The settlement, if passed by the House and Senate, will conclude the state's involvement in litigation by Ralph Birch and onetime co-defendant Shawn Henning against various government actors who played roles in their convictions for the killing of 65-year-old Everett Carr, who was stabbed 27 times and left to die in his home. Facing the most scrutiny was renowned forensic expert Dr. Henry Lee, who for more than two decades served as the director of the Connecticut State Forensic Laboratory and went on to become the state's commissioner of public safety.
According to Friday's committee hearing, settlement talks picked up steam after U.S. District Judge Victor A. Bolden, of the District of Connecticut, denied Dr. Lee's motion for summary judgment in July, ruling that Birch and Henning could press forward with claims that evidence was fabricated and suppressed and that their prosecutions were malicious.
Though the state appealed Judge Bolden's decision to the Second Circuit, the judiciary committee on Friday agreed with Deputy Attorney General Eileen Meskill that a settlement of $12.6 million for each individual was prudent given the prices paid by other states and municipalities for comparable failures.
Many governments wind up paying $1 million for each year of wrongful incarceration, Meskill and a panel of state officials told the committee. A jury trial could cost the state even more, those present agreed.
According to Meskill, the state's case crumbled because Lee testified that a white hand towel recovered from an upstairs bathroom in the house where the murder occurred tested positive for the presumptive presence of blood.
Meskill said the towel was never tested and that later tests proved a small red stain on the towel was not blood.
"No forensic evidence was ever found that linked these two plaintiffs to the crime," she told the committee. However, prosecutors said during closing arguments that Birch and Henning used the bathroom to clean up after the brutal murder, she explained.
The two men, who were suspects in several area burglaries, were tied to the murder after one police officer "strong armed" another into altering a report to more firmly claim that one of the two suspects "may" have known the layout of the home, Rep. Craig C. Fishbein, the ranking member on the judiciary committee, noted on Friday.
Fishbein, a Republican, also said the police manipulated a jailhouse snitch by showing him an investigative file. Not surprisingly, the snitch said that the suspects knew many key details, Fishbein said.
"The system failed these two young men, who were 18 and 19 at the time," he indicated.
Fishbein blamed botched work by the police, the public defender's office, Lee and prosecutors, who he suggested were trying to find someone to blame for the killing after the case quickly ran cold.
Lee eventually chided prosecutors for not requesting additional tests on the towel, the lawmaker said.
Fishbein also said a person related to the victim lied to the police about her location and that an excited utterance in a 911 call was never exploited at trial.
He surmised that the brutal attack may have been committed by someone with a personal connection to the victim. He suggested teen burglars were more likely to flee when confronted by a homeowner than they were to stab a stranger 27 times.
"All you've got to do is watch a couple of episodes of "CSI" to tell you this is a crime of passion," he said.
Rep. Tom O'Dea, also a Republican, asked whether Lee had lied under oath.
Josh Perry, of the state attorney general's office, said the state Supreme Court determined Lee's testimony was "counterfactual" but found that Lee did not intend to testify falsely.
"We did not find any evidence of intentional misconduct," he said of Lee and other state employees.
Perry said the state disputed some of Judge Bolden's findings in federal court and filed what they "believed was a meritorious appeal."
O'Dea said he trusted the authorities' assessments that no intentional misconduct occurred and that the state's decision to indemnify its employees was appropriate.
Rep. Matt Blumenthal, a Democrat, said that when the state makes mistakes, victims don't see true justice.
"We have a duty not only to defend the state's taxpayers, but also to do justice," he said. "The state made a mistake here, a big mistake here."
Rep. Carol Hall, a Republican, questioned whether the settlement would "open the floodgates" of litigation against Lee, who has been called to testify in numerous high-profile cases nationwide.
Meskill noted that the state Supreme Court granted Birch and Henning a new trial five years ago and that no other cases had been filed against Dr. Lee.
Rep. Steven Stafstrom, a Democrat who chairs the judiciary committee, noted that the settlement agreement contains no admission of liability by the state.
Henning was arrested in November 1988, and Birch was taken into custody in January 1989, court records indicate. They were tried separately and each was sentenced to more than 50 years in prison.
The Connecticut Supreme Court initially rejected appeals by both men in State v. Birch
and State v. Henning , in July and November 1991, respectively. But in June 2019, the state's high court ordered new trials in Birch v. Commissioner of Correction and Henning v. Commissioner of Correction . The state's attorney's office declined to retry both men in 2020 and dropped the charges.During Friday's committee hearing, some officials bemoaned the spartan nature of forensic technology in the mid-to-late 1980s when the investigation and trial occurred, suggesting that today, presumptive blood tests would not be as dispositive.
"Two kids, two young men … have essentially had their lives taken away from them, and frankly, there's no amount of money we can pay to give them their lives back," Stafstrom said while wrapping up the hearing. "One of the things I'm struck by, and reminded of as we settle this, is the danger in imposing very, very lengthy sentences on kids, on 18- and 19-year-old kids, even for what is believed to be horrific, heinous crimes."
"We feel that resolution is a good resolution for all parties involved," Meskill said during the hearing.
Cases against the town of New Milford continue at the appellate level, officials said.
In Connecticut, criminal prosecutions occur under the auspices of the chief state's attorney. Civil matters are handled by the state attorney general's office, which is separate.
Each of the nine senators on the committee voted in bipartisan fashion to approve the settlement bill and send it to the state's upper chamber.
Twenty-seven state representatives voted in favor of moving the bills; one member, Maryam Khan, was absent.
An attorney for Henning declined to comment when reached by Law360. Attorneys for Birch did not immediately respond to messages.
Henning and Birch were represented in federal district court by Craig A. Raabe of Izard Kindall & Raabe LLP and W. James Cousins of W. James Cousins PC.
Henning is represented in the Second Circuit by Craig A. Raabe and Seth R. Klein of Izard Kindall & Raabe LLP, W. James Cousins of W. James Cousins PC, and by Paul J. Casteleiro.
Birch is represented in the Second Circuit by David A. Lebowitz and Douglas Edward Lieb of Kaufman Lieb Lebowitz & Frick LLP.
Lee is represented in the Second Circuit by Joshua Perry and Michael Skold of the Connecticut Office of the Attorney General.
The town of New Milford and several individual defendants are represented in the Second Circuit by Jeffrey O. McDonald and Elliot Bruce Spector of Hassett & George PC.
The appeals cases are both Birch v. New Milford, case numbers 23-1092 and 23-1153, in the U.S. Court of Appeals for the Second Circuit.
The district court cases are Birch v. New Milford et al., case number 3:20-cv-01790, and Henning v. New Milford et al., case number 3:20-cv-01792, in the U.S. District Court for the District of Connecticut.
The decisions granting the men new trials are Henning v. Commissioner of Correction, case number SC 20137, and Birch v. Commissioner of Correction, case number SC 20136, in the Connecticut Supreme Court.
--Editing by Linda Voorhis.