PASSAGE OF THE DAY: "The only “evidence” linking them to the crime, aside from the dubious smear on the towel, were statements of several individuals implicating them in the crime: A childhood friend of Henning claimed he had said he was involved in a burglary during which a man was killed. And two men who had been incarcerated with Birch each said that Birch had said he and Henning killed a man while robbing a house in New Milford. But Henning’s friend and one of the jailhouse informants recanted their testimony at the habeas trial, and an acquaintance of the other jailhouse informant testified he had said he lied in order to get transferred to another facility. And importantly, there was evidence that one or more other people had murdered Carr. There were footprints of two people in the blood on the floor in the house, but the prints didn’t match the treads on the soles of Birch and Henning’s shoes and one set of prints was made by someone who, an FBI footwear specialist determined, had a shoe size of 7½ to 9. Henning and Birch wore shoes that were 10½ to 11½ in size. A DNA profile was found at four locations at the crime scene, including on the inside of the front waistband of Carr’s underwear and on a piece of metal under his body that came from the knife used in the attack. That DNA came from a woman."
COMMENTARY: "Questions in civil claims against CT forensic scientist Henry Lee," by Prof. David R. Cameron, published by The Hartford Courier, on July 30, 2023. (David R. Cameron is a professor emeritus of political science at Yale and has served on the state’s task force on eyewitness identification.)
GIST: "In June 2019, the state Supreme Court unanimously reversed a judge who rejected the habeas petitions for new trials of Ralph “Ricky” Birch and Shawn Henning, who were convicted in 1989 of murdering Everett Carr on Dec. 1, 1985.
Carr, 65, was a retired truck driver and lived in his daughter’s home in New Milford. Sometime that evening, he was attacked in the home, hit on the head seven times, stabbed 27 times, and his jugular vein severed. Birch, 18, at the time of the crime, and Henning, 17, at the time, were convicted in 1989 and sentenced, respectively, to 55 years and 50 years in prison.
The Supreme Court later ordered new trials for both men.
In reversing the habeas judge, the Supreme Court concluded the men’s right to a fair trial was violated by the state’s failure to correct the trial testimony of Dr. Henry C. Lee, at the time the director of the State Police Forensic Science Laboratory. Lee investigated the crime scene and took photos in the upstairs bathroom in the home, including one of a white towel hanging on a bar in the bathroom.
He later told a prosecutor he had tested a smear on the towel and it was positive for blood, and in the trials of the two men he said he had done a field test on the smear that was “positive consistent with blood” and was “subsequently identified to be blood.”
But two lab technicians testified at the habeas trial there were no records of either a field test or a subsequent lab test and that, when the smear was tested years later, it was found not to be blood.
In July 2020, after Litchfield State’s Attorney Dawn Gallo told a Superior Court judge the state had decided not to retry Birch and Henning because the witnesses from the original trial had either died or recanted and there was no evidence linking the men to the murder, the judge dismissed all charges against them.
Subsequently, Birch and Henning sued the town of New Milford, two police officers of the town, five detectives and two sergeants of the State Police, and Lee in federal court for alleged fabrication of evidence, malicious prosecution, and suppression of material exculpatory evidence that resulted in their wrongful conviction for felony murder and burglary and their incarceration for more than 30 years.
All of the defendants moved to dismiss some of the claims against them, but the court denied those motions.
Following discovery, the town defendants and some of the state defendants moved for summary judgment on the claims against them.
U.S. District Court Judge Victor A. Bolden then delivered his ruling and order on the motions for summary judgment put forward by the town and state defendants.
Except for one part of the motion for summary judgment of one state police official, all of the state and town defendants’ motions for summary judgment were denied.
But it was the judge’s ruling in regard to one defendant in particular — Lee — that captured the attention of the media throughout the country.
Lee had moved for summary judgment on all claims against him on the basis of the affirmative defense of absolute testimonial immunity.
However, as Judge Bolden noted, Lee did not plead that affirmative defense in his answer to the complaint, nor did he move to amend his answer to include that defense before filing his motion for summary judgment.
The plaintiffs argued that, because he didn’t plead that defense in his answer and didn’t move to amend his answer to the complaint before filing his motion for summary judgment, which relied exclusively on that defense, Lee shouldn’t be allowed to rely on it now at this late stage in the litigation.
