Shawn Henning sits at a long, cafeteria-style table in the Enfield Correctional Center. He is emotional, near tears. “I wasted my life in here,” he said, flicking his head at the prison surroundings. “It was wasted time for nothing.”
“Damn.” A few tears come.
Henning and another man, Ralph “Ricky” Birch, have been locked up since 1989, serving sentences of 50 and 55 years respectively, for a gruesome 1985 murder in New Milford they steadfastly insist they didn’t commit.
Perhaps they didn’t. The state’s case, never airtight to begin with, has diminished over the years as two prosecution witnesses have recanted, key defense testimony was uncovered, and DNA testing put an unknown person at the scene. It also was disclosed that famed state criminalist Dr. Henry Lee offered erroneous testimony in the trials of the two men, though Lee contests the finding.
Nonetheless, Henning and Birch, teenagers at the time of the crime, are still in prison, awaiting a last-ditch appeal of a Superior Court decision last year upholding their convictions. As they know better than most, it is exceedingly difficult to overturn a conviction in the state.
The door has cracked open a bit since Henning and Birch were convicted. The emergence of sophisticated DNA testing in the past quarter century, along with the growing public awareness of false confessions (see: Central Park Five), misidentification by eyewitnesses and other issues, along with the emergence of conviction review agencies, have helped reverse the convictions of a handful of Connecticut inmates.
Nonetheless it remains “virtually impossible to win an exoneration,” said Darcy McGraw, director of the Connecticut Innocence Project/Post Conviction Unit, a section of the Office of the Chief Public Defender.
The Henning and Birch cases illustrate the challenge of reversing a conviction. Though court records and interviews show that defense lawyers have raised serious questions about the convictions, the two men, now middle-aged, approach three decades in prison with only a slim chance at freedom.
Bloody awful
The crime was appalling. On the night of Dec. 1, 1985, raging killers stabbed and beat a 65-year-old man named Everett Carr to death in a white, two-story home in rural New Milford in the western part of the state.
The home belonged to Carr’s daughter, Diana Columbo, who discovered the body when she got home after 4 a.m. Police and paramedics found Carr in a pool of his own blood, in a blood-splattered hallway. He had been stabbed 27 times, had his throat cut from one side to the other and been beaten over the head with a blunt instrument.
Local and state police investigators believed the crime was a burglary gone bad. An informant familiar with the local drug scene directed police to several persons who had been committing burglaries, including 17-year-old Henning and 18-year-old Birch.
The two were problem youths; at the time of the Carr murder they were living in a stolen car and had recently burgled several houses in the New Milford area, exchanging stolen stereos, VCRs or whatever for cocaine at the Danbury home of a man named Douglas Stanley.
They, along with Henning’s girlfriend Tina Yablonski, initially concocted a phony story about their return from Danbury to New Milford on the night of the killing. They said the story was designed to hide their involvement with the stolen car. They soon confessed to stealing the car, and to committing four daytime burglaries in the area.
They nonetheless insisted they had nothing to do with the Carr murder, and stuck to their story — and declined invitations to turn on each other — under relentless and deceptive interrogation by New Milford police.
The cops were bluffing. Though they told the suspects the crime scene was “rich” with evidence, according to a transcript of the interrogation, they had no physical or forensic evidence — no fingerprints, blood, hairs, fibers, etc. — tying Henning or Birch to the Carr house or the murder. So, the teenagers were convicted of the burglaries they admitted to, and went to jail. The Carr case went cold, for more than two years.
The State Police Major Crime Squad had been brought into the case to assist local police, and State Police Det. Andrew Ocif was named the case officer. Over the two years, Ocif zeroed in on Henning and Birch as the killers. He coaxed incriminating statements from Henning’s grandmother and his best friend, and made deals with two jailhouse snitches to implicate Birch.
He succeeded. The two were tried — separately — and convicted of felony murder. Early appeals and habeas corpus petitions failed, in part because, they claim, their lawyers did a substandard job.
A decade ago the Connecticut Innocence Project, which investigates claims of wrongful convictions, began working on the case, and ordered DNA testing. No DNA from either Birch or Henning was found on dozens of items removed from the crime scene; none of the victim’s blood or other markings were found on the clothes taken from the two teenagers days after the killing or in the car they had stolen. A DNA profile from an unknown third party was found in the home, in places an assailant would be likely to have touched.
