Famed defense lawyer F. Lee Bailey thinks the unidentified male DNA found on murder victim Sarah Cherry’s thumbnail is intriguing, but it might not be enough to get a new trial for prisoner Dennis Dechaine.
But Bailey does believe, based on two new expert opinions, that she was killed several hours after Dechaine was in custody, and that should tip the scales in favor of a new trial.
The reports were prepared in December, at Bailey’s personal request, by Dr. Cyril Wecht and Dr. Walter Hofman.
Both forensic pathologists have performed more than 10,000 autopsies each, and have testified as consultants for prosecutors and defendants in civil and criminal cases nationwide.
“If the pathologists are right, he has to be innocent,” Bailey said of Dechaine. Bailey said it is not possible, given the nature of Sarah Cherry’s injuries, that the 12-year-old survived for several hours after the attack.
Dechaine is serving a life sentence for his conviction in 1989. His latest motion for a new trial is tentatively scheduled to be heard by a judge this fall.
State prosecutors say the new opinions are not credible, and have no place in the upcoming proceedings.
“These are doctors who were not there, who are reviewing only a few facts and pieces of evidence, coming up with an opinion more than 20 years later,” said William Stokes, head of the criminal division at the state Attorney General’s Office.
“Most forensic pathologists that I have dealt with, when you ask them about time of death, are understandably cautious,” Stokes said. “I don’t think any medical examiner can give you a precise time of death. Anyone who tells you that is not credible.
“Dr. Wecht and Dr. Hofman are fine, but they weren’t there,” Stokes said. “It’s speculation.”
Bailey, 77, became famous for his work on high-profile cases, including the trials of Dr. Sam Sheppard, Patty Hearst and O.J. Simpson. He has been a figure of controversy in recent years.
He was jailed briefly in 1996 for refusing to return millions of dollars in stocks formerly held by one of his clients. Bailey was later disbarred in Florida and Massachusetts for his conduct related to that case.
Bailey has business ties in Maine and he is moving to Yarmouth this month from Massachusetts. A longtime pilot, Bailey is a close friend and business partner with Jim Horowitz, the founder of Oxford Aviation.
Bailey heard about the Dechaine case a few years ago from Waterville lawyer Jon Nale. Bailey read a copy of “Human Sacrifice,” the book about the case by James P. Moore, a Brunswick author and retired federal agent. Bailey was intrigued by Moore’s contention that Sarah Cherry’s time of death was much later than the theory put forward by state prosecutors.
Bailey met Dechaine and his attorney, Steve Peterson of Rockport, at the Maine State Prison in April 2009. He agreed to serve as an unpaid “ombudsman” in the case.
“All that I promised to do, and have done, is to use past friendships and associations to get Dennis what he couldn’t afford,” Bailey said. “I don’t wish to be an advocate for anybody.”
Bailey said he receives about a dozen requests each year from lawyers and prisoners asking him to review their cases but he rarely gets involved. Moore’s book was the difference-maker that prompted him to take an active role in Dechaine’s case.
Bailey sent a packet — including Sarah Cherry’s autopsy report, portions of the trial testimony, weather reports and other case data — to Wecht, who is a longtime friend. Wecht agreed to provide an opinion for free. Bailey also sought a second opinion from Hofman, whose nominal fee of $1,000 was paid by Dechaine’s advocacy group, Trial and Error.
Both Wecht and Hofman disagreed with the findings of Ronald Roy, the deputy state medical examiner who conducted Sarah Cherry’s autopsy after her body was found by a search team around noon on July 8, 1988.
At Dechaine’s trial, Roy testified that when he examined Sarah’s body that afternoon, rigor mortis — the temporary stiffening of a corpse’s joints and muscles — was still present but was passing off. The body had been found in the woods in Bowdoin, covered by five to six inches of leaves, sticks and other forest debris.
In the estimate he provided for the jury, Roy said Sarah died a minimum of 30 hours before he examined her, or sometime before 8 a.m. July 7. But Roy said Sarah probably died much earlier than that, most likely sometime on the afternoon of July 6.
Dechaine walked out of the woods in Bowdoin around 8:45 p.m. on July 6, and his whereabouts after that time are accounted for.
According to the opinions written by Wecht and Hofman, if Sarah had died anytime on July 6, there is no way that rigor mortis still should have been present when Roy examined the body. There also should have been much more insect activity on Sarah’s body, given the daytime temperatures of close to 90 degrees, the pathologists contend.
In Wecht’s opinion, the earliest possible time of Sarah Cherry’s death would have been 3 a.m. on July 7, six hours after Dechaine was picked up by police. Hofman’s report said the earliest time of death would have been around noon on July 7.
Roy is retired and living in British Columbia, Canada. He did not respond to phone messages seeking comment for this story.
Peterson, Dechaine’s attorney, continues to prepare arguments in hopes of convincing a judge to grant Dechaine a new trial. At that upcoming hearing, Peterson intends to introduce the DNA evidence found on Sarah Cherry’s thumbnail; the time of death opinions written by Wecht and Hofman; and witness testimony supporting the defense’s theory of an alternate suspect.
But it is unclear whether Justice Carl O. Bradford will consider the Wecht and Hofman reports at the hearing. Dechaine is the first prisoner to test the state law allowing this type of appeal. The law was passed in 2001 and revised in 2006.
“The scope (of the law) includes bringing in old and new evidence in any area that had been involved in earlier proceedings,” Peterson said.
Stokes disagrees with Peterson’s reading of the law. He said the defense is limited to the DNA evidence, and the law does not open the door to other evidence. Disagreements over time of death and the possibility of alternate suspects have already been heard in several previous appeals lodged by Dechaine, all of which have been rejected by the courts.
“This is a hearing on DNA evidence,” Stokes said. “It is not an opportunity to retry the case.”
Bradford will likely have to make a ruling before the hearing on what pieces of evidence he will consider.