PASSAGE OF THE DAY: " (Judge) Bolden also agreed with the plaintiffs that they are entitled to summary judgment as to liability on their claims against Lee. Last September, the office of Attorney General William Tong announced it had agreed on a settlement with the lawyers for Birch and Henning of $25.2 million, to be divided equally between the two men, subject to approval by the legislature. Subsequently, Birch and Henning withdrew their lawsuit against Lee and several State Police officers, and in March the Judiciary Committee unanimously approved the settlement and it took effect a month later."
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PASSAGE TWO OF THE DAY: "It should have been obvious to investigators from day one that Birch and Henning did not kill him. 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 they had killed him 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’ve been covered with blood as well, and their DNA would have been on door handles and other places in the house."
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PASSAGE THREE OF THE DAY: "The only “evidence” linking them to the crime, aside from the dubious smear on the towel, was statements of several individuals implicating them in the crime: A childhood friend of Henning who 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, both of whom said he 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 lied in order to get transferred to another facility."
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PASSAGE FOUR OF THE DAY: "And importantly, there was evidence one or more other people had killed Carr. There were footprints of two people in blood on the floor in the house, but the prints didn’t match the treads on 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. And so the question remains: Who killed Everett Carr?COMMENTARY: "Opinion: A question remains after court ruling in grisly CT murder case: Who killed Everett Carr?, by David R. Cameron, published by The Hartford Courier, on June 23, 2024."
GIST: Sometime in the evening of Dec. 1, 1985, Everett Carr, 65, a retired truck driver who lived in his daughter’s home in New Milford, was killed in the home.
He was hit on the head seven times, stabbed 27 times, and his jugular vein was severed.
Ralph “Ricky” Birch, 18 at the time of the attack, and Shawn Henning, 17 at the time, were convicted in separate trials in 1989 and sentenced in July 1989: Birch to 55 years, Henning to 50 years.
In June 2019, the state Supreme Court unanimously reversed a judge who had rejected their habeas petitions for new trials and ordered new trials for both. 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 had investigated the crime scene and had taken 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 tested years later, the smear 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, which 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.
Last July, U.S. District Court Judge Victor A. Bolden ruled that, 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. Lee had moved for summary judgment on all claims against him on the basis of the affirmative defense of absolute testimonial immunity. But Bolden noted that 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, Lee shouldn’t be allowed to rely on it at a later 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. Last September, the office of Attorney General William Tong announced it had agreed on a settlement with the lawyers for Birch and Henning of $25.2 million, to be divided equally between the two men, subject to approval by the legislature. Subsequently, Birch and Henning withdrew their lawsuit against Lee and several State Police officers, and in March the Judiciary Committee unanimously approved the settlement and it took effect a month later.
On Friday, an interlocutory appeal by the town of New Milford and two of its former police officers who worked on the case of Bolden’s order denying their motion for summary judgment based on qualified immunity was dismissed by the U.S. Court of Appeals for the Second Circuit. That court rejected New Milford’s claim that the officers, as government employees, are protected from lawsuits by sovereign immunity. It said that claim failed because there were contradictory accounts of what the officers did during the investigation. Because the trial court’s denial of qualified immunity turned on disputed factual issues, rather than a pure question of law, the Court of Appeals said it lacks jurisdiction to hear the appeal. Birch and Henning claimed that one of the New Milford officers failed to disclose that he found an envelope containing $1,000 at the crime scene, which might have raised questions about whether they had, as the prosecution charged, killed Carr in the midst of a burglary. And they claimed the other New Milford officer failed to intervene when a state police detective told a witness what to say in a statement.
The Circuit Court decision dismissing the appeal of New Milford and the two former New Milford police officers of Bolden’s order denying their motion for summary judgment sets the stage for a trial, although at this point, and with the state already having paid them $25 million, Birch and Henning may settle for a token amount and a sincere apology – and better yet, a strong commitment from the town and the state to answer the one question that remains unanswered in this case: Who killed Everett Carr on Dec. 1, 1985?
It should have been obvious to investigators from day one that Birch and Henning did not kill him. 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 they had killed him 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’ve 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, was statements of several individuals implicating them in the crime: A childhood friend of Henning who 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, both of whom said he 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 lied in order to get transferred to another facility.
And importantly, there was evidence one or more other people had killed Carr. There were footprints of two people in blood on the floor in the house, but the prints didn’t match the treads on 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. And so the question remains: Who killed Everett Carr?
The entire story can be read at:
opinion-a-question-remains-after-court-ruling-in-grisly-ct-murder-case-who-killed-everett-carr
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/120008354894645705/4704913685758792985
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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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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;
