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State v. Dechaine

Superior Court of Maine, Knox

April 9, 2014



Carl O. Bradford, Justice

This matter is before the Court on the defendant's motion for a new trial under the Post-Judgment Conviction Motion for DNA Analysis statute, 15 M.R.S. § § 2136-2138 (2013).[1] The Court held testimonial hearings on June 12-14, 2012 and November 7-8, 2013. For the following reasons, the motion is denied.

1. Factual and Procedural Background

The history of this case now spans more than 25 years. The major events can be summarized as follows:

On July 6, 1988, 12-year old Sarah Cherry went missing from a house in Bowdoin where she had been babysitting. Two days later her body was found in the woods a few miles from the house. Defendant Dennis J. Dechaine was arrested after her body was discovered. Attorneys George M. Carlton and Thomas J. Connolly represented Dechaine before and during the trial.

On August 1, 1988, a Sagadahoc County Grand Jury indicted Dechaine for the following crimes:

Count I- Intentional or knowing murder, 17-A M.R.S. § 201(1)(A) (1983)
Count II- Depraved indifference murder, 17-A M.R.S. § 201(1)(B) (1983 & Supp. 1987)
Count III- Kidnapping, 17-A M.R.S. § 301(1)(A)(3) (1983)
Count IV[2] - Rape, 17-A M.R.S. § § 251(1)(B) and 252(1)(A) (1983 & Supp. 1987)
Count V - Gross sexual misconduct, 17-A M.R.S. § § 251(1)(A) & (C)(3), 253(1)(B) (1983 & Supp. 1987)
Count VI - Gross sexual misconduct, 17-A M.R.S. § § 251(1)(A) & (C)(3), 253(1)(B) (1983 & Supp. 1987)

State v. Dechaine, Sagadahoc County, Indictment No. CR- 88-244 (Me. Super. Ct., Aug. 1, 1988). Venue was transferred to Knox County for trial and assigned a new docket number, CR-89-71. (2/16/89 Order.)

Prior to trial, the defendant filed a motion to Compel Discovery and Continue the Trial. The defendant sought to have Sarah Cherry's fingernails sent to a lab in California for DNA testing, which at the time was a new procedure. A hearing was held on January 27, 1989. Judith Brinkman, forensic chemist with the Maine State Police Crime Lab, testified about her blood typing work and defendant's request for DNA testing. (1/27/89 Tr. 10.) She testified that eight of Sarah Cherry's ten fingernail clippings were consumed to perform ABO blood-typing tests. (1/27/89 Tr. 21.) Ms. Brinkman explained that the blood under Sarah Cherry's nails was consistent with someone with Type A blood. (1/27/89 Tr. 19.) Sarah Cherry herself had type A blood. (1/27/89 Tr. 19.) Thus, Ms. Brinkman assumed that it was Sarah Cherry's own blood under her nails based on her knowledge of the facts of the case, including how her body was found and the small puncture wounds in her neck. (1/27/89 Tr. 19-20, 46-47.) Ms. Brinkman testified that, if there was a mixture, she would expect to see some evidence of tissue present under the nails to indicate scratching, but she did not find any such tissue. (1/27/89 Tr. 22.)

Ms. Brinkman also testified about defendant's request for DNA testing on the remaining nails. At the time, there was only one known lab in the United States, a lab in California, that used a DNA procedure known as polymerase chain reaction (" PCR") testing.[3] (1/27/89 Tr. 12-13.) Ms. Brinkman spoke to a representative of that lab, Jennifer Mehavolin, and explained the quantity of blood that was present on the remaining nails and the conditions it underwent prior to its collection. (1/27/89 Tr. 22.) Ms. Mehavolin informed Ms. Brinkman that it would be difficult to get good results given the small quantity of blood. (1/27/89 Tr. 22.)

Based on Ms. Brinkman's testimony, the Court concluded that the possibility that the blood under Sarah Cherry's nails was from someone other than Sarah Cherry or Dechaine was so remote that it could not grant the motion to continue, which would delay the trial for up to six months. (1/27/89 Tr. 23, 61.)

Defendant's trial began on March 6, 1989 and lasted two weeks. The most probative evidence in the case can be summarized as follows:

On July 6, 1988, Sarah Cherry was babysitting John and Jennifer Henkel's 10-month old baby at their home on Lewis Hill Road in Bowdoin. (Trial Tr. Vol. I 117, 125.) At around noon on that day, Mrs. Henkel called Sarah to check in, and Sarah said she was feeding the baby and preparing to make her own lunch. (Trial Tr. Vol. I 170.) When Nirs. Henkel returned home at 3:20pm that day, Sarah was missing. (Trial Tr. Vol. I 171, 176-79.)

Two days later, on July 8, 1988 Sarah's body was found in the woods, partially concealed under a pile of brush. (Trial Tr. Vol. III 496-97.) She was bound and gagged, her pants were pulled down, and she had one stick protruding from her anus and one from her vagina. (Trial Tr. Vol. III 553-54, 558, 560-61, 563.)

A substantial amount of circumstantial evidence connected Dechaine to the crime. Mrs. Henkel discovered a car repair bill and a notebook belonging to Dechaine in her driveway when she returned home on July 6. (Trial Tr. Vol. I 172; Vol. II 281.) The Henkels' neighbor, Holly Johnson testified that around 1pm on July 6, 1988, she heard a vehicle slow down at the Henkels' house and she heard the Henkels' dogs barking. (Trial Tr. Vol. II 338, 340.) About fifteen minutes later, she saw a red truck driving northbound on Lewis Hill Road. (Trail Tr. Vol. II 341.) Dechaine drove a red Toyota pick-up truck. (Trial Tr. Vol. II at 399.)

