The court is scheduled to hear arguments Thursday and Friday from defense lawyers who say false testimony about blood evidence helped lead to the convictions of Ralph “Ricky” Birch and Shawn Henning in the Dec. 1, 1985, murder of 65-year-old Everett Carr.
Birch, now 51, and Henning, 50, were charged two years after the stabbing and beating death, which prosecutors allege occurred during a string of burglaries. Birch is serving a 55-year sentence for murder. Henning is serving 50 years.
Supporters say that despite an extremely bloody crime scene, no DNA evidence was ever found linking the pair to Carr, who was stabbed 27 times, had his throat cut and suffered seven blows to the head with a blunt object. Despite being identified as suspects shortly after the crime, no blood was found on their clothes or in their car.
During their trials, prosecutors presented evidence from forensic expert Henry Lee, who would later gain fame as a witness in the O.J. Simpson murder case, that it was possible for the assailants to avoid getting much blood on them.
Lee also testified that a towel, which later was suggested could have been touched by the killers while cleaning up, was found in a bathroom near the crime the scene with stains consistent with blood.
But attorneys for Birch and Henning argue that is not true.
“Dr. Lee had not tested the towel and the stains were not blood,” attorney W. James Cousins writes in his appellate brief. “A technician from Dr. Lee’s own agency testified that the towel had never previously been examined or tested and when she did test the towel in connection with (the appeal), even by a presumptive or screening test, stains on the towel were not blood.”
The men’s lawyers argue that tests conducted between 2010 and 2012 on blood found on a piece of the murder weapon, a floorboard, the body and a cigar box touched by the killer turned up the DNA of an unknown person, likely a woman, and found that footprints at the crime scene were too small to match either defendant.
“The third-party DNA is all from the same person,” said Andrew O’Shea, Birch’s attorney. “This is obviously from the true assailant.”
Birch and Henning have acknowledged being involved in burglaries in the area and were living in a stolen automobile, but have maintained they had nothing to do with Carr’s death.
Witnesses, including Henning’s grandmother, testified that he made incriminating statements about the death of a man and a dog, but said he had not actually participated in the murder.
Defense attorneys dispute that, arguing that jailhouse witnesses lied to get a deal and the grandmother misunderstood what her grandson was saying. They also point out that no dog was killed.
“We are just 100 percent certain that they are innocent,” said Cousins. “There is just no question about it.”
Birth and Henning’s convictions have been upheld by lower courts and prosecutors argue in their brief that the defense has not provided any evidence that would warrant having their convictions thrown out.