March 18, 2010

Dechaine case fuels right-to-know fight

TREVOR MAXWELL

— By

Shenna Bellows, Maine Civil Liberties Union executive director

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Staff Photo by John Ewing, Thursday, March 24, 2005: Judge Robert Crowley presided over the sentencing of Gregory Erskine who had been convicted in the murder of Lisa Deprez.

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Staff Writer

It's been nearly 20 years since Dennis Dechaine was arrested, tried and convicted for the kidnapping and murder of 12-year-old Sarah Cherry in Bowdoinham.

And still the case continues to generate controversy.

The latest flare-up has little to do with Dechaine's attempts to get a new trial, but it could have a big effect on Maine's right-to-know law.

The Maine Supreme Judicial Court is reviewing a case that asks whether an independent commission, created by a state official, should be allowed to keep its notes and other records out of the public eye. The case is expected to be heard in January.

Back in 2004, Maine Attorney General Steven Rowe created the Beaulieu commission to investigate allegations that prosecutors and police officers altered notes, misled the jury, ignored alternative suspects and destroyed evidence before, during and after Dechaine's murder trial in March 1989.

Critics, led by Brunswick resident James P. Moore, said they believed the trial was tainted. They alleged officials covered up any holes in the case to prevent the conviction from being overturned. Officials repeatedly have denied any wrongdoing and remain certain that Dechaine is guilty.

The volunteer commission consisted of retired U.S. Magistrate Judge Eugene Beaulieu and Bangor lawyers Marvin Glazier and Charles Abbott. They found no evidence of any misconduct, but their four-page report was not accompanied by any documents, notes or other evidence.

Moore, a retired federal agent and writer who has published two books in support of Dechaine, wanted those records made public. He sent letters to Rowe and the commission members, demanding documents under the state Freedom of Access Act. When he did not get an answer, Moore appealed in Cumberland County Superior Court.

Superior Court Justice Robert Crowley ruled that the commission did not fall under the right-to-know law because it was not a government agency, was independent from government control and received no government funding.

Moore appealed Crowley's ruling in August, again without the help of an attorney. The matter is now before the Maine Supreme Judicial Court.

''I don't know why they are fighting so hard to hide it,'' he said.

Moore says the commission clearly performed a government function because it was looking into possible crimes of perjury and conspiracy. He said the commission never would have existed without the publicly funded state Office of the Attorney General.

John Cole, of the Auburn firm Skelton, Taintor & Abbott, represents Charles Abbott. Seth Harrow, of the Bangor firm Vafiades, Brountas & Kominsky, represents Beaulieu and Glazier. Glazier is a lawyer with the same firm.

In his written brief to the court, Cole likened the commission to a public interest group, so its findings would not be subject to the right-to-know law.

''The investigation was independent, and the three individuals were not in any way influenced by the Office of the Attorney General, law enforcement officials or any other person,'' Cole wrote. ''An independent and impartial review is not a government function.''

Cole and Harrow declined to comment on the record. They have not yet been informed by the court about whether the case will be decided solely on the written arguments, or whether the parties will have the opportunity to argue their case before the justices.

The legal fight between Moore and the commission was ratcheted up last month when the Maine Civil Liberties Union got involved. A longtime advocate for open government records, the MCLU asked for and received permission from the court to file a brief in support of Moore.

The MCLU is concerned that by allowing the commission's records to be private, the court would set a precedent, giving government agencies a loophole to skirt the Freedom of Access Act.

''The government can't delegate out functions to avoid the public's right to know, whether it is federal energy policy or the local town budget,'' said Shenna Bellows, executive director of the MCLU.

Bellows has no position on whether Dechaine should get a new trial, and the MCLU has not been involved in his repeated efforts to get a new trial.

State and federal courts have rejected several appeals by Dechaine, now 50, but a Maine law passed last year will allow Dechaine to file another one. The law makes it easier for a convicted felon to get a new trial based on DNA evidence.

An analysis of Sarah Cherry's thumbnail showed DNA from an unknown male, not Dechaine. His attorney, Steve Peterson of Rockport, will have to convince a judge that the DNA evidence probably would have resulted in a different verdict if it had been available at the trial.

Staff Writer Trevor Maxwell can be contacted at 791-6451 or at:

tmaxwell@pressherald.comJustice Robert Crowley denied James P. Moore's appeal for access to records of the Dechaine prosecution commission. He ruled that the panel did not fall under the right-to-know law because it was not a government agency, was independent from government control and received no government funding.The MCLU is concerned that by allowing the commission's records to be private, the court would set a precedent.

''The government can't delegate out functions to avoid the public's right to know, whether it is federal energy policy or the local town budget,'' said Shenna Bellows, MCLU executive director.

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Additional Photos

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Press Herald file Retired federal agent James P. Moore stands in 2003 at the site in Bowdoin where Dennis Dechaine’s truck was found, across the road from where Sarah Cherry’s body was discovered in 1988. REST FROM STORY gl gl gl gl gl l gl gl gl gl glglglgl gl gl gl gl gl gl gl gl lg lg lg gl lg lg lg lg lg l ggl

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