The Middletown Press (Middletown, CT)
Wrongful convictions point to need for reform to criminal justice system David R. Cameron is a professor of political science at Yale University.
Last month, the state Supreme Court unanimously reversed a habeas judge who rejected the petitions of Ralph “Ricky” Birch and Shawn Henning for new trials for the murder of Everett Carr, 65, in New Milford in December 1985. Birch, 18 at the time of the crime, and Henning, 17, were convicted of felony murder in 1989 and sentenced, respectively, to 55 years and 50 years. The court ordered new trials for both men.
The court concluded the men’s due process right to a fair trial was violated by the state’s failure to correct the trial testimony of Henry C. Lee, at the time the director of the State Police Forensic Science Laboratory. Lee, shown a photograph of two towels hanging near the sink of an upstairs bathroom in Carr’s home, said he did some field tests on a red smear on one of the towels that were positive and consistent with blood and that “subsequently that smear was identified to be blood.” The lab had not in fact tested the smear and when it did, years later, it found it wasn’t blood.
Carr was hit on the head seven times, stabbed 27 times and his throat was cut. Despite the bloody crime scene, there was no trace evidence of the crime in the car the young men drove that evening. The state used the supposedly bloodstained towel to support its theory that the reason investigators found no trace evidence was because they had cleaned up after the crime.
News coverage of the case has understandably focused on Lee’s testimony. But it has ignored the more important fact that, irrespective of Lee’s testimony — and, indeed, even if it was correct — Henning and Birch were wrongfully convicted. There was no forensic evidence of any kind that linked them to the crime, and there was powerful evidence that pointed to others as the perpetrators. There were footprints of two people in the blood on the floor in the house, but the prints didn’t match the treads on the soles of their shoes and one set of prints was made by someone who wore a much smaller shoe than either man. A DNA profile was found at four locations in the crime scene, including on the inside of the front waistband of Carr’s underwear and on a piece of metal under his body that came from the knife used in the attack. But the DNA came from a woman.
The only “evidence” linking the men to the crime was statements by several individuals implicating them in the crime. A childhood friend of Henning testified he told him he was involved in a burglary during which a man was killed. Two men who were either incarcerated at the time or later said Birch told them he and Henning had killed a man while robbing a house in New Milford. Henning’s friend later recanted his testimony. One of the jailhouse informants recanted his testimony at the habeas trial. Two acquaintances of the other jailhouse informant testified at the habeas trial that he told them he had lied to the police about Birch having said he was involved so he could avoid being sent to Somers prison.
The case demonstrates the need for a pretrial process to evaluate the reliability of the testimony of jailhouse informants since such informants typically provide their testimony in exchange for some benefit and have an incentive to tell investigators what they think the investigators want to hear. The Innocence Project has found that one of the leading contributing factors in the wrongful conviction of individuals who have been subsequently exonerated on the basis of DNA is the false testimony of a jailhouse informant; such testimony figured in nearly onefifth of the 364 wrongful convictions that have been thrown out because of DNA evidence pointing to someone else as the perpetrator. Last year, Illinois became the first state in the country to require a pretrial reliability hearing for testimony of a jailhouse informant.
Fortunately, earlier this month Connecticut enacted legislation that creates such a process. Public Act 19131, An Act Concerning the Testimony of Jailhouse Witnesses, requires a prosecutor, upon receipt of a written request by a defendant, to disclose whether the state intends to introduce testimony of a jailhouse witness and, if so, to provide the complete criminal history of the witness, including pending charges or charges that were reduced or dismissed, as well as the cooperation agreement between the witness and the state, and the substance, time and place of any statement given by the defendant to the witness and by the witness to the state. Importantly, it also requires, upon a motion by a defendant before the start of a trial, that the court conduct a hearing to determine whether, by a preponderance of the evidence, the jailhouse witness’s testimony is reliable and admissible.
The case also points to the need for another reform, as well. While discussion about the case has focused on Lee’s testimony, the real focus should be on the prosecutor, because it is the prosecutor who is responsible for the accuracy of the testimony presented by the state in a trial. The fact that the prosecutor in this case failed to correct Lee’s testimony and relied on the false testimony of other witnesses points to the need for a process through which prosecutors can be held accountable when their actions, or inactions, deprive a defendant of his or her right to a fair trial. Last year, New York became the first state in the country to establish a Commission on Prosecutorial Conduct that has the authority to review a complaint of prosecutorial misconduct. Connecticut should consider creating such a commission.
While discussion about the case has focused on Lee’s testimony, the real focus should be on the prosecutor.