Request for new trial in 1985 murder

Pointing to false testimony by famed state criminologist Henry Lee, two men who have spent nearly 30 years in prison for a murder they steadfastly insist they didn’t commit asked the state’s highest court on Thursday for a new trial.

Shawn Henning and Ralph “Ricky” Birch were wayward teens in 1985, living in a stolen car and burgling houses in the New Milford area. When a 65-year old local man named Everett Carr was brutally murdered in what looked like a home burglary, the two were hauled in as suspects.

They soon confessed to stealing the car and to four area burglaries, but insisted in the face of relentless police questioning that they had nothing to do with the Carr murder.

And there was no forensic evidence that they did.

Nonetheless, Henning and Birch, 17 and 18 at the time of the crime, were convicted in 1989 of the Carr murder and given prison sentences of 50 and 55 years, respectively.

On Thursday, lawyers for the two now middle-aged men argued before the State Supreme Court, orally and in briefs, that the convictions were precipitated by erroneous testimony by Lee, inept lawyering and coerced witnesses. The hearing was an appeal from a 2016 Superior Court decision that rejected their habeas corpus petition.

Henning, who was at Thursday’s hearing, was released on probation to a halfway house this summer, thanks to a state law that gives persons convicted of crimes committed when they were juveniles a “second look,” and a chance for probation after they have served the bulk of their sentences. Birch, who has served 29 years of his 55-year sentence, remains in prison.

Bloody Towel

The state faced a challenge at trial. Though this was one of the bloodiest crime scenes anyone connected to the case said they had ever seen, there was no blood, hairs, fibers or other forensic evidence on Birch and Henning’s clothes, shoes or stolen car.

The state brought in Henry Lee, then head of the State Police Forensic Laboratory, as an expert witness. Lee opined that the assailants “maybe” could have committed the slashing murder without getting blood on them, noting that the splatter pattern of blood on one wall was uninterrupted, which suggested no one was standing in front of it.

This seemed unlikely, because, as Lee himself acknowledged, the scene was “dynamic,” meaning people were moving around, and because the assailants — police believe there were two — traipsed Carr’s blood into several other rooms.

Lee had an answer. He said there was a towel in an upstairs bathroom with a brown stain on it. He said he tested the towel and found the stain was “positive consistent with blood,” which opened the possibility the assailants used it to wipe themselves off. Indeed, the prosecutor in Henning’s trail (they were tried separately) told the jury to “Remember the bloody towel in the upstairs bathroom. It gave them an opportunity to wash . . .”

But in fact the towel had never been tested, and when it was, years later, the brown stain turned out not to be blood, lab technicians testified at the habeas trial. The state argued that Lee simply made a mistake, and that it, in effect, didn’t really matter.

Lawyers for Henning and Birch, W. James Cousins and Andrew O’Shea respectively, argued Thursday that it mattered considerably because expert forensic testimony presented to a jury in a criminal prosecution is “potent and convincing.”

Both argued that the state knew — Lee was a state employee — or should have known that the testimony was false, and that offering it was prejudicial to their client. This seemed to resound with Justice Steven Ecker, who noted that Lee would be a “powerful witness,” and that it is hard to say that Lee’s testimony “couldn’t have had an effect on the jury.”

Cousins and O’Shea also raised questions about another point of forensic evidence, a bloody footprint next to Carr’s body. Cousins said Henning’s trial counsel, now-deceased public defender Carl Eisenmann, failed his client by not bringing in an expert to measure the shoe size of the print.

The footprint was preserved. At the habeas trial in 2015, former FBI agent William Bodziak, an expert in footprint impressions, testified that the shoe that made the print was much smaller than either Birch or Henning’s shoes.

The matter continues on Friday when justices are scheduled to hear a separate petition for a new trial based on DNA testing.