QUOTE OF THE DAY: "In a statement after Shaban’s ruling, Birch and Henning said: “We hope that the state will take responsibility for the profound human consequences of obtaining murder convictions and long terms of imprisonment through indisputable ‘false or misleading’ testimony and arguments. We also remain hopeful that the state will use the forensic evidence that has been gathered, and more sound law enforcement tactics, to identify Mr. Carr’s actual killer or killers.” Birch told the Hartford Courant:; “They say the wheels of justice turn slowly. That’s a little bit of an understatement. 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.” He wore a shirt that said, “I am innocent.” Henning’s T-shirt said, “I didn’t do it.” In December 2020, Henning and Birch filed separate federal civil-rights lawsuits against New Milford, several of its police officers, and Lee, seeking compensation for their wrongful conviction. In 2022, both men filed state claims for compensation."
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PASSAGE OF THE DAY: "In separate opinions, the Connecticut Supreme Court granted both men new trials on June 14, 2019. The opinion said that Lee had an obligation to review records and other material before taking the stand to ensure the accuracy of his testimony. Similarly, the prosecutor had an obligation to be familiar with the material evidence. The fact that neither Lee nor the prosecutor didn’t know Lee was not telling the truth was immaterial. “To conclude otherwise,” the court said, “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.” The court also said that this error by the state wasn’t harmless. The challenge in this case, the court said, was for prosecutors to explain how Birch and Henning violently killed Carr but didn’t get any blood on themselves or the stolen Buick. The towel offered one theory, and without it, the court wrote, “the state’s entire case … could very well have collapsed." Birch was released from prison on July 13, 2019. Henning, because of his age at the time of the crime, had been paroled in July 2018. On July 10, 2020, Litchfield State’s Attorney Dawn Gallo moved to dismiss the charges against Birch and Henning. She said that the witnesses had either died or recanted and there was no forensic evidence linking either man to the murder. Judge Dan Shaban of Litchfield Superior Court granted the motion that day."
National Registry of Exonerations; By Ken Otterbourg; Last updated on November 29, 2022; Contributing factors: "False or Misleading Forensic Evidence, Perjury or False Accusation, Official Misconduct, Inadequate Legal Defense." DNA evidence contributed to the exoneration:
GIST; "At approximately 4:50 a.m. on December 2, 1985, Diana Columbo called an emergency dispatcher in New Milford, Connecticut, and said she had found the body of her father, 65-year-old Everett Carr, in the house they shared.
Carr had been stabbed 27 times, and there was extensive blood on the wall and floor of the narrow first-floor hallway near the kitchen. Two sets of bloody footprints were found throughout the house, and blood stains were found on items in Carr’s bedroom dresser. Columbo told the police that some clothes, a videocassette recorder, jewelry, and several rolls of quarters were missing.
Neighbors said they heard a car with a very loud muffler stop near Carr’s home between 12:10 a.m. and 12:30 a.m., but they didn’t see whether anybody got out of the vehicle. Investigators did not determine the time of the victim’s death. Regardless, their theory was that the loud car was connected to the crime.
Detectives with the New Milford Police Department theorized that Carr had been killed when he stumbled upon the burglars, and they quickly set about putting together a list of known burglars in the area as well as the people, known as “fences,” who bought their stolen merchandise. In the nearby city of Danbury, they interviewed a fence named Douglas Stanley, and also learned about two young men, 17-year-old Shawn Henning and 18-year-old Ralph "Ricky" Birch, who had been committing burglaries in the area around the time of the murder.
Just three days before Carr’s body was found, Henning and Birch had stolen a 1973 Buick Regal and driven it to New Hampshire to see Birch’s mother over the Thanksgiving weekend. They were joined by Henning’s girlfriend, Tina Yablonski. During the trip, the car got stuck in the snow, and the muffler was damaged when it was freed.
The police interviewed Henning on December 4. He had already learned about the murder from Stanley, whom police had interviewed the day Carr’s body was found. Henning denied any involvement with that crime. He initially said nothing about the stolen Buick. Police showed him a picture of Carr, and one of the officers would later testify that Henning said he might have seen Carr around town and asked whether Carr was the man with the tattoos. Carr did have several tattoos, although none was visible in the photo. Henning would later testify that he never made any such a statement.
