Here’s our daily update on the Hennis capital court-martial from the Fayetteville Observer.

28 Responses to “Hennis update”

  1. Anonymous says:

    Well I know alot of people have formed there own opions in this case.To be honest I support the 5th Amendment of The United States.(Double jeopardy)

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    Did you know the Very first line of A Soldiers Oath.

    “I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic;

    Now is it fair that the Military aren’t guarnteed the same rights as everyone else?

  2. Dwight Sullivan says:

    At the risk of stating the obvious (and I suspect I’ll quickly regret doing so), a civilian has no more constitutional protection from trial for the same offense by both the state and federal governments than a servicemember has.

  3. Anonymous says:

    Now you are going to have to explain this one? A Civilian never served in the Military. Gets tried twice and found not Guilty, your saying he could be tried again in A Federal Court or Court Martial. Show me case’s where this has happened? Basically if you were a civilian and had been tried twice and found not guilty, you could walk down the Courthouse steps and say you done it and there is nothing state or federal could do! That’s if you were A civilian never been in the Military.

  4. Dwight Sullivan says:

    Okay, I already regret it. There have been instances in which civilians were tried by state courts for offenses and were acquitted and then were tried in U.S. district court for the same acts and convicted on the theory that the U.S. government and, say, the state of Mississippi are different sovereigns. The federal government has used this rationale, for example, to retry individuals suspected of having committed crimes targeting individuals based on their race who were acquitted in state courts during an era when some states’ justice systems couldn’t be counted on to provide dispassionate justice in cases where whites were accused of committing crimes against blacks.

  5. John O'Connor says:

    IIRC, the cops in the Rodney King incident were tried in both state and federal court.

  6. John O'Connor says:

    Hey, one more reason for LTC Larkin not to deploy. How can he be expected to deploy, consistent with his oath, when the military is trying a guy acquitted in state court in violation of his double jeopardy rights?

  7. Anonymous says:

    Now it has been a long time ago, I barely remember the end result in the Rodney King Beatdown.But I believe the officers you are referring to, were acquitted in local court. Than on appeal the were found guilty in A District Court.Thats not Double Jeopardy? So please explain what your statement even meant?

  8. Paul says:

    Now I regret reading it.

  9. Anonymous says:

    Ok I am reading arguments both ways. So basically everyone interprets the 5th Amendment in many different ways. So should everyone write congress and have this Amendment changed? Or should we keep trying people till we get the end result that seems best?

  10. Anonymous says:

    Four LAPD officers were later tried in a state court for the beating but were acquitted. The announcement of the acquittals sparked the 1992 Los Angeles Riots. A later federal trial for civil rights violations ended with two of the officers found guilty and sent to prison and the other two officers acquitted.I only count two trails here.

  11. John O'Connor says:

    I bow to greater legal minds.

  12. Anonymous says:

    then, with respect, you are reading wrong.

    There is absolutely no dispute that a state and the Federal government can try someone, for the same crime, with their own trials.

    It’s not a great rule in some respects, while in others it’s been put to good use (see Rodney King beating).

    But it is a long-standing theory and not violative of the Fifth Amendment.

  13. Steve Dallas says:

    How about OK City bombers. Tried and convicted in both State and Federal Court for what were the same acts as a better and recognizable example.

  14. Anonymous says:

    That makes no sense at all. No on has explained anyone who has been tried 3 times for the same crimes since the 1980’s.All everyone has explained that there has been trials in state and Federal courts 1 in each not 3 ….So keep trying guys….

  15. Anonymous says:

    Whatever to that last comment.Once again 1 in each not 3 times…Keep trying poster you need a better argument than that.

  16. Ama Goste says:

    Correction: Only Terry Nichols was convicted in both state and federal court for the Murrah Building bombing. There was no incentive to try Tim McVeigh in state court after receiving a federal death sentence. Also, while it’s true that Nichols was tried in both courts for his involvement in the bombing, his federal court conviction was for the 8 federal agents killed in the bombing, and the state trial was for the others killed.