The chief medical examiner, Dr. Ronald Roy, testified that Sarah Cherry's body had multiple small stab wounds around her neck, chest, and head that could have been made by a penknife, which Dechaine typically carried on his keychain. (Trial Tr. Vol. III 564-65, 571; Vol. VI 1128.) Dechaine's wife, Nancy Emmons, was surprised to learn that the penknife was missing from his keychain when Dechaine was arrested. (Trial Tr. Vol. VI 1128.) Ms. Brinkman testified at trial that the rope used to tie Sarah's hands and a rope found in Dechaine's truck shared the same basic characteristics. (Trial Tr. Vol. N 732.) A rope fragment found in the woods not far from where Sarah's body was found, was once connected to the rope found in Dechaine's truck. (Trial Tr. Vol. IV 737.) Sarah's body was found approximately 400 feet from where Dechaine's truck was found in the woods. (Trial Tr. Vol. I 53-54.) On the evening of July 6, Dechaine was seen walking out of the woods in the general area where Cherry's body was ultimately found. (Trial Tr. Vol. I 202-04.)

Multiple law enforcement officers testified that Dechaine admitted his guilt. After Sarah's body was found on July 8, Detective Alfred Hendsbee drove to Dechaine's house. (Trial Tr. Vol. IV 799.) He testified that as soon as he arrived, Dechaine approached his vehicle and said, " I can't believe I could do such a thing. The real me is not like that. I know me. I couldn't do anything like that. It must be somebody else inside of me." (Trial Tr. Vol. IV 799.) Detective Mark Westrum testified that, during the booking procedure after Dechaine's arrest, Dechaine started sobbing and said, " Oh my God; it should never have happened. Why did I do this?" (Trial Tr. Vol. IV 830.) According to Westrum's testimony, Dechaine later said, " I didn't think it actually happened until I saw her on the news; then it all came back to me. I remembered it." (Trial Tr. Vol. IV 831.) Westrum further testified that Dechaine continued to sob and made other similarly incriminating statements. (Trial Tr. Vol. IV 830-833.) Dechaine was taken to the Lincoln County Jail the evening of July 8. (Trial Tr. Vol. IV 833.) Darryl Robert Maxcy, a Lincoln County corrections officer, testified that Dechaine said, " You people need to know I'm the one who murdered that girl, and you may want to put me in isolation." (Trial Tr. Vol. V 855.) Brenda Dermody, another corrections officer, testified that Dechaine made the statement almost exactly as described by Maxcy. (Trial Tr. Vol. V 855.) Dechaine testified at trial and denied making any of the admissions. (Trial Tr. Vol. VII 1271-72, 1286, 1291-92.)

According to De chaine's testimony, on July 6, 1988 he injected himself with drugs and went driving and then walking around the woods near Hallowell Road. (Trial Tr. Vol. VI 1219, 1222-24.) He became lost and could not find where he parked his truck. (Trial Tr. Vol. VI 1225-26.) He followed the sound of a generator and emerged from the woods, where he encountered Helen and Harry Buttrick, who lived in the area. (Trial Tr. Vol. VI 1228-30.) Dechaine told them that he had become lost while fishing and could not find his truck. (Trial Tr. Vol. VI 1230.) Mr. Buttrick offered to drive Dechaine around to look for his truck. (Trial Tr. Vol. VI 1230-31, 1233.)

As Mr. Buttrick and Dechaine were driving around, a police car passed them and Mr. Buttrick motioned for it to stop. (Trial Tr. Vol. VI 1234-35.) Dechaine got into the police car and told the officer the same story, that he had lost his truck while fishing. (Trial Tr. Vol. VI 1235.) By that time, the police were looking for Dechaine because of the notebook and car repair bill found at the Henkel residence with Dechaine's name on it. (Trial Tr. Vol. VI 1237-38.) The officer drove Dechaine to another location, where a different officer began questioning him. (Trial Tr. Vol. VI 1236-37.) Dechaine testified that he lied about what he was doing in the woods because he did not want the Buttricks or the police to find out about his drug use. (Trial Tr. Vol. VI 1231-32, 1253.)

When the police discovered Dechaine's truck in the early morning of July 7, the truck was locked. (Trial Tr. Vol. II 401, 420-21.) Dechaine originally told the officers that he had left his keys in the truck. (Trial Tr. Vol. II 394.) He testified that, later on, he discovered that the keys to the truck were in his pocket. (Trial Tr. Vol. VI 1244.) Dechaine panicked and threw the keys under the front seat of the police cruiser because he thought that hiding the keys " would avoid another confrontation." (Trial Tr. Vol. VI 1245.)

Prior to resting, defense counsel sought to introduce evidence implicating an alternative perpetrator, Douglas Senecal. Douglas Senecal was indicted for unlawful sexual conduct with his stepdaughter, the daughter of Sarah Cherry's father and Senecal's wife.[4] (3/16/89 Chambers Tr. 4.) The defense's theory was that Senecal may have killed Sarah to prevent her from testifying against him at his trial. (3/16/89 Chambers Tr. 14.) There was no evidence, however, that Sarah was going to be a witness at Senecal's trial or that Senecal knew where she was babysitting on July 6, 1988. (3/16/89 Chambers Tr. 14, 17-18.) The Court concluded that the evidence would invite the jury to engage in speculation and therefore excluded it. (3/16/89 Chambers Tr. 23, 29.)

On March 18, 1989, the jury convicted defendant on all five of the remaining counts charged. The Court imposed concurrent life sentences on the two counts of murder and concurrent 20-year sentences on each of the other counts.