The Connecticut Innocence Project ultimately withdrew from the case because Henning’s trial lawyer was a public defender, thus from the same agency. In 2013 the New Jersey-based Centurion, which represents persons it believes were wrongly convicted, took on Henning’s case. Centurion lawyer W. James Cousins, along with court-appointed lawyers Craig A. Raabe and Andrew P. O’Shea, brought a combined habeas action for Henning and Birch in Superior Court asking that their convictions be overturned. (Habeas actions question the lawfulness or constitutionality of convictions, raising such issues as ineffective assistance of counsel, while direct appeals seek redress from putative errors made in the trial).
The case was tried over five weeks in late 2015. In June of 2016, Judge Samuel Sferrazza rejected their claim. They are now appealing his decision to the State Appellate Court.
‘Loud car’
The state’s theory was that Henning and Birch left Stanley’s Danbury residence, dropped Yablonski at her home in New Milford, proceeded to the Columbo home and killed Carr when he interrupted their burglary attempt. They say they went directly to Henning’s father’s home after dropping off Yablonski and went to sleep.
The state’s case turns primarily on the “loud car” they were driving, the phony story they concocted and statements they allegedly made to third parties.
Three neighbors said they heard a car with a loud muffler pull up near the Carr home at about 12:10 a.m. on the night of the killing and leave 15 to 20 minutes later.
Henning and Birch had a loud car. They had stolen a 1974 Buick Regal from a used car lot on the preceding Thursday — Thanksgiving — and driven it to New Hampshire to visit Birch’s mother. They’d gotten stuck in snow on the trip and broken off the muffler. They had neither the means nor the inclination to repair it. It was noisy.
But it’s far from clear that this was the murderers’ vehicle, to wit:
- One of the neighbors who heard the loud car said he remembered the time because he was watching The Tonight Show with Johnny Carson. But the incident took place on a Sunday night, when the show was not broadcast. This raises the possibility that a different loud car visited the property on another night.
- Another neighbor, Gary Smith, testified at Birch’s trial that he saw the loud car. He said it had round taillights, not the long, rectangular taillights of a ’74 Regal, which would suggest it was a different car. He didn’t testify at Henning’s trial, which preceeded Birch’s, apparently because Henning’s lawyer wasn’t aware of him.
- Finally, no one is certain that the arrival of the car corresponded to the time of the crime, because the state never ascertained the time of death and Columbo didn’t find the body until after 4 a.m.
Fabricated chronology
Much was made of the phony story the suspects cooked up about their travels on the night of the killing. They were at the Stanley residence in Danbury and said they left after midnight and hitchhiked back to New Milford.
But Stanley’s partner, Effie Coates, said she came home at 10:30 p.m. and that the crew left within the next hour. That would mean they could have been back in nearby New Milford at the time the loud car was heard near the Carr house.
The state believed Henning and Birch made up the story to give themselves an alibi for the slaying. The two men say it was to hide the fact that they were driving a stolen car, that hitchhiking was the operative falsehood.
This is somewhat supported by the fact that Henning never insisted that he left Danbury at a particular time. In his statement to New Milford police a few days after the killing, he said he didn’t know what time they had left, saying he thought it was between 12:30 and 2 a.m. but wasn’t watching the clock. At his trial he said they might have left at 11:30 p.m. They dropped the story soon after they were questioned by police.
Jailhouse informants
The strongest part of the state’s case appears to be statements each allegedly made to third parties.
In Birch’s case, two men he met in jail, Robert Perugini and Todd Cocchia, testified that Birch told them he killed an old man in a burglary. Both accepted substantial inducements from the state for their testimony.
Perugini was at Manson Youth Institute, where Ocif had made inquiries about people who knew Birch, for sexual assault and was about to turn 18, which meant a transfer to Somers, an adult facility. Perugini, witnesses later said, deeply feared the transfer because Somers then had a reputation for sexual assault on younger inmates.
The state offered to endorse his parole application and keep him out of Somers if he testified against Birch, and he did. When it came time for the habeas trial 25 years later, Perugini exercised his Fifth Amendment right against self-incrimination, but four witnesses testified Perugini had told them he lied about Birch’s incriminating statements.
