PASSAGE OF THE DAY: "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."
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STORY: "A special report: Bloody murder: Were teens wrongly convicted?" by reporter Tom Condon, published on November 28, 2017, by the CT Mirror. (Tom Condon writes about urban and regional issues for the Mirror, including planning, transportation, land use, development and historic preservation. These were among his areas of interest in a 45-year career as a reporter, columnist and editorial writer for The Hartford Courant. Tom has won dozens of journalism and civic awards, and was elected to the New England Newspaper Hall of Fame in 2016. He is a native of New London, a graduate of The University of Notre Dame and the University of Connecticut School of Law, and is a Vietnam veteran.)
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."
The this entire fascinating opus at the link below: