Destruction of DNA evidence an obstacle to new trial for Dechaine
This is the second article in a three-part series. Next week, hear from the man at the center of this story. For Part 1, "Accumulating evidence in Dechaine murder case raises questions," visit knox.villagesoup.com.
After conviction at trial, a person has a few narrow avenues for getting his case re-examined. Maine's criminal procedure allows convicts to appeal the decision and ask for a new trial within two weeks of the verdict or within two years of the judgment if there is newly discovered evidence. After that, only two options exist: They must show the judgment was illegal or prove that they are innocent based on DNA testing.
For Dennis Dechaine, now in his 28th year in prison after being convicted of the 1988 murder of 12-year-old Sarah Cherry, the possibility of getting a new trial has been made increasingly difficult by obstacles the state has introduced, most notably the destruction of DNA evidence before it could be tested. The only evidence that remained was not enough, in the opinion of the courts, to justify a new trial.
Only in a new trial would Dechaine be able to present all the evidence in an attempt to prove his innocence.
In 1989, Dechaine asked to delay his trial to get DNA testing done on the biological evidence at his own expense, but because DNA testing was a new science and not well-understood at the time, and because waiting for results would delay the trial by several months, the motion was denied.
After the appeal of his guilty verdict was denied in 1990, his lawyer at the time, Thomas Connolly, unsuccessfully requested to remove some evidence for DNA testing. Not only was that request denied, but the court ordered that evidence in the Dechaine case could only be examined under supervision by the court clerk; so, no sending it to a lab.
State claimed first lawyer disclosed his client's guilt
The state created another obstacle to Dennis Dechaine in his attempt to get his case reviewed when it successfully moved to dismiss his petition for post-conviction review. The state had claimed it was put at a disadvantage because the petition was filed after Dechaine's former lawyer suffered a stroke and was unable to communicate.
On Sept. 29, 1995, Dechaine filed a petition for post-conviction review on one ground of actual innocence and three grounds of ineffective counsel: Connolly was unsuccessful in a motion to delay the trial for DNA testing, he failed to provide expert testimony as to time of death, and he failed to obtain DNA testing of fingernails in a timely manner to be admitted during the 1992 motion for new trial.
That same day, the post-conviction review statute was amended to include a provision that the petition could be dismissed if the state is prejudiced (disadvantaged) by a delay in filing it.
The state then claimed Dechaine's former lawyer, George Carlton, knew Dechaine was guilty, but because the petition was filed two weeks after he had suffered a stroke, they could no longer question him to counter Dechaine's claim of innocence.
Dechaine said in an interview June 10 that Carlton was not his lawyer at the time and he was not in contact with him; he had no way of knowing he had suffered a stroke. Furthermore, he said, Carlton gave him no reason to believe that he thought he was guilty.
The state submitted three affidavits of lawyers and attorney general's office staff claiming Carlton had told them Dechaine was guilty.
One, by former Assistant Attorney General Fernand LaRochelle, asserted that he asked Carlton the morning of July 8, 1988, while the search was still going on, if Cherry was still alive and if they were looking in the right place, to which Carlton responded that she was not alive and “something to the effect that we were looking in the right area.”
Staff at the attorney general's office considered questioning Carlton anyway, because Carlton’s daughter informed them he could answer yes or no questions by blinking his eyes and that she could interpret his eye blinks.
After Dechaine’s motion that this questioning be video recorded was approved, the state dropped its efforts to question Carlton.
Attributing such disclosures to a lawyer is accusing him of violating ethical standards and breaching the vow of client confidentiality. James Moore wrote in his book “Human Sacrifice” about Dechaine’s case that this principle “is so ingrained in law, so vital to the functioning of a fair judicial system, that it’s enshrined as one of the very, very few privileges which no court can violate.”
To explain the claims made in the affidavits, Moore characterized Carlton as a washed-up drunk trying to appear relevant to his lawyer peers. He also suggested these disclosures would explain the shortcuts detectives took in the investigation and why they were so focused on Dechaine.
However, another lawyer providing counsel to Dechaine, Steven Peterson, said he had in his office all of Carlton’s notes including those from his July 7, 1988, meeting with Dechaine and there was nothing in them that would indicate Dechaine was guilty. Connolly said he had looked at those notes as well.
About the notes from the original consultation, Connolly said by phone July 2: “There’s nothing on that page that indicates anything about his knowledge [of Dechaine's guilt], and most importantly, from a defense perspective, there’s no indication that there was a fee or any anticipated future work on this case.... He didn’t have a fee agreement, he didn’t have a follow-up appointment, he didn’t take any detailed information — Ah! — He didn’t give a price! If a guy had just confessed to murder, he would have had a price right there on the notepad. He would have. That’s how it works!”
The petition for post-conviction review was denied on grounds that the state was prejudiced by the petition being filed after Carlton’s stroke, and that Connolly’s failures were attributable to the voluminous evidence against Dechaine, not his inadequacy as a lawyer. The Maine Supreme Court also denied an appeal of this decision.