Cocchia and Birch met in prison, and later traveled to Virginia, where they committed a burglary, at which Cocchia was captured but Birch escaped. In return for testifying at the 1989 trial that Birch confessed the Carr murder to him, the state effected his release from prison in Virginia and Connecticut, and then in Connecticut again for new charges he incurred after his release.
But at the 2015 habeas trial, Cocchia recanted his earlier testimony, and said Birch never told him he had killed Carr. He also said Ocif told him there was already plenty of evidence against Birch, so his testimony would in effect be icing on the cake.
Cocchia has a long criminal record and by all accounts had only a tenuous relationship with the truth. At the time of the first trial in 1989, his probation officer said Cocchia was untruthful — and so did his mother at the recent habeas trial. Nonetheless, his testimony and that of Perugini were the core of the state’s case against Birch.
Jailhouse informants are notoriously unreliable (see here, for example). Connecticut and some other states now require special jury instructions on this point in cases that rely on prison informants, and several states are considering stronger laws in this area (see here). Texas passed a law requiring more transparency in the use of jailhouse informants, and is considering a bill that would ban “incentivised witnesses” in capital cases.
The danger is not only that an innocent person could be convicted by the tainted testimony of incentivized witnesses, it is also that some bad actors could get out of jail.
Grandmother
Ocif took another tack with Henning. Days after he was arrested in 1985, Henning called his Illinois grandmother, Mildred Henning, the relative to whom he was closest, from jail to tell her about his predicament. He also spoke to a childhood friend, Timothy Saathoff.
The case turned on what was said.
Henning said he told his grandmother and Saathoff that he had committed some burglaries, and he was accused of committing another burglary in which a man was killed and a dog died, but that he had nothing to do with it.
In August of 1987, more than a year and a half after the crime, Ocif interviewed Mrs. Henning. He conceded at the habeas trial that he “probably” told Mrs. Henning he had evidence placing Shawn at the scene (he didn’t) and that it would help her grandson if she’d testify he said he was there but didn’t commit the murder (it wouldn’t). Saathoff got the same message in an interview a year later, when Ocif spoke to Mrs. Henning again.
Both testified that Shawn Henning talked to them about committing burglaries, a man being killed, a dog being killed, and that he didn’t kill anyone. But both added the critical detail that Henning said he was there and didn’t kill anyone. Admitting he was present was tantamount to confessing to felony murder.
Henning insists he didn’t say he was there, and attempted to clarify the point in a later phone call to his grandmother from the Litchfield State Police Barracks (Ocif testified at the habeas trial that this call was not recorded, though a subsequent federal class action lawsuit, in which Shawn Henning was one of hundreds of plaintiffs, found that calls in and out of state police barracks were routinely recorded at this time.)
Two things support Henning’s claim that he wasn’t there:
- No dog was killed during the incident, but that was the story going around Douglas Stanley’s house, where Henning said he heard about the crime. That suggests his knowledge of it wasn’t first-hand.
- Saathoff recanted his testimony prior to the habeas trial, saying Henning never said he was present at the crime. Saathoff said Ocif told him he could help his friend by so testifying, and that’s why he did.
Henry Lee
This was one of the bloodiest crime scenes many of the first responders and others connected to the case had ever seen, raising the question of how anyone, never mind two teenagers, could have committed the murder without getting a single trace of the victim’s blood, hair or DNA on their clothing or shoes, or in their car, all of which were seized days later and thoroughly examined. To answer it, the state brought in famed forensic scientist Dr. Henry Lee, then head of the State Police Forensic Laboratory, as an expert witness.
Lee opined that the assailants “maybe” could have committed the slashing murder without getting blood on them, noting that the splatter pattern of blood on one wall was uninterrupted, which suggested no one was standing in front of it. But this seemed unlikely, first because, as Lee himself testified at the criminal trials, as did another expert at the habeas trial, the scene was “dynamic” — the parties were moving around — and because the assailants traipsed Carr’s blood into several other rooms after the assault.
Lee had an answer. He said there was a towel in an upstairs bathroom with a brown stain on it. He said he tested the towel and found the stain was “positive consistent with blood,” which opened the possibility the assailants used it to wipe themselves off.
