MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2015 ME 88

Docket: Kno-14-187

Argued: May 14, 2015

Decided: July 21, 2015

Panel: ALEXANDER, MEAD, GORMAN, and CLIFFORD, JJ.

STATE OF MAINE

v.

DENNIS J. DECHAINE

MEAD, J.

[¶1] Dennis J. Dechaine appeals from a judgment of the Superior Court 

(Knox County, Bradford, J.) denying his motion for a new trial, which was brought 

pursuant to the post-conviction DNA analysis statute, 15 M.R.S. §§ 2136-2138

(2014). Dechaine contends that the court erred or abused its discretion in 

(1) finding that the new DNA evidence admitted at the hearing, “when considered 

with all the other evidence in the case, old and new,” did not make it probable that 

a different verdict would result from a new trial, id. § 2138(10)(C)(1); (2) limiting 

the evidence that could be presented at the hearing to evidence concerning the new 

DNA testing and analysis; and (3) denying his motion to recuse. We affirm the 

judgment.
2

I. BACKGROUND

[¶2] In 1989, Dechaine was convicted of the kidnapping, sexual assault, and 

murder of twelve-year-old Sarah Cherry. State v. Dechaine, 572 A.2d 130, 131-32

(Me. 1990), cert. denied, 498 U.S. 857 (1990). We have addressed the case three 

times before today: id. (direct appeal); State v. Dechaine, 630 A.2d 234 (Me. 1993) 

(affirming the trial court’s denial of Dechaine’s motion for a new trial based on 

newly discovered evidence); and State v. Dechaine, 644 A.2d 458 (Me. 1994) 

(affirming the trial court’s order requiring Dechaine to return certain trial exhibits). 

In two of those decisions we summarized portions of the evidence heard by the 

jury at Dechaine’s trial, concluding that “[b]ased on all the evidence, the jury’s 

conclusion that Dechaine was guilty beyond a reasonable doubt of all charges 

submitted to it was rational.” Dechaine, 572 A.2d at 131-32 & n.3; see Dechaine, 

630 A.2d at 236-37.

[¶3] In 2000, the United States District Court for the District of Maine 

(Carter, J.) denied Dechaine’s petition for a federal writ of habeas corpus, 

affirming the recommended decision of United States Magistrate Judge 

David M. Cohen. Dechaine v. Warden, 2000 WL 33775285 

(D. Me. Nov. 21, 2000), aff’g Dechaine v. Warden, 2000 U.S. Dist. LEXIS 12289, 

2000 WL 1183165 (D. Me. July 28, 2000). Because the Superior Court’s 

judgment in the case at bar rested in part on its finding that “as several other courts 
3

have found, the evidence of Dechaine’s guilt is substantial,” we think it useful, 

before discussing the facts specific to Dechaine’s current motion for a new trial, to 

begin with Magistrate Judge Cohen’s extensive review of that evidence insofar as 

it is relevant to this appeal.1

A. Pre-Trial Motion To Obtain DNA Evidence

On January 26, 1989[,] Dechaine, through counsel Thomas 

J. Connolly, filed a motion for a continuance and permission to 

conduct DNA testing, then “a radical and new technique,” on 

fingernail clippings taken from Cherry’s body. The court promptly 

scheduled a hearing at which Judith Brinkman, a forensic chemist 

with the Maine State Police Crime Lab, testified and explained the 

forensic significance of DNA testing. Brinkman testified that in 

contrast to traditional serological testing methods, DNA “should be 

like a fingerprint, much more discriminating from one person 

compared to another except for in identical twins because identical

twins have the exact same DNA.” There were three methods of DNA 

testing; the method that Connolly proposed to use was known as

“polymerase chain reaction,” or “PCR,” then conducted only by one 

laboratory in California (which had a three- to four-month backlog) 

and in the “research stages” at the FBI laboratory.

Brinkman testified that she had been provided with ten 

fingernail clippings obtained during Cherry’s autopsy and had used up 

eight of them (all but the thumbnails) to perform blood-typing tests. 

The blood adhering to the nails was found to be human blood 

containing A and H antigens, consistent with type A blood but also 

possibly resulting from a mixture of bloods of type A and/or type O. 

The blood on the nails could not have been contributed by someone 

with type AB or B blood; however, that ruled out a relatively small 

percentage of the population inasmuch as persons with type A blood 

 1

 Magistrate Judge Cohen’s recommended decision includes complete record citations for each of the 

facts he recited, which, because they are readily obtainable, we have omitted for the ease of the reader.
4

comprised forty-one percent of the population and persons with type 

O forty-five percent.

Brinkman had tested the whole blood of both Dechaine and 

Cherry, determining that of Dechaine to be type O and that of Cherry 

to be type A. She theorized that the blood on the nails was solely that 

of Cherry, noting that Cherry’s hands were found bound and 

positioned near her neck, which had been bleeding. She further 

explained, “There was nothing that led me to believe that there was a 

mixture [of bloods]. If someone had scratched someone hard enough 

to make them bleed and cause crust underneath the fingernails, you 

would expect to find tissue, some type of skin material or something 

indicating that there you know, that there had been scratching or you 

would expect to find some type of trauma to the nail such as broken 

nails or something like that and there didn’t they didn’t appear to be 

that way.”

Brinkman reported that she had spoken with Jennifer 

Mehavolin of the California testing laboratory, who had advised that 

based on the small amount of blood available on the thumbnail 

clippings, it did not “sound like the possibility of getting good 

results.” In Brinkman’s opinion, high heat and humidity at the time of 

the murder also could have degraded the DNA. At the conclusion of 

the hearing the motion to continue for purposes of performing DNA 

testing was denied.

B. Trial

Venue in the case was changed to Knox County, Maine, where 

Dechaine was tried from March 6-18, 1989[,] with Superior Court 

Justice Carl O. Bradford presiding.

Testimony at trial revealed that John and Jennifer Henkel of 

Lewis Hill Road, Bowdoin, hired Cherry, a twelve-year-old girl who 

had just finished sixth grade, to babysit their ten-month-old infant on 

Wednesday, July 6, 1988. Cherry’s mother, Debra Cherry Crossman,

reminded her daughter the previous evening (as she always told her 

children when leaving) not to let anyone into the house or to inform 

any caller that she was alone. Only Cherry’s mother, stepfather, 
5

Christopher Crossman, sister Hillary, great-grandmother and friend 

Julie Wagg knew she was babysitting that day. At noon Jennifer 

Henkel called home and spoke with Cherry, who said that she was 

feeding the baby and about to fix herself some lunch.

Holly Johnson, a neighbor across the street from the Henkels, 

testified that at approximately 1 p.m. she heard a vehicle slowing 

down at the Henkels’ driveway and heard the Henkel dogs barking. 

About fifteen minutes later she saw a red Toyota truck heading 

northbound. She could not be sure that the two vehicles were the 

same or that the truck was in fact a Toyota.

Jennifer Henkel arrived home at about 3:20 p.m. She 

immediately noticed some papers[,] a little looseleaf notebook and a 

car-repair bill in the driveway and picked them up. She found both 

the garage-level and upper-level doors to the house, which she had left 

unlocked but closed, slightly ajar. Upon entering she saw the 

television set turned on, Cherry’s eyeglasses folded neatly in a 

rocking chair and her blue-jean jacket, sneakers and socks in a little 

neat pile next to a couch. Nothing seemed disturbed, misplaced or 

damaged. The baby was asleep in her crib, but Cherry was nowhere 

to be found. After a half-hour of fruitless searching an increasingly 

frantic Jennifer Henkel called police. Following his arrival home 

from work at between 3:30 p.m. and 3:45 p.m. John Henkel noticed 

what he thought was an unusual tire impression in the driveway and 

set some rocks around it to preserve it.