Defendant filed a timely appeal of the judgment. The Law Court modified the judgment to impose one conviction on the two alternative forms of murder, but otherwise affirmed. State v. Decahine, 572 A.2d 130, 136 (Me. 1990). The Law Court specifically affirmed this Court's decision denying the continuance for DNA testing prior to trial and agreed with the Court that defendant's evidence regarding Douglas Senecal as an alternative perpetrator was speculative. Id. at 134. Defendant also appealed the propriety of the sentence and that appeal was denied. State v. Dechaine, No. AD- 89-27 (Me. App.Div. May 4, 1990).

Thereafter, Mr. Connolly filed a motion to remove certain defense exhibits, including the fingernail clippings, from the clerk's office. After a hearing on February 4, 1991, the Court denied Mr. Connolly's motion to remove defense exhibits and ordered that the clerk of the court shall not permit the removal of any exhibit in the case without a court order. (2/21/91 Order.) The Court further instructed that if any person wanted to examine the exhibits, the examination must be done in the clerk's office and under the clerk's supervision. Id.

In April 1992, Mr. Connolly received a letter from the Knox County clerk's office informing him that, pursuant to an administrative order, exhibits from the Dechaine case would be destroyed if counsel did not arrange to pick them up. (4/17/92 Clerk's Letter.) On April 30, 1992, the Court authorized the destruction of exhibits in the Dechaine case, unless counsel arranged to pick up the items. (4/30/92 Order.) Mr. Connolly collected certain exhibits from the trial on May 5, 1992. (4/17/92 Clerk's Letter.)

On the same day, May 5, 1992, defendant filed a Motion for a New Trial. The motion focused on claims that newly discovered evidence suggested Douglas Senecal was the perpetrator of the crimes against Sarah Cherry. The Court held hearings on July 2, July 8, and July 9, 1992. The Court denied the motion on July 31, 1992. State v. Dechaine, KNOXSC-CR- 1989-71 (Me. Super. Ct., Knox Cty., July 31, 1992). Defendant filed an appeal, which the Law Court denied on August 26, 1993. State v. Dechaine, 630 A.2d 234, 237 (Me. 1993).

On December 20, 1993, the Court ordered Mr. Connolly to return the defense exhibits to the state. Mr. Connolly complied with the order, but appealed the decision to the Law Court. The Law Court upheld the decision. State v. Dechaine, 644 A.2d 458, 459 (Me. 1994).

On September 29, 1995, defendant filed a petition for post-conviction review under 15 M.R.S. § § 2121-2131. The State moved to dismiss the petition under 15 M.R.S. § 2128(5) (1995), on the grounds that defendant's delay in filing prejudiced the State in responding to the petition and retrying the defendant. On January 9, 1999, the Superior Court (Knox, Marden, J .) dismissed the petition for post-conviction review. Dechaine v. State, KNOXSC-CR- 1995-380 (Me. Super. Ct., Knox Cty., Jan. 9, 1999). Defendant appealed, and the Law Court denied the defendant a certificate of probable cause on April 27, 1999. Dechaine v. State, No. Kno- 99-133 (April 27, 1999).

The defendant then filed an application for a writ of habeas corpus in federal court under 28 U.S.C. § 2254 on April 26, 2000. On July 28, 2000, Magistrate David M. Cohen recommended in a written decision that the petition be denied without hearing. Dechaine v. Warden, 2000 WL 1183165, at *21 (D. Me. July 28, 2000). District Court Judge Gene Carter adopted Judge Cohen's recommendation on November 21, 2000. Dechaine v. Warden, 2000 WL 33775285 (D. Me. Nov. 21, 2000).

On May 20, 2003, defendant filed a motion for new trial under the law pertaining to newly discovered DNA evidence. 15 M.R.S. § § 2136-2138. Defendant and the State entered into a stipulation regarding DNA testing, which was signed by the Court on September 16, 2003.

On September 16, 2005, the Court defined the scope of evidence that could be presented at the hearing on defendant's motion for new trial. Specifically, the Court denied defendant's request to introduce evidence related to his admissions, the victim's time of death, and other issues unrelated to the new DNA evidence. (9/16/05 Order at 3-4.) The Court set a hearing on the motion for September 23, 2005. ( Id. at 4.) On that day, the defense informed the Court that it was withdrawing the motion because the defendant could not meet his burden under the DNA statute to prove that only the perpetrator of the crimes could be the source of the DNA evidence.

After the defendant withdrew his motion, the Legislature amended the Post-Conviction DNA Analysis law. P.L. 2005, ch. 659. The amended law allows a defendant to prevail by meeting a standard similar to that pertaining to any motion for a new trial. Id. at§ 5.

On August 28, 2008, defendant filed this action for a new trial based on the amended DNA analysis statute. 15 M.R.S. § § 2137-2138. On October 1, 2010, defendant moved to define the scope of the evidence that would be allowed at a testimonial hearing on the motion. The defendant sought to introduce evidence relating to, inter alia , an alternative suspect. The Court granted the defendant's motion to the extent that the DNA evidence " actually implicates the alternative suspect." (11/10/10 Order at 7.) The Court denied defendant's request to relitigate matters unrelated to the DNA evidence, such as the victim's time of death. ( Id.) On January 26, 2011, the Court ordered DNA analysis under 15 M.R.S. § 2138(5). Hearings were held on June 12-14, 2012, at the close of which the defendant requested additional testing on other items of evidence in the case, including Sarah Cherry's bra, her shirt, a scarf, and a bandana found with the body. The Court authorized the additional testing and held additional hearings on November 7-8, 2013.