But at the habeas trial, Connecticut Forensic Laboratory technician Lucinda Lopes Phelan testified that the towel was never tested before the trials, and when it was, years later, the stain turned out not to be blood.
Nonetheless, the prosecution cited Lee’s testimony in arguing that the assailants could have committed the crime without blood being found on them.
Defense lawyers point out in their briefs that this was not Lee’s only instance of incorrect testimony. In March a man named David Weinberg was freed from prison, where he was serving 60 years for a 1985 murder, in part because Lee testified incorrectly about two key forensic details in the case (See here).
Lee, 79, is currently lecturing in China. In an email exchange he strongly objected to the characterization of his testimony as false, saying: “There was never any intention to give false or misleading statements.”
He didn’t immediately recall the trial, which took place 28 years ago. After reviewing his testimony, Lee said he believes he did field tests at the crime scene, and that these were the basis of his testimony about blood on the towel. “I don’t believe we gave an opinion without doing a test.”
Field tests are “presumptive” rather than definitive, he said, adding that the procedure was to have the towel sent to the state lab for what is called a confirmatory test. He said he didn’t do the lab test (if there was one) and was never told its outcome. He recalled that the towel “never became an important issue” during his investigation, there being more interest in fingerprints and footprints.
He also noted that testing procedures have changed since he went to the crime scene in 1985, and that he is long retired from the lab.
The trial transcripts show no reference to field versus lab tests, and, said Cousins, presumptive tests are not normally allowed as evidence. At the habeas trial, Lopes Phalen and another technician, Elaine Pagliero, testified that there was no record of either a field test or a lab test ever having been done, either of which should have been documented. Lopes Phelan’s testimony that the towel was never tested went unchallenged.
Judge Sferrazza found that Lee testified “erroneously” about there being blood on the towel, but that it was simply a mistake. “It appears to the court much more likely that Dr. Lee mistakenly, but honestly, believed he tested that item of evidence … . The court concludes Dr. Lee was wrong but not lying under oath.”
Footprints
Of the evidence found in the house, perhaps the most exculpatory was the bloody footprints.
Impressions from two different sets of shoes were left in the blood next to the body, footprints all believe were left by two assailants. Police actually removed the section of floorboard to preserve the impressions. It was quickly clear that the sole patterns didn’t match those on the shoes seized from Henning and Birch three days after the killing.
But apparently no one determined what size the footprints were.
At the habeas trial, former FBI agent William Bodziak, an expert in footwear impressions, was able to determine that one set of prints was no larger than a size 9 and possibly as small as 7 1/2, too small for Birch (10 1/2 to 11) or Henning (11 1/2).
Bodziak (he and Henry Lee testified at the O.J. Simpson trial) said the shoes seized from Henning and Birch were “extensively longer” — by one and one-half to two inches — than the prints. If his testimony were correct — it went unchallenged — then one of the two assailants was neither Henning nor Birch.
The shoe size might connect to another body of evidence.
Between 2007 and 2013, more than two dozen items in the home were tested for DNA. A DNA profile of an unknown person was found mixed with the victim’s on the bloody floorboard next to the body, inside the front waistband of the victim’s underwear, on a knife collar found under the body that is thought to have come from the murder weapon, and in a cigar box in the victim’s bureau that had a smudge of his blood along with it.
There are other question marks. Some jewelry and a VCR were taken from the house, but, it was later learned, $1,000 in cash, some electronics and another $10,000 worth of jewelry remained, raising the possibility that it was a staged burglary.
The daughter
There was also the curious behavior of Ms. Columbo. She waited 20 to 50 minutes — she gave several accounts — before calling for help. And when she did, a dispatcher later testified, she screamed: “Oh my god he’s got a knife in his hand” during the call.
Later, as she sat with the EMT, she said: ”Why did he do it?”, the EMT testified This suggests she might have known who the assailant was, something she later denied. Police never found the knife, which may have broken during the crime. A “collar,” the part that connects the handle to the blade, was found under the body.
A few years later Ms. Columbo struck up a relationship with a man she met in Florida, John Andrews, who came to Connecticut and moved in with her. In a video deposition at the habeas trial, he said he made improvements on the house, in return for which she deeded him a half interest in it.
