The Fayetteville Observer reports here that the capital court-martial of Master Sgt. Timothy B. Hennis will likely be postponed until February 2010.  As the Fay. Obs. reports, here,   

[MSgt Hennis] is accused of killing Kathryn Eastburn and two of her daughters May 9, 1985.  Their bodies were found inside their home . . . . This will be the third trial for Hennis.  He was found guilty in 1986 in a civilian court and sentenced to death.  He won an appeal and was acquitted at his second trial in 1989.  He resumed his Army career and retired in 2004. 

Hennis was recalled to active duty from the retired list in 2006 to face the charges.  We here at CAAFlog have been predicting the expected trial date for the last 18 months or so, see coverage here and here.

According to the story, there will be an August 2009 suppression hearing regarding witness IDs of Hennis.

22 Responses to “Hennis Capital Court-Martial Delayed Until 2010”

  1. John O'Connor says:

    I’ve always thought this was a good test case on whether there are any constitutional limitations on the power to try a retiree.

  2. Bridget says:

    I have always thought it odd that a retiree can be tried, whose only real connection with the military is retirement benefits, but a reservist who is still serving cannot be tried, unless the crime coincides with a drill date or other dates of duty.

  3. Mike "No Man" Navarre says:

    Bridget — Would appear that active Reservists did better lobbying than retirees.

  4. Anonymous says:

    —-He won an appeal and was acquitted at his second trial in 1989.  He resumed his Army career and retired in 2004.—

    I don’t know the details of the case, but how the heck was he allowed to continue his career and retire in in the first place?

  5. Anonymous says:

    Because he was acquitted and therefore wasn’t guilty of any crime?

  6. Anonymous says:

    Have they litigated the “Speedy” trial motion yet, does anyone know?

  7. -u--. -. R------ [moderated] says:

    J’OC, please direct us to your previous posts/scholarship on this matter. Since you’ve been so committed to this topic, I’m sure you’ve opined further than your meager post above, right?

  8. John O'Connor says:

    Actually, Mr. Rekshun, if that’s your real name, you’re missing a key distinction. I don’t think scholarship is required to have an opinion and post it on this blog. My reaction several posts ago were in response to an anonymous poster who mockingly questioned whether I knew facts that, in actuality, weren’t even true, in a sub-area of military justice about which I have given a lot of thought and done a lot of research. That’s the difference.

    But since you asked, I guess I would point you to the discussions of the Supreme Court “personal jurisdiction” cases in the articles I published in the University of Miami Law Review and the Georgia Law Review, as well as the habeas petitions (posted on this blog) that we filed in Price v. Gates and Adolph v. Gates. All of these deal with the constitutional limits on the exercise of court-martial jurisdiction.

    I also would not say I have been “so committed to this topic,” though I do think it’s litigable whether there are any limits on the constitutional power to prosecute retirees.

  9. John O'Connor says:

    My last post referred to the person who posted at 2104. The moderators, in a fit of good taste, changed his or her (well, it probably has to be a “his”) pseudonym.

  10. Norbert Basil MacLean III says:

    FYI the Subcommittee on Courts and Competition Policy of the House Judiciary will do a markup on the Equal Justice for Our Military Act of 2009, HR 569 at 1000, Thurs, 30 July. It will be webcast live. Here’s the URL: http://judiciary.house.gov/hearings/mark_090730.html

  11. Phallic refuge says:

    Why must we stifle the creative pseudonyms?

  12. Mike "No Man" Navarre says:

    PR:

    “We” in the sense you are using, which would include you, aren’t stifling anything. “We,” meaning the contributors to this blog, will stifle, censor, edit, etc. whatever we fee like because, well, it is our blog. And, in this case, it wasn’t creative, just juvenile.

  13. anon says:

    No Man,

    Could one of the other contributors censor/edit the posts of another contributor?

    BTW, Anybody going to give it up for CDR (sel) Grover. Well deserved.

  14. John Lancaster says:

    Frankly all the chiding aside this is an excellent case for teaching on the limits on trying people whose only connection with the military is their benefits earned. I believe the whole concept is hogwash and unconstitutional or atleast its a constitutional question. I hope to see this play out. Further, I dont see how the government could be allowed to bring charges more than two years after the fact.

  15. John Harwood says:

    What about Double Jeopardy? I’m guessing the acquittal came in state court, thereby making the court-martial the undertaking of a separate sovereign, but DJ seems like a good issue to litigate here, too. Does anyone know if it’s being raised?

  16. Cloudesley Shovell says:

    The jurisdiction argument is a loser. Although I personally agree that there are serious constitutional questions regarding the scope of Congress’ power to regulate the land and naval forces as it applies to court-martial jurisdiction over retirees, any argument that a court-martial lacks jurisdiction to try a retiree will fail in military courts.

    United States v. Hooper, 9 U.S.C.M.A. 637, 26 C.M.R. 417 (1958) (upholding jurisdiction to try a retired Navy admiral for offenses committed after retirement)(Cossio, this is the sexual misconduct case you mentioned).