Police interviewed Birch the next day, and he acknowledged stealing a Buick, stating he needed a place to live. He and Henning took the officers to the car, which was hidden in the woods near a local reservoir. After acknowledging their role in several recent burglaries, they were arrested. The car was filled with trash, food, clothes, blankets, and electronics. In a later court ruling, a judge would say “it was evident it had not been cleaned.” Crime-scene technicians searched the car but found no evidence tying Birch or Henning to Carr’s murder. Similar searches of the surrounding area and parts of two reservoirs also came up empty. Police continued to question Henning and Birch, and both denied any involvement. Henning urged the police to test everything so that he could clear his name. Two officers with the Connecticut State Police questioned Birch on December 9. They would later testify that Birch “spasmed” and “fell out of his chair” when they showed him a photo of Carr in a pool of blood. A short while later, according to the officers, Birch looked at the photo, pointed to an area outside the frame and said either “that is the bathroom there,” or “is that the bathroom there?” The bathroom was in that location, and the officers said that when they tried to ask additional questions, Birch threatened violence and the interview ended. The initial report the officers filed on this interview did not contain the bathroom comment. In the fall of 1986, Birch was arrested on an unrelated larceny charge by Detective Andrew Ocif, who had taken over the investigation for the state police. He learned about the alleged bathroom statement, and according to later testimony “badgered” the original officers to amend the report, which they did in May 1987. By the fall of 1987, the case was still unsolved. Birch was now at the Manson Youth Institute, a prison for young offenders, and he met an inmate named Robert Perugini. Ocif visited Perugini, and he agreed to provide incriminating evidence against Birch. At the time, Perugini was eager to avoid transfer to a regular prison, where he feared sexual abuse from older inmates. The state agreed to notify the state’s pardon board about Perugini’s cooperation, which ultimately resulted in his early release on his sexual assault conviction, and to use its influence to prevent his transfer to regular prison when he turned eighteen. Separately, Birch became friends with another inmate at Manson named Todd Cocchia. After their release in 1988, Cocchia and Birch moved to Norfolk, Virginia. Cocchia was arrested there on June 22, 1988, and Ocif visited him on July 12, 1988. He was offered favorable sentencing and prosecution recommendations on the Virginia charges and outstanding charges in Connecticut in exchange for his testimony that Birch had confessed to murdering Everett Carr. During the early days of the murder investigation, when Henning was in jail on the burglary charges, he called his grandmother, Mildred Henning, and a close friend, Timothy Saathoff. Ocif circled back to both of them in 1987 or 1988. Each would eventually testify that Henning had said that he was present at a burglary in which a man was killed, but that Henning had also said he didn’t commit the murder. Police arrested Henning on November 18, 1988. Birch was arrested on January 25, 1989. Both were charged with felony murder. Henning’s trial began in April 1989 in Litchfield Superior Court. There were no eyewitnesses or evidence directly tying either defendant to the crime. Yablonski had given police several different timelines of the night of December 1, when she and Henning and Birch returned from New Hampshire, which provided an alibi for Henning and Birch. But at the trial, she testified that they got back to Connecticut, went over to Stanley’s house in Danbury to get some cocaine, and then they drove the 15 or so miles back to her home in New Milford between 11:15 p.m. and 11:30 p.m. Two neighbors testified about hearing a loud car near Carr’s house on the night of the murder, but neither viewed the car or the occupants. Mildred Henning and Saathoff also testified about what they said Shawn had told them about his involvement with the murder. Mildred Henning said that her grandson’s incriminating statement had included his account of a dog getting killed during the incident. No dog had been killed, but Henning had heard incorrectly from Stanley around the time he called his grandmother that an animal had died. Despite the substantial amount of blood on the walls and throughout the house, investigators found no biological evidence on Henning, Birch, or in the stolen car. To explain why, prosecutors relied on the testimony of Dr. Henry Lee, who at the time was the director of the Connecticut State Police Forensic Laboratory. Lee testified that although Carr had been brutally stabbed numerous times, including a cut to his jugular vein, the blood from his wounds had spattered in an “uninterrupted” fashion, meaning there was nothing between Carr’s body and the wall. Asked whether