U.S. Court: Forensic scientist Henry Lee liable for fabricating evidence that sent two teens to prison for murder

A federal court has ruled that world-renowned forensic scientist Henry Lee fabricated evidence that sent two innocent teenagers to prison for 30 years and he is liable for what could be tens of millions of dollars in damages in their wrongful conviction suit.

The unusual, pre-trial ruling for Shawn Henning and Ricky Birch was one of several issued Friday by U.S District Judge Victor Bolden. The decisions mean that a sensational wrongful conviction suit against Lee, eight police investigators and the town of New Milford will go to trial without a settlement. In addition to finding against Lee, the court ruled that a jury could reasonably find that state and New Milford police fabricated or concealed evidence that would have undermined the case against the teenagers.

In Lee’s case, it will be a hearing in damages rather than a trial. Jurors will be instructed that, because of Bolden’s ruling, Lee has been found liable for fabricating the crucial evidence and the jurors need only decide how much he owes Henning and Birch in damages.

Bolden’s ruling also was critical of the office of state Attorney General William Tong, which is defending Lee and several former state police detectives in the case. Bolden said there is an immunity defense that could have been exercised in an effort to protect Lee from a pretrial liability judgment, but Tong’s office inexplicably failed to do so.

Bolden wrote that the Attorney General’s office acknowledged that it “unintentionally neglected to move more quickly … when it became clear to counsel that testimonial immunity was a viable, and in fact, meritorious defense for the Defendant.” Because of the delay, Bolden wrote Lee was not entitled to use the defense.

But Bolden also said that, based on the record in the case, Lee could have been found liable for fabricating evidence even if he had presented an immunity defense.

A spokeswoman for Tong said Friday the office is “reviewing the decision and evaluating next steps.” Messages were left for Lee.

Henning and Birch were a pair of drug-abusing, teenage burglars living, packed with everything they owned, in a stolen car when detectives made them the top suspects in the 1985 murder of of Everett Carr, a retired truck driver living with his daughter in New Milford. The investigation that led to murder convictions was done by state police and New Milford detectives.

“This case is a travesty,” said attorney’s Craig Raabe and Jim Cousins, who were involved in winning reversal of the two convictions at the state Supreme Court in 2018. “Shawn Henning and Ricky Birch are innocent, but went to prison for 30 years, and the real killer got away.”

“Henry Lee’s fabrication is outrageous and the federal court also found that a jury could find that the state police and New Milford police engaged in misconduct,” they said. “It is well past time for the state and New Milford to compensate these innocent men for their decades of unimaginable abuse and trauma.”

Carr’s murder was exceptionally bloody and blood evidence dominated the separate Henning and Birch trials. Lee’s trial testimony that he found traces of blood on a bath towel — testimony courts have called at best, erroneous and at worst, false — sent Henning and Birch to prison for 50 and 55 years, respectively.

Carr was stabbed 27 times. His jugular vein was slashed and the hallway in which his killers trapped him was so saturated with blood that detectives had to build a makeshift ramp to get to the body.

The two teens argued, among other things, that they couldn’t have killed Carr because not a speck of blood was found on them or any of the cluttered junk in the cramped stolen car where they were living. When the state Supreme Court vacated the two convictions 33 years after the murder, it noted that the car and its contents had not been cleaned between the night of the murder and seizure of the car by detectives.

Lee’s trial testimony was the prosecution’s answer. At the time of Carr’s death, Lee was building a national reputation as a forensic scientist and could be counted on to be present with state police major crime investigators at high profile crime scenes.

Lee testified at both trials that he found the stained towel in an upstairs bathroom and that his repeated tests on the light stains proved they were made by blood. The prosecutor used Lee’s testimony to argue to the juries that the then 17-year-old Henning and 18-year-old Birch could have used the towel to clean themselves of blood.

When it reversed the convictions, the Supreme Court found — and Bolden agreed Friday — that there was no blood on the towel. In addition, the court said Lee had no way of knowing what the stain on the towel was because neither he, nor anyone in his lab tested it before the teens were convicted.

When the stains on the towel were finally tested in 2008 — part of a last ditch appeal by Henning and Birch — the result showed they weren’t made by blood, but some inorganic substance.

Lee has continued to insist that he did test the towels and that the result was positive for blood. During the litigation leading to Bolden’s decision, he claimed he had personal photographs stored at home that confirm his claims about the testing.

But Bolden adopted the argument by Birch and Henning — and recently conceded to by the state — that Lee never tested the towel. Lee’s own expert on photographic evidence conceded the photos did not contain evidence of testing.