New trial sought in 1985 New Mil­ford mur­der

Con­victed as teens, men cite false tes­ti­mony by Henry Lee

The News-Times - - FRONT PAGE - By Tom Con­don

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 55year 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 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 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 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 strong­est part of the state’s case against Birch were the state­ments of two jail­house snitches, who re­ceived considerable ben­e­fit from the state for their tes­ti­mony that Birch told them he had killed an old man in a bur­glary.

One of those snitches has since re­canted his tes­ti­mony, while the other claimed Fifth Amend­ment rights against self-in­crim­i­na­tion, but four wit­nesses who tes­ti­fied at the habeas trial said the se­cond man told them he lied about Birch’s state­ment. Not im­peach­ing the snitches, no­to­ri­ously un­re­li­able wit­nesses, was part of the claim by Cousins and O’Shea that their clients en­dured in­ef­fec­tive rep­re­sen­ta­tion of coun­sel.

The state, rep­re­sented Thurs­day by As­sis­tant State’s At­tor­ney Michael J. Proto, es­sen­tially sup­ported the 2016 habeas de­ci­sion, ar­gu­ing that lawyers for the two de­fen­dants were not in­ef­fec­tive.

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

Be­tween 2007 and 2013, more than two dozen items in the home were tested for DNA, and a DNA pro­file of an un­known per­son was found mixed with the vic­tim’s in sev­eral places con­nected with the crime.

No DNA ev­i­dence link­ing Birch or Henning to the crime was ever dis­cov­ered.

The case has had an un­usual pro­ce­dural his­tory. It was sent to the state Ap­pel­late Court which trans­ferred it to the Supreme Court in June, say­ing there were two “im­por­tant is­sues of first im­pres­sion” that will re­quire Supreme Court res­o­lu­tion.

The law al­lows the fil­ing of a pe­ti­tion of a new trial be­yond the three-year statute of lim­i­ta­tions based on newly dis­cov­ered DNA ev­i­dence not avail­able at trial.

One is­sue the Supreme Court would look at was whether the court could con­sider non-DNA ev­i­dence that was not avail­able at the time of trial, or non-DNA ev­i­dence that was avail­able but not pre­sented.

Se­cond, when a state wit­ness has pro­vided in­cor­rect tes­ti­mony that is ma­te­rial to the case, of which the state has im­puted knowl­edge, what is the stan­dard the court should use in as­sess­ing whether the tes­ti­mony should re­sult in a new trial?

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.

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