Sometime between 4:20 p.m. and 4:49 p.m. Leo Scopino and 

Daniel Reed, deputy sheriffs with the Sagadahoc County Sheriff’s 

Department, responded to Henkel’s call. Jennifer Henkel showed 

them the car-repair bill and notebook she had found in the driveway. 

The car-repair bill had the name “Dennis Dechaine” on top of it and 

described damage to a 1981 Toyota pickup truck. Neither the Henkels 

nor Cherry’s mother ever had heard of Dechaine.

Scopino and Reed found a phone-book listing for a Dennis 

Dechaine on Old Post Road in Bowdoinham and drove to the 

residence, arriving sometime after 5 p.m. Dechaine was not there, but 

the officers spoke to his wife. As the evening wore on, additional 
6

police officers became involved in a search for Cherry, Dechaine or 

Dechaine’s vehicle. A command post was set up at the corner of 

Lewis Hill and Dead River roads.

Arthur Spaulding, whose house is set back in the woods about 

five or six hundred feet off of Dead River Road, testified that 

sometime that evening between 8 and 8:30, after he had started his 

generator, he saw a man in a blue polo shirt who appeared to be in his 

twenties walk past his window in the direction of Dead River Road.

At about 8:45 p.m. Helen Small Buttrick of Dead River Road, 

who was driving home with her husband Harry, spotted a man 

walking across the lawn of her mother’s home, which was about seven 

hundred feet from the Buttricks’ residence. The Buttricks stopped and 

asked the man, who turned out to be Dechaine, what he wanted. 

Dechaine told the Buttricks he had been fishing and could not find his 

truck. Harry Buttrick offered to help Dechaine find it following a 

brief stop at the Buttrick home. Helen Buttrick, who noticed nothing 

unusual about Dechaine’s behavior, asked him where he lived. 

Dechaine responded that he lived in Yarmouth, was visiting in 

Bowdoinham “and sort of on the side he said I should have stayed 

there.” He also said that he had been in the woods for two hours and 

had followed the sound of a generator and come out. Dechaine left 

with Harry Buttrick to look for his truck.

At about 9 p.m. Mark Westrum, a detective with the Sagadahoc

County Sheriff’s Department, and Deputy John Ackley reported to the 

command post at the intersection of Lewis Hill and Dead River roads. 

Within thirteen minutes Ackley received a call from Helen Small

Buttrick advising that her husband was driving with a man who stated 

that he had lost his pickup truck. Ackley and Westrum set off to find 

the Buttrick vehicle, which they quickly located. Buttrick suggested 

that the police might be able to help Dechaine find his vehicle, and 

Dechaine got into the back seat of the police cruiser.

Ackley and Westrum drove Dechaine to the command post, 

where Ackley exited the vehicle and Reed got in. Reed gave 

Dechaine a Miranda warning and explained that the police were 

investigating the disappearance of a twelve-year-old girl. Dechaine 
7

stated that he had been fishing and lost his truck. According to Reed, 

Dechaine initially denied that the papers found in the Henkel 

driveway were his. He then acknowledged that they were his and 

stated that he kept them in the passenger seat of his truck. Dechaine 

and Reed engaged in a heated exchange over how the papers could 

have gotten into the Henkel driveway, after which Dechaine told 

Reed, “whoever grabbed the girl saw these, placed them up at the 

head of the driveway to set me up.”

Following the questioning Westrum [patted] Dechaine down. 

He noticed a handprint, fingers pointing downward, on the back of 

Dechaine’s shirt. Scopino also searched Dechaine. He found no 

weapons but observed a one-to-two-and-a-half inch scratch and 

circular bruise on Dechaine’s inner left arm and a circular scratch on 

Dechaine’s right knuckle, which appeared to be fresh. Scopino 

observed that Dechaine was trembling and his eyes were extremely 

large. He saw no blood on Dechaine’s clothes.

Dechaine was moved to a different cruiser, in the process of 

which Westrum discovered Dechaine’s keys placed underneath the 

seat behind which Dechaine had been seated. Dechaine then was 

taken on a search for his truck, which was located at approximately 

12:05 a.m. on July 7th. The truck, a red Toyota pickup with damage 

to the right-hand fender, was locked. Dechaine consented to its 

removal and search.

At approximately 2:40 a.m. Dechaine was again questioned, 

this time by Maine State Police Detective Alfred Hendsbee. 

Hendsbee asked Dechaine point-blank if [he] had taken Cherry, to 

which Dechaine responded that he did not do it and never would do 

such a thing. Hendsbee examined Dechaine and noticed, in addition 

to a bruise on his arm and a muddy handprint on the back of his shirt, 

faint scratch marks in his kidney area on the right-hand side that had 

not drawn blood. Dechaine’s pants appeared damp. Dechaine stated 

that he had made the handprint swatting flies and got the scratches 

walking through the woods. After being photographed at 

Bowdoinham Town Hall Dechaine was driven home at approximately 

4 a.m.
8

In the early-morning hours of July 7th Maine State Police 

Trooper Thomas Bureau performed a search with a dog in the vicinity 

of Dechaine’s truck. The dog picked up a track from the driver’s door 

that headed in a northeasterly direction for approximately one hundred 

and fifty feet to the edge of a bog, made a loop and came back to the 

driver’s door. Bureau casted the dog around the truck, and when he 

got to the passenger side he picked up a track that looped back in a 

westerly direction toward the Hallowell/Litchfield Road, crossed that 

road and continued in a westerly direction to a stream, crossed the

stream and began to head in a southerly direction, at which point the 

dog stopped tracking. Bureau could not tell whether the tracks picked 

up from the driver and passenger side were the tracks of the same 

person. The truck was secured and taken to the Maine State Police 

crime lab in Augusta.

On July 7th Dechaine and his wife, Nancy Emmons, consulted 

with attorney George Carlton. Emmons testified that on that day, 

when a photograph of Cherry was shown on the television news, 

Dechaine exclaimed, “my God, I’ve never seen that girl before.” He 

also remarked that he had never kidnapped anyone.

A search team discovered Cherry’s body concealed under a pile 

of brush at about noon on July 8th. The body was found in a wooded 

area off of Hallowell Road approximately four hundred feet from the 

spot on the opposite side of the road where Dechaine’s truck had been 

located. The distance from the Henkel residence on Lewis Hill Road 

north to the intersection of Dead River Road was about 1.9 miles; the 

distance from that intersection west on Dead River Road to Hallowell 

Road was about one mile; and the Dechaine truck was found about 

three-tenths of a mile north of that intersection off of Hallowell Road. 

The Spaulding residence was four-tenths of a mile west of the

intersection of Dead River and Hallowell roads.

Dr. Ronald Roy, chief medical examiner for the State of Maine, 

supervised removal of the body and conducted an autopsy upon it. 

Cherry was found bound and gagged . . . . She had been grazed and 

stabbed repeatedly in the head, neck and chest by a sharp instrument 

(in Dr. Roy’s opinion a small knife, like a penknife) and strangled 

with a scarf. She had died on July 6th, the precise time unknown. 
9

Cherry’s bound hands were positioned in front of her chest, just below 

her neck, and there was blood under her fingernails. Dr. Roy stated 

that he would not expect the blood to be that of her assailant inasmuch 

as even if she had scratched her assailant, “when you scratch 

somebody you don’t come away with bloody fingernails.” In 

Dr. Roy’s opinion, the stab wounds were small enough that he would 

not have been surprised if no blood transferred to the assailant.

Following discovery of the body, at approximately 2 p.m. on 

July 8th Hendsbee drove to the Dechaine residence and found 

Dechaine and Emmons sitting on their porch. According to 

Hendsbee, Dechaine immediately approached the vehicle and stated, 

“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.” Dechaine cooperated in the execution of a search 

warrant, saying, “do what you’ve got to do.” Hendsbee testified that 

during the search Dechaine also said that he could not believe he 

killed this girl when he could not even kill his own chickens. 

