GIST: "Two men cleared after serving 30 years in prison for a gruesome murder they didn’t commit are accusing world-famous criminologist Henry Lee of fabricating evidence and, in the process, have raised new questions about past practices at the state forensic science laboratory, court documents show.
In a new legal filing in a wrongful conviction suit, Shawn Henning and Ralph Birch are asking for a ruling, even before a trial begins, that would hold Lee largely responsible for their imprisonment. They claim in the filing that their convictions were based on a made-up blood test that Lee contrived to close a stubborn case that had gone unsolved for years.
Lee, retired director of the state police forensic laboratory, and the detectives with whom he worked said no forensic tests were invented and insist everything they did in the now-notorious, 38-year-old murder of Everett Carr in New Milford was done by the book.
Officials at the forensic science laboratory, run by the state police, and the state Attorney General’s office, which is defending the suit, declined to discuss the case.
New questions about the case have arisen in recent years as Henning and Birch, supported by public interest lawyers devoted to reversing questionable convictions, dug into the record, retested evidence and reinvestigated.
At the center of the controversy is a bathroom towel that Lee said was stained with blood and Henning and Birch say was not.
It is hardly surprising that the controversy turns on blood evidence, because Carr’s murder, at his daughter’s house in 1985, was exceptionally bloody.
Whoever killed Carr trapped him in a narrow hallway, 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 killers tracked blood through the house and left smudges or droplets on items they handled during what could have been a search for valuables.
The state police detectives who led the investigation at first considered Carr’s death a rage killing because of the violence. But they shifted to the theory that it was a burglary gone wrong, even though the killer or killers left behind cash, jewelry and other easily transportable valuables.
Henning and Birch, then 17 and 18 years old, were suspects within days. They were a pair of drug abusing, teenage burglars living, packed with everything they owned, in the noisy, stolen Buick they would be accused of driving to Carr’s house to kill him.
But the police were confronted by a contradiction. The crime scene suggested the teens should have been soaked by blood. There was not a trace on them, their clothing, the Buick or the clutter in the car.
An explanation came, as it has so often in notorious murders, from Lee, a forensic blood expert who ran the state police crime lab. Even then, Lee was Connecticut’s most famous detective and was building the resume that would include roles as a star witness in sensational trials such as O.J. Simpson’s.
Lee identified a stained towel in an upstairs bathroom and said his tests on the light stains proved they were made by blood. The prosecutor argued later, at trial, that the towel could explain the absence of blood on the teens: They used it to clean up. Henning and Birch were convicted of murder and sentenced to 50 and 55 years in prison, respectively.
The teens lost a succession of appeals before the state’s case collapsed in 2019. The allegedly blood-stained towel was the reason.
The state Supreme Court reversed the murder convictions, concluding — based on then-new evidence — that Lee had no way of knowing what was on the towel because neither he nor anyone in his lab tested it.
When the stains finally were tested in 2008 — part of a last-ditch appeal by Henning and Birch — the result showed they weren’t made by blood at all, but some inorganic substance.
The decision made clear the court saw no evidence Lee’s testimony about the towel was intentionally false or anything other than a mistaken recollection.
In their new federal filing, a motion for summary judgment against Lee, Henning and Birch add to the Supreme Court’s reservations about the convictions by arguing that, under intense pressure to close a stalled investigation, he fabricated a positive result for what’s known as a presumptive tetramethylbenzidine test on the towel. The test causes a chemical reaction that leaves a blue stain when tetramethylbenzidine is exposed to the “heme” in the hemoglobin of blood.
“With no probable cause, the investigation at a dead end and the victim’s family putting pressure on law enforcement, the defendants in this case, including the state’s lead criminalist, Dr. Henry Lee, began fabricating evidence to ‘solve’ the ‘botched burglary’ homicide. They fabricated evidence to fit the ‘botched burglary’ theory so the implausible became plausible,” the motion for summary judgment says.
Lawyers for Hennng and Birch, who are suing the state for millions of dollars in wrongful imprisonment damages, also complain in the federal filing that Lee wrongly removed crime scene photographs — including images of the towel — from the state laboratory.
