We’ve previously looked at the habeas petition in Hennis v. Helmick, No. 5:09-hc-02169-BO, and the United States’ response.  Now Hennis’ counsel have filed their reply to the Respondents’ motion to dismiss or for summary judgment.  We’ve posted that response here.

16 Responses to “Hennis’s response to motion to dismiss or for summary judgment”

  1. Osiris says:

    This is a disgrace, I dont see how the government can simply argue that since they failed to finally account for this man’s pay they can try him for capital murder. The fact is the government lost jurisdiction when his ETS passed. This brief nails that point and is in keeping with my understanding of councilman.

    Who are these people? and what point are they trying to make?

    This seems to be cruel and unusal punishment.

    Why did’nt the government try him in the first place?, they could have had their chance to chose their own panel and shotgun him then.

    This kind of situation diminishes the military justice system and lowers the publics perception of its ligitimacy.

  2. Westerner says:

    Correct me if I am wrong, my understanding is that the Military reserve the rigth to assume jurisdiction in any case involving military personnel and even more so if the offense was committed onboard a military base.

    Who made the decision not to do so?

    Its AMAZING,the government argus this soldier should stand trial then appeal to exhaust his military remedies in a case where jurisdiction is wholly fictional.

    The dispute arises from jurisdiction and the government presents its argument as if jurisdiction is a foregone conclusion. What arrogance!!!!!!!

    The premise of the governements argument is simply galling and truly lacks merit.

    I am not a mil justice”WONK” but this is not a hard case to follow for the issue is rudimentary at best.

  3. Cloudesley Shovell says:

    Osiris and Westerner–Yes, there is jurisdiction. Even if there was a break in service, such a break does not terminate jurisdiction. Hennis retired after a 23-year career, so he’s subject to the UCMJ for the rest of his life. Art. 2(a)(4), UCMJ. He is alleged to have murdered 3 people while on active duty. If he was subject to the UCMJ at the time of the alleged offense, and also subject to the UCMJ when charged and tried, a court-martial has jurisdiction over him even if there was an intervening break in service. Art. 3(a), UCMJ.

    It is manifestly apparent why he’s being tried now. The gov’t alleges a DNA match, using technology obviously not available at the time of the murders. Hennis cannot be tried in state court, having been acquitted. The military looks to be the only system where he can be charged. I cannot imagine any convening authority not charging a case in which the wife and children of a servicemember were viciously murdered. There is no statute of limitation for murder, for good reason.

    I’m rather surprised Hennis kept re-enlisting. Had he terminated his service and not pursued a military career, he would not be subject to court-martial jurisdiction.

    If you guys want to argue, as a normative matter, that court-martial jurisdiction should not extend to retirees, or that there should be a short limitations period for all offenses under the UCMJ, given that it is a good order and discipline system, not just another branch of the criminal justice system, I may well agree with you. However, in this particular case, with these particular facts, there is little question that Hennis is subject to court-martial jurisdiction.

  4. Anon says:

    Well said Cloudesley Shovell! I also was surprised that he kept re-enlisting. But I think it’s clear he’s subject to jurisdiction.

  5. Southern Defense Counsel says:

    Sir Cloudesly,

    The issue here seems to be whether there was a final discharge prior to re-entry into service (i.e. broken service). Hennis’ counsel are arguing that due to the broken service, the jurisdiction terminated, and that while the military does still have jurisdiction for any offenses committed after he re-entered service, and indeed into retirement, that the break in service seems to me to be an accurate statement of the law.

    As we have seen, the military has often and successfully argued at CAAF that you aren’t out until we say you are out, and here the issue is again the final accounting of pay. Hennis’ counsel claim that despite whether CAAF is right about that issue now, the law was different in 1989.

    Now, I think it’s disgusting that the military can claim to hold onto jurisdiction for years just because DFAS is slow in doing a final accounting of pay. But, in reading the response, the real question is whether the new law conferring jurisdiction on Hennis via the lack of a final accounting of pay is retroactive. I would think not, and tend to agree with Hennis’ counsel.

    That said, Hennis was a doofus for re-enlisting in the Army if he in fact did murder his wife and child and (morally) would deserve what is coming to him.

  6. anon says:

    It wasn’t his wife and child. It was a Captain’s wife and two daughters (5 and 3). The wife was raped and had her throat slit. The two girls had their throats slit. The third daughter (21 months) was left in a crib and found by a neighbor a few days later. The Captain was TAD at the time.

