Sunday, July 31, 2016

Dechaine's case highlights need for more reform

The following editorial was published by the Camden (Maine) Herald on July 28, 2016.

This week we end our series on the case of Dennis Dechaine, who was convicted in 1989 for the murder of 12-year-old Sarah Cherry. Without solid proof either way, his story forces us to consider the possibility of wrongful conviction.

Since DNA testing began, 342 people have been exonerated in the United States. None of these has been in Maine, possibly because of the restrictions on post-conviction review.

Evidence has mounted since Dechaine's conviction that points to his innocence, including testimony from forensic experts about the time of death occurring after Dechaine was picked up by police, discrepancies between detectives' trial testimony about Dechaine’s alleged admissions and their notes on those statements, and statements implicating potential alternate perpetrators with histories of sexual assault — we found statements to police from 2004 implicating two more sex offenders in a review of the case files on Monday.

The evidence against Dechaine has been repeatedly called "mountainous," "voluminous" and "substantial" in denials of his appeals. But it can all be explained by his contention that he was framed. The state has not taken that argument seriously enough to rebut it. Is it inconceivable that a killer would plant items at the scene implicating another person?

Many have argued that after numerous proceedings and denials, Dechaine and his supporters should lay the case to rest. But those denials were based on the technicalities of the post-conviction review and DNA statutes, a narrow interpretation of which allows only DNA evidence to be admitted in court hearings.

While Dechaine has been locked up, the state has blocked any new evidence from coming before a jury in two ways that also illustrate a double standard at work in this case.

First, the state destroyed all the DNA evidence associated with the case — the one codified way for a convict to prove his innocence — as part of a routine cleaning. This has seriously hindered Dechaine's ability to get a new trial. The only DNA evidence that remained was blood on a thumbnail clipping. Tests excluded Dechaine as a source, but the blood could not be definitively connected to the crime. Further attempts by the defense to scrape Cherry's clothing for bits of DNA 25 years after the murder yielded only degraded strands. A technician from the lab that did the DNA analysis said at a hearing the DNA obtained from the clothing items was “of low quality,” leading to "confusing interpretations" and “inconclusive results.”

Dechaine had been denied the chance to test the actual biological evidence connected to the crime — when it was still available — because of testimony on the low likelihood of getting good results. But when inconclusive test results of low-quality, degraded DNA appeared not to rule out Dechaine (1 in 374 Caucasian men could be a source), that was used against him as a reason to deny him a new trial.

Second, the state successfully moved to dismiss Dechaine's 1995 petition for a new trial by invoking a statutory amendment written by the Attorney General's Office allowing a petition to be dismissed on technicalities deemed to put the state at a disadvantage. The state made the dubious claim that a former defense lawyer had spread rumors of Dechaine’s guilt. Because that lawyer had recently suffered a stroke and could no longer testify, the state claimed a disadvantage.

The courts accepted these allegations as reasons to dismiss the petition, yet in Dechaine's 1992 hearing for a new trial, they rejected testimony regarding out-of-court statements implicating an alternative suspect as "hearsay."

State workers revisit the case with a certain weariness, while high-ranking officials have lashed out at those who insist Dechaine is innocent. Former Attorney General Michael Carpenter wrote in a letter to two Dechaine supporters, “I have never seen a case in which I have been more persuaded of a defendant’s guilt. The matter is simply not open to rational debate.”

Former Attorney General William Stokes wrote in a letter that Dechaine's claim of innocence was "bogus" and that his timing of the filing of his petition for post-conviction review was a “transparent and cynical” attempt to disadvantage the state.

Attorney General Janet Mills in a misleading letter to the Portland Press Herald in February said, “DNA evidence has been exhaustively analyzed at Mr. Dechaine’s request, but the results do not help him."

No court reviewing this case has acknowledged that the state's routine destruction of biological evidence is the reason Dechaine's post-conviction review process is spinning in circles. His chances for freedom, if he is innocent, have been hanging on the thumbnail clipping of a 12-year-old girl and a few threads from her shirt.

The unfolding of this case over the past 28 years has highlighted a number of ways convictions can be uncertain, and has prompted several changes to Maine law to help counteract that uncertainty: confessions must now to be recorded, for one example.

Our legislators should take another look at the post-conviction review statute and add provisions recommended by the Innocence Project: Courts should be allowed to vacate convictions or grant a new trial — where all the evidence can be heard — when DNA evidence of a case has been destroyed.

The following editorial was published by the South Bend (IN) Tribune on July 28, 2016.

