MAINE SUPREME JUDICIAL COURT                                                         Reporter of Decisions
Decision:  2014 ME 24
Docket:    Pen-12-351
Argued:    May 15, 2013
Decided:   February 18, 2014

Panel:          SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, GORMAN, and, JABAR, JJ.
Majority:       SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, and GORMAN, JJ.
Dissent:        JABAR, J.



                                     JEFFREY A. COOKSON

                                                    v.

                                        STATE OF MAINE

GORMAN, J.

        [¶1]       In this third appeal stemming from Jeffrey A. Cookson’s

2002 conviction of two counts of intentional or knowing murder, 17-A M.R.S.A.

§ 201(1)(A) (1983),1 Cookson challenges a decision of the court (Cole, J.) denying,

for the second time, his motion for post-conviction DNA analysis of certain

evidence. Cookson contends that the court held him to a higher standard of proof

than is required pursuant to the post-conviction DNA statute, 15 M.R.S.

§§ 2136-2138 (2010),2 and that the court erred in finding that Cookson did not

establish the requisite elements to obtain such testing. We affirm the judgment.


   1
      Title 17-A M.R.S.A. § 201(1)(A) has since been amended. P.L. 2001, ch. 383, § 8 (effective
Jan. 31, 2003).
   2
      Title 15 M.R.S. § 2138 has since been amended, P.L. 2011, ch. 230, §§ 1-2 (effective Sept. 28,
2011); P.L. 2011, ch. 601, § 13 (effective Aug. 30, 2012); P.L. 2013, ch. 266, § 6 (effective Oct. 9, 2013),
but those amendments are not material to this appeal.
2

                                      I. BACKGROUND

        [¶2] In 2001, a jury found Cookson guilty of the intentional or knowing

murder of Mindy Gould and the young child she was babysitting at the time.3 See

17-A M.R.S.A. § 207(1)(A). The court (Cole, J.) imposed two consecutive life

sentences.

        [¶3]    Among the arguments Cookson made in his direct appeal of the

judgment of conviction was his contention that the court erred in denying his

motion for a new trial on the ground of newly discovered evidence. State v.

Cookson (Cookson I), 2003 ME 136, ¶¶ 7-13, 27-36, 837 A.2d 101; see M.R.

Crim. P. 33. We affirmed the judgment after determining that the evidence was

not “newly discovered” within the meaning of Rule 33, and that even if it were, it

would not have changed the outcome of Cookson’s trial.4 Cookson I, 2003 ME

136, ¶¶ 28-29, 32, 33-34, 837 A.2d 101.

        [¶4]     In 2004, and again in 2008, Cookson filed motions seeking

post-conviction DNA analysis of some of the evidentiary items that were the

subject of his motion for a new trial. See 15 M.R.S. §§ 2137, 2138. The court

denied the motions, and Cookson then commenced a second appeal related to his



    3
     The details of the crimes are described in greater detail in State v. Cookson (Cookson I), 2003 ME
136, ¶¶ 2-6, 837 A.2d 101.
    4
     Cookson’s sentence review appeal was considered, and affirmed, along with his direct appeal.
Cookson I, 2003 ME 136, ¶¶ 37-44, 837 A.2d 113.
                                                                                 3

conviction, which resulted in our decision in Cookson v. State (Cookson II),

2011 ME 53, 17 A.3d 1208; see 15 M.R.S. § 2138(6); M.R. App. P. 19.

      [¶5] In Cookson II, we interpreted the post-conviction DNA statute, which

requires the moving party to present prima facie evidence of five criteria:

      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.

15 M.R.S. § 2138(4-A); see 2011 ME 53, ¶ 7, 17 A.3d 1208. We also noted that

15 M.R.S. § 2138(5) requires the motion court to issue written findings of fact in

granting or denying a request for post-conviction DNA analysis. Cookson II,

2011 ME 53, ¶ 9, 17 A.3d 1208. Because the court had not made the required

findings, we vacated and remanded the matter to the Superior Court for it to do so.

