Lawyers for Henning, Birch argue DNA testing should spur another trial

CT Department of Correction

Shawn Henning

Two men convicted of a grisly, 1985 murder asked the Connecticut Supreme Court on Friday to either exonerate them or grant them a new trial in light of new DNA testing that places an unknown female at the scene of the crime.

The request came after lawyers for Shawn Henning and Ralph “Ricky” Birch on Thursday argued before the court that the convictions were precipitated by false testimony by state criminologist Henry Lee, inept lawyering, and coerced witnesses.

Henning and Birch, who were convicted in 1989 of murdering 65-year-old New Milford resident Everett Carr during a burglary at his home, have maintained their innocence since their arrests.

Andrew O’Shea, an attorney for Birch, told Supreme Court justices on Friday that the new “DNA evidence itself is highly exculpatory” and argued that new testing, together with other relevant evidence, indicates there should be a new trial.

“Here you have DNA evidence that is relevant to guilt or innocence, then that should be considered,” O’Shea said.

O’Shea was referring to DNA testing conducted between 2007 and 2013 on more than two dozen items in the home. That testing turned up the DNA profile of an unknown female that was found mixed with the victim’s in several places connected with the crime.

That unknown female’s DNA was found on certain items that likely only the victim would have touched—including on a White Owl cigar box, blood scraped from a floorboard, and the front waistband of the victim’s underwear.

No DNA evidence was ever discovered linking either Birch or Henning to the crime.

But Assistant State’s Attorney Jo Anne Sulik said the original trial juries knew there was no DNA evidence linking Henning or Birch to the murder of Carr.

“As the jury understood … there was no forensic links between these petitioners and the assailants of this crime,” Sulik said. “The jury knew that.”

Sulik also said that unknown female DNA could be linked to either Carr’s housekeeper or wife. But when asked by Justice Maria Araujo Kahn if the state ever attempted to test either women’s DNA, Sulik responded no. The assistant state’s attorney said the evidence was closed.

When Kahn pressed her, asking “Wouldn’t you want to know?” Sulik replied that that it wasn’t done because she didn’t have the opportunity to do it.

CT Department of Correction

Ricky Birch

In 1985, when Carr was brutally murdered in what looked like a home burglary, Henning and Birch were troubled youth living in a stolen car and burgling homes in the New Milford area. The two teens were taken in as suspects and while they confessed to stealing the car and to committing four other area burglaries, they steadfastly insisted that they were not involved with the Carr murder.

Henning and Birch, 17 and 18-years-old respectively when the murder took place, were tried separately and convicted of Carr’s murder in 1989. They received prison sentences of 50 and 55 years, respectively.

Henning, who was released on probation to a halfway house this summer, watched the Friday hearing intently from a corner in the back of the room. Birch still remains in prison.

The law allows the filing of a petition of a new trial beyond the three year statute of limitations based on newly discovered DNA evidence not available at trial.

Lawyers for the two men argued on Thursday that the judge who heard their earlier habeas corpus cases erred by not ordering a new trial based on the false or incorrect testimony given during the original trial by forensic scientist Henry Lee.

Lee told the jury at Henning’s trial that a spot found on a towel in the bathroom was likely blood — testimony that was cited by prosecutors to argue that the defendants had used the towel to clean off Carr’s blood. When the towel was later tested for DNA, however, those tests determined the spot was not blood.

On Friday, justices discussed what a proceeding would look like if it allowed for that new DNA evidence to be presented, and whether there would be a limit on allowing other non-DNA evidence. They also discussed whether Lee’s now-erroneous testimony would be permitted.