Their relationship soured. During an argument at the house in 1990, Andrews testified, Ms. Columbo charged at him with a knife and said if he did not return his interest in the house to her, she would kill him like she killed her father.
A short time later, Andrews was assaulted and almost killed in the house, while Ms. Columbo was upstairs. Believing she orchestrated the beating, he decided, once he was released from the hospital, to return his interest in the house and head back to Florida. As he was packing to leave, he found a knife blade behind some boxes in the basement that was missing its handle, he testified. But, he said nothing about it at the time and got out of town.
Columbo also called her boss and paramour on the night of the murder, a man named Richard Burkhart, who then called his son in Port Chester, N.Y., at 5 a.m. and asked him to come to Columbo’s house to clean up the blood. (The police were there when he arrived). This call was dicey for Columbo because she had been out that evening with another man. Columbo has since passed away; the DNA found near the victim was not hers. Burkhart has passed away as well, apparently without leaving a DNA profile.
Upheld
If true, the habeas trial testimony appeared to cast doubt on much of the state’s case. The case against Henning was seemingly diminished to the possibly manipulated testimony of his grandmother about a phone call four years earlier, along with the loud car and phony story. Birch was down to one jailhouse snitch of questionable motivation and honesty.
But Judge Sferrazza, a former prosecutor and respected jurist, didn’t see it that way.
In a 43-page decision he found the new DNA evidence “rather uninformative” as to the identity of the assailants, noting that it might have been left by other visitors to the home. He said the incorrect Henry Lee testimony didn’t diminish the state’s case. He attributed the Diana Columbo behavior to intense grief, and found the recantations of Todd Cocchia and Timothy Saathoff not credible.
Birch’s lawyers claimed police fed Cocchia details of the killing; Sferrazza disagreed, concurring with an earlier finding that Cocchia produced key details without prompting by police. At the very least, Cocchia wasn’t up to speed on several elements of the crime.
In the transcript of his first interview with Ocif and another officer, Cocchia says Birch told him he killed a man during a burglary.
Ocif asks, “Did he say he stabbed him?”, which elicits a yes answer. At another point Ocif says, “Getting back to the burglary where the old man was killed…”
Cocchia hadn’t said the victim was an old man. Finally Cocchia said he thought the crime took place in the daytime, and that Birch had acted alone. Ocif corrected him on these points. Asked during his habeas testimony why he provided Cocchia with these details, Ocif answered, “I don’t know.”
Also, as Henning said in the recent prison interview, Cocchia had everything to gain by his first testimony and nothing to gain by his recantation.
Lawyers for the two men attacked the conduct of defense lawyers in the trial and first habeas appeals, claiming ineffective assistance of counsel. Sferrazza did not find the earlier defense work inadequate.
The current habeas lawyers also criticized Ocif’s conduct; Raabe said Ocif focused on Henning and Birch because they were “easy marks.” Cousins, in his appellate brief, says Ocif jumped on the “burglary gone bad” theory right away and “failed to review, gather or credit any contrary evidence…”
Ocif said in a telephone interview that he is “absolutely 100 percent certain” he got the right guys. “I have no question that they are guilty,” he said, adding that criminal trials and habeas proceedings all found them guilty. He predicted their appeal would fail.
Finality
It is very difficult to reverse a conviction because, as Sferrazza wrote in his decision, there is an “equitable principle that once a judgment is rendered it is to be considered final and should not be disturbed … except for a compelling reason.”
This makes sense, lest cases be tried over and over and the system grind to a halt. But what is a “compelling reason?”
Defense lawyers say without the DNA profile of another identifiable person or equivalent smoking-gun evidence; or blatant police misconduct such as the suppression of key evidence, or egregiously ineffective assistance of counsel, it’s nearly impossible to win a reversal.
There are also procedural hurdles to overcome. For example, there is a three-year statute of limitations on the filing of a petition for a new trial based on newly discovered evidence, unless the basis for the petition is the discovery of DNA evidence that was not available at original trial.
For example, since the bloody footprints were not newly discovered, Judge Sferrazza discounted Bodziak’s expert testimony about their size in denying Henning and Birch’s appeals for a new trial.
This causes their lawyers to wonder why the failure to introduce this seemingly key piece of evidence wasn’t ineffective assistance of counsel. “It ought to come in somewhere,” said Cousins.