Hendsbee asked Emmons whether Dechaine carried a knife. Emmons 

responded that he had a penknife on his key ring. Hendsbee then 

informed her that the knife was not on Dechaine’s key chain. She was 

surprised.

Dechaine was arrested that afternoon and charged with the 

murder of Cherry. Westrum, who helped book Dechaine that day, 

testified that Dechaine became emotional, crying and sobbing and 

saying, “Oh my God; it should have never happened. . . . Why did I do 

this?” According to Westrum, Dechaine’s comments at that time 

included the following: “I didn’t think it actually happened until I saw 

her face on the news; then it all came back to me. I remembered it. . . . 

Why did I kill her? . . . What punishment could they ever give me that 

would equal what I’ve done.” Dechaine was transferred that evening 

to Lincoln County Jail. 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.” A second corrections officer who was also present, 

Brenda Dermody, recalled Dechaine having made a nearly identical 

statement.
10

Following removal of the body Bureau returned to the vicinity 

to confirm his suspicion that his dog had refused to continue tracking 

in the early-morning hours of July 7th because he had never scented a 

dead body and did not like the smell. The dog hesitated to go near the 

spot where the body had lain. Bureau estimated that during the earlier 

search the dog had stopped tracking approximately seventy-five to 

one hundred feet away from the body.

On July 8th the dog also discovered a piece of yellow rope on 

the ground two hundred and fifty eight feet from the location in which 

Dechaine’s truck had been found and one hundred and forty five feet 

from the location of the body. Later testing revealed that the piece of 

rope used to bind Cherry’s wrists, a piece of rope recovered from 

inside Dechaine’s truck and the piece of rope found in the woods all 

had the same basic characteristics. The piece of rope found in the 

woods and that from Dechaine’s truck matched exactly; they “were 

once one rope.” The rope binding Cherry’s wrists was too damaged 

to permit a conclusion whether there was an exact match with the rope 

found in the woods.

Four latent fingerprints were found on the surfaces of 

Dechaine’s truck. One could not be identified; the other three 

matched those of Dechaine. No fingerprint of Cherry’s was found on 

the numerous items inside the truck, nor any hair that matched hers. 

Nor was any blood found, except blood on a napkin that appeared to 

be old.

Dusting of the two doors and doorframes leading to the Henkel 

residence yielded two latent fingerprints, neither of which matched 

those of Dechaine or Cherry. The notebook and autobody-receipt 

were not tested for latent fingerprints in part because so many people 

had handled them. Scopino in addition had written in the notebook 

upon first responding to Jennifer Henkel’s call[,] an admitted mistake. 

The tire imprint detected by John Henkel was found to have a design 

consistent with the tread design of the left front tire of Dechaine’s 

truck. No conclusive determination was possible because of the 

faintness of the cast of the tire that the Maine Crime Lab had prepared 

and the relatively poor quality of the impression in the driveway.
11

No blood or unidentified hairs or fibers were found on the 

clothes Dechaine had been wearing on July 6th; however, they 

happened to have been laundered by the time police seized them. No 

blood, hairs or fibers matching any from Cherry’s body (other than 

blue cotton of negligible probative value) were found under his 

fingernails. A pink synthetic fiber discovered on a tree near the body 

did not match fibers found on either Dechaine or Cherry.

Dechaine took the stand in his own defense at trial, denying that 

he had abducted, tied up, buried or killed Cherry. He also denied 

having confessed. Dechaine, who was thirty-one years old at the time 

of trial, testified that on the afternoon of July 6th he went to a wildlife 

refuge on Merry Meeting Bay where he injected a drug that he had 

purchased in a museum bathroom in Boston from a person who told 

him it was speed. He then took a route that led him to Hallowell 

Road, noticed a woods road and pulled into it. He wandered into the 

woods off the side of the road and injected more of the drug. Feeling 

“more lucid” and “more energetic,” he wandered for some period of 

time in the Hallowell Road area, stopping frequently and finishing the 

remainder of the drug. At one point he was unable to find his truck, 

which may or may not ultimately have been found where he last left 

it. He did not believe that he had left it locked. 

[Dechaine testified that] [a]t about dusk he followed the sound 

of a generator and came out to a dirt road. He lied to the Buttricks 

about where he was from and his activities that afternoon for fear that 

they would notice he was under the influence of drugs. He told the 

same lie (that he had been out fishing) to police for the same reason. 

He recalled having immediately acknowledged ownership of the 

auto-body receipt and notebook when presented with those items by 

Reed. He hid his keys from the police when he discovered them after 

mistakenly informing the police that he had left them in his truck. 

He wanted to avoid further confrontation, particularly with Reed. He 

was not carrying a penknife on his key ring in July 1988. Asked 

whether there was any period of which he had no memory, Dechaine 

replied, “I can safely say there are periods of time where my memory 

is probably not as sharp as it could have been, but I think that’s 

because I was doing nothing of any significance to have to cause me 

to have reference points.”
12

Dechaine had a reputation for peacefulness and non-violence. 

He was upset by violence and the sight of blood.

. . . .

After approximately nine hours of deliberation the jury returned 

a verdict of guilty as to all counts.

. . . .

E. Custody of Clippings

Prior to the filing of Dechaine’s motion for a new trial Connolly 

sought to remove certain of the defense exhibits in the Dechaine case. 

At a hearing held February 4, 1991[,] Connolly and prosecutor [Eric] 

Wright represented to the court that they had agreed that the exhibits 

in issue, which included some obtained by the state but offered by the 

defense, should be maintained in the custody of the court. The court 

thereafter issued an order “that the clerk of court shall not permit the 

removal of any exhibit in this case without further Order of the court” 

and that “insofar as any person wishes to examine any exhibit, such 

examination is to be done within the clerk’s office and under the 

supervision of the clerk.”

By form letter dated April 17, 1992[,] an assistant clerk of the 

court informed counsel for both Dechaine and the state that the 

exhibits would be disposed of in two weeks unless removed by 

counsel. By letter dated April 22, 1992[,] Connolly asked that the 

clerk not dispose of any evidence, offered to arrange for pickup if

necessary and called the clerk’s attention to the existence of the 

previous order in the matter. The court signed a form order dated 

April 30, 1992[,] authorizing the clerk to dispose of any exhibits not 

removed by counsel of record within thirty days. On May 5, 1992[,]

Connolly removed defense exhibits 1-26, 26A and 27-46 from the 

clerk’s office. By letter dated June 8, 1993[,] Connolly transmitted 

fingernail clippings that he stated were those of Cherry to a laboratory 

in Boston for DNA testing.
13

On December 13, 1993[,] the state filed a motion for return of 

property taken by Connolly, including the thumbnail clippings 

(exhibits 26 and 26A). A hearing was held at which 

Fernand LaRochelle, supervisor of the criminal division of the 

Attorney General’s Office, testified that he became aware for the first 

time on December 9, 1993[,] that Connolly possessed the fingernail 

clippings. LaRochelle contacted Connolly, who declined to return the 

clippings, stating “that they were in a safe place and that if we 

executed a search warrant of his office that we would not find them 

because they were not there.” At the conclusion of proceedings the 

court ordered the property at issue turned over to the state crime 

laboratory forthwith, with a proviso that the fingernail clippings could 

be destroyed only upon express written order of the court. Connolly 

that day returned certain exhibits, including the fingernail clippings. 

The order compelling return of the exhibits was upheld on appeal.

