U.S. appeals court rules against police in CT suit by two men wrongly accused in grisly murder
A federal appeals court has refused to dismiss a multi-million lawsuit against the town of New Milford by two men who spent 30 years in prison after being wrongly convicted as teenagers of a grisly murder there in 1985.
State and federal courts that reviewed the case concluded previously that the convictions of Shawn Henning and Ricky Birch were based in large part on false testimony by renowned forensic scientist Henry Lee about blood on a towel found at the crime scene. The courts said Lee’s testimony about detecting blood on the towel was false because neither Lee nor anyone on his staff ever did such tests. Lee has said he did not fabricate evidence in the murder case.
The two men withdrew their suit against Lee and several State Police detectives in September after negotiating a $25 million settlement with state Attorney General William Tong. The legislature approved the settlement and paid it in March.
The settlement left the suit in place against New Milford and two town police officers who worked with the state police on the long and frustrating murder of retired truck driver Everett Carr.
The summary order released by the U.S. Court of Appeals for the Second Circuit rejected New Milford’s claim that the officers, as government employees, are protected from such suits by sovereign immunity. The immunity claim failed, the appeals court said, because of contradictory accounts of what the officers did during the investigation.
“The Town of New Milford and its officers have twice asked to throw this case out and they have lost both times. They are now out of options and it’s time for a trial about two innocent teenagers being wrongfully imprisoned for 30 years,” Henning lawyers Craig Raabe and James Cousins said Friday.
Henning and Birch claim that the Milford officers violated their civil rights by engaging in a bad faith investigation that sent them to prison on 50- and 55-year sentences, respectively.
They claim one officer failed to disclose that he found an envelope containing $1,000 in cash at the crime scene, a fact the defense could have used to deflate the prosecution theory that the murder was the result of a botched burglary. The second officer failed to intervene when a state police detective coached a witness to provide a false statement, their suit contends.
Carr’s murder was an exceptionally bloody crime and blood evidence dominated the separate Henning and Birch trials. Carr had been stabbed 27 times. His jugular vein was slashed and the hallway in which his killers trapped him was so saturated with blood that detectives had to build a makeshift ramp to get to the body.
Henning and Birch were teenage drug abusers supporting themselves by burglaries and living in a stolen car packed with all their possessions. At the heart of their defense was the claim that they couldn’t have killed Carr because not a speck of blood was found on them or any of the cluttered junk in the stolen car.
Lee’s trial testimony was the prosecution’s answer. At the time of Carr’s death, Lee was building a national reputation as a forensic scientist and could be counted on to be present with state police major crime investigators at high profile crime scenes.
Lee testified at both trials that he found the stained towel in an upstairs bathroom and that his repeated tests on what appeared to be light stains proved they were made by blood. The prosecutor used Lee’s testimony to argue to the juries that the then 17-year-old Henning and 18-year-old Birch could have used the towel to clean themselves of blood.
When it reversed the convictions, the state Supreme Court found that there was no blood on the towel. In addition, the court said Lee had no way of knowing what the stain was because it hadn’t been tested before the convictions. Decades later, testing during the appeal process showed the stains weren’t made by blood, but some inorganic substance.
Lee later released a statement that said: “I have no motive nor reason to fabricate evidence. My chemical testing of the towel played no direct role in implicating Mr. Birch and Mr. Henning or anyone else as suspects in this crime. Further, my scientific testimony at their trial included exculpatory evidence, such as a negative finding of blood on their clothing that served to exonerate them.”
The wrongful conviction suit is pending in U.S. District Court. When denying a motion to dismiss the suit, U.S. District Judge Victor Bolden ruled that a jury could reasonably find that both state and New Milford police fabricated or concealed evidence that would have undermined the case against the teenagers.