the assailants would have had blood on their persons, Lee said, “My opinion is maybe.” As part of his testimony, Lee used a crime scene photograph of an upstairs bathroom that showed two towels by the sink. Lee testified that the towels had tested positive for the presence of blood. Henning testified and denied any involvement in Carr’s death. His attorney also put Columbo on the stand. She had given conflicting statements to the police, first stating she had been home all night and had heard her father coughing but did not check on him. Then, she said had been out until 2:30 a.m. Finally, Columbo said she had been out until 4:30 a.m., with a man who was not her boyfriend. That was why she initially lied to investigators. In addition, she waited until 4:50 a.m. to call for help, and when she did, she exclaimed to the dispatcher, “Oh God, he’s got a knife in his hand.” But Henning’s attorney didn’t explore these issues in depth. He asked Columbo when she thought her father had eaten last and whether she had told anyone Carr was holding anything when she found his body. Columbo denied making that statement. During closing arguments, the prosecutor painted a vivid picture of Carr fighting for his life. He used Lee’s testimony about the uninterrupted blood spatter to explain the lack of forensic evidence tying Henning to the crime. He also said that the assailants had cleaned themselves up before leaving. ‘‘Remember also the bloody towel in the upstairs bathroom,’’ the prosecutor said. ‘‘It gave them an opportunity to wash or have some access to that sink.’’ Henning’s attorney argued that the state’s case, predicated on two teenaged burglars committing a brutal murder without leaving any evidence connecting them to the crime, was not to be believed. He also told jurors that Henning’s grandmother was simply mistaken in what she had heard. Henning wouldn’t have told her he killed a dog, because he would have known that didn’t happen. The jury convicted Henning on April 19, 1989. Birch’s trial began two months later. Many of the same witnesses – including the neighbors and Yablonski – testified. Instead of Mildred Henning and Saathoff, the state relied on testimony from Cocchia and Perugini that Birch had made inculpatory statements. On cross-examination, Cocchia acknowledged that when Ocif first interviewed him, he either answered incorrectly or didn’t know many basic details of the crime to which he said Birch had confessed. Lee again was the state’s forensic witness. During his testimony, he referred to a photograph of the towels and testified that they had been tested and shown to have blood. But he said that he could not recall whether it was animal or human blood. Birch’s attorney objected, arguing that the state had not established that there was blood on the towel and had not admitted the towel into evidence. With the jury not present, the judge asked the prosecutor whether he would admit the towel. He said he was prepared to, but for now he wanted Lee to just testify about the towel and any observations about the item. The judge overruled Birch’s attorney, and Lee continued (now in front of the jury), stating that the photograph “depicts the portion of the bathroom – bathroom two towels. This towel had a reddish smear, very light smear. Subsequently, that smear was identified to be blood.” Neither Columbo nor testified at Birch’s trial. His witnesses were the dispatcher who described Columbo’s 911 call, a neighbor of Carr’s, who said he had seen the loud vehicle on the night of the murder and that its taillights were different than the stolen Buick, and Cocchia’s parole officer, who testified that he was a dishonest person. During closing arguments, the prosecutor didn’t specifically refer to the towel, but said, “There was testimony that there was blood by the bathroom sink upstairs.” The jury convicted Birch on June 23, 1989. Both men were sentenced on July 21, 1989. Birch received 55 years. Henning, 17 at the time of the murder, received 50 years. Birch and Henning began a series of appeals through the Connecticut state courts that revolved around whether their attorneys had been effective and whether the state had failed to disclose exculpatory evidence. Eventually, several witnesses recanted their testimony. Saathoff recanted in 2008 and said Henning never confessed to him about any involvement with Carr’s death or the burglary. He said Ocif encouraged him to testify to that effect, convincing him that it would help Henning because it would show that Henning hadn’t been the actual killer. Cocchia also recanted in 2008. Yablonski recanted to investigators with the Connecticut Innocence Project in 2010. She said she left Stanley’s house before around 12:30, got home just after 1, and then watched Barnaby Jones before going to sleep. She said the police confused her and kept pressuring her to change her timeline. Separately, prosecutors never disclosed an agreement between Yablonski and the state to favorably discharge other pending charges she faced prior to her testimony." These