Opinion: Question after court ruling: Who killed Everett Carr?

Sometime on the evening of December 1, 1985, 65-year-old Everett Carr, a retired truck driver who lived at his daughter’s house in New Milford, was killed in his home.

He was hit on the head seven times, stabbed 27 times and his carotid artery was severed.

Ralph “Ricky” Birch, 18 years old at the time of the attack, and Shawn Henning, then 17 years old, were found guilty in separate trials in 1989 and sentenced to prison in July 1989: Birch to 55 years, Henning to 50 years.

In June 2019, the state Supreme Court unanimously overturned a judge’s decision denying their habeas corpus motions for retrial and ordered retrials for both. In overturning the habeas corpus judge’s decision, the Supreme Court concluded that the men’s right to a fair trial was violated because the state had failed to correct the testimony of Dr. Henry C. Lee, then-head of the state police forensic laboratory.

Lee had investigated the crime scene and taken photographs in the upstairs bathroom of the house, including a white towel hanging on a rod in the bathroom. He later told a prosecutor that he had tested a swab on the towel and it had found blood. At the trials of the two men, he said he had conducted a field test on the swab, which was “positive and consistent with blood” and “later identified as blood.” But two lab technicians testified at the habeas trial that there was no record of a field test or subsequent lab test, and when the swab was tested years later, it was found not to be blood.

In July 2020, the judge dismissed all charges against the two after Litchfield District Attorney Dawn Gallo told a Superior Court judge that the state had decided not to retry Birch and Henning because witnesses from the original trial had either died or recanted and there was no evidence linking the men to the murder.

Birch and Henning subsequently sued the Town of New Milford, two town police officers, five detectives and two state police sergeants, and Lee in federal court, alleging tampering with evidence, malicious prosecution, and suppression of material exculpatory evidence, which led to their wrongful convictions for murder and burglary and their over 30-year prison sentences. All of the defendants moved to dismiss some of the charges against them, but the court denied those motions. After discovery, the town defendants and some of the state defendants moved for summary judgment on the charges against them.

Last July, U.S. District Judge Victor A. Bolden ruled that all but a portion of a state police officer’s motion for summary judgment were denied. Lee had sought summary judgment on all of the charges against him based on the defense of absolute immunity from testimony. However, Bolden noted that Lee had neither raised that defense in his answer to the complaint nor amended his answer to include that defense before filing his motion for summary judgment. The plaintiffs argued that because Lee had not raised that defense in his answer and had not amended his answer to the complaint before filing his motion for summary judgment, he should not be allowed to rely on it at a later stage of the litigation.

Bolden agreed, denying both Lee’s motion to amend his answer and his motion for summary judgment based on absolute immunity from testimony. Bolden also agreed with the plaintiffs that they are entitled to summary judgment on liability for their claims against Lee. Last September, Attorney General William Tong’s office announced that it had agreed with Birch and Henning’s lawyers on a $25.2 million settlement, to be split equally between the two men, pending approval by the Legislature. Birch and Henning subsequently withdrew their lawsuit against Lee and several state police officers, and in March the Judiciary Committee unanimously approved the settlement, and it took effect a month later.

On Friday, the U.S. Court of Appeals for the Second Circuit denied a preliminary appeal by the city of New Milford and two of its former police officers who worked on the case of Bolden’s order denying their motion for summary judgment based on qualified immunity. The court rejected New Milford’s claim that the officers were protected from lawsuits by sovereign immunity as government employees. It said that claim was dismissed because there were conflicting accounts of what the officers did during the investigation. Because the trial court’s denial of qualified immunity was based on disputed issues of fact rather than a pure question of law, the appeals court ruled it did not have jurisdiction to hear the appeal. Birch and Henning claimed that one of the New Milford officers did not disclose that he found an envelope containing $1,000 at the crime scene, which may have raised questions about whether, as the prosecution alleges, they killed Carr during a burglary. And they claimed the other New Milford officer did not intervene when a state police detective told a witness what to say in his statement.

US court: Forensic scientist Henry Lee liable for falsifying evidence that put two teenagers in prison for murder

The district court’s ruling denying New Milford’s appeal and the two former New Milford police officers’ motion for summary judgment has been dismissed, setting the stage for a trial. But since the state has already paid them $25 million, Birch and Henning could be satisfied at this point with a token sum and a sincere apology. Or better yet, a firm commitment from the city and state to answer the only unanswered question in this case: Who killed Everett Carr on December 1, 1985?

Two men who were acquitted of the bloody murder charge after 30 years in prison accuse star criminologist Henry Lee of falsifying evidence

It should have been clear to investigators from day one that Birch and Henning did not kill him. Despite the bloody crime scene, there were no traces of the crime in the car the young men drove that evening, or on their clothing or shoes. And their DNA was not found anywhere in the house, including in the bathroom where they allegedly cleaned themselves and on the white towel they allegedly used.

The state’s notion that the single stain on a towel in the bathroom was proof that they killed him was absurd. If they had killed him and then tried to clean themselves in the bathroom, the bathroom would have been covered in Carr’s blood and their DNA. And if they had killed him, their clothes and shoes and the interior of the car would have been covered in blood, and their DNA would have been on doorknobs and other places in the house.

The only “evidence” linking them to the crime, aside from the dubious graffiti on the towel, were statements from several people accusing them of the crime: A childhood friend of Henning’s claimed he said he was involved in a burglary in which a man was killed. And two men who were incarcerated with Birch both said he said he and Henning killed a man while robbing a house in New Milford. But Henning’s friend and one of the jailhouse informants recanted their testimony at the habeas corpus trial, and an acquaintance of the other jailhouse informant testified that he lied to get transferred to another facility.

And importantly, there was evidence that one or more other people had killed Carr. There were bloody footprints on the floor of the house from two people, but the prints did not match the treads on the soles of Birch and Henning’s shoes, and one set of prints came from someone who an FBI shoe specialist determined was a size 7½ to 9. Henning and Birch wore shoes that were sizes 10½ to 11½. A DNA profile was found in four places at the crime scene, including on the inside front waistband of Carr’s underwear and on a piece of metal under his body that came from the knife used in the attack. That DNA came from a woman. Astonishing as it may seem in a state that has been at the forefront of developing the forensic use of DNA—thanks in large part to Lee and his forensic colleagues at the state lab—the source of that DNA has never been identified. And so the question remains: Who killed Everett Carr?

David R. Cameron is professor emeritus of political science at Yale and a member of the government’s eyewitness identification task force.