According to the town of New Milford's motion filed Tuesday, the snitch had already told investigators that the exoneree, Ralph "Ricky" Birch, confessed to stabbing and killing a man before the informant was given additional details about the crime.
During a seven-day trial in New Haven federal court, Birch's lawyers said former New Milford police officer David Shortt, who has since died, failed to intervene when state police detective Andrew Ocif fed details about the 1985 murder of Everett Carr to the informant, Todd Cocchia.
"Prior to Detective Ocif providing any information to Cocchia about the murder, Cocchia had already relayed Birch's confession, that Birch told Cocchia that he had stabbed a man with a knife during a burglary in New Milford," the town said in Tuesday's motion.
Therefore, "Ocif did not fabricate Cocchia's initial statement," the town added. "That statement was given before Ocif said or did anything."
According to the town, Birch's fabrication of evidence claim fails as a matter of law because he did not prove Ocif "manufactured Todd Cocchia's testimony knowing the plaintiff, Ricky Birch, never made such a confession to Cocchia."
The town also argued that Shortt did not foresee imminent harm to Birch during Cocchia's 1988 jailhouse interview.
Additionally, the town asserts, Birch's $5.7 million verdict must be fully offset by a separate $12.6 million settlement with the state according to the Connecticut General Statutes.
The town claims Birch's suit against Shortt arose from "conduct that originated with the state defendants."
Because his claims against both units of government "overlap and are inextricably intertwined," they cannot result in twin payouts, the town argues.
A federal jury in March concluded that Shortt acted negligently by failing to raise red flags during Ocif's interview of Cocchia, who claimed to have known Birch from a previous juvenile stint.
Cocchia testified during Birch's 1989 felony murder trial that Birch confessed to killing Carr, but he recanted that testimony 27 years later, Birch's federal civil rights attorneys said.
The informant's testimony was the crucial link that led to the charges, trial and conviction, Birch argued this year.
Prosecutors in 1989 said Birch and an associate, Shawn Henning, beat Carr, stabbed him 27 times and slit his throat during a botched burglary during the overnight hours of Dec. 1, 1985.
Though Birch and Henning were small-time burglars trying to feed a drug habit, they weren't violent, Birch's attorneys have argued.
According to Birch, the state's theory during the 1989 criminal trial didn't make sense. Few items were taken from Carr's home, and the only evidence linking the then-teens to the crime was a witness who claimed a loud car might have been in the area when Carr was killed.
Evidence photos showed the killer left bloody shoe prints inside Carr's home. But the pattern didn't match any of the shoes Birch or Henning wore, and the size was far too small to have been left by either of them, Birch's attorneys told the jury.
Plus, no evidence from the bloody scene was ever recovered inside the unkempt car where Birch and Henning had been living, they added.
DNA from an unidentified person was eventually found mixed with the victim's blood, the attorneys noted.
New Milford's deputy police chief during the Carr murder investigation testified in March that Birch and Henning had maintained their innocence. He said he believed they were not involved with the killing, but he testified that he was taken off the case for voicing that belief.
Birch and Henning spent three decades behind bars. The Connecticut Supreme Court in 2019 granted their habeas corpus petitions, and state prosecutors refused to try them a second time.
In March, a federal jury agreed Shortt was negligent but rejected Birch's federal civil rights claims.
The jury also rejected all of Birch's claims against Steven Jordan, another New Milford officer, accused of failing to properly catalog a bank envelope containing $1,000 in cash.
Birch claimed the envelope was probably in plain view and was likely seized during an early law enforcement sweep of Carr's home. Had he known of the discovery, he would have argued it proved Carr's home wasn't burglarized, he told the jury.
However, Jordan said it was unclear from scant police records where and when the cash turned up. He believed it was hidden at the crime scene and probably didn't turn up until a more thorough cataloging occurred in the days after the killing.
U.S. District Judge Victor A. Bolden on March 28 increased Birch's award to nearly $7.7 million, adding nearly $2 million in interest based on the town's rejection of a sealed settlement offer.
Counsel for Birch declined to comment Wednesday. Counsel for the town and for the administrator of Shortt's estate did not respond to requests for comment.
Birch is represented by David A. Lebowitz, Douglas E. Lieb and Alyssa Isidoridy of Kaufman Lieb Lebowitz & Frick LLP.
Jordan and Shortt's estate are represented by Elliot B. Spector, Jeffrey O. McDonald and Forrest Noirot of Hassett & George PC.
The 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.
--Editing by Adam LoBelia.
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