Forensic scientist Henry Lee on Wednesday defended his 1985 examination of evidence in a murder case in which two convictions were later overturned, stating that he did not fabricate evidence about blood found on a bathroom towel.

In 2019, the state Supreme Court threw out the 1989 murder convictions of two New Milford teenagers, Ricky Birch and Shawn Henning, in the murder of Everett Carr and ordered a new trial. They then filed a wrongful-conviction suit against Lee, eight police investigators and the town of New Milford.

On Friday, U.S. District Judge Victor Bolden ruled that Lee fabricated evidence in the murder case and is liable for potentially tens of millions of dollars in damages in their wrongful-conviction suit.

“I have no motive nor reason to fabricate evidence,” Lee wrote in his statement. “My chemical testing of the towel played no direct role in implicating Mr. Birch and Mr. Henning or anyone else as suspects in this crime. Further, my scientific testimony at their trial included exculpatory evidence, such as a negative finding of blood on their clothing that served to exonerate them.”

Bolden’s unusual pretrial ruling means that Birch and Henning’s suit will go to trial unless there is a settlement.

Lee said he was “disappointed” in Bolden’s ruling.

“In my capacity as head of the Forensic Science Laboratory, my colleagues and I were called to the homicide scene in New Milford on the night of December 2, 1985, to conduct field chemical tests and perform initial crime scene reconstruction,” Lee wrote.

“Hundreds of areas were tested for the presence of fingerprints, footprints and biological evidence including the upstairs bathroom, sink and the towel in question. I did not participate nor was involved in any of the subsequent criminal investigations.”

Lee said he tested a “light red smear” on a towel with tetramethylbenzidine, “a chemical test for blood used during the 1980s. A smear on the towel and some spots in the sink gave a positive chemical reaction.”

While the items were placed in evidence bags by a state police detective, “For unknown reasons, the towel was never submitted to the Lab for a confirmatory blood test at that time,” Lee wrote.

Lee has become world renowned for his forensic work, testifying about his findings in examining evidence, including the murder trial of O.J. Simpson and the killing of JonBenét Ramsey. He is a former commissioner of the state police and founder of the Henry C. Lee Institute of Forensic Science at the University of New Haven.

“I am a forensic scientist and I only present my scientific findings in the court of law,” Lee wrote in the statement. “It is not my role to determine what evidence to introduce and what questions to ask a witness during the trial. I was not responsible for the documentation, collection of evidence, and for photographing the scene.”

He added, “Mr. Birch and Mr. Henning did not become suspects until weeks after my December 2, 1985 crime scene visit. My scientific findings at the crime scene were completed well before they became suspects.”

Lee said the evidence could have degraded in the years after he tested it. 

“A negative finding for blood on the towel 20 years later should not be interpreted as fact that there was never a positive test for the presence of blood on this towel nor should a quantum leap in thinking be made that this was an attempt to fabricate evidence,” Lee wrote.

“It is not only against the scientific principle but also without any logical reason. This towel was stored at an evidence room for 20 years. It is not unusual for biodegradation, decomposition, or denaturation to occur. … In addition, the small amount of blood-like smear evidence may even be consumed during testing or have fallen off the surface of the towel.”

Lee pointed out that the evidence label on the bag containing the towel, which reads: “Exhibit 16, Date seized 12-2-85, Time 2305 … Item white towel with pink/green (illegible) pattern w/ blood like smear on same … Location 2nd floor bathroom sink rack.”

“This evidence tag clearly shows that a blood like smear was identified on the bathroom towel when the (state police Major Crime Squad) and lab personnel were at the scene,” Lee wrote. “It is clear and direct evidence that I did not fabricate evidence. The towel was tested, identified as blood like smear on that towel and collected at the scene on 12/2/1985 at 23:05.”

Carr’s murder, at his daughter’s house, was extremely bloody. His head was smashed and he was stabbed 27 times, severing his jugular vein. Blood was spattered all over the hallway murder scene. However, Henning, then 17, and Birch, 18, had no blood on them.

The towel was used as evidence in their trial to explain why the two men had no blood on them.

Bolden’s decisions mean that, without a settlement, a sensational wrongful conviction suit against Lee, eight police investigators and the town of New Milford will go to trial. 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 would 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.

Tong’s office said Wednesday, “We disagree with Judge Bolden’s decision, and we will appeal. We stand by our lawyers’ strong work in this case. They offered a vigorous and legally correct defense.”

Craig Raabe and Jim Cousins of West Hartford, who are representing Henning, issued a statement Wednesday, saying, “Judge Bolden’s thoughtful decision was based on undisputed evidence, which included the sworn testimony of Henry Lee’s co-defendant who collected the towel. Shawn Henning is looking forward to trying this case as he seeks some form of justice for 30 years of wrongful incarceration.”

According to the transcript of the hearing before Bolden, Detective Michael Graham testified that he did not see Lee at the scene after the killing and was unaware whether the towel had been tested before he collected it as evidence.

Reporting by Edmund H. Mahony is included in this story. Ed Stannard can be reached at estannard@courant.com.