Id. ¶¶ 9, 18.
4

        [¶6] We also clarified one of the five requirements for post-conviction DNA

analysis, and the only requirement that was truly in dispute—chain of custody.5 Id.

¶¶ 10-18; see 15 M.R.S. § 2138(4-A)(B). We noted that “[t]he central point of the

chain of custody requirement is to assure that the evidence is what it purports to

be—that is, related to the crime—and that it has not been contaminated or

tampered with such that testing of it will yield unreliable (and therefore irrelevant)

results.” Cookson II, 2011 ME 53, ¶ 17, 17 A.3d 1208. We held that a chain of

custody consideration must account for any period of time in which the evidence

could have been contaminated or tampered with, which in Cookson’s case begins

with the day of the murders. Id. ¶¶ 17-18.

        [¶7] On remand, the trial court conducted a second testimonial hearing on

Cookson’s motion for DNA analysis. By agreement of the parties, the court also

considered all of the evidence from the hearing on Cookson’s initial motion for a

new trial and the first hearing on his post-conviction DNA motion. The extensive

findings issued by the court after its consideration of the entire record illustrate the

unusual sequence of events preceding Cookson’s motion for post-conviction DNA

analysis.

        [¶8] Before he went to trial for the murders, Cookson was aware that one of

his acquaintances, David Vantol, had confessed to the private investigator retained

    5
      The parties have stipulated to the remaining four requirements in section 2138(4-A). The parties
also do not dispute the chain of custody from the time the items came into police possession.
                                                                                     5

by Cookson’s attorney that he, rather than Cookson, had killed the victims. In

Vantol’s first confession, he asserted that he had killed them in self-defense.

Cookson’s attorney did not find Vantol’s self-defense confession credible. As

Cookson’s trial was being heard, Cookson’s private investigator spoke to Vantol

again; Vantol changed his story from one of self-defense to one of murder-for-hire

committed at Cookson’s request. Cookson and his attorneys were aware of both

versions of Vantol’s confession. Despite their knowledge of Vantol’s revised

story, or perhaps because of it, Cookson and his attorneys decided not to call

Vantol as a witness during the trial. In addition, they decided not to tell the

prosecution or the trial court of either version of Vantol’s confession until after the

verdict was rendered in Cookson’s trial.

      [¶9] As a result of these decisions by Cookson, neither the prosecutors nor

the investigating Maine State Police detectives were aware of any version of

Vantol’s confession while the trial was being heard. Rather, it was not until

December 6, 2001, after the jury returned its verdict finding Cookson guilty of two

counts of murder, that Cookson’s attorneys finally notified the prosecutors and the

trial court that Vantol was claiming to have been involved in the murders.

      [¶10] Detectives immediately met with Vantol. Among the first versions of

the story Vantol gave was one—which he later recanted—in which he stated that

Cookson approached him in 1999 to kill Gould in exchange for $10,000. Vantol
6

explained that he agreed to Cookson’s proposal, and further explained how he

carried out his part of the bargain.                   Vantol stated that on the morning of

December 3, 1999, Cookson drove him to a convenience store where Cookson

bought him a pair of brown gloves; Cookson then gave Vantol a gun and

eventually dropped him off at Gould’s home. When Gould answered the door,

Vantol followed her into the home and shot her. Vantol explained that he shot the

child just because the child was present.

          [¶11]      To corroborate his confession, Vantol offered to provide the

detectives with the gun he used to commit the murders and the clothing he wore at

the time of the murders; he first claimed to have been wearing sneakers, flannel

pants, a flannel jacket, an Adidas hat, and the brown gloves, but later claimed he

wore jeans, a t-shirt, and a flannel shirt along with the sneakers and gloves. Vantol

stated that he had buried those items, as well as the gun6 and a wig that Cookson

wore that day, on property owned by Scott Cookson, Cookson’s brother.

