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July 16, 2010

Can a trace of DNA change this man’s fate?

By Trevor Maxwell tmaxwell@mainetoday.com
Staff Writer

(Continued from page 3)

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Accompanied by his attorney Steve Peterson, Dennis Dechaine listens to a reporter's questions during an interview at the Maine State Prison in Warren on March 22. With a new appeal more than two decades after his conviction in the death of Sarah Cherry, no other case has been litigated in Maine's court system for so long.

March 2010 photo by Gregory Rec/Staff Photographer

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Thomas Connolly, the Portland lawyer who represented Dennis Dechaine at his 1989 trial, says he regrets not pushing harder for pretrial DNA testing. "I wasn't hanging my hat on the DNA at the time," Connolly said this spring. "It was only after the verdict that I realized the enormity of it.'

December 2006 file photo/The Portland Press Herald/Maine Sunday Telegram

She got help from the Innocence Project, a national organization founded by Barry Scheck and Peter Neufeld, who became famous as members of  O.J. Simpson’s “Dream Team.” The project is dedicated to the exoneration of wrongfully convicted people through DNA testing. Six staff lawyers are currently working on about 300 active cases, including Dechaine’s.

According to statistics compiled by the Innocence Project, 255 people in 34 states have been exonerated through DNA evidence in the past 21 years. None of those exonerations has been in Maine. In New England, Massachusetts and Connecticut are the only states to have adjudicated DNA-based exonerations, with nine and three respectively.

The majority of the exonerations have occurred after a full DNA profile was obtained from testing of evidence such as blood or semen found on a victim, and the profile did not match the person convicted of the crime, the Innocence Project reports. The group does not keep data on exonerations based on partial DNA profiles, such as the one extracted from Sarah Cherry’s thumbnail.

Murphy and state prosecutors agreed in 2003 to a new round of DNA testing for the thumbnail clippings. The results confirmed those from the 1994 test: One of the thumbnails contained a mixture of Sarah’s blood with unidentified DNA. The new tests also showed the unidentified DNA belonged to a male.

A hearing was scheduled in September 2005, but Murphy abruptly withdrew her motion just before it was set to begin.

In order to get a new trial, Dechaine would have needed to prove that the DNA on the thumbnail was not his, and that only the real killer could have left it on Sarah’s thumbnail. It was an unfair demand on the defendant, and one that the lawyers could not possibly meet, Murphy said at the time.

Michigan and Maine were the only states in the country that put such a heavy burden on convicts.

Dechaine’s supporters lobbied for a change in the law that would bring Maine in line with the majority of states. In the spring of 2006, the Legislature revised the statute. Lawmakers critical of the revision dubbed it “The Dennis Dechaine Bill.”

Under the revised law, a convicted person has to show that the DNA evidence, had it been available at the trial, probably would have resulted in an acquittal.

In August 2008, Peterson filed the motion for a new trial based on the revised law. Murphy was forced to leave the case behind because she took a post as a Superior Court justice.

Since the time that Peterson filed the motion, little progress has been made toward a hearing. But Peterson and Stokes recently agreed on a schedule that set a hearing date for September.

In the meantime, Peterson has asked the court for $6,500 to have some of the original evidence tested again for DNA. That evidence includes the sticks, the rope, the bandana and the scarf used to kill Sarah Cherry.
Tests on those items in the past decade failed to detect the DNA of anyone other than the 12-year-old victim, but

Peterson wants them tested again using a scraping method that has not been tried on the items. Peterson also intends to have the thumbnail clippings tested one more time.

The court has not yet ruled on his request for funds. If he is denied, Peterson said he will turn to private sources.

Other evidence that might have yielded DNA results was incinerated by the state in 1992. At that time, it was routine for the state to destroy evidence that was not introduced by either side at trial. Several items from the murder investigation were incinerated, including the jeans Sarah Cherry was wearing, hairs found on her body and swabs of Sarah’s body that were obtained during the autopsy.

The state is now required to preserve all physical evidence in cases where the identity of the perpetrator is disputed.

That requirement was part of the 2001 state law governing post-conviction appeals based on DNA evidence.

“It’s unfortunate,” Peterson said of the 1992 incineration. “Now that we’ve proven the technology to be as good as it is, it would have been helpful to have those items available for testing.”
 
Staff Writer Trevor Maxwell can be contacted at 791-6451 or at:

tmaxwell@pressherald.com

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