On May 24, 1994[,] CBR Laboratories, Inc. reported the results 

of tests on fingernail clippings that it had received from Connolly on 

June 10, 1993[,] and on blood labeled as that of Dechaine that it had 

received on April 22, 1994. The laboratory found that there were two 

or more donors to the DNA extracted from one of the fingernails and 

excluded Dechaine as a donor.

F. State Post-Conviction Review Proceeding

Dechaine on September 29, 1995[,] filed a pro se state petition 

for post-conviction review. He alleged one ground of actual 

innocence and three grounds of ineffective assistance of counsel . . . .

The state on April 4, 1996[,] moved to depose Dechaine’s 

co-counsel George Carlton, noting inter alia that (i) the State Petition 

had been languishing inasmuch as Dechaine had failed to respond to 

the court’s inquiries concerning whether he had retained or required 

appointment of counsel, (ii) Carlton, whom the state represented was 

not present at trial when Dechaine testified, possessed knowledge 

disproving Dechaine’s claim of innocence, (iii) although Dechaine 

had known the results of the CBR Laboratories DNA testing since 

May 1994, he had waited to file the State Petition until 
14

September 15, 1995, two weeks after Carlton suffered a stroke, and 

(iv) Carlton was still capable of providing reliable information.

. . . .

The state on June 12, 1996[,] moved to dismiss the State 

Petition pursuant to 15 M.R.S.A. § 2128(5), which had been amended 

effective September 29, 1995 (the day of Dechaine’s filing) to 

provide:

A petition may be dismissed if it appears that by delay in 

its filing the State has been prejudiced in its ability to 

respond to the petition or to retry the petitioner, unless 

the petitioner shows that it is based on grounds of which 

the petitioner could not have had knowledge by the 

exercise of reasonable diligence before the circumstances 

prejudicial to the State occurred. If the delay is more 

than 5 years following the final disposition of any direct 

appeal to the Maine Law Court . . . prejudice is 

presumed, although this presumption is rebuttable by the 

petitioner.

. . . .

In support of its Motion To Dismiss, the state on 

December 19, 1996[,] filed five affidavits, three of which addressed 

Carlton’s purported knowledge of Dechaine’s guilt. These included

an affidavit of LaRochelle averring inter alia that on the morning of 

July 8, 1988[,] he called Carlton and “told him that I had just two 

questions for him and he could answer or not. I asked 

Attorney Carlton if Sarah was still alive, and, if so, were we searching 

in the right area. Attorney Carlton replied that Sarah was not alive 

and added something to the effect that we were looking in the right 

area.”

. . . .

By decision filed February 10, 1999[,] the court granted the 

Motion To Dismiss, holding that not only had Dechaine failed to rebut 
15

the statutory presumption of prejudice pursuant to 15 M.R.S.A. 

§ 2128(5) but that the state also had demonstrated actual prejudice. 

The court noted that following the state’s “extensive but ultimately 

unsuccessful efforts to depose Carlton, which were continually 

opposed by the Petitioner[,]” Carlton had died on June 21, 1998. . . . 

The court [also] concluded, “The dismissal of the Dechaine PCR 

petition on procedural grounds will not result in a manifest injustice 

because the Petitioner cannot show that no reasonable juror would 

convict him even if he could get DNA test results of the victim’s 

fingernail nail [sic] clippings into evidence.”

. . . .

II. Discussion

. . . .

The voluminous record in this case raises troubling questions. 

How could the professedly non-violent Dechaine have randomly 

abducted a twelve-year-old child and committed this atrocious crime? 

Dechaine denied under oath that he did it. No fingerprints, hairs or 

fibers matching those of Dechaine were found on or near the victim or 

at the Henkel home. Conversely, no fingerprints, hairs or fibers 

matching those of Cherry were found on Dechaine or in or on 

Dechaine’s truck. Debris, including a pink synthetic fiber, was found 

near the crime scene that had no apparent connection to Dechaine or 

Cherry. The Maine State Police tracking dog did not pick up a track 

from one side of Dechaine’s truck to the other[,] evidence that the 

state conceded was “a little ambiguous.” Cherry had been warned not 

to let a stranger into the house, and there was no evidence of a 

struggle there. Dechaine’s purported confessions contained no details 

of the crime. Dechaine was cooperative with police officers, allowing 

his person and his truck to be searched (although he admitted both that 

he hid his keys and at various points lied).

Nonetheless, the evidence of Dechaine’s guilt remains 

substantial. Dechaine’s papers were found in the Henkel driveway; a 

neighbor thought she saw a red Toyota pickup truck heading north (in 

the direction in which the body later was found) shortly after the last 
16

known contact with Cherry; Dechaine’s truck was found near the 

body; Dechaine himself emerged from the woods in the general 

vicinity of the body; a rope from Dechaine’s truck was found in 

between the truck and the body; the rope used to bind Cherry’s hands 

was consistent with that in Dechaine’s truck and that found in the 

woods; the dog evidence indicated that someone headed from the 

passenger side of Dechaine’s truck toward the spot where the body 

was found; Nancy Emmons was surprised that the penknife was not 

on her husband’s key ring; and four police or corrections officers 

testified that Dechaine made incriminating statements on three 

separate occasions within the space of several hours on July 8, 1988[,]

the pivotal day on which the body was found and Dechaine was 

placed under arrest. Finally, three attorneys aver that Carlton 

indicated to them that Dechaine was guilty; most chillingly, that 

Carlton conveyed to LaRochelle of the Attorney General’s Office on 

the morning of July 8, 1988[,] before Cherry’s body was found that 

Cherry was no longer alive and that searchers were looking in the 

right place.

. . . .

Against this backdrop, Dechaine now offers the May 1994 

DNA evidence that two people contributed DNA to the Cherry 

thumbnail clippings, neither of which was him. This evidence, 

standing alone, simply does not suffice to place this now 

twelve-year-old case “within the narrow class of cases . . . implicating 

a fundamental miscarriage of justice.”

As an initial matter, as the state points out, the manner in which 

the nail clippings were handled raises concerns about chain of custody 

and possible contamination. Even assuming arguendo that there were 

no such problem, 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. There is no evidence that 

the mystery DNA necessarily or even likely transferred to the nail 

clippings during commission of the crime. Indeed, the only evidence 

of record touching on the subject remains that of Brinkman and Roy 

to the effect that the blood of the assailant would not have been 

expected to be found on Cherry’s nails.
17

Even with the benefit of the DNA evidence and the excluded 

Senecal[2] evidence, a reasonable juror could have found Dechaine 

guilty beyond a reasonable doubt.

Dechaine, 2000 U.S. Dist. LEXIS 12289 at *3-24, *27, *37-48, *60-64 (citations 

omitted).

[¶4] The instant case began in 2003 when Dechaine filed a motion for a new 

trial pursuant to Maine’s original DNA analysis statute. See 15 M.R.S. 

§§ 2136-2138 (2005). Following DNA testing, the court limited the scope of the 

evidence that Dechaine would be allowed to present at a hearing on the motion to 

any new DNA evidence, excluding proffered evidence related to Dechaine’s 

admissions and the time of the victim’s death. On the day that the hearing was to 

take place, Dechaine withdrew his motion on the ground that he could not meet his 

burden under the then-existing statute.

[¶5] The Legislature made substantial changes to the statute in 2006. 

P.L. 2005, ch. 659, §§ 1-6 (effective Sept. 1, 2006) (codified at 15 M.R.S. 

§§ 2136-2138 (2014)). In 2008 Dechaine again moved for a new trial, this time 

 2

 Dechaine had identified Douglas Senecal as an alternative suspect.
18

pursuant to the amended statute.3 The court ordered additional DNA testing and 

analysis on several items pursuant to an agreement reached by the parties.