          [¶12] That very night, December 6, 2001, Vantol led detectives to a location

in the woods on Scott Cookson’s property where he quickly unearthed a gun that

turned out to be the murder weapon. See Cookson II, 2011 ME 53, ¶ 3, 17 A.3d

1208; Cookson I, 2003 ME 136, ¶ 9, 837 A.2d 101. Vantol repeatedly refused to

lead the detectives to where the other items were buried, but two days later, on


    6
        Vantol claimed that he subsequently moved the gun in case he needed it.
                                                                                     7

December 8, 2001, he did provide them with a green plastic trash bag containing

various items of clothing that he stated he had dug up on Scott Cookson’s property.

The bag contained only a pair of blue sneakers, a size XL jean jacket with pink

stains that appeared to be bleach stains, a plaid flannel insulated shirt, a black wig,

and a fluorescent orange knit hat. The police noted that the items were “very wet

and brittle” and had roots and grass mixed in.

      [¶13]    Vantol, who has limited cognitive functioning, was admitted to

Acadia Hospital soon afterward.       After being treated at the hospital, Vantol

recanted his earlier confessions and informed the detectives that he had not been

involved with the murders, had pulled the clothing items out of a junk car, and

knew where the gun was based on Cookson’s directions. Vantol stated that he had

fabricated his involvement with the murders at Cookson’s specific request.

      [¶14] Cookson is now attempting to obtain post-conviction DNA testing of

the clothing that Vantol gave the detectives in 2001. On remand, the trial court

concluded that Cookson failed to present his prima facie evidence that the clothing

had not been substituted, tampered with, replaced, or altered between the time of

the murders and the time Vantol gave the items to the police, for two reasons.

First, the court found that there was a two-year gap in the chain of custody in that

Cookson offered no evidence “as to the condition and circumstances that existed at

the Scott Cookson trailer and junkyard [from] the date of the homicides on
8

December 3, 1999[,] to the time David Vantol turned over the items to [detectives]

on December 8, 2001.”          The court referenced evidence showing that law

enforcement officers searched the “large area of woods and open area” that

comprised the junkyard on December 17, 1999, which included a video of

“[h]eavy equipment . . . shown moving large metal items and junked cars over a

considerable area,” suggesting that items in the junkyard might have been moved

in the intervening years.

        [¶15] Second, the court found that there was “very little, if any, evidence

that the clothes and sneakers have not been substituted, tampered with, replaced or

altered in any way,” particularly given that when Vantol turned the items over to

the police, the clothing clearly was not in the same condition as when it was last

worn.      On these two grounds, the court denied Cookson’s motion for

post-conviction DNA testing a second time. Cookson filed this third appeal. See

15 M.R.S. § 2138(6); M.R. App. P. 19.

                                  II. DISCUSSION

        [¶16] Cookson now challenges the court’s finding that he had not presented

the required prima facie evidence as to the chain of custody. We defined prima

facie evidence, as used in the post-conviction DNA statute, in Cookson II:

              Prima facie in this context regards the preliminary burden of
        production of evidence; it requires proof only of enough evidence to
        allow the fact-trier to infer the fact at issue and rule in the party’s
        favor. Prima facie evidence requires only some evidence on every
                                                                                                       9

        element of proof necessary to obtain the desired remedy. Thus, prima
        facie proof is a low standard that does not depend on the reliability or
        credibility of the evidence, all of which may be considered at some
        later time in the process.

2011 ME 53, ¶ 8, 17 A.3d 1208 (footnotes omitted) (citations omitted) (quotation

marks omitted). Notwithstanding this low evidentiary burden, we will disturb the

court’s determination that Cookson failed to carry his burden only if “the evidence

compelled the court to find to the contrary.” Laferriere v. State, 1997 ME 169, ¶ 6,

