Trial and Error

Trial & Error’s Response to Certain Passages in the July 2015 Ruling of the Maine Supreme Judicial Court Denying Dennis Dechaine’s Motion for a New Trial under Maine’s Post Conviction DNA Statute

As a considerable portion of the ruling consisted of sections taken from federal magistrate David Cohen’s 2000 denial of Dennis’s federal habeas appeal, quotes from Cohen will be so noted.

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(From Cohen) Forensic chemist Judith Brinkman testified: “There was nothing that led me to believe that there was a mixture [of bloods]. If someone had scratched someone hard enough to make them bleed and cause crust underneath the fingernails, you would expect to find tissue, some type of skin material or something indicating that there you know, that there had been scratching or you would expect to find some type of trauma to the nail such as broken nails or something like that and there didn’t they didn’t  appear to be that way.” . . . Brinkman reported that she had spoken with Jennifer Mehavolin of the California testing laboratory, who had advised that based on the small amount of blood available on the thumbnail clippings, it did not “sound like the possibility of getting good results.”

The only way to determine the quality of the results would have been through testing. Chemist Brinkman was not a DNA expert. The Court did not consider the reports by the late Dr. David Bing, a recognized expert on DNA, following his 1993 examination of the trial transcript and testing the thumbnails using a method “that yields high molecular weight DNA from blood.” Dr. Bing stated: “The State and the State’s expert proffered misleading and factually incorrect testimony upon which the court relied [to deny DNA testing]. . . . DNA tests were in fact successfully performed. . . . There are definitely at least two DNA sources contained in the nail clipping tested. . . . Dennis Dechaine is definitely not one of the DNA sources found in the nail clipping. . . .”

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(From Cohen) Only Cherry’s mother, stepfather Christopher Crossman [sic. Crosman is correct spelling], sister Hillary, great-grandmother and friend Julie Wagg knew she was babysitting that day.

There is no proof that this was so.

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(From Cohen) Jennifer Henkel arrived home at about 3:20 p.m. She immediately noticed some papers[,] a little looseleaf notebook and a car-repair bill in the driveway and picked them up

The papers were found some distance ahead of the front tire track on the driver’s side, thus making it more likely that they had been placed there than that they had fallen out during a struggle. Further, these were the only items among 180 items in the cab as inventoried by the state that had Dechaine’s name on them. 

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(From Cohen) Following the questioning Westrum [patted] Dechaine down. He noticed a handprint, fingers pointing downward, on the back of Dechaine’s shirt.

The handprint was adult-sized, and was not entered as evidence. 

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(From Cohen) The truck, a red Toyota pickup with damage to the right-hand fender, was locked.

The truck could be locked without a key. The rear slider was not locked.  Thus, the statement is of little if any probative value. Photos show that the contents of the cab had been “tossed.” 

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(From Cohen) Dr. Ronald Roy, chief medical examiner for the State of Maine, supervised removal of the body and conducted an autopsy upon it.

Dr. Roy was not the “chief medical examiner for the State of Maine.” The chief medical examiner was Dr. William Ryan.

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(From Cohen) She had been grazed and stabbed repeatedly in the head, neck and chest by a sharp instrument (in Dr. Roy’s opinion a small knife, like a penknife).

Why a penknife? Why not a sheetrock knife? Alternative suspect Senecal was a sheetrocker.

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(From Cohen) She had died on July 6th, the precise time unknown.

There is no proof that she died on July 6. The standard forensic parameters regarding the onset and decline of rigor mortis, as well as the progression of decomposition of the corpse indicate that Sarah died sometime on July 7. Dr. Roy had no training as a forensic pathologist. The court has refused to consider the findings of two renowned forensic pathologists on time-of-death, Drs. Cyril Wecht and Walter Hofman, who determined that Dennis Dechaine could not have murdered Sarah Cherry because his whereabouts were known at the time of death.   

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(From Cohen) In Dr. Roy’s opinion, the stab wounds were small enough that he would not have been surprised if no blood transferred to the assailant.

And yet, blood was pooled under the body, and there was blood on her shirt. 

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(From Cohen) According to Hendsbee, Dechaine immediately approached the vehicle and stated, “I can’t believe I could do such a thing. The real me is not like that. I know me. I couldn’t do anything like that. It must be somebody else inside of me.”

Arresting officer Hendsbee’s contemporaneous notes (obtained later with a FOA lawsuit filed by Jim Moore) contain no such report, although he had testified at the trial that he was reading from his notes.

