Men convicted in 1985 mur­der seek ex­on­er­a­tion or new trial

The News-Times - - FRONT PAGE - By Clarice Sil­ber In the area at the time

Two men convicted of a grisly

1985 mur­der asked the Con­necti­cut Supreme Court on Fri­day to ei­ther ex­on­er­ate them or grant them a new trial in light of new DNA test­ing that places an un­known fe­male at the scene of the crime.

The re­quest came af­ter lawyers for Shawn Hen­ning and Ralph “Ricky” Birch on Thurs­day ar­gued be­fore the court that the con­vic­tions were pre­cip­i­tated by false tes­ti­mony by state crim­i­nol­o­gist Henry Lee, in­ept lawyer­ing and co­erced wit­nesses.

Hen­ning and Birch, who were convicted in 1989 of mur­der­ing

65-year-old New Mil­ford res­i­dent Ev­erett Carr dur­ing a bur­glary at his home, have main­tained their in­no­cence since their ar­rests.

An­drew O’Shea, an at­tor­ney for Birch, told Supreme Court jus­tices on Fri­day the new “DNA ev­i­dence it­self is highly ex­cul­pa­tory” and ar­gued new test­ing, to­gether with other rel­e­vant ev­i­dence, in­di­cates there should be a new trial.

“Here you have DNA ev­i­dence that is rel­e­vant to guilt or in­no­cence, then that should be con­sid­ered,” O’Shea said.

O’Shea was re­fer­ring to DNA test­ing con­ducted be­tween 2007 and 2013 on more than two dozen items in the home. That test­ing turned up the DNA pro­file of an un­known fe­male that was found mixed with the vic­tim’s DNA in sev­eral places con­nected with the crime.

That un­known fe­male’s DNA was found on cer­tain items that likely only the vic­tim would have touched — in­clud­ing on a White Owl cigar box, blood scraped from a floor­board and the front waist­band of the vic­tim’s un­der­wear.

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

But As­sis­tant State’s At­tor­ney Jo Anne Su­lik said the orig­i­nal trial ju­ries knew there was no DNA ev­i­dence link­ing Hen­ning or Birch to the mur­der of Carr.

“As the jury un­der­stood … there was no foren­sic links be­tween these pe­ti­tion­ers and the as­sailants of this crime,” Su­lik said. “The jury knew that.”

Su­lik also said that the un­known fe­male DNA could be linked to ei­ther Carr’s house­keeper or wife. But when asked by Jus­tice Maria Araujo Kahn if the state ever at­tempted to test ei­ther women’s DNA, Su­lik re­sponded no. The as­sis­tant state’s at­tor­ney said the ev­i­dence was closed.

When Kahn pressed her, ask­ing, “Wouldn’t you want to know?” Su­lik replied that it wasn’t done be­cause she didn’t have the op­por­tu­nity to do it. In 1985, when Carr was bru­tally mur­dered in what looked like a home bur­glary, Hen­ning and Birch were trou­bled youth liv­ing in a stolen car and bur­gling homes in the New Mil­ford area.

The two teens were taken in as sus­pects and while they con­fessed to steal­ing the car and to com­mit­ting four other area bur­glar­ies, they stead­fastly in­sisted that they were not in­volved with the Carr mur­der.

Hen­ning and Birch, 17 and 18 years old re­spec­tively when the mur­der took place, were tried sep­a­rately and convicted of Carr’s mur­der in 1989. They re­ceived pri­son sen­tences of 50 and 55 years, re­spec­tively.

Hen­ning, who was re­leased on pro­ba­tion to a halfway house this sum­mer, watched the Fri­day hear­ing in­tently from a cor­ner in the back of the room. Birch still re­mains in pri­son.

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.

Lawyers for the two men ar­gued on Thurs­day that the judge who heard their ear­lier habeas cor­pus cases erred by not or­der­ing a new trial based on the false or in­cor­rect tes­ti­mony given dur­ing the orig­i­nal trial by foren­sic sci­en­tist Henry Lee.

Lee told the jury at Hen­ning’s trial that a spot found on a towel in the bath­room was likely blood — tes­ti­mony that was cited by pros­e­cu­tors to ar­gue that the de­fen­dants had used the towel to clean off Carr’s blood. When the towel was later tested for DNA, how­ever, those tests de­ter­mined the spot was not blood.

On Fri­day, jus­tices dis­cussed what a pro­ceed­ing would look like if it al­lowed for that new DNA ev­i­dence to be pre­sented, and whether there would be a limit on al­low­ing other non-DNA ev­i­dence. They also dis­cussed whether Lee’s now-er­ro­neous tes­ti­mony would be per­mit­ted.

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