697 A.2d 1301 (quotation marks omitted).

        [¶17] The trial court’s first ground for denying Cookson’s motion—that

Cookson failed to account, even on a prima facie basis, for the location of or

circumstances surrounding the clothing during the two years between the murders

and the time Vantol gave detectives the trash bag—is amply supported by the

record. Even when considering the evidence from the 2002 hearing on Cookson’s

motion for a new trial, during which Vantol testified, in addition to the evidence

from the first hearing on Cookson’s motion for DNA analysis, there simply was no

testimony from any source at any stage of the proceeding suggesting that Vantol

ever said that the clothes remained where he buried them during the two years

between the murders and his confessions, nor any evidence on which to base a

reasonable inference of that fact.7


   7
     As mentioned earlier, in one version of his story, Vantol himself unearthed the evidence to retrieve
and remove the gun he had initially buried with the clothing.
10

      [¶18] The court’s second ground for denying the motion—that there was

little or no evidence that the clothing items had not been substituted, tampered

with, replaced, or altered, particularly given that when Vantol turned the items over

to the police, the clothing clearly was not in the same condition as when it was last

worn—is also supported by the record. The record contains no evidence that

Vantol ever stated that he knew or believed that no one had tampered with the

clothes since they were buried. The junkyard area was, as the court noted, a “large

area of woods and open area” and, on at least one occasion during the two-year

period in question, the area was disrupted by heavy earth-moving equipment.

Vantol was not the owner of the property where he said the clothing was buried,

and had no control over what happened on or to the property.

      [¶19]   Also essential to this portion of the analysis are the significant

differences between the clothing Vantol described and the clothing he turned over

to detectives. Most importantly, the clothing Vantol turned over did not include

two specific items of clothing that he told the detectives he had worn and buried,

that is, the jeans and the gloves. The court also found that the sneakers were in

better condition than the clothes, that the clothing would not fit Vantol, and that the

clothing was not similar to the type of clothing Vantol was ever seen wearing.

Leaving aside Vantol’s later recantations, and independent of Vantol’s level of

credibility given his ever-changing story, the clothing he turned over in 2001 does
                                                                                                  11

not even grossly match the clothing he said he had worn while committing the

murders.       Given these marked inconsistencies, we cannot say that the

post-conviction court erred in determining that the clothing was not in the “same

condition” as when it was last said to be worn, even when applying the low prima

facie standard.8

       [¶20] The point of establishing a chain of custody is to demonstrate that the

evidence presented for testing is evidence that is germane to the case, and that it

has not been tampered with. Cookson II, 2011 ME 53, ¶ 17, 17 A.3d 1208. Here,

the evidence presented in support of Cookson’s petition demonstrated that the bag

of clothing Vantol produced contained fewer than all of the items he had promised,

and that it had been obtained from a site owned by Cookson’s brother after a

two-year period during which Cookson was unable to account for its location or

condition at all. Given the state of the record, the post-conviction court was not

compelled to find that Cookson had established, on a prima facie basis, that the

clothing was related to the murders and that it had not been moved or tampered

with during the two years between the murders and the time the clothing was

produced. Thus, the trial court did not err in determining that Cookson failed to




   8
      The court also found that the items were “degraded, soiled, and had organic material attached to
them.” Such a finding alone, however, will not support a determination that the clothing was in a
different condition than on the day of the murders.
12

establish the chain of custody necessary to obtain an order for post-conviction

DNA analysis.

         The entry is:

                         Judgment affirmed.




JABAR, J., dissenting.

         [¶21] I respectfully dissent because I believe that the post-conviction court

erred in concluding that Cookson failed to produce prima facie evidence of a

sufficient chain of custody to permit DNA testing. Moreover, I believe that the

trial court erred as a matter of law in requiring him to “eliminate all possibility of

tampering with the exhibit involved.” State v. Thibodeau, 353 A.2d 595, 603

(Me. 1976); see also 15 M.R.S. § 2138(4-A)(B) (2010).9

         [¶22] In affirming the post-conviction court’s denial of Cookson’s petition

to conduct DNA testing, the Court defers to the trial court’s conclusion that

Cookson failed to meet his burden to produce prima facie evidence of a chain of

custody based on two of the court’s findings: (1) “[t]here exists a [two]-year gap of