 3

 In its present form the statute provides, in part:

§ 2138. Motion; process

1. Filing motion. A person authorized in section 2137 who chooses to move for 

DNA analysis shall file the motion in the underlying criminal proceeding. The motion 

must be assigned to the trial judge or justice who imposed the sentence unless that judge 

or justice is unavailable, in which case the appropriate chief judge or chief justice shall 

assign the motion to another judge or justice. Filing and service must be made in 

accordance with Rule 49 of the Maine Rules of Criminal Procedure.

. . . .

4-A. Standard for ordering DNA analysis. The court shall order DNA analysis if a 

person authorized under section 2137 presents prima facie evidence that:

A. A sample of the evidence is available for DNA analysis;

B. The evidence to be tested has been subject to a chain of custody sufficient to 

establish that the evidence has not been substituted, tampered with, replaced or 

altered in a material way;

C. The evidence was not previously subjected to DNA analysis or, if previously 

analyzed, will be subject to DNA analysis technology that was not available when 

the person was convicted;

D. The identity of the person as the perpetrator of the crime that resulted in the 

conviction was at issue during the person's trial; and

E. The evidence sought to be analyzed, or the additional information that the new 

technology is capable of providing regarding evidence sought to be reanalyzed, is 

material to the issue of whether the person is the perpetrator of, or accomplice to, 

the crime that resulted in the conviction.

. . . .

8. Results. The crime lab shall provide the results of the DNA analysis under this 

chapter to the court, the person authorized in section 2137 and the attorney for the State. 

Upon motion by the person or the attorney for the State, the court may order that copies 

of the analysis protocols, laboratory procedures, laboratory notes and other relevant 

records compiled by the crime lab be provided to the court and to all parties.
19

 A. If the results of the DNA analysis are inconclusive or show that the person is 

the source of the evidence, the court shall deny any motion for a new trial. If the 

DNA analysis results show that the person is the source of the evidence, the 

defendant's DNA record must be added to the state DNA data base and state DNA 

data bank.

B. If the results of the DNA analysis show that the person is not the source of the 

evidence and the person does not have counsel, the court shall appoint counsel if 

the court finds that the person is indigent. The court shall then hold a hearing 

pursuant to subsection 10.

. . . .

10. Standard for granting new trial; court's findings; new trial granted or 

denied. If the results of the DNA testing under this section show that the person is not 

the source of the evidence, the person authorized in section 2137 must show by clear and 

convincing evidence that:

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 proffered DNA test results have been discovered by the person since 

the trial;

(3) The proffered 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
20

[¶6] Two years later, Dechaine moved to allow evidence at the pending 

hearing concerning (1) the time of the victim’s death, (2) “any alternative suspect,” 

(3) “any so-called confession or admissions,” and (4) “[a]ll other evidence which is 

exculpatory.” As authority for his request, Dechaine relied upon the amended 

statute and the Due Process Clauses of the United States and Maine Constitutions. 

The State objected, contending that the court was already required by statute to 

consider “all the other evidence in the case, old and new,” and that the statutory 

definition of that phrase, which included the evidence admitted at trial and prior 

proceedings, limited the admissible evidence to evidence concerning the new DNA 

testing and analysis. See 15 M.R.S. § 2138(10). Construing and quoting 

section 2138(10), the court found that “[i]t is . . . clear that ‘new’ evidence may be 

admitted only if it is ‘relevant to the DNA testing and analysis conducted on the 

 (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.

The court shall state its findings of fact on the record or make written findings of fact 

supporting its decision to grant or deny the person authorized in section 2137 a new trial 

under this section. If the court finds that the person authorized in section 2137 has met 

the evidentiary burden of paragraph A, the court shall grant a new trial.

For purposes of this subsection, “all the other evidence in the case, old and new,” means 

the 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 (2014).
21

sample’ or ‘relevant to the identity of the source of the DNA sample.’” The court 

granted Dechaine’s motion “to the extent that the DNA evidence and analysis 

actually implicates [an] alternative suspect,” and otherwise denied the motion.

[¶7] In July 2011, Dechaine filed a motion asking the court to recuse and 

a motion to present a claim of actual innocence. The State objected, arguing that 

(1) the statute did not contemplate relitigating trial issues apart from issues 

generated by the new DNA analysis; and (2) if a “freestanding” claim of actual 

innocence is cognizable in Maine, it must be resolved in the statutory 

post-conviction review process. See 15 M.R.S. §§ 2121-2132 (2014). The court 

ruled that “[t]o establish actual innocence under [15 M.R.S.] 

[s]ection 2138(10)(A), the defendant may introduce ‘all the other evidence in the 

case, old and new.’” It denied the motion insofar as it sought to present a claim of 

actual innocence independent of the statute.

[¶8] The motion for new trial went to hearing on June 12-14, 2012. At the

conclusion of the hearing, Dechaine requested additional DNA testing, utilizing a 

different sample-collection technique, on the victim’s t-shirt and bra, a bandana 

that had been used as a gag, and a scarf that had been used as a ligature around her 

neck. The court granted the request and recessed the hearing. After the DNA 

testing laboratory filed five additional reports concerning those items, the hearing 

resumed on November 7, 2013, and concluded the following day.
22

[¶9] On April 9, 2014, the court denied Dechaine’s motion for a new trial in 

a twenty-seven-page decision, finding that Dechaine had not met the burden 

imposed on him by 15 M.R.S. § 2138(10)(C) to show by clear and convincing 

evidence that a new trial would probably result in a different verdict. 

See 15 M.R.S. § 2138(10)(C)(1) (requiring the defendant to establish, by clear and 

convincing evidence, that “[t]he DNA test results, when considered with all the 

other evidence in the case, old and new, admitted in the hearing . . . would make it 

probable that a different verdict would result upon a new trial”). By separate 

order, the court also denied Dechaine’s motion to recuse.

[¶10] The court based its ultimate conclusion on its findings that (1) none of 

the new DNA evidence implicated Douglas Senecal, whom Dechaine had 

advanced as an alternative suspect since the beginning of the case; (2) there was no 

evidence that unidentified male DNA found on one-half of the victim’s left 

thumbnail (discussed in detail infra), which did not come from Dechaine, was 

connected to her murder; (3) concerning the left thumbnail DNA, the testimony of 

Catherine MacMillan, a Maine State Police Crime Laboratory forensic DNA 

analyst, and that of two additional experts in DNA analysis, was “credible and 

persuasive” when those witnesses opined that contamination of the sample in the 

circumstances of this case was likely; (4) contamination of the left thumbnail 

sample was further suggested by the fact that the DNA on the nail did not match 
23

male DNA found on other items closely related to the crime that were the subject 

of the November 2013 hearing; and (5) “as several other courts have found, the 

evidence of Dechaine’s guilt is substantial.”

[¶11] This appeal followed.

II. DISCUSSION

A. Motion For New Trial

[¶12] Dechaine contends that he is entitled to a new trial pursuant to 

15 M.R.S. § 2138(10)(C), which provides:

If the results of the DNA testing under this section show that the 

person is not the source of the evidence, the person authorized in 

section 2137 must show by clear and convincing evidence that:

. . . . 

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 proffered DNA test results have been discovered by the 

person since the trial;

(3) The proffered 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 
24

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.

. . . . 

For purposes of this subsection, “all the other evidence in the case, old 

and new,” means the 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).

[¶13] We recently stated the standard of review:

We review a court’s factual findings on a motion for a new trial for 

clear error. We review the court’s interpretation of the 

post-conviction DNA analysis statute de novo. When a court has 

reached findings that are supported by the record and has interpreted 

and applied the statute properly, the court’s ultimate decision whether 

to grant a new trial is reviewed for an abuse of discretion.

