present a claim of actual innocence in Maine Courts post conviction, he was not allowed to present exculpatory evidence, which he asserts was a violation of his 5th amendment right to due process.

The third asserts that at his 1989 trial, two law enforcement officers gave false testimony, attributing admissions of the crime to Dechaine which were later found to be different in or missing from the officer’s notes. This testimony was admitted before a Maine law was passed that required confessions to be video or audio recorded. The false testimony and the failure of his trial lawyer to ask the officers to produce those notes violated his 6th Amendment rights to a fair trial and effective counsel, Dechaine writes.

In his fourth ground, Dechaine asserts that the incineration of biological evidence from the crime scene by the state before it could be DNA tested violated his 5th Amendment right to due process.

In ground five, he argues that his trial lawyer was ineffective by allowing testimony from a search-dog handler to be heard when the state had not provided discovery material to the defense regarding that testimony. Specifically, the state had not provided the report of another officer on the scene which stated that the dog found no scent of Cherry in or around Dechaine’s truck, contradicting the dog handler’s testimony.

In grounds six and seven, Dechaine asserts 6th Amendment violations: for his trial lawyer’s failure to challenge testimony that led the jury to infer that footprints found near the body were made by him, when no expert testified that the footprints were a match to his sneaker tread, or to call an expert witness to compare the footprints with Dechaine’s sneaker tread; and for his lawyer's failure to ask for numerous hairs and fibers found around the crime scene and on Cherry’s body to be admitted into evidence, which would have preserved them from incineration.

In grounds eight and nine, he asserts Brady violations, which occur when the prosecution does not turn over evidence favorable to the defense. The first was the failure of Detective Alfred Hendsbee to turn over information about the owner of a trailer in the search area where barefoot footprints were seen at a time when Cherry was known to be barefoot. The trailer owner was a sex offender who had just been released on bail and was later convicted of raping another 12-year-old girl.

A second was failure of Maine State Police to turn over a statement made by an alternate suspect’s sister prior to Dechaine’s hearing for a new trial in 1992. A report by Detective Steven Drake makes reference to this statement as being attached to his report, but it was not disclosed to the defense. Drake's report was only discovered after the sealed case files were ordered opened by the legislature in 2003. Several sources assert that this sister, now dead, had reported that her brother confessed to the crime.

None of the evidence regarding time of death, alleged confessions by Dechaine, or alternate suspects (apart from DNA related evidence) was admitted at his state post-conviction review hearing because of a narrow interpretation of the clause “when considered with all other [evidence], old and new,” even though, Dechaine points out, in a prior post-conviction review hearing, Reese v. State of Maine in 2009, “all of the crime lab and other expert reports from the outset of the case up to the date of the hearing” was admitted. This he said was a violation of his 5th Amendment right to due process and his 14th Amendment right to equal protection.

In ground 10, Dechaine writes that the prosecution’s hiding of evidence that points to his innocence in sealed file violated a Maine Bar rule which states, “Prosecutors carry special ethical duties: they have an obligation to seek justice, not just convict,” and “a prosecutor has corresponding obligations to assure the protection of all citizens’ rights, including those of criminal defendants.”

Dechaine filed the application himself (pro se), and has requested court-appointed counsel to represent him.