the items before they were turned over to the police and there has been no proof


     9
      Although 15 M.R.S. § 2138(4-A)(B) is unchanged as a result of the Legislature’s 2011 and 2013
amendments to the post-conviction DNA analysis statute, see Court’s Opinion ¶ 1 n.2, I cite to the 2010
version in order to clarify that I am referring to the same version of section 2138 to which the Court
refers. Court’s Opinion ¶ 1.
                                                                                   13

presented that any of the items are in the same condition [as] when the crime

occurred or that they have not been tampered with”; and (2) Cookson “presented

very little, if any, evidence that the clothes and sneakers have not been substituted,

tampered with, replaced[,] or altered in any way.” See 15 M.R.S. § 2138(4-A)(B);

Court’s Opinion ¶¶ 17-18.         However, with this interpretation of section

2138(4-A)(B), the post-conviction court has required Cookson to prove a negative.

In other words, although Vantol informed police that he wore the clothes in

question during the homicides, buried them following the murders, and retrieved

them to turn over to the police, the court nonetheless required Cookson to prove

that the items were not “substituted, tampered with, replaced or altered in any

material way,” during the two years that they were buried.                15 M.R.S.

§ 2138(4-A)(B). This places an impossible burden on any person seeking DNA

analysis, and the Court’s interpretation is an illogical reading of the

post-conviction DNA analysis statute.

      [¶23] Title 15 M.R.S. § 2138(4-A) requires the proponent of DNA testing to

present prima facie evidence of the following elements:

      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 . . . ;
14


      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 . . . is material to the issue
             of whether the person is the perpetrator of, or accomplice to, the
             crime that resulted in the conviction.

The State and Cookson stipulated that elements A, C, D, and E were established.

Therefore, the only element at issue is whether Cookson presented prima facie

evidence that “[t]he 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.” Id. § 2138(4-A)(B).

A.    Prima Facie Evidence

      [¶24] The prima facie evidence standard “regards the preliminary burden of

production of evidence; it requires proof only of ‘enough evidence to allow the

fact-trier to infer the fact at issue and rule in the party’s favor.’” Cookson v. State

(Cookson II), 2011 ME 53, ¶ 8, 17 A.3d 1208 (quoting Anderson v. Delaware,

831 A.2d 858, 865-66 (Del. 2003)). “Prima facie evidence means evidence that, if

unrebutted or unexplained, is sufficient to maintain the proposition.” Town of

Blue Hill v. Leighton, 2011 ME 103, ¶ 12 n.5, 30 A.3d 848 (quotation marks

omitted); see also State v. Beane, 146 Me. 328, 331, 81 A.2d 924 (1951). Stated

differently, prima facie evidence “requires only some evidence on every element of
                                                                                 15

proof necessary to obtain the desired remedy.” Cookson II, 2011 ME 53, ¶ 8,

17 A.3d 1208 (quotation marks omitted).

      [¶25] Because the statute requires the defendant to produce only prima facie

evidence, he meets this burden if he provides “some evidence” on every element

necessary to prove chain of custody. Id. Unlike in the context of a trial, in which

one party presents prima facie evidence that the opposing party may rebut with

other evidence, here, the defendant’s burden ends when he provides evidence “to

allow the fact-trier to infer the fact at issue and rule in the party’s favor.” Id.

(quotation marks omitted). “Thus, prima facie proof is a low standard that does

not depend on the reliability or credibility of the evidence, all of which may be

considered at some later time in the process.” Id. (quotation marks omitted). As a

result, the post-conviction court’s factual findings are not at issue. Cf. Court’s

Opinion ¶ 16.

      [¶26] Rather, the sole issue presented to us on appeal is whether Cookson

has presented sufficient prima facie evidence of the chain of custody. Because the

reliability and credibility of the evidence are not at issue, whether Cookson has

presented sufficient evidence to meet every element of the chain of custody is

ultimately a legal question. See State v. Ntim, 2013 ME 80, ¶ 9, 76 A.3d 370 (“If

[a court’s judgment] is based primarily on undisputed facts, it is viewed as a legal

conclusion that is reviewed de novo.”).      On appeal, Cookson argues that the
16

post-conviction court erred in making a legal determination: interpreting section

2138(4-A)(B) to require that he provide evidence to convince the court that there

was an absence of any tampering or alteration during the entire period in question.