State v. Reese, 2013 ME 10, ¶ 22, 60 A.3d 1277 (citations omitted). Additionally, 

“[w]hen reviewing on appeal findings of fact that must be proved by clear and 

convincing evidence, we determine whether the factfinder could reasonably have 

been persuaded that the required factual finding was or was not proved to be highly 
25

probable.” Bailey v. Bd. of Bar Examiners, 2014 ME 58, ¶ 17, 90 A.3d 1137 

(quotation marks omitted).

[¶14] What follows is a discussion of the evidence admitted during the two 

parts of the hearing on Dechaine’s motion for a new trial, and the application of the 

requirements of section 2138(10)(C) to that evidence given the burden of proof

specified by the statute.

1. Left Thumbnail DNA

[¶15] During the three days of hearing in June 2012, the primary piece of 

evidence at issue was the DNA mixture that included male DNA found on one-half 

of Sarah Cherry’s left thumbnail. As discussed infra, experts testified that 

Dechaine was excluded as its source, as was Douglas Senecal and other potential 

alternative suspects. The contributor of the DNA remains unknown, and, 

according to Catherine MacMillan, because the DNA was degraded and did not 

yield a full profile, DNA alone can never positively identify that person. Dechaine 

contends that the presence of another male’s DNA on the victim’s thumbnail 

makes it probable that a new jury would acquit him. The State argues that a new 

trial would not yield a different result for several reasons, chief among them being 

the likelihood that the male DNA resulted from contamination of the nail sample 

and is therefore not evidence that is relevant to the question of who committed the 

crime.
26

[¶16] The trial court’s thorough decision amply supports its ultimate 

conclusion that “the defendant has failed to connect the DNA under Sarah’s 

fingernails to her murderer.” Relevant to the thumbnail DNA, the decision 

discussed the chain of custody, the results of the DNA testing, and the possibility 

of contamination.

(a) The Chain of Custody

[¶17] In July 1988 the victim’s thumbnails went from the autopsy room to 

the State Crime Lab for blood typing, but not DNA testing. From there they went 

to the jury room at the trial; an exhibit room at the Knox County Superior Court 

Clerk’s Office following the trial; a file in Attorney Thomas Connolly’s office 

when they were released to him by the clerk’s office; CBR Labs via FedEx in 1993 

when Connolly sent them there for DNA testing; back to Connolly’s office via 

FedEx; back to the State pursuant to a court order some nineteen months after 

Connolly took possession of them; and finally back to the State Crime Laboratory 

for DNA testing in March 2003, almost fifteen years after they were collected at 

the autopsy.

(b) Results of the DNA Testing

[¶18] CBR Labs and the State Crime Laboratory made the same finding—

half of the left thumbnail tested by CBR showed the presence of a degraded DNA 

mixture that included male DNA, and it yielded a partial profile from which 
27

Dechaine was excluded. The remaining half, as well as the right thumbnail, 

revealed no male DNA. Catherine MacMillan testified that she was only able to 

exclude Dechaine as a contributor to the mixture by significantly lowering the 

laboratory’s normal testing threshold. She further testified that she could not 

identify what biological material was the source of the DNA (nor could any of the 

experts), or say how it came to be on the nail, when it was placed there, or whose it 

was. The experts who testified at the hearing disagreed as to whether it was 

possible to say that the male DNA in the mixture came from only one male.

(c) Possibility of Contamination

[¶19] The court heard testimony from Robert Goodrich, a veteran forensic 

medical technician with the Chief Medical Examiner’s Office who assisted at the 

Cherry autopsy, which was performed in the local hospital morgue. Goodrich 

described conditions at the autopsy that, from a DNA collection perspective, can 

only be described as primitive. The court could easily conclude that at the time the 

fingernail clippings were originally taken they were potentially exposed to DNA 

unrelated to the crime coming from other bodies that the nail clippers had been 

used on; the tool chest that they were stored in; the bloody, “grungy” towels that 

the clippers were laid on in the chest; or the examiners themselves, who wore no 

masks and only sometimes wore gloves. It was explained by a state trooper who 
28

worked for the crime lab in the mid-1980s, and by Attorney Connolly, that blood 

evidence, not DNA, was the focus of sample collection at that time.

[¶20] MacMillan testified that the conditions described by Goodrich 

suggested “a very highly contaminated toolbox.” She said that she would be 

concerned about contamination of samples obtained under those circumstances 

because when utilizing modern polymerase chain reaction (PCR) DNA analysis, in 

which a very small amount of genetic material is replicated millions of times in 

order to produce a sample for analysis, even the act of speaking over a sample 

could contaminate it and affect the result. She agreed that if a sample were 

contaminated with DNA not related to the crime, then the PCR process would 

replicate the irrelevant DNA millions of times. MacMillan said that despite the 

techniques the State Crime Laboratory now utilizes—single-use instruments and 

pipette tips, sterile scalpels, gloves, bleach for the analysts’ gloves and hands, and 

an autoclave to sterilize tubes—cross-contamination has occurred.

[¶21] Other experts who testified at the hearing, including Dr. Frederick 

Bieber, a member of the Harvard Medical School faculty and a geneticist at 

Brigham and Women’s Hospital, and Dr. Carll Ladd, the supervisor of the DNA 

section at the Connecticut Forensic Laboratory, agreed with MacMillan’s concern 

regarding the possibility of contamination. The court explicitly found the 

testimony of MacMillan, Bieber, and Ladd concerning the probability of 
29

contamination to be “credible and persuasive.” Dr. Ladd went so far as to say, in 

discussing the collection of the victim’s fingernails at the autopsy, “I can’t imagine 

anybody in forensic DNA testing attempting to defend that procedure by today’s 

standards.”

2. Other New DNA Evidence

[¶22] During the two days of hearing in November 2013, the focus was on 

several items that had been sent for a new round of DNA testing using a scraping, 

as opposed to swabbing, collection technique. Specifically, testing was performed 

on the victim’s t-shirt and bra, a bandana that was found in her mouth, and a scarf 

that was used as a ligature around her neck. The testing generated five additional 

reports from Orchid Cellmark Labs, dated

• 8/31/12: the initial supplemental report;

• 9/28/12: generated after Orchid Cellmark received a blood 

sample from Dechaine;

• 10/12/12: generated after William Moore, a private investigator 

and the son of James Moore (author of a book about the 

Dechaine case), traveled to Florida and obtained at a restaurant 

a coffee cup, napkin, and fork purportedly used by Douglas 

Senecal, whom Dechaine had previously advanced as an 

alternative suspect;

• 12/28/12: generated using a different form of testing—instead 

of Y-STR testing, which analyzes only male Y-chromosome 

DNA, this report resulted from standard STR testing utilizing 

an additional amplification method; and
30

• 7/19/13: generated using STR testing with a second 

amplification method.

[¶23] Dr. Rick Staub, the expert called by Dechaine who represented Orchid 

Cellmark at the hearing, testified that the DNA analyzed in the reports

was of low quantity and could be subject to what we call stochastic 

effects and is sometimes difficult to interpret. . . . In plain English that 

means . . . when you get to a [] low enough level, it doesn’t always 

amplify and give you everything that’s there. . . . [I]t can cause the 

interpretation to be confusing. . . . [I]f a laboratory is careful in their 

analysis . . . it would be accurate. But you have to be very careful 

when you analyze. . . . It can lead to inconclusive results . . . .

. . . .

I think in general the samples were fairly low level. Some were 

higher than others, but pretty low levels. . . . Particularly the male 

DNA in the samples. . . . Because the samples were a mixture of male 

and female DNA.

[¶24] In summary form, the additional testing yielded the following results:

• T-shirt: Y-STR testing revealed a mixture containing at least 

two males from which Dechaine could not be excluded and 

from which the coffee cup DNA (presumably Senecal’s) could 

be excluded. Dr. Staub calculated the inclusion probability for 

Caucasian males as 11 in 4114, that is, 1 Caucasian male of 374 

could be a contributor to the mixture. He agreed that that 

statistic becomes meaningful if an identified male who could be 

a contributor was at or near the scene of the crime.

