Many factors can contribute to a wrongful conviction, including mistaken eyewitness identifications, false confessions, and flawed forensic science. Expert testimony often helps innocent defendants uncover those errors. Unfortunately, mistaken expert testimony can also contribute to wrongful convictions.

A number of those factors may have combined to cause the wrongful convictions of Shawn Henning and Ralph Birch for the 1985 murder of Everett Carr in New Milford, Connecticut. Their latest lawyers pin much of the blame for the conviction on erroneous testimony by a criminalist who achieved fame during the O.J. Simpson trial.

Crime Scene Evidence

Carr was severely beaten and repeatedly stabbed. His daughter claims that he was already dead when she found his body in a hallway of their home at 4:00 a.m.

Police theorized that the killing was part of a burglary gone bad, although why burglars would commit such a gruesome act of violence is a question that the theory did not resolve. The daughter’s statement during a 911 call that “he’s got a knife in his hand” and her delay in calling the police are difficult to reconcile with the theory that the police settled upon.

Armed with a shaky theory, the police searched for local burglars. The search led them to Henning and Birch, who had been accused of committing burglaries to fund drug purchases. Henning was age 17; Birch was 18.

Henning and Birch told the police a false story about their location on the night of the murder. The police viewed that lie as evidence of their guilt. Henning and Birch say they were trying to conceal their theft of a car and their participation in four daytime burglaries to which they later confessed.

In their attempt to coax confessions, the police told Henning and Birch that they had substantial forensic evidence of their participation in the murder. In fact, the police had nothing. No fingerprints, blood, hair, or fiber samples linked either man to the scene. They steadfastly maintained their innocence.

The only evidence that circumstantially linked Henning and Birch to the crime came from witnesses who reported hearing a car with a loud muffler near the victim’s residence on the night of the murder. The car that Henning and Birch had stolen had a loud muffler, as do many cars. But one witness heard the loud muffler while watching a show that wasn’t broadcast on the night of the murder, and another witness saw taillights that didn’t match the taillights of the car that Henning and Birch had stolen.

Questionable Testimony

Two years later, frustrated with their inability to find any evidence to support their theory, the police decided to manufacture evidence. They made deals with two jailhouse snitches to incriminate Henning and Birch. Informant testimony is inherently unreliable — criminals have a strong incentive to fabricate stories to reduce their own sentences — but the police nevertheless turned to dishonest snitches when they couldn’t find honest evidence.

Defense attorneys also accuse the police of coercing two other witnesses to provide incriminating testimony. Those witnesses have since recanted, but Henning and Birch were convicted on the strength of evidence that was far from compelling.

About ten years ago, the Connecticut Innocence Project ordered forensic testing of objects found at the crime scene as well as the clothing worn by Henning and Birch. None of the victims’ blood was found on their clothing. None of Henning’s or Birch’s blood was found at the crime scene, although an unidentified person’s blood was found in places that the assailant might have touched.

Expert Testimony Challenged

The case was taken over by new lawyers who filed a habeas corpus proceeding, seeking a new trial for Henning and Birch. The trial judge rejected the request, and the decision is now on appeal.

In addition to the new DNA evidence, the lawyers relied on contradictions in witness statements that the original trial lawyers never presented to the juries. They also presented new evidence to impeach the jailhouse snitches (one of whom admitted to four witnesses that he lied in exchange for early parole), as well as the recantations of the other witnesses.

The motion also challenged the expert testimony of Dr. Henry Lee, who at the time was in charge of the State Police Forensic Laboratory and who later testified in the O.J. Simpson trial. At the trial, Dr. Lee was charged with explaining how Henning and Birch could have committed such a remarkably bloody murder when there was not a drop of blood on either man. He speculated that they wiped themselves off with a towel found in the bathroom. The towel had a brown stain that Dr. Lee testified he determined through testing to be “consistent with blood.”

A new expert analysis confirmed that the stain was not, in fact, caused by blood. Other witnesses testified that the towel was never tested before the criminal trials. Yet the prosecution relied on Dr. Lee’s testimony that the towel tested positive for blood when it asked the jury to convict Henning and Birch. Dr. Lee told the media that he was talking about a “field test” at the crime scene, not a lab test. However, his testimony made no reference to a field test, and field tests are not ordinarily admissible as evidence in Connecticut.

Another expert from the O.J. Simpson trial, William Bodziak, testified that footprints left in the blood next to the dead body were made by shoes that were not larger than size 9 and possibly as small as 7 1/2. Birch’s shoe size is 10 1/2 or 11, while Henning’s is 11 1/2.

Relief Denied

The judge who decided the habeas petition ruled that Dr. Lee was probably mistaken but did not deliberately lie. How he came to that conclusion when Dr. Lee did not testify at the habeas hearing is something of a mystery. Nor does the question of whether Birch and Henning received a fair trial hinge on why Dr. Lee gave erroneous testimony. The fact remains that erroneous evidence may have played a role in causing two wrongful convictions.

The judge who presided over the habeas hearing nevertheless concluded that the new evidence wasn’t sufficiently convincing to prove that Henning and Birch were innocent or to undermine the fairness of their trial. The case is now on appeal. Whether another court will eventually view the evidence differently may not be known for years.