issues and others were combined into separate habeas petitions filed by Birch and Henning. Henning was represented by James Cousins of Centurion Ministries and Craig Raabe. Birch was now represented by Andrew O’Shea. Although Birch and Henning had been tried separately, their habeas hearings were combined before Judge Samuel Sferrazza in Tolland Superior Court in late 2015. The towel and Lee’s testimony about it took center stage. In 2008, the towel had been tested and no blood was found. In addition, there was no report indicating any previous test. Attorneys for Henning and Birch argued that Lee had testified falsely and that prosecutors had compounded that false testimony by using his misstatement in two separate closing arguments. They noted that in the years since the convictions, DNA tests had excluded Henning, Birch, and Yablonski from any evidence collected at the crime scene. It also excluded the victim from all evidence collected from the three of them. Furthermore, DNA testing revealed the DNA of a third party on multiple items intimately connected to the murder, including a piece of the murder weapon found under the victim’s body. The state argued that Lee, by now famous for his role assisting the defense at the trial of O.J. Simpson and in the investigation into the death of Jon Benet Ramsey, had not committed perjury in his testimony at either trial in 1989. He had just made a mistake, one of harmless error. Because it was not perjury, the state said, the prosecutor’s burden to correct the mistake was lower. In a ruling issued on June 21, 2016, Sferrazza rejected the habeas petitions. He wrote “The court concludes Dr. Lee was wrong but not lying under oath.” Because of that, the burden was on Henning and Birch to prove the mistake undermined the verdict as opposed to the state having to show it was harmless beyond a reasonable doubt. Sferrazza also said that the witness recantations and other exculpatory evidence presented by Henning and Birch were either unreliable or inconsequential. The men then appealed to the Connecticut Supreme Court. In their briefs, they argued that Sferrazza had erred, particularly when finding that Lee’s false testimony was harmless. But they also continued to find new evidence of innocence. A witness at both trials had testified that he was sure that he heard a noisy car roll up near Carr’s house on the night of the murder because he was up late watching The Johnny Carson Show, but a review of TV listings indicated the show didn’t air on December 1, 1985. In separate opinions, the Connecticut Supreme Court granted both men new trials on June 14, 2019. The opinion said that Lee had an obligation to review records and other material before taking the stand to ensure the accuracy of his testimony. Similarly, the prosecutor had an obligation to be familiar with the material evidence. The fact that neither Lee nor the prosecutor didn’t know Lee was not telling the truth was immaterial. “To conclude otherwise,” the court said, “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.” The court also said that this error by the state wasn’t harmless. The challenge in this case, the court said, was for prosecutors to explain how Birch and Henning violently killed Carr but didn’t get any blood on themselves or the stolen Buick. The towel offered one theory, and without it, the court wrote, “the state’s entire case … could very well have collapsed." Birch was released from prison on July 13, 2019. Henning, because of his age at the time of the crime, had been paroled in July 2018. On July 10, 2020, Litchfield State’s Attorney Dawn Gallo moved to dismiss the charges against Birch and Henning. She said that the witnesses had either died or recanted and there was no forensic evidence linking either man to the murder. Judge Dan Shaban of Litchfield Superior Court granted the motion that day. In a statement after Shaban’s ruling, Birch and Henning said: “We hope that the state will take responsibility for the profound human consequences of obtaining murder convictions and long terms of imprisonment through indisputable ‘false or misleading’ testimony and arguments. We also remain hopeful that the state will use the forensic evidence that has been gathered, and more sound law enforcement tactics, to identify Mr. Carr’s actual killer or killers.” Birch told the Hartford Courant:; “They say the wheels of justice turn slowly. That’s a little bit of an understatement. 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.” He wore a shirt that said, “I am innocent.” Henning’s T-shirt said, “I didn’t do it.” In December 2020, Henning and Birch filed separate federal civil-rights lawsuits against New Milford, several of its police officers, and Lee, seeking compensation for their wrongful conviction. In 2022, both men filed state claims for compensation. The entire entry can be read at: |
stathttps://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5768
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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