• Scarf: In Y-STR testing of two samples taken from the scarf, 

one yielded a mixture of at least two males and the other was 

unclear. Dechaine could not be excluded from the profile 

obtained, nor could the coffee cup donor. Staub calculated the 

inclusion probability for Dechaine as 115 in 4114, or roughly

1 in 35; the probability for the coffee cup donor was 96 in 4114 
31

[roughly 1 in 43]. In STR testing (the last two reports), no 

conclusion could be reached regarding Dechaine.

• Bra: The bra yielded a male DNA profile; analysis was 

inconclusive as to whether Dechaine could be a contributor. 

However, Staub testified that it appeared to be the same male 

who was a contributor on the t-shirt, scarf, and bra, and so he 

agreed that of the people that Orchid Cellmark tested, only 

Dechaine fit the criteria. The coffee cup donor, who was 

excluded from the t-shirt, did not fit the criteria.

• Bandana: The bandana yielded no male DNA.

• Left Thumbnail: Although the thumbnail DNA was not 

specifically the subject of the Orchid Cellmark reports, Staub 

testified that both Dechaine and the coffee cup donor were 

excluded as its source.

[¶25] Prior to the new round of testing, Dr. Staub had a working hypothesis 

that if DNA on the items closely associated with the victim also matched the left 

thumbnail DNA, then that finding would work against the possibility that the 

thumbnail DNA resulted from contamination. He agreed that the test results 

refuted that hypothesis.

[¶26] Dr. Greg Hampikian, a professor of biology and criminal justice at 

Boise State University and the director of the Idaho Innocence Project, who was 

called by Dechaine and who testified at both the June 2012 and November 2013 

hearings, took no issue with Staub’s analysis, although he stood by his earlier 

opinion that the half of the left thumbnail on which there was no male DNA served 

as a control for the half on which there was—in Hampikian’s view, if there was 
32

contamination then it would be seen on both parts of the nail. Hampikian agreed 

that (1) the coffee cup donor was excluded from the nail sample, (2) Dechaine 

could not be excluded from the t-shirt and scarf, and (3) “the nails don’t fit all the 

other evidence.”

[¶27] Dr. Ladd, who was called by the State and who also testified in both 

parts of the hearing, repeated his earlier conclusion that “based on the way the 

clippers were stored and handled [] I would say that is textbook conditions for 

contamination.” He disagreed with Hampikian that the second half of the 

thumbnail served as a control; in Ladd’s view it was not a known quantity as a 

standard control would be, but rather “simply [] another evidentiary sample.” He 

said that the second half of the nail might have DNA on it at such a low level as to 

be non-reproducible, and that “when you’re talking about low level contaminants, 

you can’t assume that they are evenly spread out.”

[¶28] Ladd also testified that when a laboratory engages in “low copy 

number PCR” or “enhanced interrogation methods,” as in this case, the testing 

process becomes “considerably more sensitive than traditional STR testing,” with 

the result that “you’ve increased the chance of contamination being a factor in the 

results.” Ladd said that ultimately

there then becomes a question as to whether you can determine if the 

reported results are reflective of the evidence at the time of the 

incident and so to what degree are they scientifically relevant. . . . 
33

[T]he disagreement is not whether somebody is included or excluded, 

it’s whether they are relevant to the incident.

. . . .

With these types of enhanced interrogation procedures, and given that 

the proper safeguards for mitigating contamination were definitely not 

employed in this case and are not employed back in the ‘80s anywhere 

in the United States, it is difficult to answer [whether the DNA results 

from the five new reports were the product of contamination or are 

otherwise meaningful]. . . . Is that the way the evidence was at the 

time of the incident? I don’t believe it’s possible to conclusively 

make that determination.

[¶29] Ladd also took issue with using the coffee cup DNA as “[a] pseudo 

known [] used to represent the profile of a particular individual.” He said that 

another person’s DNA can be on an item that is collected, or the collector can 

simply make a mistake. Finally, he noted that the Cellmark reports indicated 

apparent contamination at the laboratory itself, which he said was “not really 

surprising” given the “particularly sensitive procedures” being used.

3. Application of the Burden of Proof to These Facts

[¶30] Pursuant to section 2138(10)(C), Dechaine had the burden to establish 

by clear and convincing evidence all five of its enumerated elements. The court 

found that he failed to prove two, namely that “[t]he DNA test results, when 

considered with all the other evidence in the case, old and new . . . would make it 

probable that a different verdict would result upon a new trial,” and that “[t]he 

DNA test results and other evidence admitted at the hearing . . . are material to the 
34

issue as to who is responsible for the crime for which the person was convicted.” 

15 M.R.S. § 2138(10)(C)(1), (4).

[¶31] When, as here, the court determines that the perpetrator is not the only 

possible source of the DNA at issue, we consider two questions:

(1) whether the court erred in determining that the DNA could have 

come from a source other than the perpetrator of the crime, and (2) if 

the court’s finding that the DNA could have come from another 

source is supported by competent evidence in the record, whether the 

court erred or abused its discretion in denying the motion for a new 

trial pursuant to 15 M.R.S. § 2138(10)(C).

Reese, 2013 ME 10, ¶ 24, 60 A.3d 1277 (citation omitted).

[¶32] Here, the court did not clearly err in finding that the left thumbnail 

DNA could have come from a source other than the perpetrator. As discussed, 

there was ample expert testimony, found to be “credible and persuasive” by the 

court, that the DNA could have resulted from contamination at the autopsy or later, 

during the left thumbnail’s fifteen-year odyssey from the autopsy room to the State 

Crime Laboratory. Furthermore, the court was justified in finding that there was 

no evidence that Sarah Cherry had struggled with her killer, meaning that it was 

entirely possible that the small amount of unidentified male DNA on her thumbnail 

was left there before her death by a person and in a manner altogether unrelated to 

her murder. In sum, “the court’s finding that [] contamination was possible is not 

clearly erroneous.” Reese, 2013 ME 10, ¶ 26, 60 A.3d 1277.
35

[¶33] Turning to the court’s determination that a new trial would probably 

not result in a different verdict, the second round of testing that was the subject of 

the November 2013 hearing does not help Dechaine’s cause, in that it was, to the 

limited extent that inclusion ratios are useful, inculpatory and not exculpatory. The 

experts all testified that only Dechaine, of the identified males compared, could not 

be excluded as a sole contributor of the male DNA found on the t-shirt, bra, and 

scarf.

[¶34] Concerning the left thumbnail DNA that was the subject of the 

June 2012 hearing, the record supports the court’s findings that (1) there is no 

evidence that the DNA is connected to the crime at all, although there is abundant 

evidentiary support for a contrary conclusion that the DNA likely resulted from 

contamination as opposed to being left by the murderer; that support included the 

fact that none of the profiles generated from items known to be intimately 

connected to the crime in the second round of testing matched the thumbnail 

DNA;4 (2) it identifies no one; and (3) it excludes Douglas Senecal, the man that 

Dechaine previously identified as an alternative suspect.

 4

 In Reese, we took note of

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 
36

[¶35] Finally, the court recognized the substantial evidence of Dechaine’s 

guilt, as we did twenty-five years ago. See Dechaine, 572 A.2d at 132 n.3. 

Nothing produced in the most recent five-day hearing changes that analysis and 

“make[s] it probable that a different verdict would result upon a new trial.” 

