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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

In prisoner Dennis Dechaine’s latest bid for a new trial, the key piece of evidence is actually old news.

click image to enlarge

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

click image to enlarge

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

It is a fragment of unidentified male DNA, extracted by scientists in 1994 from a thumbnail clipping of 12-year-old murder victim Sarah Cherry.

Dechaine was convicted of the murder in 1989 and is serving a life sentence. He says he was in the wrong place at the wrong time, and that another man set him up.

Prosecutors say the right man is behind bars.

Although the mystery DNA was discovered 16 years ago, an upcoming court hearing would be the first time for that evidence to be considered by a judge. It took a new state law in 2001, a revision of that law in 2006, additional genetic tests on the thumbnail by the state and the defense, and a great deal of legal wrangling to reach this point.

At the hearing, tentatively scheduled for September, Dechaine’s legal team must convince a judge that jurors in 1989 probably would have acquitted him if they had known about the thumbnail DNA.

His lawyers also will ask Justice Carl O. Bradford to consider other evidence in the case, such as recently obtained opinions about Sarah Cherry’s time of death, and information about alternate suspects.

But the crux of the motion is the DNA, whether it will be deemed credible by the judge, and whether it raises enough doubt for a new trial to be granted in one of Maine’s most notorious homicides.

“That is overwhelming evidence, in our view, that it was not Dennis Dechaine who did this,” said his attorney, Steve Peterson of Rockport.

‘THIS CAN’T ... BE RANDOM’

Sarah Cherry was abducted while baby-sitting at a home in Bowdoin on July 6, 1988. Her body was found two days later, in the woods about three miles north of the home.

Her wrists were tied together in front of her chest. A gag had been placed in her mouth and a scarf was wrapped around her neck. The killer sexually assaulted her with sticks, and tortured her with a small blade before strangling her.

Papers belonging to Dechaine were found in the driveway of the house where Sarah had been baby-sitting.

His truck was found about 450 feet from the body. The rope and scarf used to commit the crime had come from Dechaine’s truck. He walked out of the woods on the night of July 6 in the general vicinity of his truck and Sarah Cherry’s body.

Dechaine maintains that he went into the woods that afternoon to inject drugs and to wander around. He says he was alone the whole day, got lost, and someone must have grabbed his papers, the rope and the scarf from his truck.

“I offered up my truck willingly for them to go through,” Dechaine said during a March 22 interview at the Maine State Prison in Warren.

“They went through it microscopically. There was absolutely no proof that Sarah Cherry had ever been in my vehicle.

There’s no proof that Sarah Cherry ever knew me, or that I ever knew her.

“And there is no doubt in my mind that whoever took Sarah Cherry knew who she was and where she was. This can’t possibly be random.”

Dechaine hopes his defense team will be able to obtain DNA samples from a number of people, including a list of alternate suspects put together by private investigators who have worked on his behalf.

DNA ‘DOESN’T SHOW ANYTHING’

State prosecutors say Dechaine murdered Sarah Cherry, the evidence proved it, and the DNA is irrelevant.

The thumbnail was subject to possible contamination both during the autopsy and during the year it was in the custody of Dechaine’s trial lawyer, Tom Connolly, said William Stokes, head of the criminal division at the state Attorney General’s Office.

“Our position has been that the most likely source of that DNA is contamination at the time of the autopsy, since nail clippers were reused from autopsy to autopsy at that time and were stored in a way that was conducive to contamination,” Stokes said.

Clippers, blades and other equipment used by medical examiners in 1988, he said, were stored in a toolbox lined with a towel.

While scientists have confirmed the existence of the DNA on Sarah Cherry’s thumbnail, they cannot say what type of material it is. It could be from blood, saliva or even a particle of skin. The only other biological material found on the thumbnail was her own blood.

Stokes said there was no evidence suggesting that Sarah Cherry had scratched her killer; state chemists found no tissue underneath her fingernails.

Even if the unknown DNA somehow got transferred to the thumbnail before her death, that doesn’t prove someone else killed her, Stokes said. Unlike a rape case, where a sperm sample can identify or clear a defendant, DNA on a murder victim’s fingers doesn’t automatically identify the killer.

“What does the DNA prove? From our perspective, it doesn’t show anything.”

SEARCH CONTINUES FOR IDENTITY

The male DNA profile found on Sarah Cherry’s thumbnail is incomplete; there is enough genetic material to rule out most people as the source, but there is not enough to conclusively identify an individual.

In 2004, the state crime lab ran the partial profile through a database containing DNA profiles of convicted felons in Maine. Seven possible matches were identified.

Crime lab officials reviewed the histories of the men, and conducted further analysis on the DNA profiles, and ruled them out as potential suspects.