2. DNA Analysis on Fingernail Clippings

The first round of DNA testing was conducted on fingernail clippings collected during Sarah Cherry's autopsy. The hearings focused on the chain of custody of the clippings, the DNA testing and results, and the possibility of contamination.

a. Chain of Custody

At the June 2012 hearings, the Court first heard from former state trooper John Otis, who was at the scene where the victim's body was discovered. Mr. Otis testified that the victim's hands were wrapped in paper bags to prevent contamination and preserve evidence. (6/12/12 Tr. 26.) The victim's body was then taken to the morgue for an autopsy. (6/12/12 Tr. 28.) Mr. Otis testified that fingernail clippings were taken from the victim's left and right hands. (6/12/12 Tr. 28.) Mr. Otis collected the clippings and transported them to the state crime lab where he placed them in an evidence locker. (6/12/12 Tr. 29.) On July 11, 1988, Mr. Otis delivered the fingernail clippings to Ms. Brinkman, the state's forensic chemist. (6/12/12 Tr. 31-32.)

Eight of the ten fingernails were consumed by the blood typing procedure. (6/12/12 Tr. 93-94.) Mr. Connolly testified that he offered the left and right thumbnails, the only remaining nails not consumed by the State's testing, into evidence at trial. (6/12/12 Tr. 102.)

The parties stipulated that Susan Guillette was the Clerk of Courts at the Knox County Superior Court during the original trial. (7/3/12 Stipulation.) She received the trial exhibits, including the fingernail clippings, and stored them in an exhibit room that was locked at night. (7/3/12 Stipulation.) Clerks had access to the exhibit room and would escort anyone who asked to see the exhibits. (7/3/12 Stipulation.)

Bradley Hunter, the jury foreman from defendant's trial, testified that the fingernail clippings were brought to the jury room. (6/12/12 Tr. 48.) Although he does not remember the clippings specifically, he remembers that there were a number of sealed bags of evidence in a large evidence box. (6/12/12 Tr. 48-49.) He does not remember any jurors opening evidence bags or actually removing any items from the sealed bags. (6/12/12 Tr. 49-51.)

Mr. Connolly collected the fingernail clippings from the Knox County clerk's office on May 5, 1992, the same day counsel filed a motion for new trial. (State's Ex. 2; 6/12/12 Tr. 105-07, 122.) Mr. Connolly brought the clippings to his office, placed them in a file, and stored the file in a secret area. (6/12/12 Tr. 108-09.)

On June 8, 1993 Mr. Connolly mailed the nail clippings to CBR Labs for DNA testing.[5] (Def.'s Ex. 12-A.) After testing was performed at the lab, Mr. Connolly again received the clippings in a Federal Express envelope on September 21, 1993. (6/12/12 Tr. 113-14.) From that date until December 20, 1993, the clippings remained in Mr. Connolly's office. (6/12/12 Tr. 116.) The State filed a Motion for Return of Property, and Mr. Connolly returned the clippings to the State on December 20, 1993 in their original bags. (6/12/12 Tr. 118; 7/3112 Stipulation.) Both Mr. Connolly and his secretary, Ida Bilodeau, testified that they were the only people aware that the nail clippings were stored in Mr. Connolly's office and that neither of them handled the clippings. (6/12/12 Tr. 119, 174.)

b. DNA Analysis and Results

Dr. David Bing from CBR labs performed the first DNA analyses on the fingernail clippings in 1993 and 1994. (Def.'s Ex. 11; 6/12/12 Tr. 246.) Dr. Bing used a type of DNA analysis known as DQ Alpha, [6] which is no longer used at most labs. (6/12/12 Tr. 224-25.) Dr. Bing cut each thumbnail in half and consumed half of each nail to produce testable extracts. (6/12/12 Tr. 246.) He concluded that there were at least two donors present on the extract from the left nail clipping and that Dechaine could be excluded as a donor of the DNA present in the sample. (Def.'s Ex. 11.)

Catherine MacMillan, forensic DNA analyst at the Maine State Police Crime Laboratory, testified that her analysis of the fingernail extract from Dr. Bing's lab confirmed Dr. Bing's results. (6/12/12 229-34.) She explained that the state lab used short tandem repeat (" STR") DNA testing using a specific technique known as polymerase chain reaction (" PCR"). (6/12/12 Tr. 216, 225.) This type of DNA testing involves multiple steps: (1) the chemist cuts out a portion of the sample likely to contain DNA and transfers it to the DNA analyst, (2) the DNA analyst extracts any DNA in the sample and purifies it, (3) the analyst targets thirteen areas called short tandem repeats (" SIRs") and tries to make multiple exact copies of those areas, (4) this amplified DNA is run through a genetic analyzer to determine different lengths of DNA fragments, and (5) the DNA analyst interprets the profile to determine whether it is a single source or mixture and whether it matches any known profiles submitted in the case. (6/12/12 Tr. 216-17.) A full DNA profile has information for all 13 STR areas or loci. (6/12/12 Tr. 217.) If all 13 loci match 13 loci from another sample, there is an identity match, and unless the individual has an identical twin, the results are conclusive. (6/12/12 Tr. 221-22.) In cases where there is a mixture of DNA, it is only possible to exclude or include an individual as a possible donor. (6/12/12 Tr. 222.)

Ms. MacMillan also explained Y-STR testing. (6/12/12 Tr. 225-26.) This type of testing is very similar to STR but focuses only on the Y chromosome. (6/12/12 Tr. 226.) This test is useful for isolating any male DNA present in a mixture because it will only amplify DNA present on the Y chromosome, which females do not carry. (6/12/12 Tr. 226.) At the time the testing was ordered, the Maine crime lab was not validated to perform Y-STR testing, so it sent the samples to Cellmark Forensics[7] for those tests. (6/12/12 Tr. 226.)