15 M.R.S. § 2138(10)(C)(1). It is likely that a jury examining the new, arguably 

inculpatory DNA evidence, along with “all the other evidence in the case, old and 

new,” would reach the same verdict as did the original jury. See id. Accordingly, 

Dechaine failed to prove the elements of section 2138(10)(C) by clear and 

convincing evidence, and the court’s denial of his motion for a new trial was not 

erroneous or an abuse of its discretion. See Reese, 2013 ME 10, ¶¶ 24, 32,

60 A.3d 1277.

B. Actual Innocence Claim

[¶36] Dechaine contends that it was “constitutionally impermissible and 

manifestly unjust” to deny him the opportunity to present evidence at the DNA 

analysis hearing concerning (1) the time of the victim’s death, (2) alternative 

suspects, and (3) his “so-called confessions”; that is, to present a claim of actual 

innocence based in part on evidence not connected to the new DNA analysis. The 

court, finding that “Maine has never recognized a freestanding claim of actual 

 the samples were not handled and preserved using the more rigorous lab practices that are 

in place today.

State v. Reese, 2013 ME 10, ¶ 27 n.6, 60 A.3d 1277. That caution is applicable in this case.
37

innocence as grounds for post-conviction relief,” denied Dechaine’s request “to 

present [a] claim of actual innocence independent of the statutory mechanism set 

forth in 15 M.R.S. § 2138(10)(A).” It allowed him “to introduce evidence relating 

to an alternative suspect . . . to the extent that the DNA evidence and analysis 

actually implicates the alternative suspect.”

[¶37] The court’s interpretation of section 2138 was correct because 

Maine’s post-conviction review process “provides a comprehensive and, except for 

direct appeals from a criminal judgment, exclusive method of review of those 

criminal judgments and of post-sentencing proceedings occurring during the course 

of sentences.” 15 M.R.S. § 2122. The DNA analysis statute affords a defendant a 

narrow opportunity to prove actual innocence or otherwise obtain a new trial 

outside of the post-conviction review process.5 It is, however, limited in scope by 

its own terms.

[¶38] Section 2138(10) provides that the “other evidence in the case, old 

and new” that the court is to consider

means the evidence admitted at trial; evidence admitted in any hearing 

on a motion for new trial pursuant to Rule 33 of the Maine Rules of 

 5

 The statute allows a defendant to prove, by clear and convincing evidence, that

[o]nly 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 . . . show that the person 

is actually innocent.

15 M.R.S. § 2138(10)(A) (2014). The court explicitly allowed Dechaine to pursue that opportunity.
38

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.

In other words, evidence admitted at the trial or in any prior collateral proceeding 

concerning, inter alia, the time of the victim’s death, alternative suspects, or the 

defendant’s confessions must be considered by the court in deciding a motion for a 

new trial based on new DNA analysis.

[¶39] The “hearing conducted under [section 2138],” on the other hand, 

allows the court to consider only two kinds of new evidence—that “relevant to the 

DNA testing and analysis conducted on the sample,” and that “relevant to the 

identity of the source of the DNA sample.” 15 M.R.S. § 2138(10)(C). The statute 

says nothing about reopening or supplementing the evidence introduced in prior 

proceedings; rather, it allows the admission of DNA-related evidence that could 

not have been known at those prior proceedings, namely the new DNA results and 

their impact on identifying the perpetrator. Accordingly, the trial court did not err 

in construing the statute to bar a “freestanding” claim of actual innocence. 

See Reese, 2013 ME 10, ¶ 22, 60 A.3d 1277 (stating that the trial court’s 

interpretation of the post-conviction DNA analysis statute is reviewed de novo).

[¶40] Dechaine’s assertion that the Due Process Clauses of the United 

States and Maine Constitutions compel the admission of the evidence that he seeks 
39

to introduce is not persuasive. We have previously noted six safeguards, in 

addition to a direct appeal, that exist in Maine law to ensure that a defendant 

receives post-conviction due process, including the statute at issue here. State v. 

Blakesley, 2010 ME 19, ¶ 13, 989 A.2d 746.

[¶41] Furthermore, in discussing the due process required in a 

post-conviction context, the United States Supreme Court said that

[a] criminal defendant proved guilty after a fair trial does not have the 

same liberty interests as a free man.

. . . .

The State accordingly has more flexibility in deciding what 

procedures are needed in the context of postconviction relief. When a 

State chooses to offer help to those seeking relief from convictions,

due process does not dictate the exact form such assistance must 

assume.

. . . .

[T]he question is whether consideration of [a defendant’s] claim 

within the framework of the State’s procedures for postconviction 

relief offends some principle of justice so rooted in the traditions and 

conscience of our people as to be ranked as fundamental, or 

transgresses any recognized principle of fundamental fairness in 

operation.

. . . .

[I]t is [the defendant’s] burden to demonstrate the inadequacy of the 

state-law procedures available to him in state postconviction relief.

. . . .
40

[Here, the defendant] obliquely relies on an asserted federal 

constitutional right to be released upon proof of “actual innocence.” 

Whether such a federal right exists is an open question. We have 

struggled with it over the years . . . . [The defendant] does not dispute 

that a federal actual innocence claim . . . would be brought in habeas.

Dist. Attorney’s Office v. Osborne, 557 U.S. 52, 68-69, 71-72 (2009) (citations and 

quotation marks omitted).

[¶42] Dechaine has not met his burden of demonstrating the alleged 

inadequacy of Maine’s post-conviction relief procedures; indeed, the fact that he 

has been afforded the opportunity to pursue his post-trial claims in several 

proceedings demonstrates the opposite. The Maine Constitution affords him no 

greater protection than the Fourteenth Amendment rights discussed in Osborne. 

Doe I v. Williams, 2013 ME 24, ¶ 61, 61 A.3d 718.

C. Motion to Recuse

[¶43] Dechaine finally contends that the justice who presided at his trial was 

required to recuse because various rulings that he made over the twenty-seven-year 

history of this case equated to a predisposition against him, and so “[g]iven the 

lengthy and remarkable history of this case and repeated assertions of innocence by 

[Dechaine] . . . the DNA Motion for a New Trial should have been presided over 

by an objective Justice with no question of bias or prejudice or earlier involvement 

in the case.”
41

[¶44] As Dechaine recognizes, the DNA analysis statute requires that “[t]he 

motion must be assigned to the trial judge or justice who imposed the sentence 

unless that judge or justice is unavailable.” 15 M.R.S. § 2138(1). The Justice’s 

decision not to recuse is reviewed for an abuse of discretion. In re J.R. Jr., 

2013 ME 58, ¶ 16, 69 A.3d 406. We have said that “[g]enerally, knowledge 

gained in a prior proceeding is not a sufficient ground to recuse a judge in a 

subsequent matter,” and that “[a] judge is as much obliged not to recuse himself 

when it is not called for as he is obliged to when it is.” Id. ¶¶ 17-18 (quotation 

marks omitted).

[¶45] Here, Justice Bradford considered the appropriate canons of judicial 

conduct and relevant decisions of this Court, noted that Dechaine does not allege 

“any personal bias or prejudice,” and observed that we found no fault with his trial 

rulings on direct appeal. See Dechaine, 572 A.2d at 132-36. Particularly where 

the statute directed that the sentencing justice preside at Dechaine’s hearing, the 

record reveals no abuse of discretion.

The entry is:

Judgment affirmed.
42

On the briefs:

Steven C. Peterson, Esq., West Rockport, for appellant Dennis 

J. Dechaine

Janet T. Mills, Attorney General, and Donald W. Macomber, 

Asst. Atty. Gen., Office of the Attorney General, Augusta, for 

appellee State of Maine

At oral argument:

Steven C. Peterson, Esq., for appellant Dennis J. Dechaine

Donald W. Macomber, Asst. Atty. Gen., for appellee State of 

Maine

Knox Superior Court docket number CR-1989-71

FOR CLERK REFERENCE ONLY