They claim Lee acknowledged in two recent depositions that he considered 140 crime scene photographs to be his “personal” property and moved them to his home. Those photographs were never made available to the two men until 37 years after the murder, including during the decades they spent pressing appeals, disputing evidence about the towel and calling for further investigation.
“Shawn Henning and Ricky Birch were wrongfully imprisoned for 30 years based on a supposed blood test that the state conceded Dr. Lee never performed,” said Attorney Craig Raabe, one of Henning’s lawyers. “They seek to hold Dr. Lee liable for fabricating the blood test based on his own sworn testimony and the testimony of his own experts.”
Lee said in an interview last week he is saddened and puzzled by what he called the “false accusations.” He said he is being wrongly accused of implicating the men in crimes when he actually contributed to their exoneration by reporting to the police that there was no blood on their shoes, clothing, car or the contents of the car.
“Actually this case, I exonerate them,” he said. “You talk about the pressure of solving. I exonerate. Because they sent me the suspects’ clothing. The shoes. I did the test. I say no blood was found. They even send some car parts. We examine the car. Negative. If I wanted to convict these guys wrongly, I could easily say clothes test positive. I just don’t understand. I just try to speak for the victim.”
But lawyers for Henning and Birch said they have evidence, including deposition testimony from Lee and others, that suggests Lee’s statements are not persuasive.
Henning and Birch have produced crime scene photographs of the towel — including one taken from Lee’s personal collection at his home — that appear not to depict the blue stains that would have been left as residue from the tetramethylbenzidine test.
In his deposition, Lee insists that the photographs do depict blue stains, according to the new federal filing. In the interview last week, he said the photographs showed that he had tested the towel for blood, but that it is well known to forensic science that, over time, the blue stain caused by a chemical reaction would have faded.
“After 30 years the blue fades away,” he said. “Because that is a chemical reaction. Once it reacts it is gone. And then gradually it just faded away due to oxidation.”
In their legal filing, Henning and Birch assert that two witnesses — designated by Lee as experts in his behalf — said in depositions that they are not aware of any evidence, including photographs and crime lab records, that corroborates Lee’s claims that he or anyone else ever performed tests on the towel.
Brooke Kammrath, an expert in criminalistics and crime scene investigation at the Henry C. Lee Institute of Forensic Science — where Lee teaches at the University of New Haven — testified that there is “no written documentation or photographic” evidence that he tested the towel for blood.
Michael Proto, a state prosecutor who represented the state during appeals by Henning and Birch, said in a deposition that there “just wasn’t anything” to support Lee’s assertions.
According to Lee’s account during the interview, the Supreme Court had been misinformed and reached erroneous conclusions when it questioned his work on the Carr murder. There is no documentation of his tests on the towel, he said, because the lab’s master case file apparently has been misplaced.
The finding that the stains were caused by an inorganic substance rather than blood when Henning and Birch arranged for retesting in 2008 were the result of an error by an inexperienced lab technician, he said.
“The trouble start with this inexperienced laboratory technician,” Lee said. “She say 30 years later, she test the towel. Negative.”
He said guidelines adopted in forensic science invalidate negative results for blood tests performed after a 30-year delay.
Lee said that he did not remove any official crime scene photographs from his laboratory. He said crime scene photographs — even photographs documenting his work — are taken by police detectives and stored within their agencies. He said he took the photographs kept at his house as part of a personal record to document his work.
“How could I move their photos to my house?” Lee said, “That is kept in the state police, local police photograph unit. I usually go to crime scenes, as everybody knows, I take a set of slides for my file. That’s what I did.”
“I documented the people at the scene and myself,” he said. “So now they say, I remove. That’s not removing. When I retire, just take home my file.”
“Luckily, I have my own record to protect me,” he said. “Otherwise nobody would believe me.”
In addition to Lee, Henning and Birch are suing state and New Milford police officers involved in the investigation. All have denied wrongdoing and are contesting the suit."
The entire story can be read at:
https://www.courant.com/news/connecticut/hc-news-henry-lee-challenged-forensic-blood-henning-birch-everett-carr-murder-20221113-h5ouv2vhtjazve4ucw3m4wak3m-story.html
PUBLISHER'S NOTE: I am monitoring this case/issue/resurce. 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;
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
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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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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