PASSAGE ONE OF THE DAY: "It is inarguable that Lee, as the representative of the state police forensic laboratory, should have known that the bathroom towel had not been tested for blood. He, like any such witness, had an affirmative obligation to review any relevant test reports before testifying so as to reasonably ensure that his testimony would accurately reflect the findings of those tests,'' Justice Richard Palmer wrote in a 23-page decision. "To conclude otherwise would permit the state to gain a conviction on the basis of false or misleading testimony even though the error readily could have been avoided if the witness merely had exercised due diligence,'' Palmer wrote. The decision made clear that the court saw no evidence that Lee’s testimony about the towel was intentionally false or anything other than a mistaken recollection. The court ordered new trials for both men."
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PASSAGE TWO OF THE DAY: "The towel with the spot on it had been a key component of then-Assistant State’s Attorney David Shepack’s final argument to the jury in Henning’s case, where he cited the blood on the towel as evidence of the men used it to clean their car to make sure no blood was found in it. Shepack, who is now the Litchfield State’s Attorney, could not be reached for comment Friday. It will be up to his office to decide whether the two men should again face a trial. Lee, who is out of the country, could not be reached for comment. The court ruled that if the jury had known Lee had never tested the towel and that his testimony was inaccurate it would have impacted the way they judged the rest of his testimony. “If the jury had known that Lee’s testimony about finding blood on the bathroom towel was incorrect, that knowledge might well have caused it to question the reliability of his other testimony,” Palmer wrote. “If that had occurred, the state’s entire case against the petitioner could very well have collapsed. In light of the foregoing, we conclude that the state’s failure to correct Lee’s testimony that there was blood on the bathroom towel deprived the petitioner of a fair trial.”
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PASSAGE THREE OF THE DAY: "The case marks the second time in recent years the accuracy of Lee’s testimony has been called into question. In arguing for the exoneration of David Weinberg, convicted in the 1984 murder of Joyce Stochmal, the Connecticut Innocence Project uncovered issues that it says raised doubts about Weinberg's conviction. Those included testimony from Lee about a knife that Weinberg owned and was introduced as evidence by the state. Lee "testified falsely that trace material on hair and on the knife was blood when he knew or should have known that the material was either animal blood or not blood at all," defense attorney Darcy McGraw told the judge. Lee also testified that three hairs found in the trunk of Weinberg's car were consistent with Joyce Stochmal's hair, McGraw said. Subsequent testing revealed that two of three hairs did not come from Joyce Stochmal and that the third could not be definitively linked to her."
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STORY: "State Supreme Court blasts renowned forensic scientist Henry Lee and throws out 1989 murder convictions of two New Milford men:," by reporter Dave Altimari, published by The Hartford Courant on June 14, 2019. (Dave Altimari is a reporter on the Courant’s investigative desk. He has reported on stories that have been named a finalist for the Pulitzer Prize, won a George Polk Award as part of a team that exposed corruption in the administration of former Gov. John G. Rowland and a National Headliner Award for coverage of the Hartford Distributors shooting.)
GIST: "In
a unanimous decision released Friday afternoon, the state Supreme Court
threw out the 1989 murder convictions of two New Milford men and
delivered a stinging rebuke to renowned forensic science expert Henry
Lee, whose inaccurate testimony put them in prison for decades.
Both
Sean Henning and Ralph Birch were convicted in separate trials for the
bloody murder of Everett Carr, who was stabbed 47 times, his throat slit
and his blood tracked through the house. They were convicted partially
based on the testimony of Lee who told jurors that a towel in the
bathroom of Carr’s home had a spot on it that he had tested and found
was “consistent with blood.” It
wasn’t until more than 20 years later when the Innocence Project took
on the case that the state forensic laboratory revealed the towel had
never been tested before the original trial and when they tested it for
DNA they determined the substance on the towel wasn’t even blood. "It
is inarguable that Lee, as the representative of the state police
forensic laboratory, should have known that the bathroom towel had not
been tested for blood. He, like any such witness, had an affirmative
obligation to review any relevant test reports before testifying so as
to reasonably ensure that his testimony would accurately reflect the
findings of those tests,'' Justice Richard Palmer wrote in a 23-page
decision. "To
conclude otherwise would permit the state to gain a conviction on the
basis of false or misleading testimony even though the error readily
could have been avoided if the witness merely had exercised due
diligence,'' Palmer wrote. The
decision made clear that the court saw no evidence that Lee’s testimony
about the towel was intentionally false or anything other than a
mistaken recollection. The
court ordered new trials for both men. Henning has been released on
probation. Birch is incarcerated at the Osborn Correctional Institution
