PASSAGE OF THE DAY: "The theory of the crime was that Carr interrupted a burglary, putting Birch and Henning at the top of the suspect list. But the police were confronted by a contradiction. The crime scene suggested the teens should have been soaked with blood. There was not a trace on them, their clothing, the stolen Buick or any of the clutter of possessions they had stuffed into the car. Lee provided an explanation: He testified that he found a stained towel in an upstairs bathroom at Carr’s house and that his repeated tests on the stains proved they were made by blood. The prosecutor was able to suggest to jurors in his closing arguments that the teens could have used the towel to clean up. Birch and Henning were convicted in separate trials of felony murder and sentenced to 50 and 55 years in prison, respectively. It was more than 20 years later, in 2008, that they discovered a stunning oversight by the prosecution that discredited Lee’s testimony. Birch and Henning had arranged through a last-ditch appeal to have the bathroom towel subjected to sophisticated genetic testing unavailable at the time of their trials. Over the course of the testing, the state forensic laboratory found records showing that the the towel had never been tested before, by Lee or anyone else. That meant, at the time of trial, there was no way of knowing what the stain was. When the towel ultimately was tested, the results showed the red-colored stains were not made by blood at all, but by an inorganic substance. It was another 11 years until the appeal reached the state Supreme Court, which reversed the murder convictions in a unanimous decision sharply critical of Lee. “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,” Justice Richard N. Palmer wrote for the court. “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. “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.”
PASSAGE TWO OF THE DAY: Lee is standing by his work, asserting that he did all tests he claims to have done and defending the results. He has said he has become a target of a criminal defense tactic that involves attacking expert witnesses. But in a case similar to those of Henning and Birch, a third man was recently released from a long prison sentence based on allegations that Lee had testified erroneously. David Weinberg was convicted in the brutal, 1984 stabbing death of Joyce Stochmal. In that case, Lee testified that he found blood on a knife belonging to Weinberg and three hairs that matched Stochmal’s in the trunk of Weinberg’s car. As it turned out from later testing, the blood was either animal blood or not blood at all. 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’s lawyer pressed him to fight for a dismissal of the murder charge, but he wanted immediate release from decades in prison. The prosecution agreed to release him based on time served and he fled the state. Wendall Hasan is a fourth man who is suing in an effort to reverse a murder conviction based on allegedly false testimony by Lee in another bloody stabbing case. Hasan was convicted in 1986 of stabbing to death George Tyler in Tyler’s Darien home a year earlier. Lee testified that blood on a sneaker found in Hasan’s home matched Tyler’s blood, according to the suit. A subsequent test in July 2014 by the state police forensic laboratory showed the stains on the sneaker “were negative for the presence of blood,” according to the suit."
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STORY: "Judge dismisses murder charges against men imprisoned for three decades based in part on discredited testimony by world famous criminologist
Henry C. Lee," by report Edmund H. Mahony, published by The Hartford Courant on July 10, 2020. (Ed Mahony has covered Connecticut for more than three decades, mostly for the Hartford Courant. Over the last decade, he has covered some of the country’s biggest political and mob trials. He is the recipient of numerous journalistic awards, including the Pulitzer Prize and the George Polk award, which he has won twice.)
GIST: A judge on Friday dismissed the charges against two men who were convicted of murder and served three decades in prison based in part on erroneous trial testimony by the world-famous forensic scientist Dr. Henry C. Lee.
Superior Court Judge Dan Shaban dismissed charges against Ralph Birch and Shawn Henning during two brief and sparsely attended hearings in a courthouse all but shut down by the coronavirus pandemic. Both men spent 30 years in prison until the state Supreme Court, in a decision sharply critical of Lee, reversed their convictions last year for the 1985 murder of retired truck driver Everett Carr in New Milford.
Litchfield State’s Attorney Dawn Gallo told Shaban that the state had decided against retrying the men, saying key witnesses had died, the recollections of others had faded, two important prosecution witnesses recanted their testimony and a comprehensive series of tests and retests of evidence failed to turn up anything tying Birch and Henning to the murder. She did not mention Lee. Lawyers for the two men asked Shaban to dismiss murder and burglary charges and the judge agreed — putting Birch and Henning in a position to pursue millions of dollars in wrongful prosecution claims against the state.
“Further investigation of this matter would be unnecessary,” Shaban said.
The two hearings, which together lasted about 10 minutes, were something of an anticlimax. Birch and Henning sat socially distanced from their lawyers. A handful of spectators were allowed to sit in in the same courtroom, in marked seats 6-feet apart. Shaban’s disembodied voice emerged from a computer monitor; he was in a second courtroom with his staff. Additional spectators watched a broadcast of the proceedings from a third courtroom.
Afterward, Henning, Birch, their lawyers and a small number of friends and family gathered quietly in a courthouse corridor and left together.
“They say the wheels of justice turn slowly,” Birch said. “That’s a little bit of an understatement. It feels good. It’s been a long time coming.”
“I’m happy to be where I am,” he said. “Because I can’t dwell on what happened. They took 30 years of my life and I’m not going to give them any more by being angry.”