  17. Dwight Sullivan says:

    Okay, here’s the last thing I’ll say on this subject. The Supreme Court has held time and again that the Double Jeopardy Clause provides no protection against being tried by the federal government and by a state government for the same act. It doesn’t matter how many times an individual has been tried by a state or even whether an accused has been acquitted by a state; the Double Jeopardy Clause doesn’t prevent the federal government from trying the same person for the same act.

    Many people have argued that that’s unfair and some have argued that it’s not the best interpretation of the Double Jeopardy Clause. Those are matters of opinion. But what is demonstrably false is any claim that a servicemember is accorded less constitutional protection than a civilian because a servicemember can be tried by the United States for the same act for which he has previously been acquitted in a civilian court. As a matter of “well-established” law, to quote the Supreme Court, so can a civilian.

    This is from the unanimous Surpeme Court opinion in United States v. Wheeler, 435 U.S. 313, 316-17 (1978):

    In Bartkus v. Illinois, 359 U.S. 121, and Abbate v. United States, 359 U.S. 187, this Court reaffirmed the well-established principle that a federal prosecution does not bar a subsequent state prosecution of the same person for the same acts, and a state prosecution does not bar a federal one.[n.7] The basis for this doctrine is that prosecutions under the laws of separate sovereigns do not, in the language of the Fifth Amendment, “subject [the defendant] for the same offence to be twice put in jeopardy”:

    “An offence, in its legal signification, means the transgression of a law. . . . Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both. . . . That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable.” Moore v. Illinois, 14 How. 13, 19-20.

    [n7] Although the problems arising from concurrent federal and state criminal jurisdiction had been noted earlier, see Houston v. Moore, 5 Wheat. 1, the Court did not clearly address the issue until Fox v. Ohio, 5 How. 410, United States v. Marigold, 9 How. 560, and Moore v. Illinois, 14 How. 13, in the mid-19th century. Those cases upheld the power of States and the Federal Government to make the same act criminal; in each case the possibility of consecutive state and federal prosecutions was raised as an objection to concurrent jurisdiction, and was rejected by the Court on the ground that such multiple prosecutions, if they occurred, would not constitute double jeopardy. The first case in which actual multiple prosecutions were upheld was United States v. Lanza, 260 U.S. 377, involving a prosecution for violation of the Volstead Act, ch. 85, 41 Stat. 305, after a conviction for criminal violation of liquor laws of the State of Washington.

  18. Anonymous says:

    Oh vey,

    Double jeopardy does not apply to different Jurisdictions (federal and state), they are “separate sovereigns”.

    I don’t agree with this, I think double jeopardy should be incorporated under the 14th Amendment just like other parts of the 5th Amendment (self-incrimination). The federal Government has always had the option of asserting jurisdictions to States, so cases like the Rodney King incident should have never been tried at a State court to begin with.

  19. Anonymous says:

    Has anyone heard if the Judge is going to allow or has allowed the DNA results the Military (TC) had done to be heard,in front of the Jury(Partial Match-Non Match According to law)?And when there key witness was arrested on ATM theft charges?Why would the Defense ask A Judge to remove himself from the Bench?Everything I have read from the papers.Is that the only DNA results The Jury has heard came from the open packages that the State had where the caretaker was fired on theft charges?

  20. Anonymous says:

    I want to know why under NC Gen. Statute 15A-149 (b1-b2) the DNA was not expunged when he was found not guilty in 1989? Makes no sense as to why the DA did not follow the required protocol. I love the way the military can go about things in their own manner. Will they be able to gather the same witnesses? No! If the DNA was thrown out,like the Law states there would be nothing to go on now.

  21. Anonymous says:

    Whatever?

  22. Cap'n Crunch says:

    What I would like to address, and to see others weigh in on, is whether we have a due process issue given the use of prior testimony from the state trial. Also, we probably need to consider whether that presents a confrontation clause issue.

    Hennis had a first trial, and it was reversed. Then he had a second trial and was acquitted. Each trial had specific themes and a universe of evidence, and cross examination was therefore tailored to that evidence. It does strike me as somewhat unfair that the Government gets to introduce prior testimony, and the defense no longer has the ability to cross-examine the now-deceased witnesses on that testimony. Yes, they had the opportunity in the past to do so, but that was at a separate trial, with a difference universe of evidence.

    Moreover, a lot of military judges allow members to ask questions (filtered through the judge). They likewise have lost that ability given the introduction of testimony from the record.