The list of the convicts whose DNA matched the partial profile on the thumbnail remains under seal by an order of the court.

“With partial profiles, you have to be careful because you may actually implicate a lot of innocent people,” Stokes said. “We just don’t have enough of a profile to make a perfect match.”
Dechaine criticized the Attorney General’s Office for not doing more to determine the source of the DNA.

“Is that really why we hire prosecutors? Is that why we hire police?” he said. “It would seem to me that anything that could be examined and investigated should be. I would obviously put DNA at the top of that list.”

Although neither side has determined whose DNA is on Sarah Cherry’s thumbnail, they have ruled out more than a dozen people who had contact with her.

Lawyers who handled the evidence envelopes, police officers and members of the Medical Examiner’s Office were all tested and excluded. Family members of Sarah Cherry also were ruled out.

Peterson said the defense also reviewed some autopsies that were performed before Sarah’s body was delivered to the Medical Examiner’s Office. None of the autopsies reviewed provided a match.

JUDGE DENIES TESTING

After Sarah Cherry’s fingernails were clipped during her autopsy in July 1988, a state chemist used up all of them – except for the thumbnails – while testing for blood types.

Chemist Judith Brinkman determined that the blood found on her fingernails was a match for Sarah. Because her hands had been bound in front of her body, the blood likely was transferred as Sarah groped at her upper chest and neck, where she had been stabbed repeatedly.

About three months before his trial was set to begin, Dechaine asked for a continuance and for DNA testing of the bloodstained thumbnails.

DNA profiling was considered pioneer science at the time. In 1988, an appeals court in Florida was the first U.S. court to admit DNA findings as evidence. Courts around the country were developing standards for how DNA evidence would be handled by lawyers, judges and juries.

While DNA findings had not yet been admitted in a Maine court, the state Attorney General’s Office was using the technology by the summer of 1988. Several months before Dechaine made his request, the state sent out items for testing at a commercial lab in New York in connection with a homicide in Fayette.

A hearing on Dechaine’s request for DNA testing was held in front of Justice Bradford on Jan. 27, 1989.

The judge relied primarily on input from Brinkman, who had spoken with staffers at a lab in California. They thought the chances of getting usable results were remote, because of the small amount of blood on the nails.

In light of Brinkman’s testimony and the other evidence in the case, Bradford denied the request for testing, which would have delayed the trial for at least a few months.

“I have never gotten over the fact that the judge ruled against me,” Dechaine said. “My personal feeling is that there was one overlying reason, and that was that it was simply inconvenient to the court schedule.”

Connolly, Dechaine’s trial lawyer, blames himself for not pushing harder for pretrial DNA testing. Connolly said he failed to bring in his own expert to argue against Brinkman and the state prosecutors.

“I wasn’t hanging my hat on the DNA at the time. I thought we were going to win with or without it,” Connolly said during an interview at his office in March.

“It was only after the verdict that I realized the enormity of it.”

LONG, STRANGE JOURNEY FOR CLIPPINGS

But Connolly did one thing that has essentially kept the case open ever since: During the trial, he placed a defense exhibit sticker on the sealed envelope that contained Sarah’s thumbnails, even though they technically belonged to the state.

Then he got a letter from court officials in 1992, saying the exhibits would be destroyed if the lawyers did not pick them up. After writing back to make sure there was not some mistake, Connolly picked up the envelope.

Connolly sent the package for DNA testing at CBR Laboratories in Boston, using money raised by Dechaine’s supporters.

State prosecutors found out that Connolly had the nails, and he returned them to state officials under an order from Bradford in late 1993. The results from the lab came back in 1994, showing a mixture of Sarah’s blood with DNA from an unknown individual, not Dechaine.

Dechaine filed two court appeals in the years following the discovery of the thumbnail DNA – a petition for post-conviction review with the state supreme court in 1995, and a federal habeas corpus petition in 2000 – asking the court to decide the legality of his imprisonment. Connolly resigned as Dechaine’s lawyer in 1995 because the appeal focused on the claim that Connolly had provided ineffective counsel.

In both appeals, judges determined that the case did not merit any new hearings.
State supreme court Justice Donald Marden and U.S. Magistrate Judge David Cohen, in written opinions, said that even with knowledge of the thumbnail DNA, a reasonable juror could have found Dechaine guilty.

“The presence of a DNA profile inconsistent with those of either Cherry or Dechaine does not in itself undermine the weight of the evidence against Dechaine,” Cohen wrote.

DOORS OPEN FOR DNA APPEALS

Just as it seemed that Dechaine had exhausted all of his legal options, the Maine Legislature in 2001 passed a law giving prisoners the right to seek new trials based on DNA evidence.

Dechaine’s new lawyer, M. Michaela Murphy of Waterville, filed a motion for a new trial in May 2003.

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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