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(From Cohen) Hendsbee asked Emmons whether Dechaine carried a knife. Emmons responded that he had a penknife on his key ring.

A co-worker would testify that the knife had not been on the key ring for some months.

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(From Cohen) According to Westrum, Dechaine’s comments at that time included the following: “I didn’t think it actually happened until I saw her face on the news; then it all came back to me. I remembered it. . . . Why did I kill her? . . . What punishment could they ever give me that would equal what I’ve done.

There were no other witnesses, no recordings, no signed confession, etc.  Substantial discrepancies in Westrum’s notes raise serious questions re. their validity. The notes were altered so as to change a claim of innocence [“How could I kill her”] into a supposed admission [“Why did I [I was underscored] kill her?”]. Also, in his notes Westrum quotes Dennis as having said, “I told my wife something bad happened,” but he testified that Dennis said, “I told my wife I did something bad.” 

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(From Cohen) Darryl Robert Maxcy, a Lincoln County corrections officer, testified that Dechaine said, “You people need to know I’m the one who murdered that girl, and you may want to put me in isolation.”

Sheriff David Haggett, interviewed by Jim Moore, has stated that he believes that he likely suggested to Dennis that for his protection he be put in “isolation”; “isolation,” unlike “solitary,” is not a layman’s term. Very likely what Dennis said to Officer Maxcy was “I’m the one who’s supposed to have murdered that girl.” Surely the State is grasping at straws to give weight to this questionable hearsay. 

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(From Cohen) Dusting of the two doors and doorframes leading to the Henkel residence yielded two latent fingerprints, neither of which matched those of Dechaine or Cherry.

These fingerprints subsequently went “missing,” as did the blood sample taken from Dennis, which would have identified the drug he had taken.

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(From Cohen) The tire imprint detected by John Henkel was found to have a design consistent with the tread design of the left front tire of Dechaine’s truck.

The tread was of a very common design, found on thousands of vehicles in Maine. No specific characteristics were found that matched the left front tire of Dennis’s truck. The tire expert stated, “The impression . . . does not exclude any other tire with a similar tread design.” Significantly, Dennis’s truck had deep-treaded snow tires on the rear, but no such imprints were found.

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Cohen makes no mention of the state’s destruction of potential DNA evidence, including swabs, unidentified hair found on Sarah, and presumably her pants and fingernails, six weeks after Dennis filed a motion on May 5, 1992, for a new trial.  The state did not inform the defense or the court of its intent to destroy this evidence.

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(From Cohen) On May 24, 1994 CBR Laboratories, Inc. reported the results of tests on fingernail clippings that it had received from Connolly on June 10, 1993 and on blood labeled as that of Dechaine that it had received on April 22, 1994. The laboratory found that there were two or more donors to the DNA extracted from one of the fingernails and excluded Dechaine as a donor.

The State did not reveal the conclusion of an independent expert attesting to the excellent professional reputation of Dr. Bing of CBR Laboratories.

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(From Cohen) [Dechaine] had waited to file the State Petition until  September 15, 1995, two weeks after Carlton suffered a stroke, and (iv) Carlton was still capable of providing reliable information.

Dennis states that he had been unable to find a lawyer, and had no knowledge re. Carlton’s stroke. The State kept secret the affidavits of the three lawyers who claimed that Carlton told them that Dennis had confessed, and also Deputy AG LaRochelle’s account of his supposed phone conversation with Carlton, until after Carlton suffered his stroke. Cohen made no reference to Carlton’s low standing in the legal community, of his conviction for tax evasion, his years spent in Australia to avoid prosecution, subsequent jail time, and his serious alcoholism. When Jim Moore interviewed Carlton, Carlton stated that when a client said he couldn’t remember, Carlton presumed he was guilty.         

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(From Cohen) The voluminous record in this case raises troubling questions. How could the professedly non-violent Dechaine have randomly abducted a twelve-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 at the Henkel home. Conversely, no fingerprints, hairs or fibers matching those of Cherry were found on Dechaine or in or on Dechaine’s truck.

Indeed. And yet Cohen and also the courts have largely ignored all exculpatory evidence. It would appear that Cohen based his ruling in large part on the testimony of detectives Hendsbee and Westrum. Judge Bradford has ruled that evidence regarding the veracity of their notes is inadmissible under the revised post-conviction DNA statute.

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(From Cohen) There is no evidence that the mystery DNA necessarily or even likely transferred to the nail clippings during commission of the crime.

