Trial and Error

Nov 23, 2010

By Lucy L. Martin

The attorney representing Dennis Dechaine, convicted in the 1988 murder of Sarah Cherry, said this week he was “hugely disappointed and not at all surprised” by a recent setback in Dechaine’s steps toward a new trial.

The upcoming hearing on that bid, most likely to take place early next year, will be limited to DNA evidence only, Judge Carl Bradford decided.

An order filed in Knox County Superior Court by Bradford, who presided over the original trial, denies defense attorney Steven C. Peterson’s motion to allow testimony from forensic pathologists Cyril Wecht, M.D., J.D., and Walter Hofman, M.D. Earlier this year, both experts concluded that the 12-year-old Bowdoin babysitter died after Dechaine was in custody that July night in 1988, when the heinous crime was committed.

Bradford also refused to consider contradictory testimony by two detectives investigating the case. Peterson sought to challenge police officers’ statements that Dechaine, now 52, made admissions of guilt after taken into custody.

On Tuesday, Peterson said, “The import of the decision is that unless something is tied explicitly or otherwise to the DNA evidence, (Judge Bradford) won’t allow other evidence,” even if it that evidence, such as time of death, supported Dechaine’s claim of innocence.

Similarly, if the theory of an alternative suspect “can’t be tied to the DNA, we won’t be allowed at the next hearing to talk about it,” the attorney said.

Peterson described the order as “a narrowing of what can be talked about at the hearing.”

He said Bradford had a choice – to be strict in his interpretation or to take “a more liberalized approach, recognizing that items [related to the crime] have been destroyed and Dennis Dechaine asked for DNA testing before his trial and was denied.”

Dechaine supporters organized as Trial and Error reacted with a statement prepared by member Bill Bunting, of Whitefield, who underscored the judge’s refusal to allow DNA testing 21 years ago. “When the tests were later done the DNA was proved to belong to a male who is not Dennis Dechaine,” Bunting said. Other evidence that might have contained additional DNA, notably the rape kit, was incinerated.

During the trial, the judge also rejected letting the jury hear any testimony about alternative suspects, said Bunting. Bradford’s refusal to consider new evidence now, while strictly adhering to the statute “as he has chosen to interpret it,” hobbles the search for truth, Bunting maintained.

In his order, Bradford wrote, “The State contends that the defendant is attempting to relitigate issues that were or could have been litigated in prior proceedings and effectively obtain a new trial in the guise of a DNA hearing.”

In a WGAN news radio call-in program Nov. 20, prominent criminal defense lawyer F. Lee Bailey, who in 2009 agreed to join Dechaine’s defense team as a consultant, said, “I’m uncomfortable that the jury never heard expert testimony about the victim being alive when Dechaine was already in custody.” The defense attorney at that time “went along with what the state’s expert said,” Bailey commented.

A decision that a defendant had inadequate counsel would have to come from a federal court ruling, and that process would take at least a year, he said.

Speaking of Dechaine’s offer to pay for DNA testing before he went to trial, Bailey remarked, “The State said no, even though it had used DNA testing

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