Ms. MacMillan explained the results of DNA testing performed on the fingernail clippings and extracts as outlined in her July 8, 2004 report. (6/12/12 Tr. 229.) She tested the remaining halves of each nail and the extracts from Dr. Bing's lab.[8] (6/12/12 248, 252-53.) Only the left fingernail extract from Dr. Bing's lab showed any profile other than Sarah Cherry's own DNA. (6/12/12 Tr. 248.) The DNA analyzed from the left thumbnail extract was a seven loci mixture of male and female DNA (6/12/12 Tr. 253.) The sample is consistent with two individuals, Sarah Cherry, and at least one additional person. (6/12/12 Tr. 254-55.) Ms. MacMillan first applied her lab's standard threshold of 150 relative fluorescent units (" RFU") to analyze the sample. (6/12/12 Tr. 229.) As an analyst lowers the RFU number, it becomes more difficult to interpret the results. (6/12/12 Tr. 230-31.) She explained that her lab was validated to perform tests at 150 RFU, but she testified that if the analyst observes something below 150 RFU, it is up to the analyst to decide whether to lower the threshold. (6/12/12 Tr. 230-31.) Analyzing the fingernail sample at 150 RFU, Ms. MacMillan testified that she could not make a strong conclusion as to whether Dechaine could be excluded as a donor. (6/12/12 Tr. 230.) After lowering the threshold to 50 RFU, Ms. MacMillan was able to conclude that Dechaine could be excluded as a donor of the DNA present on the fingernail extract. (6/12/12 Tr. 234.) Ms. MacMillan acknowledged that the sample was degraded and the test was below the lab's validated threshold, however, she testified that another scientist in the lab and her technical leader corroborated her conclusions. (6/12/12 Tr. 235.)

Dr. Rick Staub, the forensics laboratory director at Cellmark Forensics, explained that his lab performed Y-STR testing on the left thumbnail extract and found results at 12 out of 17 possible markers. (6/13/12 Tr. 26.) According to Dr. Staub's testimony, the male DNA found on the thumbnail is " very clearly from a single individual." (6/13/12 Tr. 27.) Dr. Greg Hampikian also testified for the defense. He has a PhD in genetics, works as a professor at Boise State University, and volunteers as the director of the Idaho Innocence Project. (6/14/12 Tr. 101.) He testified that, while he cannot rule out the possibility that there is a third contributor to the sample, there is no evidence of that in the DNA results. (6/14/12 Tr. 140-42.)

Dr. Carll Ladd, supervisor of the DNA section at the Connecticut Forensic Laboratory, testified that it was not possible to conclude that the male DNA present under the thumbnail came from a single male. (6/14/12 Tr. 69.) He confirmed the testimony of the other experts that the sample contained a very small amount of DNA. (6/14/12 Tr. 70.) In fact, none of the experts could determine the type of biological material that contributed the DNA under the fingernail, whether it is blood, saliva, skin cells, or something else. (6/12/12 Tr. 253-54.)

c. Possibility of Contamination

Throughout the hearings, the State's case focused on the issue of the possible contamination of the sample.

Robert Goodrich, who has worked as a forensic medicine technician at the chief medical examiner's office since 1986, was present at Sarah Cherry's autopsy and testified about the conditions of the morgue and the procedures used for autopsies performed at that time. He testified that, at the time of Sarah Cherry's autopsy, the medical examiner's tools were stored in a metal tool chest with multiple drawers. (6/13/12 Tr. 68.) The toolbox was lined with operating room or terry cloth towels and the instruments were laid on top of the towels. (6/13/12 Tr. 68-69.) Nail clippers were used repeatedly; they may have been washed or disinfected between uses but they were not sterilized. (6/13/12 Tr. 70.) Some of the examiners used gloves throughout the examination, while others only wore gloves during the course of the actual autopsy. (6/13/12 Tr. 70.) Nobody wore masks. (6/13/12 Tr. 71.)

Mr. Goodrich testified that, when he began working for the medical examiner, he was surprised at the unsanitary practices used in the examination room. (6/13/12 Tr. 71.) The towels became very dirty from physicians reaching into the toolbox to grab their instruments. (6/13/12 Tr. 71.) These bloody towels were only changed every five or six months. (6/13/12 Tr. 72.) Shortly after he began working for the state, Mr. Goodrich recalls complaining about the conditions to Dr. Henry Ryan, the current chief medical examiner, and another individual responsible for maintaining the facility. (6/13/12 Tr. 72.) Other than these general conditions, Mr. Goodrich did not have any special concerns about the evidence collected from Sarah Cherry's autopsy. (6/13/12 Tr. 78.)

All of the experts that testified in this case were asked about the possibility of contamination of the fingernail DNA sample. Ms. MacMillan testified that the toolbox described by Mr. Goodrich was " a very highly contaminated toolbox." (6/13/12 Tr. 259.) She explained that contamination could occur just from speaking over items being tested. (6/13/12 Tr. 260.) Dr. Staub testified that contamination was a possibility, although he was not able to quantify the probabilities. (6/13/12 Tr. 31-32.) He also noted that if the fingernail clippers had been used in many cases, " you would think maybe more than one male would show up in that profile." (6/13/12 Tr. 32.)

Frederick Bieber, faculty member at Harvard Medical School and geneticist at Brigham and Women's Hospital in Boston, testified on behalf of the State about the likelihood of contamination. In response to a question about the conditions of the morgue as described by Mr. Goodrich, he testified that it was a " textbook recipe for potential for contamination in many, many steps along the way." (6/14/12 Tr. 25.) Dr. Bieber testified that he would be surprised if there was not contamination present in this case. (6/14/12 Tr. 39.) Dr. Bieber previously worked in Dr. Bing's lab, where the initial testing was performed back in 1993. (6/14/12 Tr. 27.) He also cannot rule out the possibility that the sample was contaminated in Dr. Bing's lab because, although Dr. Bing used good practices at the time, the technicians did not wear masks and they did not have hoods or an HVAC system. (6/14/12 Tr. 29.) He testified that the risk of contamination was especially present in a case like this where PCR testing was used because that method of testing amplifies very trace amounts of DNA. (6/14/12 Tr. 30.) Thus, a very small amount of DNA, contributed by coughing, sneezing, or touching, could contaminate a sample. (6/14/12 Tr. 30.)