It is well established that strangulation victims will resist with their hands, which is why the police bagged Sarah’s hands. Cohen and the courts accepted the State’s theory that the DNA found under the nail was the result of contamination during the autopsy, due to unsanitary conditions and procedures. If believed, ethical prosecutors would have promptly notified defendants convicted on DNA evidence retrieved before and after Sarah Cherry’s autopsy. No such notifications were made.

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(Justice Mead) Two years later, Dechaine moved to allow evidence at the pending hearing concerning (1) the time of the victim’s death, (2) “any alternative suspect,” (3) “any so-called confession or admissions,” and (4) “[a]ll other evidence which is exculpatory.” As authority for his request, Dechaine relied upon the amended statute and the Due Process Clauses of the United States and Maine Constitutions. The State objected, contending that the court was already required by statute to consider “all the other evidence in the case, old and new,” and that the statutory definition of that phrase, which included the evidence admitted at trial and prior proceedings, limited the admissible evidence to evidence concerning the new DNA testing and analysis.

In other words, the State opposed the admission of powerful evidence that Dennis was innocent (and the real killer went free), citing a statute that on the one hand narrowly limits the range of admissible evidence, while also including “evidence relevant to the identity of the source of the DNA sample.” Surely evidence that excludes Dennis as the killer, such as time of death, could be interpreted as being relevant to the source of the DNA sample under the thumbnail if the court so desired.

Another Superior Court Judge, Thomas Warren, has ruled in the Olland Reese case , and his ruling was affirmed by the Law Court, that the post conviction DNA statute requires that non-DNA evidence that adds context to the DNA evidence be considered. 

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(Justice Mead) The court could easily conclude that at the time the fingernail clippings were originally taken they were potentially exposed to DNA unrelated to the crime coming from other bodies that the nail clippers had been used on; the tool chest that they were stored in; the bloody, “grungy” towels that the clippers were laid on in the chest; or the examiners themselves, who wore no masks and only sometimes wore gloves.

Again, presumably such sloppy procedures could have skewed evidence in other cases, yet no such concern has been registered by the State , by Magistrate Cohen, by the courts, or by Justice Mead.

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Scarf: In Y-STR testing of two samples taken from the scarf, one yielded a mixture of at least two males and the other was unclear. Dechaine could not be excluded from the profile obtained, nor could the coffee cup donor.

Of course Dennis’s DNA could have been on the scarf—it was HIS scarf, taken from his truck, a gift from the son of a Maine Law School professor. The “coffee cup donor” was almost certainly Doug Senecal. If an incomplete DNA profile from which Dennis cannot be excluded taken from Dennis’s own scarf is to be presented as inculpatory evidence, surely results from which Senecal cannot be excluded must be given even more weight, since there is no innocent explanation for its presence.

  

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(Justice Mead) The bra yielded a male DNA profile; analysis was inconclusive as to whether Dechaine could be a contributor. However, Staub testified that it appeared to be the same male who was a contributor on the t-shirt, scarf, and bra, and so he agreed that of the people that Orchid Cellmark tested, only Dechaine fit the criteria

Extensive testimony by expert witnesses for the State described the ease with which DNA can be transferred by incidental contact. Dennis’s scarf was surely in contact with the bra and shirt during the commission of the crime and while in storage, making transfer highly likely.

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(Justice Mead, quoting Judge Bradford) It is likely that a jury examining the new, arguably inculpatory DNA evidence, along with “all the other evidence in the case, old and new,” would reach the same verdict as did the original jury.

Since the court refused to hear any new exculpatory evidence this is hardly surprising. In truth, while we were not expecting a ruling in Dennis’s favor, we did hold out some hope for a divided court. Surely, given the many questions in this case, at least one justice would favor a retrial, just to make certain that an innocent man was not wrongly imprisoned, and a vicious killer let loose, free to roam. But it was not to be. It is interesting to note that according to the Fall 2014 Critical Insights statewide poll, 57% of Mainers polled favored a retrial. 

And two more points:

State officials and media pundits have excused the State’s  1989 opposition to Dennis’s request for DNA testing—testing which he offered to pay for—by saying that at that date DNA testing was still an all but unknown science. In fact, in the summer of 1988, the state had submitted evidence from another murder for DNA testing. Insufficient DNA was found, although many years later the case was solved with DNA found under the strangled victim’s fingernails.

According to a deposition given by Dr. William Ryan, Maine’s chief medical examiner in 1988, Eric Wright, the prosecutor in the Dechaine case, was the DNA expert in the attorney general’s office.