July 4, 2010

The Presiding Judge: Not all believe justice should decide case for new trial

By Trevor Maxwell tmaxwell@mainetoday.com
Staff Writer

The judge assigned to hear the latest motion for a new trial for Dennis Dechaine is no stranger to the case.

click image to enlarge

Justice Carl O.Bradford

Superior Court Justice Carl O. Bradford oversaw the March 1989 trial. After the jury convicted Dechaine of the murder of 12-year-old Sarah Cherry, Bradford sentenced the 31-year-old farmer to life in prison.

Maine has no death penalty.

Under the legislation that paved the way for Dechaine's latest legal effort, the matter must be heard by the original trial judge if he or she is still available to preside.

The 77-year-old Bradford, although he technically retired in 1998, still hears cases when he is called upon by the state. He is one of four retired Superior Court judges who do so.

"His status is active retired, with a heavy emphasis on active," said Judicial Branch spokeswoman Mary Ann Lynch.

Judges are prohibited from commenting publicly about active court cases, Lynch said.

Bradford, a Texas native, was appointed to the bench by Gov. Joseph Brennan in 1981, after practicing law for about 20 years.

On the bench, Bradford has a reputation as tough but fair.

Outside the courthouse, he is well-known for his love of jazz and his talent as a musician. He has sung and played trumpet with local bands, and hosts an hour-long jazz program for a Yarmouth radio station.

Many of Dechaine's supporters question whether Bradford can preside without bias.

"To have a judge retain jurisdiction over a case after his own actions and rulings have come under such intense scrutiny is absurd," said Weld Henshaw, a retired lawyer from Brunswick who believes Dechaine is innocent.

"It is an inherent problem in the judicial system," he said.

Henshaw said he was a friend to Bradford beginning in the 1960s, and they socialized in the same circles in the Freeport and Brunswick areas, but they have not been close for many years. Henshaw said he did not speak publicly about his opinions on the Dechaine case until recently, because of his past friendship with Bradford.

Henshaw noted that it was Bradford's decision before the 1989 trial to deny Dechaine's request for a continuance and for DNA testing of Sarah Cherry's fingernails. Testing done five years after the conviction showed a trace of DNA from an unidentified male, and that evidence is the basis for Dechaine's bid for a new trial.

Henshaw believes Bradford's past decisions might make it more difficult for him to have an open mind during this appeal.

Walt McKee, a prominent defense lawyer from Augusta who is not involved in the case, disagrees. If a new judge were assigned to the appeal, that judge would likely be more hesitant to veer from positions taken by the original judge, McKee said.

McKee said there are good reasons why Maine and many other states assign original judges to post-conviction motions.

"The trial judge is in the best position to understand the complexities of a case; he is in the best position to understand the importance of the new evidence, relative to all the other evidence," said McKee, a past president of the Maine Association of Criminal Defense Lawyers.

A new judge also would need a lot more time to study the court record and to become familiar with the case. Lynch said Maine judges already are hard-pressed to keep up with a growing criminal docket.

Maine Association of Criminal Defense Lawyers President Tim Zerillo does not oppose the practice of trial judges hearing defendant appeals filed within a year of judgment -- which almost always allege ineffective trial counsel. But he believes a new judge should be assigned to other post-conviction motions.

"The Dechaine case, although tragic for the victim and her family, represents an opportunity to make sure that the process was fair," Zerillo said. "It makes sense to have a fresh set of eyes on it."

 

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