Steven Peterson, an attorney who has worked on Dechaine's case and continues to provide counsel, said, “We had an incident about three years after the trial; they destroyed all the other evidence in the case that we could possibly have used for [DNA] testing. A few items that were introduced as evidence in the trial were preserved, and that's what we used for testing. All the other evidence including biological material that they had obtained in the course of the investigation was destroyed. And they did it at a time when we had an appeal pending. That really limits us.”
Only because of a court error did the defense get any of that evidence. In April 1992, staff at the attorney general's office authorized the state police crime lab to incinerate evidence associated with a list of cases, including Sarah Cherry’s. Some of that had been used as exhibits in the trial and had been marked with a defense sticker. Connolly received a letter to pick up defense exhibits before they were incinerated.
Connolly wrote back reminding the court of the order not to remove evidence in this case, but he was sent another letter telling him to retrieve the exhibits, signed by Judge Carl Bradford, the same judge who had presided over Dechaine's 1989 trial. He picked up the exhibits, and among them were two thumbnail clippings left over from the state’s blood-type testing on the other eight nail clippings.
Meanwhile, on May 5, 1992 (which would have been Cherry’s 16th birthday), Dechaine submitted a motion for a new trial based on newly discovered evidence regarding an alternate suspect: Cherry's stepsister's stepfather, who had been under investigation for molesting that stepsister. (The case against him was dismissed when the victim moved out of state.)
While that motion was pending, on June 18, 1992, all of the other biological evidence was incinerated. The state said it was part of a routine cleaning; Connolly suggested it was a “purging of the vaults” in response to the growing potential for DNA-based exonerations. In July 1992, Dechaine’s motion for a new trial was denied because the testimony offered was considered hearsay and speculation and no motive was established for the alternate perpetrator.
Connolly knew he had only one chance to get DNA testing done on the nail clippings and did exhaustive researched into which lab he should use. Trial and Error, a nonprofit group working on behalf of Dechaine, held a dance to raise money for the tests. They connected with the Innocence Project, a national organization, then in its infancy, dedicated to exonerating wrongfully convicted individuals through DNA testing. Dechaine's was one of the first cases they took on. The thumbnail clippings were sent to CRB Laboratories, a reputable lab in Cambridge, Massachusetts, in June 1993.
The Superior Court ordered Connolly that same year to return the evidence, but the thumbnails were already at the lab.
The lab found DNA from two sources, Cherry and an unknown male, in layers of blood under one thumbnail. Though the male strand was partial, Dechaine could be excluded as a source. When Trial and Error members received the results in May 1994, they were elated, Connolly said. They thought this was the proof they needed.
But it wasn't the slam dunk they thought it would be.
Dechaine's first petition for post-conviction review in 1995 was dismissed, and he withdrew his second in 2005 after Judge Bradford limited the evidence that would be considered.
Maine’s post-conviction DNA statute then was the strictest in the country, Peterson said.
“The DNA statute at the time was so regressive," he said, "it wasn't enough to prove it wasn't you. It required you to almost prove who the actual perpetrator was."
After denial of Dechaine's request to compel an alternate suspect to submit a saliva sample for DNA testing, Trial and Error hired a private investigator to follow that suspect in Florida. He convinced a waitress to let him take a coffee cup the suspect had used and sent it in for DNA testing, but it wasn't a match, either.
Peterson and Dechaine's other attorney, Michaela Murphy, worked with legislators to amend the DNA law. The amendments took effect in 2006.
In August 2008, Dechaine tried his luck with the new DNA law. But it was still so narrow he would not be able to present any evidence regarding time of death, alternate suspects and so-called confessions in the hearings. Still he tried everything he could think of to open it up. He tried to bring in other evidence under the phrase in the DNA law "when considered with all evidence old and new." When Judge Bradford took a narrow interpretation of that phrase to include only evidence related to DNA, he tried to have Bradford recused. He also tried to present "a claim of actual innocence." All of this was denied.
Hearings were held in June 2012, four years after the original motion. The state presented testimony about the likelihood that the nail clipping was contaminated at the crime scene, at the state crime lab (lab staff were not taking precautions against DNA contamination at the time), or in the chain of custody.
Peterson and Murphy had DNA samples taken for comparison on every member of law enforcement who had been at the crime scene, everyone in the chain of custody, and every staff person at the crime lab, as well as many of the bodies having autopsies done there around that time (to rebut the “dirty clippers” theory), and none matched the DNA on the thumbnail. The state argued that the blood under the thumbnail could have gotten there in any number of ways before and unconnected to her murder.
Dechaine requested a new type of DNA testing, which could be performed on scrapings from some of Cherry’s clothing items. This was approved and a continuation of the hearing was scheduled for November, 2013.
“We got more DNA, but that ended up being inconclusive,” Peterson said. “It was so degraded, it didn't totally eliminate Dennis, but it didn't identify him either. A large part of the population would match up with what we found. It didn't do anything.”