Dr. Ladd concurred with Dr. Bieber that the conditions surrounding the collection of the evidence, the autopsy, and the conditions at the DNA lab were " ideal for contamination." (6/14/12 Tr. 54.) He emphasized the possibility of aerosol contamination from anyone in close proximity to the sample. (6/14/12 Tr. 56.)

Defendant relies on Dr. Greg Hampikian's testimony to rebut the inference of contamination in this case. Dr. Hampikian testified that, although contamination is a possibility in this case, he believes the other experts are exaggerating that possibility. (6/14/12 Tr. 114.) His opinion is that, if contamination were as likely as the other experts predicted, then the other samples and items tested in this case should also show some DNA. (6/14/12 Tr. 112-13.) In his opinion, the other part of the left thumbnail clipping, collected at the same time, under the same conditions, and analyzed in the same labs provides a type of control because there was no unknown DNA found on the other half of the clipping. (6/14/12 Tr. 112-13.)

The parties stipulated to a list of individuals close to the case that have been excluded through DNA testing as potential donors from the fingernail sample. (Def.'s Ex. 17.) This list includes, among others, Mr. Goodrich, Dr. Bing, Mr. Otis, Dr. Roy, Mr. Connolly, and Mr. Henkel. ( Id.)

3. November 2013 Hearings

At the end of the June 2012 hearings, the Court continued the case so additional DNA testing could be conducted on other items of evidence found with Sarah Cherry's body. The Court also heard DNA evidence related to the defense's theory of an alternative perpetrator.

a. DNA Evidence of Alternative Perpetrator

At the November 2013 hearings, William Moore, a licensed private investigator, testified about obtaining a DNA sample from the defense's primary alternative suspect in this case, Douglas Senecal. Senecal refused to voluntarily provide the defense with a DNA sample, so Dechaine supporters hired Mr. Moore to collect a sample from Senecal. (11/17/13 Tr. 21-22.) In March 2008, Mr. Moore and another private investigator, Tom Cumler, travelled to Hernando, Florida, where Senecal lives, to follow him around and try to collect a DNA sample from him. (11/17/13 Tr. 21-22.)

Moore and Cumler eventually spotted Senecal at a restaurant in Hernando. (11/17/13 Tr. 24.) Senecal was with another woman eating lunch. (11/17/13 Tr. 24.) Moore testified that after Senecal paid his bill and left, he observed a waitress at the restaurant stack the used dishes in a wash basin and noted that Senecal's coffee cup was placed on top of the stack of dishes. (11/17/13 Tr. 25.) Moore followed the waitress out of the dining area, asked her to set the basin down, and asked if he could speak with her boss. (11/17/13 Tr. 26.) The restaurant owner allowed Mr. Moore to take the coffee cup, a fork, and a napkin. (11/17/13 Tr. 26.) Mr. Moore used rubber gloves to collect all three items and placed them into one plastic, zip-locked bag. (11/17/13 Tr. 27.) On May 26, 2008, Mr. Moore mailed the items to Cellmark for testing. (11/17/13 Tr. 30-31.)

Cellmark conducted STR and, inadvertently, Y-STR testing on the coffee cup.[9] (11/17/13 Tr. 34.) The profile obtained from the coffee cup did not match the profile obtained from the fingernail clipping. (11/17/13 Tr. 34-35.) In other words, Douglas Senecal, assuming the DNA collected on the coffee cup was his DNA, was excluded as a potential donor of the unidentified DNA on the fingernail clippings. Mr. Moore received a report from Cellmark that excluded the coffee cup sample from the fingernail sample in April 2009. (11/17/13 Tr. 44-45.) He did not share that information with the State, and the State first learned of the report at the November hearings. (11/17/13 Tr. 45.)

When questioned by the State, Mr. Moore testified that he had obtained DNA from other alternative suspects and sent those samples to Cellmark for testing. (11/17/13 Tr. 46-47.) Every sample he had analyzed was excluded as a potential donor on the fingernail clipping. (11/17/13 Tr. 47.)

b. Other Items Tested

Analysts used a different technique, scraping as opposed to swabbing, to collect samples from Sarah Cherry's shirt, her bra, a bandana, and a scarf found on her body. (11/17/13 Tr. 62-63.) No male DNA was found on the bandana. (11/17/13 Tr. 67.)

Dr. Staub testified that the results from the shirt showed a mixture of at least two males. (1117/13 Tr. 66-67.) A scraping from the scarf also showed a mixture of at least two males. (11/17/13 Tr. 68.) DNA was found on the bra but the results from the bra were inconclusive. (11/17/13 Tr. 89.) Although comparisons between the items were not performed, analysts theorized that the same donor or donors could be present on all three items. (11/17/13 Tr. 91.) Next, Dr. Staub testified that the profiles from these three samples were compared to a known sample of Dechaine's DNA (11/17/13 Tr. 69.) Dechaine could not be excluded as the source of the DNA on the shirt or the scarf. (11/17/13 Tr. 69-70.) The results were inconclusive when Dechaine's DNA was compared with the sample from the bra. (11/17/13 Tr. 70.)

Finally, the coffee cup sample was compared to the newly tested items. The coffee cup donor could not be excluded from the scarf but was excluded as a possible donor on the shirt. (11/7/13 Tr. 88-89.)