Perhaps not surprisingly, the relatively few cases that are reversed take a long time. A half-dozen Connecticut inmates freed in the past decade — Miguel Roman, James Tillman, Alfred Swinton, Kenneth Ireland, Scott Lewis and Richard Lapointe — served an average of more than 20 years before seeing the outside.
Some were freed by advances in forensic science, notably the introduction of more sophisticated DNA testing. Despite that, the state believed the convictions were solid, and continued to battle for some of them even as the cases unraveled.
Judges and prosecutors don’t like to see their work undone, their cases overturned, the state sometimes put on the hook for millions of dollars in compensation. But, mistakes are made.
The challenge is how to provide a timely review of questionable convictions without bringing the system to a halt.
Innocence Project
Growing awareness of wrongful convictions brought about the founding of Centurion, originally Centurion Ministries, by Jim McCloskey in Princeton, N.J., in 1983 and The Innocence Project in 1992 by Peter Neufeld and Barry Scheck at the Cardozo School of Law in New York City.
In this century 29 jurisdictions — cities, counties or states — have created conviction review units, also called conviction integrity units, to “prevent, identify, and remedy false convictions.” A 2016 study by the National Registry of Exonerations at the University of Michigan Law School, which has logged 2,089 exonerations since 1989 at a cost of more than 18,000 years in prison, found that some integrity units are effective and some aren’t, existing in name only.
Most of these units are located in prosecutorial offices. Connecticut took a different tack with the Connecticut Innocence Project, created in 2005 in the chief public defender’s office. This office has been instrumental in freeing wrongfully convicted clients in several high-profile cases, including those of Tillman, Ireland and Roman, who was convicted in part by the false testimony of a jailhouse snitch.
In 2013 the project was merged with the post-conviction unit, which reviews the thousands of habeas petitions each year. Budget issues have shrunk the office from 15 people to 10, five of whom are lawyers, said Atty. McGraw, who heads the office.
She said state prosecutors “take us seriously when we say there might be a problem with a case,” but said what her small office can do “is a far cry from a systematic review” of criminal cases.
Chief State’s Attorney Kevin Kane said while his office does not have a formal conviction review unit, it does review cases it suspects might have defects “and occasionally we have been persuaded to do something” about them.
He said his office reviewed the Henning and Birch cases “at great length” before deciding to contest the habeas petition. He would not go into further detail because the cases are on appeal.
Yale political science professor David Cameron, who has studied and written about many of the state’s wrongful convictions, has for years proposed the creation of a formal, statewide conviction integrity unit.
Creating such a unit would “make it clear that the state is committed institutionally to the conviction integrity process in the same way it is committed to solving cold cases,” he said in an email.
A step toward that goal, he suggested, might be creation of a process, perhaps a committee of state’s attorneys not involved in a case and/or the CT Innocence Project, to review cases where there is good reason to believe the wrong person was convicted.
A model might be North Carolina, which has an independent Innocence Inquiry Commission, a state agency created to review questionable convictions.
Getting along
Were such a unit created, it would be a little late in the game for Henning and Birch. Their fates are in the hands of the Appellate Court; a decision is expected late next year.
Birch, the smaller of the two now-middle-aged men, seems to have adapted reasonably well to incarceration. He underwent a conversion to Christianity in the 1990s, and leads a faith-based “overcomers group” and is a hospice volunteer, sometimes holding the hand of inmates as they pass away.
Looking back on his life before his arrest, when he was doing drugs and committing burglaries, he said, “it was the stupidest stuff in the world.”
Beyond the fact that it was wrong, he said, “how in the world did I think I’d get away with it? We were hitting (the homes of) people we knew. Everybody knew we were doing it.”
He said he sometimes has the chance to speak to teenagers, and cites himself as an example of how doing things that aren’t right can lead to more serious trouble.
He firmly insists he didn’t commit the murder, but adds, “It was my own bad choices that got me here. If I hadn’t done the other crimes, I wouldn’t have been a suspect.”
Henning is getting along as well. He said he is working in a garden, is involved in the Prison Arts Program, and hasn’t had a disciplinary citation or “ticket” in more than 20 years.
There is one thing he is bitter about. “My grandmother was the only person in my life,” he said. “That they used her to convict me was wrong.” And, a few more tears.