in Somers. “Shawn
Henning was wrongly imprisoned for nearly 30 years on the false and
misleading testimony of Henry Lee. It has taken 30 years to correct this
injustice and we are very pleased with the court”s thoughtful
decision,” said Craig Raabe and James Cousins, lawyers for Henning, in a
statement released Friday. “I’m
just estastic for Ricky (Birch) because he is absolutely innocent and
seeing how time after time he has not gotten the result he should have
and then seeing this court give the case the look it needed and come to
the right conclusion is fantastic," said Birch’s attorney Andrew O’Shea
Friday. The
towel with the spot on it had been a key component of then-Assistant
State’s Attorney David Shepack’s final argument to the jury in Henning’s
case, where he cited the blood on the towel as evidence of the men used
it to clean their car to make sure no blood was found in it. Shepack,
who is now the Litchfield State’s Attorney, could not be reached for
comment Friday. It will be up to his office to decide whether the two
men should again face a trial. Lee, who is out of the country, could not be reached for comment. The
court ruled that if the jury had known Lee had never tested the towel
and that his testimony was inaccurate it would have impacted the way
they judged the rest of his testimony. “If
the jury had known that Lee’s testimony about finding blood on the
bathroom towel was incorrect, that knowledge might well have caused it
to question the reliability of his other testimony,” Palmer wrote. “If
that had occurred, the state’s entire case against the petitioner could
very well have collapsed. In light of the foregoing, we conclude that
the state’s failure to correct Lee’s testimony that there was blood on
the bathroom towel deprived the petitioner of a fair trial.” Carr’s
murder was such a violent attack that investigators collected more than
70 blood samples off the walls, ceiling, floor and even a hidden cigar
box. But none of it at the time matched the blood types of Birch or
Henning. When the DNA testing was conducted 22 years later none matched the two men convicted of his murder. Instead,
the testing uncovered a mystery DNA source — an unknown female whose
DNA was mixed with Carr’s in at least three places. The lawyers argued
before the state Supreme Court that based on the new DNA evidence the
two men should either get a new trial or be completely exonerated. The
court reversed the convictions and remanded the cases back to
Litchfield Superior Court where they were originally tried. The state
has a window to ask the court to reconsider its ruling but since it was
an unanimous decision that’s likely not to occur. The
1985 murder of the 65-year-old Carr was such a violent attack that
investigators collected more than 70 blood samples off the walls,
ceiling, floor and even a hidden cigar box, but when DNA testing was
conducted 22 years later none matched the two men convicted of his
murder. Instead the testing uncovered a mystery DNA source — an unknown
female whose DNA was mixed with Carr’s in at least three places. "The
prosecutor’s greatest challenge at trial was to explain how it was
possible for two teenagers to have stabbed the victim twenty-seven times
in the confines of a narrow hallway, severed his jugular vein, struck
him over the head several times, tracked blood all over the house, and
yet somehow managed not to leave any trace evidence in their getaway
vehicle—which, as we previously discussed, did not show any signs of
having been cleaned when the police recovered it a few days later,''
Palmer wrote in the decision released Friday. During
arguments before the court last October, Supervisory State’s Attorney
Jo Anne Sulik didn’t dispute that the DNA testing excluded the two men
but she argued that the juries already knew there was no forensic
evidence linking the two men and that the samples may not be totally
reliable because of possible contamination issues from state employees
at the forensic laboratory or others handling them. The justices questioned Sulik on what the state was doing to find who the unknown DNA found at the scene belonged to. “If
they are right there is a killer out there that has never been brought
to justice. Doesn’t that concern you?” Justice Steven Ecker asked. “Of course it does,” Sulik said.
The case marks the second time in recent years the accuracy of Lee’s testimony has been called into question. In
arguing for the exoneration of David Weinberg, convicted in the 1984
murder of Joyce Stochmal, the Connecticut Innocence Project uncovered
issues that it says raised doubts about Weinberg's conviction. Those
included testimony from Lee about a knife that Weinberg owned and was
introduced as evidence by the state. Lee "testified falsely that trace
material on hair and on the knife was blood when he knew or should have
known that the material was either animal blood or not blood at all,"
defense attorney Darcy McGraw told the judge. Lee
also testified that three hairs found in the trunk of Weinberg's car
were consistent with Joyce Stochmal's hair, McGraw said. Subsequent
testing revealed that two of three hairs did not come from Joyce
Stochmal and that the third could not be definitively linked to her. Weinberg
was released from state custody in 2017. Under an agreement between the
state and the Innocence Project to avoid a new trial and a possible
exoneration, Weinberg’s sentence was modified to time served."
The entire story can be read at:
https://www.courant.com/news/connecticut/hc-news-new-milford-murder-supreme-court-reversal-20190614-shsnedup3bhldmn5hg3a35ettu-story.html
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