The Court also heard testimony about inclusion probabilities, meaning the probability that any individual could be a contributor of DNA to the mixtures detected on these items. (11/17/13 Tr. 78.) Dr. Staub explained that he arrived at an inclusion probability for each item by counting all of the relevant individuals, male Caucasians, in a database and then determined the number of those individuals whose DNA is consistent with the sample. (11/17/13 Tr. 72.) Regarding the shirt sample, Dr. Staub concluded that approximately 1 in 374 individuals have DNA consistent with the DNA found in that sample. (11/17/13 Tr. 99.) As for the scarf, approximately 1 in 35 individuals have DNA consistent with DNA found from that sample. (11/17/13 Tr. 99.) Dr. Staub acknowledged that, especially the 1 in 35 probability is common and that thousands of males in Maine would not be excluded as potential donors. (11/17/13 Tr. 100.)

The State confronted the defense's experts with their prior testimony at the June 2012 hearings. At the June hearings, defense expert Dr. Staub testified that, if DNA samples from the other items matched the sample from the fingernail, it would support the defense's theory that the male DNA present on the fingernail was not the result of contamination. (11/7/13 Tr. 94-95.) Similarly, Dr. Hampikian testified in June that the lack of DNA present on other items in the case supported his opinion that the fingernail sample was not contaminated. (11/8/13 Tr. 40-41.) Both experts acknowledged the new DNA findings, but Dr. Hampikian reiterated his opinion that the other nail clipping serves as a control in this case. (11/7/13 Tr. 95; 11/8/13 Tr. 37-38.)

Dr. Ladd disagreed that the other half of the nail provides a valid control in this case. He stressed that there is a very small amount of DNA present on the clipping and that low-level contaminants are not evenly spread out. (11/8/13 Tr. 65-66.) Moreover, Dr. Ladd testified that the trace amounts of DNA involved in this case are well below the optimal amount of DNA necessary for the PCR procedure. (11/8/13 Tr. 66.) Thus, DNA could be present on the other half of the fingernail clipping but in a quantity below the detectible level. (11/8/13 Tr. 66.)

4. Legal Standard

In a motion for new trial based on newly discovered DNA evidence, the defendant has the burden to " establish by clear and convincing evidence one of three statutorily identified reasons for the granting of a new trial." State v. Reese, 2013 ME 10, ¶ 23, 60 A.3d 1277. A defendant can prevail by showing:

A. Only the perpetrator of the crime or crimes for which the person was convicted could be the source of the evidence, and that the DNA test results, when considered with all the other evidence in the case, old and new, admitted in the hearing conducted under this section on behalf of the person show that the person is actually innocent. If the court finds that the person authorized in section 2137 has met the evidentiary burden of this paragraph, the court shall grant a new trial;
B. Only the perpetrator of the crime or crimes for which the person was convicted could be the source of the evidence, and that the DNA test results, when considered with all the other evidence in the case, old and new, admitted in the hearing conducted under this section on behalf of the person would make it probable that a different verdict would result upon a new trial; or
C. All of the prerequisites for obtaining a new trial based on newly discovered evidence are met as follows:
(1) The DNA test results, when considered with all the other evidence in the case, old and new, admitted in the hearing conducted under this section on behalf of the person would make it probable that a different verdict would result upon a new trial;
(2) The proferred DNA test results have been discovered by the person since the trial;
(3) The proferred DNA test results could not have been obtained by the person prior to trial by the exercise of due diligence;
(4) The DNA test results and other evidence admitted at the hearing conducted under this section on behalf of the person are material to the issue as to who is responsible for the crime for which the person was convicted; and
(5) The DNA test results and other evidence admitted at the hearing conducted under this section on behalf of the person are not merely cumulative or impeaching, unless it is clear that such impeachment would have resulted in a different verdict.

15 M.R.S. § 2138(10).

The Law Court has adopted a definition of clear and convincing evidence " by which the party with the burden of persuasion may prevail only if he can 'place in the ultimate factfinder an abiding conviction that the truth of [his] factual contentions are highly probable." ' Taylor v. Comm'r of Mental Health and Mental Retardation, 481 A.2d 139, 153 (Me. 1984) (quoting Colorado v. New Mexico, 467 U.S. 310, 316 (1984)). The clear and convincing standard " can be met even when there is conflicting evidence because it is for the factfinder to determine the weight and credibility to be assigned to the evidence." Davis v. Mitchell, 628 A.2d 657, 661 (Me. 1993). The standard " does not require factual findings to be' conclusive'." In re Debra B., 495 A.2d 781, 783 n.3 (Me. 1985).

The Court must first determine whether, for purposes of 15 M.R.S. § 2138(10)(A)-(B), the defendant has shown by clear and convincing evidence whether the perpetrator of the crime is the only possible source of the DNA If the defendant fails to meet that burden, the Court must consider whether the defendant meets all of the requirements for granting a new trial under 15 M.R.S. § 2138(10)(C). See Reese, 2013 ME 10, ¶ 30, 60 A.3d 1277 (" Having found that the trace amount of male DNA in the tested sample could have come from someone other than the perpetrator of the crime, the court properly proceeded to address the motion for a new trial under the standard set forth in section 2138(10)(C).").

5. Possible Sources of DNA

Every expert that testified at the June 2012 and November 2013 hearings stated that it was possible that the male DNA present on the fingernail sample was the result of contamination. While Dr. Hampikian in particular tried to downplay the likelihood that the sample was contaminated, the other experts were very concerned about the conditions of the morgue and the potential for aerosol contamination during the collection, storage, and testing of the sample.

Even assuming the sample was not contaminated at any point since Sarah Cherry's death, there is no evidence that the DNA came from the perpetrator. While the defense argues that the victim likely struggled with her assailant, there is no evidence in this case of any such struggle. Thus, the DNA could have been deposited under Sarah's thumbnail prior to her death in a manner completely unrelated to her murder. The Court concludes that the defendant has failed to show by clear and convincing evidence that only the perpetrator of the crimes could have been the source of the DNA

6. Probability of Different Result in New Trial

Defendant can nevertheless prevail on his motion if he can show by clear and convincing evidence that the DNA evidence " would make it probable that a different verdict would result upon a new trial." 15 M.R.S. § 2138(10)(C)(1). In making this determination, the Court may consider:

evidence admitted at trial; evidence admitted in any hearing on a motion for new trial pursuant to Rule 33 of the Maine Rules of Criminal Procedure; evidence admitted at any collateral proceeding, state or federal; evidence admitted at the hearing conducted under this section relevant to the DNA testing and analysis conducted on the sample; and evidence relevant to the identity of the source of the DNA sample.