B.    Chain of Custody

      [¶27] The requirement that Cookson demonstrate a chain of custody refers

to the need to “support a finding that the [item of evidence] in question is what its

proponent claims.” Cookson II, 2011 ME 53, ¶ 11, 17 A.3d 1208 (quotation marks

omitted). We have stated that “[t]he purpose of the chain of custody . . . rule is, of

course, to vouchsafe assurance that the exhibit has not been altered or tampered

with and that there has been no substitution.” Thibodeau, 353 A.2d at 602-03. Our

cases make clear that the party seeking to introduce evidence “is not required to

exclude every possibility of these occurrences, nor to show that some credible

witness retained the exhibit in his personal possession or under constant watch.”

Id. at 603 (quotation marks and alterations omitted). Similarly, we have never held

that for evidence to meet a chain-of-custody requirement and be admissible at trial,

the proponent must demonstrate that the evidence was not tampered with or altered

at any moment while in the State’s custody.          See, e.g., State v. Thompson,

503 A.2d 689, 691 (Me. 1986).

      [¶28] Rather, an item of evidence is admissible at trial if the party seeking

to introduce that evidence can demonstrate “by the fair preponderance of the
                                                                                  17

evidence . . . that it is more probable than not that the object is the one connected

with the case.” Id.; see also Thibodeau, 353 A.2d at 603. “‘Evidence which

provides a reasonable assurance that the exhibit is the same and in the same

condition meets the test.’” Thibodeau, 353 A.2d at 603 (quoting State v. Cress,

344 A.2d 57, 61 (Me. 1975)).

      [¶29] Specifically with regard to items that are “readily identifiable by

distinguishing features or hardly subject to change,” the party seeking to offer that

evidence need not provide evidence of the same “safeguards necessary to preserve

the integrity of real evidence of a fungible or volatile nature which may be easily

destroyed by natural or other forces.” Id. For example, a physical item with

readily identifiable physical characteristics, like a coffee pot, need not be

authenticated through the rigorous continuity-of-possession requirements that are

necessary to support the admissibility of fungible evidence, like narcotics or

money. Id. For this reason, we have stated, “Among the factors that the trial court

should consider when the chain of custody is not demonstrated to be complete and

exclusive are the nature of the article, the circumstances surrounding the

preservation and custody of it, and the likelihood of intermeddlers tampering with

it.” State v. Lewis, 401 A.2d 645, 647 (Me. 1979); see also United States v.

De LaRosa, 450 F.2d 1057, 1068-69 (3d Cir. 1971) (holding that because the

clothing introduced by the Government matched imprints of that clothing at the
18

crime scene, the Government was not required to prove that clothing was in the

same condition when introduced as at the time of the crime).

        [¶30] Here, the post-conviction court cites two substantial reasons in its

decision to support its conclusion that, based on the evidence in the record,

Cookson failed to meet his burden with regard to section 2138(4-A)(B).

        1.      Evidence of an Absence of Tampering

        [¶31] In its decision, the post-conviction court notes, “[T]here exists a

[two]-year gap of the items before they were turned over to the police and there has

been no proof presented that any of the items are in the same condition when the

crime occurred or that they have not been tampered with.” Additionally, the

post-conviction court found that Cookson “presented very little, if any, evidence

that the clothes and sneakers have not been substituted, tampered with, replaced[,]

or altered in any way.” The Court defers to this finding, confirming that “there

simply was no testimony from any source at any stage of the proceeding

suggesting that Vantol ever said that the clothes remained where he buried them

during the two years between the murders and his confessions.” Court’s Opinion

¶ 17.

