GIST: Shawn Henning sits at a long, cafeteria-style table in the Enfield Correctional Center. He is emotional, near tears. “I wasted my life in here,” he said, flicking his head at the prison surroundings. “It was wasted time for nothing.” “Damn.” A few tears come. Henning and another man, Ralph “Ricky” Birch, have been locked up since 1989, serving sentences of 50 and 55 years respectively, for a gruesome 1985 murder in New Milford they steadfastly insist they didn’t commit. Perhaps they didn’t. The state’s case, never airtight to begin with, has diminished over the years as two prosecution witnesses have recanted, key defense testimony was uncovered, and DNA testing put an unknown person at the scene. It also was disclosed that famed state criminalist Dr. Henry Lee offered erroneous testimony in the trials of the two men, though Lee contests the finding.  Nonetheless, Henning and Birch, teenagers at the time of the crime, are still in prison, awaiting a last-ditch appeal of a Superior Court decision last year upholding their convictions.  As they know better than most, it is exceedingly difficult to overturn a conviction in the state. The door has cracked open a bit since Henning and Birch were convicted. The emergence of sophisticated DNA testing in the past quarter century, along with the growing public awareness of false confessions (see: Central Park Five), misidentification by eyewitnesses and other issues, along with the emergence of conviction review agencies, have helped reverse the convictions of a handful of Connecticut inmates. Nonetheless it remains “virtually impossible to win an exoneration,” said Darcy McGraw, director of the Connecticut Innocence Project/Post Conviction Unit, a section of the Office of the Chief Public Defender. The Henning and Birch cases illustrate the challenge of reversing a conviction. Though court records and interviews show that defense lawyers have raised serious questions about the convictions, the two men, now middle-aged, approach three decades in prison with only a slim chance at freedom.........Henry Lee: This was one of the bloodiest crime scenes many of the first responders and others connected to the case had ever seen, raising the question of how anyone, never mind two teenagers, could have committed the murder without getting a single trace of the victim’s blood, hair or DNA on their clothing or shoes, or in their car, all of which were seized days later and thoroughly examined. To answer it, the state brought in famed forensic scientist Dr. 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. But this seemed unlikely, first because, as Lee himself testified at the criminal trials, as did another expert at the habeas trial, the scene was “dynamic” — the parties were moving around — and because the assailants traipsed Carr’s blood into several other rooms after the assault. 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. But at the habeas trial, Connecticut Forensic Laboratory technician Lucinda Lopes Phelan testified that the towel was never tested before the trials, and when it was, years later, the stain turned out not to be blood. Nonetheless, the prosecution cited Lee’s testimony in arguing that the assailants could have committed the crime without blood being found on them. Defense lawyers point out in their briefs that this was not Lee’s only instance of incorrect testimony.  In March a man named David Weinberg was freed from prison, where he was serving 60 years for a 1985 murder, in part because Lee testified incorrectly about two key forensic details in the case (See here). Lee, 79, is currently lecturing in China. In an email exchange he strongly objected to the characterization of his testimony as false, saying: “There was never any intention to give false or misleading statements.” He didn’t immediately recall the trial, which took place 28 years ago. After reviewing his testimony, Lee said he believes he did field tests at the crime scene, and that these were the basis of his testimony about blood on the towel. “I don’t believe we gave an opinion without doing a test.” Field tests are “presumptive” rather than definitive, he said, adding that the procedure was to have the towel sent to the state lab for what is called a confirmatory test. He said he didn’t do the lab test (if there was one) and was never told its outcome. He recalled that the towel “never became an important issue” during his investigation, there being more interest in fingerprints and footprints. He also noted that testing procedures have changed since he went to the crime scene in 1985, and that he is long retired from the lab. The trial transcripts show no reference to field versus lab tests, and, said Cousins, presumptive tests are not normally allowed as evidence. At the habeas trial, Lopes Phalen and another technician, Elaine Pagliero, testified that there was no record of either a field test or a lab test ever having been done, either of which should have been documented. Lopes Phelan’s testimony that the towel was never tested went unchallenged. Judge Sferrazza found that Lee testified “erroneously” about there being blood on the towel, but that it was simply a mistake. “It appears to the court much more likely that Dr. Lee mistakenly, but honestly, believed he tested that item of evidence … . The court concludes Dr. Lee was wrong but not lying under oath.” Footprints: Of the evidence found in the house, perhaps the most exculpatory was the bloody footprints. Impressions from two different sets of shoes were left in the blood next to the body, footprints all believe were left by two assailants. Police actually removed the section of floorboard to preserve the impressions. It was quickly clear that the sole patterns didn’t match those on the shoes seized from Henning and Birch three days after the killing. But apparently no one determined what size the footprints were. At the habeas trial, former FBI agent William Bodziak, an expert in footwear impressions, was able to determine that one set of prints was no larger than a size 9 and possibly as small as 7 1/2, too small for Birch (10 1/2 to 11) or Henning (11 1/2). Bodziak (he and Henry Lee testified at the O.J. Simpson trial) said the shoes seized from Henning and Birch were “extensively longer” — by one and one-half to two inches — than the prints. If his testimony were correct — it went unchallenged — then one of the two assailants was neither Henning nor Birch. The shoe size might connect to another body of evidence. Between 2007 and 2013, more than two dozen items in the home were tested for DNA. A DNA profile of an unknown person was found mixed with the victim’s on the bloody floorboard next to the body, inside the front waistband of the victim’s underwear, on a knife collar found under the body that is thought to have come from the murder weapon, and in a cigar box in the victim’s bureau that had a smudge of his blood along with it."

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