15 M.R.S. § 2138(10)(C).

Based on all of the evidence in this case, the Court concludes that Dechaine has failed to prove by clear and convincing evidence that a different verdict would result upon a new trial. 15 M.R.S. § 2138(10)(C)(1). The Court arrives at this conclusion for several reasons.

First, throughout the lengthy history of this case, the defendant has sought to introduce evidence that he argues links Douglas Senecal to the murder. Even giving defendant the benefit of the doubt that the DNA on the coffee cup was in fact Douglas Senecal's DNA, none of the new DNA evidence implicates Douglas Senecal.[10] Thus, there is no need to reconsider the evidence raised in defendant's Rule 33 motion for new trial, which pertains entirely to the defense's theory that Senecal committed the murder.

Second, the defendant has failed to connect the DNA under Sarah's fingernails to her murderer. There is no evidence of a struggle between the perpetrator and the victim in this case. Sarah's nails were not broken, there was no visible tissue under her fingernails, and there was no other evidence to indicate that she had fought with her assailant. Thus, a factfinder would have to speculate that Sarah struggled with her attacker and somehow managed to get his DNA under her thumbnail.

Third, the Court finds the testimony from Dr. Ladd, Dr. Bieber, and Ms. MacMillan concerning contamination credible and persuasive. These experts all concurred that the conditions in the morgue where Sarah's autopsy was performed were ripe for contamination. Moreover, all of the experts testified that contamination could result from as little as breathing, coughing, or sneezing over the sample. As Dr. Bieber testified, the sample could have been contaminated in Dr. Bing's lab because, at that time, there were no hoods and none of the analysts wore masks. As the Law Court noted in Reese:

This case demonstrates the conundrum that may be faced by lab analysts, judges, attorneys, and juries when evidence that was collected and stored pursuant to now-outdated protocols is subjected to more advanced modes of DNA testing. Although the advances in DNA testing may provide more information about the DNA present in old samples, the new DNA evidence will not necessarily be illuminating on issues related to defendants' guilt or innocence if the samples were not handled and preserved using the more rigorous lab practices that are in place today.

Reese , 2013 ME 10, ¶ 27 n.6, 60 A.3d 1277. Such is the case here where new techniques have been applied to a degraded and potentially contaminated sample.

During the hearings, the defense raised the fact that the State has used DNA from even older cases, presumably subject to the same conditions, to prosecute individuals. Defendant argues that, if DNA from this era can be used by the State to convict individuals, then the risk of contamination must not be as serious as the State claims in this case. In particular, the defense questioned Ms. MacMillan about the State v. Mitchell case, in which DNA evidence was used to convict Thomas Mitchell for the 1983 murder of Judith Flagg. State v. Mitchell, 2010 ME 73, 4 A.3d 478. Ms. MacMillan explained that, in that case there was an identity match between a sample collected from the scene and a known sample of Mitchell's DNA. (6/12/12 Tr. 266-67.) Thus, absent some explanation of how Mitchell's DNA could have contaminated the sample collected from the scene, it was possible to rule out contamination as a source of that DNA. In this case, however, there is no identity match, and the DNA under the fingernail could have come from any number of people that handled or were in close proximity to the fingernail clippings. The DNA also could have been deposited under Sarah's nails before her murder. The Mitchell case is simply not analogous.

Fourth, male DNA detected on the other items after the June 2012 hearings did not match the profile from the fingernail clipping. This further suggests that the fingernail sample was contaminated. Moreover, Dechaine could not be excluded as a donor on any of the other items. This evidence works against Dechaine because, of everyone tested in this case, only his DNA could be present on all three items: the scarf, the shirt, and the bra. The Court is aware of the possibility that these items were contaminated and that many other individuals might also have DNA consistent with that found on all of the items. Nevertheless, the additional DNA evidence is, at best, unhelpful to Dechaine.

Finally, this Court finds, as several other courts have found, the evidence of Dechaine's guilt is substantial. See State v. Dechaine, 572 A.2d 130, 132 n.3 (Me. 1990); Dechaine v. State, KNOXSC-CR- 1995-380, at 7 (Me. Super. Ct., Knox Cty., Feb. 10, 1999) (noting that " Connolly's lack of success cannot be blamed on his defective performance, but rather upon the volume of incriminating evidence against his client"); Dechaine v. Warden, 2000 WL 1183165, at *2-10 (D. Me. July 28, 2000), adopted by 2000 WL 33775285 (D. Me. Nov. 21, 2000). Items from Dechaine's truck were found at the house where Sarah was abducted. Rope used to tie her hands was consistent with rope that was found in Dechaine's truck and matched rope found in the woods between his truck and Sarah's body. Dechaine was seen walking out of the woods near where Sarah's body was found on the day Sarah went missing. Sarah's body had multiple small stab wounds, and Dechaine' s wife was surprised that his penknife was missing from his key chain. Nobody can corroborate Dechaine's alibi that he was using drugs and walking around the woods during the time the murder likely occurred. Dechaine's truck was locked and Dechaine had the keys, which he attempted to hide in the police cruiser. Lastly, multiple individuals testified that Dechaine confessed to the murder.

After considering all of the evidence in this case, old and new, the Court cannot conclude that Dechaine would receive a different verdict in a new trial. Accordingly, the defendant's motion for new trial is denied.

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