An expert from the lab that did the testing said at the hearing that the DNA samples were of low quality and difficult to interpret. Alternate suspects, one whose DNA was obtained from a coffee cup, were excluded as sources of the DNA on some of the clothing items, but Dechaine could not be excluded as the source from any of them. The expert said 1 in 374 Caucasian males would match the DNA found on a T-shirt. He concluded that the differences in the DNA found on the clothing versus the thumbnail supported the hypothesis that the thumbnail was contaminated.
In April 2014, Judge Bradford denied the motion for a new trial because of the likelihood that the nail clipping was contaminated and for failure to establish a definite connection between the DNA under Cherry’s thumbnail and the perpetrator of the crime — a connection that would have been made easily with the destroyed evidence.
This decision was appealed to the Supreme Court of Maine and denied July 21, 2015. It found that Bradford was right to deny other evidence from being admitted because the DNA statute allows only old evidence admitted at prior proceedings and new evidence relevant to the DNA testing and to the identity of the source of the DNA sample. It also found that the court's interpretation of statute was correct in not considering a freestanding claim of actual innocence because Maine's post-conviction review process "provides a comprehensive and, except for direct appeals from a criminal judgment, exclusive method of review of those criminal judgments...."
Regarding alleged violations of due process, the denial cites the U.S. Supreme Court, which stated "a criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man," and that it is the defendant's burden to demonstrate the inadequacy of the state law procedures available for post-conviction relief. It concludes that Dechaine did not demonstrate that inadequacy.
"Indeed," the denial continues, "the fact that he has been afforded the opportunity to pursue his post-trial claims in several proceedings demonstrates the opposite."
Dechaine filed a second federal habeas corpus petition — his first was dismissed in 2000 — to the First Circuit Court in Boston this past Saturday, July 16, asserting several constitutional violations over the course of the case proceedings.
Trial and Error members and other Dechaine supporters say that even if this habeas petition is denied, it is not the end of the road, and they are prepared to keep fighting. One supporter who recently spoke with Dechaine said that Dechaine can and would submit subsequent post-conviction review petitions.
The Innocence Project recommends legislation to help safeguard against wrongful convictions and provide routes for the wrongly convicted to be exonerated. Many of their recommendations have been added to Maine law since Dechaine's conviction. In 1993 exoneration compensation of up to $300,000 was added to law. A law allowing a person to petition for DNA testing became effective in 2001, along with a law requiring the automatic retention of biological evidence associated with the case for the course of a convicted person's incarceration. In 2005 a law requiring that interrogations be recorded went into effect.
However, while many states now require retention of evidence, few provide any legal remedy when the evidence is lost or destroyed, the Innocence Project points out on its website.
The organization recommends that the court should have the legal option to vacate the conviction or grant a new trial when evidence that could be used for DNA testing has been destroyed. It also suggests including a provision that if the evidence was lost or destroyed it should be presumed to be exculpatory, and the jury be instructed it may make this presumption.
When asked if they know of any attempt to add those recommended provisions to law, Trial and Error members said they did not.
Carol Waltman, a long-time friend of Dechaine and founding member of Trial and Error, said one thing she would like to see reformed is that the storage of biological evidence be overseen by an outside, independent group, rather than being controlled by the state police.
Another supporter of Dechaine who does not wish to be named suggested amending the Maine rules of criminal procedure to remove the two-year limitation on petitions for new trials based on newly discovered evidence. Massachusetts does not have a time limit on petitions for new trials in its rules of criminal procedure, he said.
Trial and Error has offered a $10,000 reward for information or new evidence leading to the conviction of the perpetrator or perpetrators of the abduction, sexual assault and murder of Cherry. Members said June 23 they have gotten a few tips but nothing substantive, and suggested if someone is afraid of retribution from an alternate perpetrator, $10,000 would not be enough.
As the case drags on, some Trial and Error members are getting nervous. "For a while, I thought this might be God's plan, because he's doing so much good where he is," Waltman said, "But after 10 years, I was done with that, it's not good enough."
Another said he was worried that a resolution would come too late for Dechaine to benefit from it.
But the anonymous supporter who called July 18 was optimistic. "I'm confident the state of Maine will release Dechaine," he said. "I think it would be hard to find the culprit, but as far as proving his innocence, I'm confident we'll get there. The state of Maine has not stepped up to the bar and given him the justice he deserves."
Corrections: An earlier version of this story stated that the biological evidence that was incinerated included semen found on Cherry, but it is uncertain whether semen was present. The lab document which referenced sperm found in some test results was from another case and was mixed in with Dechaine documents. In a subsequent review of all the case files at the Attorney General's office we found only one reference in handwritten notes to sperm being present in a sample from the biological evidence associated with Cherry's case.
An earlier version of this story stated the wrong year for Decahaine's first hearing for post-conviction review. It was held in 2012.