    States v. Stevenson, 53 M.J. 257, 259 (2000)(upholding jurisdiction to prosecute members on the Temporary Disability Retired List under Article 2(a)(4) even though getting VA disability only, not retired pay).

    United States v. Allen, 33 M.J. 209, 216 (C.M.A. 1991)(noting that “there is no doubt of the power of a court-martial to try a person receiving retired pay.”)

    United States v. Overton, 24 M.J. 309 (C.M.A. 1987), cert. denied, 484 U.S. 976 (1987) (upholding jurisdiction to try retired Marine GySgt for offenses committed more than five years after retirement).

    “That retired officers are a part of the army and so triable by court-martial — a fact indeed never admitting of question — is adjudged in Tyler v U.S., 16 Ct Cl, 223; Id., 105 US 244 . . .” [Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, page 87, footnote 27.]

    The Tyler case was in 1881. The idea that retirees remain part of the military, and thus still subject to Congress’ power to regulate the land and naval forces, has been the Supreme Court’s view for at least the last 118 years.

  17. John O'Connor says:

    Cloudesley:

    I agree with you that there is zero chance of prevailing on a jurisdictional challenge at any level before CAAF, and probably not at any level before SCOTUS. But I would argue that the jurisdiction cases of the 1950s and early 1960s undermine any prior Supreme Court precedent, and I would probably try to develop a record at the trial level to the effect that retirees in the present scheme of things basically never get recalled for actual service. In the end, it’s probably a loser, but that doesn’t mean it’s wrong.

    If the facts weren’t so bad for this accused, it would be a pretty good test case. Still might.

  18. Anonymous says:

    While researching a motion challenging Art. 2(a)(4), BUPERS told me they had no record of a retiree being involuntarily recalled to active service since at least the 1970s (as far back as their records went), except to be court-martialled. I think a renewed challenge is long overdue and I’d throw in Art. 3(a) while I was at it, since its the mechanism in most cases which purports to give “continuing jurisdiction” over offenses committed while on active duty.

  19. Bridget says:

    Yes, I still hear questions about the Hooper case once or twice a year from some nervous retiree who is convinced that the Navy is watching every aspect of their life..”Yeah, but I heard about the Admiral from the 11th Naval District…” which, BTW tells you something about the date of the events, does anyone even remember when Navy Region Southwest was called the the 11th District? 25-30 years or more?

    As for the NG, the VA thing probably stems from the understanding that the Guard member may be subject to CM while undergoing treatment in VA facilities while still a member of the NG. For example, NG members can get combat stress related Rx at the VA, but if you punch out your shrink, they just might court martial you. But I bet they would let the civilians prosecute because it is such a hassle to figure out the logistics of the CM.

    I have never seen a Guard member at a federal court-martial for a VA issue nor a NG retiree, who like the active duty retiree gets a check from the Fed and, I suppose could be amenable to CM. (Hmm, I will have to research that one.) But if you are waiting for the NG to track retirees, that would be a long wait.

  20. Dew_Process says:

    It’s all about “status.” Solorio, 483 U.S. 435 (1987). At the time of the offense, he was on active duty, so the question is, does his status change, i.e., from AD to retired, defeat jurisdiction and trigger his Grand Jury rights under the 5th Amendment?

    Unlike Toth v. Quarles, 350 U.S. 11 (1955) and Ex Parte Milligan, 71 U.S. 2 (1866), where there was no nexus between the civilian defendant and the military, here Hennis was drawing retired pay and presumably benefits.

    The constitutional question is thus, is it within the power of Congress, under Art. I, Sec. 8, to define “retirees” as subject to the UCMJ? Unless the Court is willing to retreat from Solorio, which is dubious, the power to involuntarily recall retirees to AD for whatever reason(s), must be looked at through the lens of Solorio.

  21. Cloudesley Shovell says:

    J’OC–Actually, retirees do get recalled to active service. All, as far as I can tell, are voluntary recalls. I doubt there has been an involuntary recall since WWII or Korea.

    As for voluntary recalls, they’re happening right now. One example is CDR Bill Haggerson, MC, USN, who was originally commissioned in 1967, flew in combat as an A-6 Intruder bombardier in Vietnam, went to medical school, finished his career in medicine, retiring in 1987. He’s back on active duty with the Marines in Afghanistan at age 65. He is apparently one of three doctors voluntarily recalled to active duty in the last year by the Navy.

    The Air Force is also running a voluntary retired officer recall. Info about it is on the AFPC Command’s website. The USAF program appears to be directed at “rated” officers, which, as far as I can tell, is the same as what the Navy would call “warfare-qualified”.

  22. M.K. Thomp says:

    All legal and military jargon aside, if the piece of crap murdered three innocent people, it is justice that he be tried and convicted by whatever means possible of the attrocities. In the United States of America such evil must be accounted for, for one premise our country was founded on states that we are “one nation, under God, indivisible, with liberty and justice for all” (for both those on and against the side of morality).