The 1974 Buick Regal Ralph Birch and Shawn Hemming stole and which they were accused of driving to the murder scene. Courtesy of James Cousins

The state attorney general’s office said Wednesday it would appeal a ruling by a federal court judge that could leave the state facing as much as a $60 million payout to two men who spent decades in prison for a 1985 New Milford murder before their convictions were thrown out.

Attorney General William Tong’s office also defended its handling of the case after acknowledging in a court filing they had “unintentionally neglected” to file a critical legal motion involving Dr. Henry Lee, the former head of the State Police Forensics Laboratory.

Lee also issued a statement Wednesday trying to salvage his reputation after U.S. District Court Judge Victor Bolden ruled that Lee is personally liable for fabricating evidence in the case.

The 84-page decision released Friday by Bolden denied most of the state’s motions to dismiss the lawsuit by Shawn Henning and Ralph Birch, who were teenagers when they were convicted in 1989 for the brutal murder of Everett Carr in his New Milford home four years earlier.

Henning and Birch had served nearly 60 years in prison combined when, in 2019, the state Supreme Court threw out their convictions and ordered a new trial. The state eventually dropped the murder charges, and the two men filed the federal lawsuit against Lee, the state, several state police detectives and New Milford police officers.

Bolden has ordered the case to go to trial this October. The ruling makes Lee liable for his role in the murder investigation, meaning Lee could personally face a multimillion-dollar verdict separate from the state.

However, Tong’s office said Wednesday that it is appealing Bolden’s ruling and that Lee, as a former state employee, will be indemnified and any judgment against him would be paid by the state.

Tong’s office did not answer questions from the CT Mirror about its handling of the case — such as why it never deposed either Henning or Birch and why it never filed a motion to grant Lee “absolute testimonial immunity,” a common practice when state employees are sued for work done on the state’s behalf.

“We disagree with Judge Bolden’s decision, and we will appeal. We stand by our lawyers’ strong work in this case,” Tong’s spokeswoman Elizabeth Benton said. “They offered a vigorous and legally correct defense.” 

Benton then said that the state will indemnify Lee.

“When a state employee is sued in their personal capacity for something that happened at work, the state of Connecticut ‘indemnifies’ them — unless we determine that their behavior is wanton, reckless, or malicious,” Benton said. “Based on the facts and circumstances in this matter, the state is indemnifying Dr. Lee.”

Bolden also ruled that a jury could reasonably find that state police detectives and New Milford police fabricated or knowingly concealed evidence that raised doubts about Henning and Birch’s involvement in the murder.

The bloody towel

In a statement released Wednesday morning, Lee also said he was disappointed in Bolden’s ruling. He then defended himself against the biggest issue in the case — whether there was blood on a towel found in a second floor bathroom of Carr’s house and whether Lee knew there wasn’t any blood but testified at both trials that there was.

Carr’s throat was slashed, and he was stabbed 27 times. His body was found on the first floor of his home.

Detectives investigated the murder as a burglary gone bad, which led them to Henning and Birch, two teenagers well-known to police for doing small-time burglaries and thefts across Litchfield County. But when they were originally interviewed by police, neither had any blood on them, and none was found in the car they lived in.

Lee, who at the time was head of the State Police Forensic Laboratory and not yet the world-wide celebrity he became after testifying on O.J. Simpson’s behalf a few years later at his murder trial, was called to the scene to collect blood evidence.

Lee testified at both trials that he found the stained towel in an upstairs bathroom and that his repeated tests revealed dark spots to blood. The prosecutor used Lee’s testimony to argue to the juries that the two teenagers used the towel to clean off blood after the murder.

It wasn’t until 2008 that the towel was actually tested using modern technology, and it was determined there was no blood on the towel.

Lee has continued to insist — even in his statements released Wednesday — that he did test the towels and that the result was positive for blood. At one point during depositions, he claimed he had personal photographs stored at home that confirm his claims about the testing.

“Hundreds of areas were tested for the presence of fingerprints, footprints and biological evidence including the upstairs bathroom, sink and the towel in question,” Lee said in a statement Wednesday.

“A light red smear was observed on one of the towels in the upstairs bathroom. Some spots were also observed in the sink of the upstairs bathroom. I applied Tetra methybenzidine (TMB) on the surface of the towel and sink. TMB is a chemical test for blood used during the 1980s. A smear on the towel and some spots in the sink gave a positive chemical reaction.”

Lee said the towel and the liquid in the sink trap were collected by a state police detectives, bagged separately and taken as evidence, but “for unknown reasons, the towel was never submitted to the Lab for a confirmatory blood test at that time.”

Lee added that the towel did not test positive for blood 20 years later doesn’t  mean it wasn’t present in 1989.

But in his ruling Bolden adopted the argument by Birch and Henning’s lawyers that Lee never tested the towel. 

“His alleged misconduct, according to Dr. Lee, is limited to the allegation that he ‘fabricated evidence that a towel in the victim’s bathroom had tested positive for blood when, in fact, the towel had never been tested and [he] knew that the towel had never been tested when he told the prosecution it had been tested and then testified to that fact at the Plaintiffs’ trials,’” Bolden wrote.

Dave does in-depth investigative reporting for CT Mirror. His work focuses on government accountability including financial oversight, abuse of power, corruption, safety monitoring, and compliance with law. Before joining CT Mirror Altimari spent 23 years at the Hartford Courant breaking some of the state’s biggest, most impactful investigative stories.