As the presidential contest kicks into high gear with Indiana Gov. Mike Pence on board as the Republican vice presidential nominee, a smaller, less visible but meaningful campaign is being waged.

The effort seeks justice — in the form of a pardon from Pence — for a man wrongly convicted in an attempted murder and robbery in Elkhart 20 years ago.

As detailed in a recent Chicago Tribune story, more than two years ago, the Indiana Parole Board recommended that Pence issue a pardon for Keith Cooper. Cooper was convicted and sentenced to 40 years for an October 1996 armed robbery in the apartment complex where he lived, during which a 17-year-old was shot in the stomach. After the Indiana Court of Appeals overturned his co-defendant’s conviction, Cooper was given the choice of being set free with the felony conviction on his record or facing a new trial. He chose to go home to his wife and three children.

That decision has affected his ability to secure a better living. And his name isn’t truly cleared.

With the help of a young man who was working on a lawsuit filed by Cooper’s co-defendant, Cooper has built a solid case for a pardon: The victims of the armed robbery recanted and identified photos of the two men who were actually implicated by the DNA evidence. Other witnesses in the apartment also signed affidavits recanting their testimony against Cooper. In a six-minute video that was part of Cooper’s petition before the Indiana parole board, the man who was shot during the robbery urged the board to correct his grave mistake.

And here’s what Michael A. Christofeno, the original trial prosecutor, said in a letter to Pence earlier this year: “Justice demands that Mr. Cooper be pardoned. We cannot undo the wrongful imprisonment of Mr. Cooper, but we can undo his wrongful conviction with a pardon.”

If granted, legal experts say it would be the state’s first exoneration they can recall through a gubernatorial pardon based on innocence.

Conventional wisdom says that the governor, who didn’t act in the case before he was in such a bright national spotlight, isn’t likely to do so in the midst of a presidential campaign. A communication consultant expert quoted in an Associated Press story says approving at this time would be a distraction. In that article, Fran Watson, a clinical professor of law at Indiana University McKinney School of Law, says she doesn’t expect a pardon before the election but adds that Pence has “got this really good opportunity to do the right thing without anyone objecting.”

The victims, prosecutor and parole board have spoken. Now it’s past time for Gov. Mike Pence to act, to take this really good opportunity to do what is right.

Monday, July 18, 2016

Bad tests, wrongful convictions and justice denied

The following editorial was published by the St. Louis (Missouri) Post-Dispatch on July 16, 2016.

Police in many states, including Missouri, increasingly are using mobile drug tests to perform spot checks during traffic stops. The kits can produce the wrong result in as many as one out of three instances. Americans of all racial and income backgrounds should shudder at the injustices dealt to law-abiding citizens.

Thousands of people may have gone to jail as a result of wrong test results. Arrest and conviction records follow them for the rest of their lives. Yet police officers continue to use the kits.

The New York Times and ProPublica recently reported on the extraordinary rate of “false positives” returned by test kits marketed to police under brand names such as Serchie Nark II. Different kits test for cocaine, marijuana, opioids or methamphetamine.

When a chemical mixture turns a certain color during the test, it signals to police officers that an illegal drug could be present. But the test used for cocaine also can return the same positive color for 80 other compounds, including acne medications and several types of household cleaners.

The high rate of false positives offers more than ample reason to question their continued use. Manufacturers like Serchie now warn that the results should be treated only as preliminary, and more thorough lab tests are required.

The case of Amy Albritton offers a stark example of how quickly such tests can ruin a life. She and a friend were driving to Houston from her home in Louisiana in 2010 when an officer pulled her car over. He asked permission to search her car and came up with a single, white crumb from the floor. His test kit returned the positive color for cocaine.

Thus began Albritton’s nightmare of arrest and negotiations with a prosecutor while she insisted she had not possessed illegal drugs. The result was a plea bargain that left a felony conviction on her record, discoverable whenever she applied for a job or to rent an apartment.

The test was wrong. The crumb, a subsequent test proved, was just a dried-up bit of food.

Years later, the Harris County district attorney’s office admitted the error, but it came far too late for her to recover her shattered life — lost job, lost apartment, a custody battle for her child.

In Houston, 59 percent of those wrongfully convicted because of faulty test kits were black, even though they constitute only 24 percent of the population. It usually requires money and lawyers to get false convictions expunged, and that’s where these injustices reap their biggest toll.

The presumption of innocence forms the basis of our judicial system. A highly flawed commercial field testing system must never be allowed to short-circuit the rights of law-abiding citizens.