Bolden agreed and denied both Lee’s motion to amend his answer and his motion for summary judgment on the basis of absolute testimonial immunity. Bolden also agreed with the plaintiffs that they are entitled to summary judgment as to liability on their claims against Lee.
In reading Bolden’s 84-page ruling, one sentence stands out in regard to Lee’s failure to amend his answer to the plaintiffs and his motion for summary judgment on the basis of absolute testimonial immunity.
Bolden wrote that “Dr. Lee argues that his counsel ‘unintentionally neglected to move more quickly to amend when it became clear to counsel that testimonial immunity was a viable, and in fact, meritorious defense for the Defendant.”
Bolden goes on to say that “upon review of the claims contained in the Complaint, it should have been fairly obvious that absolute testimonial immunity may have been a defense to the claims against Dr. Lee … Dr. Lee therefore had ample opportunity to raise this defense. Yet he did not raise it until after he filed his motion for summary judgment, nearly two years after the Complaint was filed.”
All of this raises an exceptionally important question both for Lee and the state: If, as Bolden says, it should have been fairly obvious that absolute testimonial immunity may have been a defense to the claims against Lee, why did his counsel, according to Lee, unintentionally neglect to move more quickly to amend his answer when it became clear to the counsel that testimonial immunity was a viable, and in fact, meritorious defense?
On Wednesday, July 26, the office of Attorney General William Tong, which is defending Lee and the other state defendants, said, “We disagree with Judge Bolden’s decision, and we will appeal. We stand by our lawyers’ strong work in this case. They offered a vigorous and legally correct defense.”
Nevertheless, the question remains: Why wasn’t Lee’s answer to the plaintiffs amended to give them notice of a defense based on absolute testimonial immunity?
While that is the most important unanswered question raised by Bolden’s ruling, there is another equally important question that hangs over this case — one that has, indeed, been there for more than 37 years, since the evening of Dec. 1, 1985: Who killed Everett Carr?
It should have been obvious to investigators from day one that Birch and Henning did not kill Mr. Carr.
Despite the bloody crime scene, there was no trace evidence of the crime in the car the young men drove that evening or on their clothing and shoes.
And their DNA was not found anywhere in the house, including in the bathroom where they supposedly cleaned up and on the white towel they supposedly used.
The state’s notion that the single smear on a towel in the bathroom was evidence the two young men killed Carr was absurd; had they killed him and tried to clean up afterwards in the bathroom, it would have been covered with Carr’s blood and their DNA.
And had they killed him, their clothes and shoes, and the interior of the car, would have been covered with blood as well, and their DNA would have been on door handles and other places in the house.
The only “evidence” linking them to the crime, aside from the dubious smear on the towel, were statements of several individuals implicating them in the crime: A childhood friend of Henning claimed he had said he was involved in a burglary during which a man was killed.
And two men who had been incarcerated with Birch each said that Birch had said he and Henning killed a man while robbing a house in New Milford.
But Henning’s friend and one of the jailhouse informants recanted their testimony at the habeas trial, and an acquaintance of the other jailhouse informant testified he had said he lied in order to get transferred to another facility.
And importantly, there was evidence that one or more other people had murdered Carr.
There were footprints of two people in the blood on the floor in the house, but the prints didn’t match the treads on the soles of Birch and Henning’s shoes and one set of prints was made by someone who, an FBI footwear specialist determined, had a shoe size of 7½ to 9.
Henning and Birch wore shoes that were 10½ to 11½ in size.
A DNA profile was found at four locations at the crime scene, including on the inside of the front waistband of Carr’s underwear and on a piece of metal under his body that came from the knife used in the attack.
That DNA came from a woman.
Astounding as it may seem in a state that, thanks largely to Lee and his fellow forensic scientists in the state lab, has been at the forefront in the development of the forensic use of DNA, the source of that DNA has never been identified. So the question remains: Who killed Everett Carr?
The entire commentary can be read at:
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. 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/120008354894645705/47049136857587929
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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YET ANOTHER FINAL WORD:
David Hammond, one of Broadwater’s attorneys who sought his exoneration, told the Syracuse Post-Standard, “Sprinkle some junk science onto a faulty identification, and it’s the perfect recipe for a wrongful conviction.”
https://deadline.com/2021/11/alice-sebold-lucky-rape-conviction-overturned-anthony-broadwater-1234880143/
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