Birch wore a T-shirt with the words, in tiny letters, “I am innocent.” Henning’s shirt read “I didn’t do it.”
Henning joked that “I changed my last name to ‘Beach.‘ ”
“Because that’s where I’m spending all my time,” he said, “just breathing fresh air and enjoying the company of normal people.”
The two men, now in their 50s, have protested their innocence since their arrests, although Henning said there were times during his imprisonment that he lost hope of being vindicated. Both thanked a long list of supporters, including their lawyers, Andrew O’Shea, James Cousins and Craig Raabe, as well as Superior Court Judge Karen Goodrow, who took up their case when employed as a lawyer for the Innocence Project, and another advocacy group for the wrongfully convicted, Centurion Ministries.
The dismissals are another blow to Lee’s increasingly tarnished reputation. Lawyers once fought over Lee, a fixture as star witness in the sensational criminal trials of O.J. Simpson, William Kennedy Smith and others. But more recently, his judgement has been questioned. Four murder convictions in Connecticut, including those of Birch and Henning, have been reversed or challenged over allegations of erroneous testimony by Lee about what he characterized as definitive blood evidence.
Birch and Henning were troubled and homeless teenagers, aged 18 and 17, living in a stolen car and committing burglaries to raise money for drugs when Carr was beaten and stabbed to death in his New Milford home in an extraordinarily brutal attack.
Lee and the state police crime scene experts decided Carr’s killers trapped him in a narrow hallway, probably around midnight, pounded on his head with something heavy and stabbed him 27 times, severing, among other things, his jugular vein. The walls were spattered, from baseboard to ceiling, in blood and so much pooled on the floor that the police had to build a makeshift bridge to get to the body without tramping through it.
The theory of the crime was that Carr interrupted a burglary, putting Birch and Henning at the top of the suspect list. But the police were confronted by a contradiction. The crime scene suggested the teens should have been soaked with blood. There was not a trace on them, their clothing, the stolen Buick or any of the clutter of possessions they had stuffed into the car.
Lee provided an explanation: He testified that he found a stained towel in an upstairs bathroom at Carr’s house and that his repeated tests on the stains proved they were made by blood. The prosecutor was able to suggest to jurors in his closing arguments that the teens could have used the towel to clean up. Birch and Henning were convicted in separate trials of felony murder and sentenced to 50 and 55 years in prison, respectively.
It was more than 20 years later, in 2008, that they discovered a stunning oversight by the prosecution that discredited Lee’s testimony. Birch and Henning had arranged through a last-ditch appeal to have the bathroom towel subjected to sophisticated genetic testing unavailable at the time of their trials. Over the course of the testing, the state forensic laboratory found records showing that the the towel had never been tested before, by Lee or anyone else. That meant, at the time of trial, there was no way of knowing what the stain was. When the towel ultimately was tested, the results showed the red-colored stains were not made by blood at all, but by an inorganic substance.
It was another 11 years until the appeal reached the state Supreme Court, which reversed the murder convictions in a unanimous decision sharply critical of Lee.
“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,” Justice Richard N. Palmer wrote for the court. “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.
“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.”
How to characterize erroneous testimony in a capital case by one of the the world’s most famous criminologists was a struggle for the justices, according to the decision. They considered “false and misleading” or “mistaken rather than intentionally false or untruthful” before settling on “incorrect.” In the final analysis, the court said, it didn’t matter “whether Lee’s testimony was intentionally false or merely mistaken” because “the state knew or should have known that the testimony was incorrect.”
The lawyers representing Birch and Henning issued a statement Friday asserting that the state forensic laboratory has performed sophisticated DNA tests on hundreds of pieces of evidence since 2008 and has turned up nothing that ties the two to the crime. What’s more, they said the tests have revealed DNA from an unknown source.
Lee is standing by his work, asserting that he did all tests he claims to have done and defending the results. He has said he has become a target of a criminal defense tactic that involves attacking expert witnesses.
But in a case similar to those of Henning and Birch, a third man was recently released from a long prison sentence based on allegations that Lee had testified erroneously. David Weinberg was convicted in the brutal, 1984 stabbing death of Joyce Stochmal. In that case, Lee testified that he found blood on a knife belonging to Weinberg and three hairs that matched Stochmal’s in the trunk of Weinberg’s car. As it turned out from later testing, the blood was either animal blood or not blood at all. 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’s lawyer pressed him to fight for a dismissal of the murder charge, but he wanted immediate release from decades in prison. The prosecution agreed to release him based on time served and he fled the state.
Wendall Hasan is a fourth man who is suing in an effort to reverse a murder conviction based on allegedly false testimony by Lee in another bloody stabbing case. Hasan was convicted in 1986 of stabbing to death George Tyler in Tyler’s Darien home a year earlier. Lee testified that blood on a sneaker found in Hasan’s home matched Tyler’s blood, according to the suit.
A subsequent test in July 2014 by the state police forensic laboratory showed the stains on the sneaker “were negative for the presence of blood,” according to the suit."
The entire story can be read at:
The entire story can be read at:
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;
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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