        [¶32]    However, this decision erroneously applies our law on chain of

custody for two reasons. First, our cases make clear that a chain of custody does

not require that the party seeking to introduce the evidence negate every possibility
                                                                                    19

of tampering or that “some credible witness retained the exhibit . . . under constant

watch.” Thibodeau, 353 A.2d at 603. Unlike in Thibodeau, where the court was

admitting evidence in the context of a trial, here Cookson has a lower burden: to

produce only prima facie evidence of a chain of custody.              See 15 M.R.S.

§ 2138(4-A)(B).

      [¶33] Second, the State has stipulated that the clothing “is material to the

issue of whether the person is the perpetrator of, or accomplice to, the crime that

resulted in the conviction.” See 15 M.R.S. § 2138(4-A)(E). Because of this

stipulation, there is no question that the clothing retrieved by Vantol is the clothing

that may contain evidence related to the murders. As a result, the court need not

determine whether it is “more probable than not that the object is the one

connected with the case,” Thompson, 503 A.2d at 691; see also Cookson II,

2011 ME 53, ¶ 11, 17 A.3d 1208.

      [¶34] Even if the parties had not stipulated that the clothing is material to

the identity of the perpetrator, the clothing is readily identifiable and is not

fungible—meaning that, unlike drugs or money, it cannot easily be replaced with

similar items—and, thus, we do not require the person seeking to introduce this

evidence to provide evidence of its continued possession for the entire relevant

period. See Lewis, 401 A.2d at 647; Thibodeau, 353 A.2d at 603. Continuity of

possession by either Cookson or Vantol is unnecessary and irrelevant pursuant to
20

our case law on chain of custody, and the court erred in requiring Cookson to

provide evidence that the clothes were not tampered with or altered from the time

of the murders until he gave them to the police. See Thompson, 503 A.2d at 691;

Lewis, 401 A.2d at 647; Thibodeau, 353 A.2d at 603; see also De LaRosa,

450 F.2d at 1068.

      [¶35] Vantol told detectives that the clothes he retrieved were the same as

those that he wore during the murders and that he buried shortly after committing

the homicides. By presenting evidence that the clothes were buried in a rural

location in the Maine woods and then dug up later, the fact-finder may certainly

infer “that the evidence has not been substituted, tampered with, replaced or altered

in a material way.” See 15 M.R.S. § 2138(4-A)(B). Despite the fact that, here, the

statute requires only prima facie evidence—a lower standard than that required in

the context of a trial, see Thompson, 503 A.2d at 691—the Court attempts to

heighten the requisite standard for chain of custody in the context of DNA testing.

By affirming the decision of the trial court, the Court adopts a standard under

which proponents, who at one point possessed items that they wish to submit for

DNA analysis, must “eliminate all possibility of tampering with the exhibit

involved,” thus demanding a condition that we have never before required.

Thibodeau, 353 A.2d at 603.
                                                                                 21

      2.    Changed Condition

      [¶36] The post-conviction court also found that “clearly [the clothes] were

not in the same condition [as] when they were last worn,” and that they were “not

in substantially the same condition as when the crime was committed.” The Court

again defers to this finding, stating, “[T]he clothing [Vantol] turned over [to

police] in 2001 does not even grossly match the clothing he said he had worn while

committing the murders.” Court’s Opinion ¶ 19. However, Vantol admitted that

these were the clothes that he was wearing during the homicides.           Because

prima facie evidence does not depend on the credibility of the evidence,

Cookson II, 2011 ME 53, ¶ 8, 17 A.3d 1208, the court must infer that these were

the same clothes worn during the homicides. Again, Cookson does not dispute the

court’s finding that the clothing is degraded, but argues that it is irrelevant for

determining whether there is prima facie evidence of a chain of custody.

      [¶37] At this stage, section 2138(4-A)(B) does not require Cookson to show

that the evidence on the clothing is not degraded. The testing may demonstrate

that the evidence on the clothing had deteriorated to the point that DNA analysis is

impossible. However, if the evidence on the clothing has not deteriorated, then

testing may be performed to determine whether the clothing contains any DNA

from the victims, Vantol, or Cookson. Without the technology for extracting a

testable sample from the clothing and absent scientific knowledge about the testing
22

requirements, Cookson is wholly unable to meet this burden. Only the DNA

analysis will reveal whether there is any evidence on the clothing that can be

tested, and thus, the court’s interpretation of section 2138(4-A)(B) is an

unreasonable and illogical construction of the DNA analysis statute. See State v.

