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