    Supposedly the family was PCSing and trying to get their dog adopted. Hennis responded to an ad for the dog and came to their house the night of the murders.

    The gov’t is now alleging that Hennis’ DNA (sperm) was found on the wife. I don’t know any other facts, but that seems pretty solid.

    Regardless, I find the facts of this case truly disturbing.

    Also, why didn’t they just let the U.S. Attorney prosecute? There is no SOL for murder, and they are a separate sovereign.

  7. Dew_Process says:

    Does anyone “in the know,” know whether or not during Hennis’s time in civilian custody, the Army dropped him from the Rolls? If the Army was serious about some form of “continuing” jurisdiction, at least back then it was fairly routine for a DFR to be processed once sentenced to civilian confinement.

    A strange case indeed, but if this case took place on post, the Army clearly had jurisdiction at the time, and maybe had primary jurisdiction. Did they “waive” that so as to allow the State’s Attorney to prosecute because it was more likely to result in a death penalty?

  8. LT Wong says:

    Pardon me, if you will, But I have no faith in the government’s DNA claims ALA USACIL.
    ITS still a court of law, not a court of truth.

    With that said, if Hennis committed these crimes he should pay, but not by “RAILROADING HIM”

    Why not try in US district court?

    I too dont beleive the military has jurisdiction in this case

  9. 4Justice says:

    It was not USACIL who did the original DNA testing in the Hennis case; it was the NC State SBI crime lab.

  10. Steve says:

    For those saying he should be tried in federal court, what would you charge him with? What would be the federal jurisdictional hook?

    I am not saying that there isn’t a possible charge, but the comments seem to assume that there is a federal law prohibiting murder that is akin to state laws. There isn’t.

    When people are tried in federal court the charges always have some federal aspect (e.g. the murder of a federal agent, committing a crime which crossed state lines, crimes effecting interstate commerce, and, of course, the UCMJ). For example, when the Rodney King case was retried in federal court, after an unsuccessful state prosecution, the police officers were charged with violating his civil rights (a crime created by Congress using their powers under the 14th amendment), not assault (which is the purview of a state government).

    So, if new evidence creates probable cause to believe that he committed three murders, and there is jurisdiction (even if it appears almost accidental), who would not want to put this through the process to see if he is guilty?

    Should we let a possible murderer go free because it is not (supposedly) ‘fair’? Or do we let the process its course?

    If he is guilty, and he is found guilty and goes to jail, does ANYONE think that is the wrong result?

  11. Southern Defense Counsel says:

    Steve,

    Morally wrong result? No. Legally wrong result? Maybe. There is a distinction. The law is there to protect the innocent, but must protect the guilty as well when the State messes up. That is what prompted Blackstone’s quote regarding ten guilty men going free. Your resort to strict utilitarian logic is exactly what the Bill of Rights is meant to protect against. Punishing the guilty is only one part of the system. For it to work, the rules must be followed, even if a guilty murdering rapist is allowed to remain free. Not believing that tenet of law is what leads to a true parade of horribles, IMO.

  12. Steve says:

    SDC,

    Concur 100% (and even gave you a green thumbs up!). If there is no jurisdiction, the law commands that he walks – no matter how unfortunate.

    Although it could have been clearer, my comment presumed jurisdiction, and was aimed at those who argued against moving forward in the case because it is “unfair”, or because of the perception that we would be trying him based on a technicality. Some commentators seemed to believe the Gov shouldn’t even try to pursue the case. If we are lucky enough to have jurisdiction, no matter how illogically attained, we should pursue the case (within the law) as far as possible.

    (I intentionally avoided wading into the merits of the jurisdiction issue – I don’t know enough about it).

    Sorry about the confusion, but I never mind getting a lecture on the importance of the rule of law!

  13. Dwight Sullivan says:

    According to DOJ’s response to the habeas petition, the offense occurred at an off-post home in Fayetteville, North Carolina. So there’s no apparent avenue for the case to be tried in U.S. district court.

  14. Anonymous says:

    4Justice: was not USACIL who did the original DNA testing in the Hennis case; it was the NC State SBI crime lab.

    Hmmm…I think I trust USACIL MORE than your average state crime lab.

  15. Dwight Sullivan says:

    Anon 2136, does the name Phillip Mills ring a bell?

  16. Jvax says:

    Dwight, Mills was involved in this case?