Aboda, 2010 ME 125, ¶ 10, 8 A.3d 719 (stating that in construing a statute “[w]e

seek to . . . avoid[] results that are absurd, inconsistent, unreasonable, or illogical.”

(quotation marks omitted)).

C.    Conclusion

      [¶38]    Unless we permit the testing, we will never know whether the

evidence is inconclusive, inculpatory or exculpatory. The analysis may confirm

that the evidence on the clothing had deteriorated to the point that DNA analysis is

impossible. However, if the clothing has not deteriorated, then testing may be

performed to determine whether there is DNA from the victims, Vantol, or

Cookson. If any of the victims’ DNA is found on any of the clothing, then it is

clear that the clothes were connected with the homicide. If testing further reveals

that Cookson’s DNA is present on the clothing, Cookson will have an impossible

task of convincing a judge that he is entitled to any relief under the statute. On the

other hand, if Vantol’s DNA is found on the clothing along with the victims’ DNA,

to the exclusion of Cookson’s DNA, then Cookson would have a strong argument
                                                                                                      23

to make for relief pursuant to the statute.10 See generally 15 M.R.S. § 2138(10)

(2013).

        [¶39] DNA analysis has had a dramatic impact on justice in this country.

Not only has it vindicated some defendants who have been wrongfully convicted,

but it has also been used by law enforcement to reopen old cases and convict

defendants of crimes that had previously gone unsolved. See Dist. Attorney’s

Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 55 (2009) (recognizing the

“unparalleled” power of DNA evidence to “exonerate the wrongly convicted and to

identify the guilty”). It is incumbent on the state, in its judicial, investigative, and

prosecutorial capacities, to use this “unparalleled” evidence where it is available.

        [¶40] In this case, because the prima facie standard requires only “some

evidence” of chain of custody, and the chain of custody for these items does not

require the party seeking to introduce the evidence to negate every possibility of

tampering, see Thibodeau, 353 A.2d at 603, the court made an error of law in

concluding that Cookson did not satisfy the requirements of 15 M.R.S.

§ 2138(4-A)(B). Therefore, the Court’s decision affirming the denial of DNA



   10
       Among the evidence in the record that might support Cookson’s argument for relief is the
following: (1) Cookson’s conviction was based on circumstantial evidence; (2) Vantol confessed to the
murders on at least five separate occasions; (3) despite having the developmental capacity of a
twelve-year-old, Vantol recounted intricate details of the murders and the scene of the crime; (4) Vantol
provided the police with a gun that later proved to be a ballistics match to the murder weapon, although
during Cookson’s trial the State provided evidence of a different weapon that it alleged Cookson had
used; and (5) the mother of Vantol’s child testified that the clothing was similar to the type of clothing
worn by Vantol around the time of the murders.
24

testing is contrary to the requirements of the DNA analysis statute, our decision in

Cookson II, 2011 ME 53, ¶¶ 8-9, 17 A.3d 1208, and our precedent concerning

chain of custody, see Thompson, 503 A.2d at 691; Thibodeau, 353 A.2d at 603. I

would vacate the trial court’s decision and remand for further proceedings.



On the briefs:

        Richard L. Hartley, Esq., Law Office of Richard L. Hartley, P.C.,
        Bangor, for appellant Jeffrey Cookson

        Janet T. Mills, Attorney General, and Donald W. Macomber, Asst. Atty.
        Gen., Office of Attorney General, Augusta, for appellee State of Maine


At Oral Argument:

        Richard L. Hartley, Esq., for appellant Jeffrey Cookson

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



Penobscot County Superior Court docket numbers CR-2000-11 and CR-2004-1043
FOR CLERK REFERENCE ONLY
