A Second Circuit judge expressed doubt Wednesday that a lower court erred in declining to grant qualified immunity to two Connecticut police officers whose actions allegedly contributed to the wrongful convictions of two men for a 1985 murder, noting that a key piece of evidence challenging prosecutors' theory remains shrouded in mystery.

As attorneys for two former New Milford detectives who investigated the murder of Everett Carr pressed to undo the district court's ruling, U.S. Circuit Judge Pierre N. Leval hammered away at the claim by exonerees Ralph Birch and Shawn Henning that police never revealed to prosecutors that they had discovered $1,000 in cash at the scene of the supposed burglary-gone-wrong, and wondered if it was fatal to the officers' appeal. 

"There are unlimited unknown facts about the thousand dollars. We know almost nothing about where they were, where they came from, how evident they were, how visible they were, whether they were carefully concealed behind some nook and cranny, whether they were out in plain sight," Judge Leval said. "We know nothing about all that, so doesn't this issue turn on, at least potentially, on findings of fact about facts that aren't in the record, that are not knowable to us?"

Carr, 65, was stabbed 27 times in December 1985 in his New Milford home. Henning was arrested in November 1988 and Birch was taken into custody in January 1989. They were tried separately and each was sentenced to more than 50 years in prison. 

After their exoneration and release from prison, the plaintiffs brought claims alleging fabrication, suppression of evidence and malicious prosecution. A May 8 status report in the underlying case said the claims against the state defendants "have been resolved and dismissed," but the detectives' appeal was ongoing.

Elliot B. Spector of Hassett & George PC agreed that after nearly 40 years, details about the money remain unknown, leading Judge Leval to ask if the issue "turns on fact-finding, which is not what we do on this kind of interlocutory appeal."

Spector said that for qualified-immunity purposes, the court must look at "the mind" of former New Milford police Detective Steven Jordan, his client, and what he knew at the time. Jordan was one of the first officers to respond to the scene and did not find the money when he searched the house, and others, including state police, also did not find the cash right away, Spector said, adding later that it may have been in the victim's garage or car.

Jordan, he said, would have believed that the money had not been visible to burglars. State police Detective Michael Graham turned over the $1,000 to Jordan days after the crime, documenting it not as exculpatory evidence but as "found property," which Jordan ultimately gave to the victim's daughter along with a receipt, according to Spector.

"It seems like you're drawing inferences in favor of your client, and that's not something that happens at this stage of the proceeding," U.S. Circuit Judge Richard J. Sullivan said. "A fact-finder can draw those inferences, but there might be other inferences to be drawn, and in the absence of facts that would allow us to narrow the range of permissible inferences, it's not clear to me how the district court was supposed to resolve this without adopting your view of the facts."

Spector told the judges to put themselves in Jordan's position and ask if an objectionably reasonable officer would know that the discovery was exculpatory.

He made a similar argument about Detective David Shortt, now deceased, whom the plaintiffs accused in their Feb. 27 appeal brief of "sitting idly by" and watching as state police Detective Andrew Ocif "coaxed and actively assisted a jailhouse informant to falsely inculpate Mr. Birch in the murder." Spector said speculation and conjecture cannot overcome qualified immunity to target Shortt's estate.

The defendants' November 2023 appeal brief said, "Shortt's duty to intervene must be based on whether he knew at the time of the interview that Ocif was unconstitutionally eliciting false information that would be given to the prosecutor."

After the murder, police zeroed in on Birch and Henning, then teenagers, because they had admitted committing daytime burglaries in the area, the brief said. There have been no other arrests in the case.

Birch and Henning said in their brief that the discovery of the money undercut the theory that Carr was killed after he interrupted a burglary at his home, noting that the perpetrator stayed on the scene after the murder to rummage through Carr's belongings and arguing that "it is inconceivable that they would have left behind an envelope containing $1,000 in cash. Everyone involved in investigating the case knew it."

The Connecticut Supreme Court initially rejected appeals by both men in 1991. But in June 2019, the state high court ordered new trials, finding flaws in the testimony of Dr. Henry Lee, who was director of the Connecticut Forensic Science Laboratory. The state's attorney's office declined to pursue new trials and dropped the charges.

On March 1, the Connecticut General Assembly's joint Judiciary Committee unanimously approved a $25.2 million settlement for Birch and Henning after U.S. District Judge Victor A. Bolden of the District of Connecticut denied motions for summary judgment in their lawsuit against town- and state-level defendants, including state troopers, members of the local police department and Lee. Judge Bolden granted summary judgment to the plaintiffs against Lee, who was accused of fabricating blood evidence on a bathroom hand towel.

"The discovery of $1,000 in cash at the scene of an alleged robbery in and of itself does not entirely suggest that a robbery did not occur, but when viewed in the light most favorable to plaintiffs, a reasonable jury could conclude that this evidence may have been exculpatory," the ruling said.

New Milford, Jordan and Robert Santoro, administrator of Shortt's estate, appealed to the Second Circuit.

Arguing for Birch and Henning on Wednesday, David A. Lebowitz of Kaufman Lieb Lebowitz & Frick LLP said the court lacks jurisdiction to hear the appeal. He said that officers appealing the denial of qualified immunity must accept the facts that a plaintiff alleges are true or the facts that the district court held a reasonable jury might be able to conclude.

Lebowitz said there is no indication that the $1,000 was hidden, pointing out that Graham also documented evidence like blood spatter on the home's walls and money in a pants pocket on the same day, two days after the murder. The police considered the $1,000 important to the case, he said, as made clear by the fact that a state police detective traveled to New Jersey to ask the victim's daughter about items at the scene, including the money.

"Now Jordan's position here is that this record proves beyond dispute that the cash was hidden and wouldn't have been seen by burglars, because that's their burden on qualified immunity at the summary judgment stage, but the district court correctly found that this is a jury question," Lebowitz said. "Not only that: the district court specifically found that a fact-finder could conclude he intentionally suppressed this evidence in bad faith."

Judge Leval said it seemed "strange" to argue that a burglar would have "the forethought to take everything that was worth anything so that it looks like the Whos' house after the Grinch got through it. I don't understand why that's a plausible theory."

Lebowitz said the evidence shows that Jordan "took affirmative steps" to make sure that prosecutors were not told about the $1,000 and that there were "indicia" that the murder was actually motivated by a personal vendetta.

U.S. Circuit Judges Pierre N. Leval, Richard J. Sullivan and Sarah A.L. Merriam sat on the panel for the Second Circuit.

Birch is represented by David A. Lebowitz and Douglas E. Lieb of Kaufman Lieb Lebowitz & Frick LLP.

Henning is represented by Seth R. Klein and Craig A. Raabe of Izard Kindall & Raabe LLP, by W. James Cousins of W. James Cousins PC, and by Paul Casteleiro of the Law Offices of Paul Casteleiro.

New Milford, Jordan and Santoro are represented by Elliot B. Spector of Hassett & George PC.

The case is Birch v. New Milford, case number 23-1153, in the U.S. Court of Appeals for the Second Circuit. The underlying case is Birch v. New Milford et al., case number 3:20-cv-01790, in the U.S. District Court for the District of Connecticut.

–Additional reporting by Aaron Keller. Editing by Karin Roberts.