    On the double jepoardy issue, it seems to me that if you are going to argue that this prosecution is not a mere extension of the prior state prosecution, that you should not be able to introduce prior testimony from that state trial.

    I haven’t researched this, and I know that this is the case in the context of a retrial after a reversal, but this is not a retrial after a reversal — to the contrary, this is a whole new trial. Sort of seems like the Government is trying to have its cake and eat it too.

  23. Libby Parsons says:

    Does the jury know where the prior testimony came from? Do you simply tell them it was from the last time the defendant was tried, but not tell them the verdict? How does that work, without the jury knowing that another jury already acquitted?

  24. Anonymous says:

    I have to agree with Mr. Crunch. Of Course I’m sure He is A Great Attorney and A Great American. But he is right in so many area’s. I have another Question since they didn’t expunge his evidence after his Acquittal, as outlined by NC Gen. Statute 15A-149 (b1-b2).The former Detective’s and Prosecutors who have testified in this new case are the subject to Military Law as well?

    I know this case has no similarities as the famous O.J. Case(Except maybe the DNA Handling). But the only one convicted of A Felony in that case was A high Ranking Police Detective.

    Another Question for you Attorneys? Why would Defense Attorney’s ask the Judge to remove Himself from the Bench?

    Is this A caution to the Judge, incase the Defense later want to file an Article 32 hearing pertaining to how the case was handled. And I assume there is many issues they can find under Article 134?

  25. Anon says:

    Cap’n,

    Not sure an accused has a right to the military judge being able to ask questions (or members), so not sure what right of the accused is affected by allowing in prior testimony from a state trial versus prior court-martial.

    I agree personally with the overall point that a trial that is overturned or results in an acquittal should in general only have testimony from that trial come in if it’s for example a prior inconsistent statement (or I suppose prior consistent statement) but not as substitution for live testimony, but I just don’t think that is the state of the law.

    Ms. Parsons,

    Having tried a re-trial myself, no they generally don’t know that there was an acquittal or that there was a conviction and overturning. The testimony just gets placed before the members.

  26. Ama Goste says:

    Anon 1309–totally confused by your references to the UCMJ.

  27. Friend says:

    totally concur with Ama Goste. What in the world??

  28. Anonymous says:

    Anon 1309,

    I assume, a logical guess, that you have a personal relationship with the accused and are interested, due to anxiety, in the court-martial process. This is normal, as there have been many like you on this blog before.

    We do not give legal advice, nor are we incline to “teach” anyone the intricacies of the UCMJ. Regardless I will approach your question and see if I can make sense of it.

    First Federal and State courts are different Jurisdictions, and have different rules and laws that are not necissarily binding on each other.

    However there are basic constitutional rights that are binding, like the right of counsel. These are “incorporated rights” via the 14th Amendment (as I stated above). I believe double jeopardy should be incorporated as well, its in the same amendment as other rights which have been incorporated – but I don’t make the rules.

    Turning to your other statements:

    “Another Question for you Attorneys? Why would Defense Attorney’s ask the Judge to remove Himself from the Bench?”

    Multiple reasons, one the Defense is generally concern with the Judge’s possible bias. The second, and likely, is just to create appellate issues and avoid IAC – sorry “ineffective assistance of counsel” claims.

    “Is this A caution to the Judge, incase the Defense later want to file an Article 32 hearing pertaining to how the case was handled. And I assume there is many issues they can find under Article 134?”

    No it isn’t. In fact Military Judges ask for challenges off the bat. You do not file an “Article 32” hearing. An Article 32 is a preliminary hearing, which is not binding on the prosecution like a Grand Jury is. i.e. If the Article 32 officer (usually a lawyer depending on the branch) says not to continue with a Court-Martial, or drop certain charges, the Prosecutor can ignore this advice.

    What you mean by “caution the Judge” I suspect is to preserve the issue to file an appeal (Article 67 review).

    Finally, Article 134 is known as the “catch-all article” or “make your own law”. Whatever. It boils down to three insidious things.

    One, there are many additional charges under article 134 (like communicating a threat, adultry, etc). Two you can incorporate any Federal or State offense as long as that base has concurrent jurisdiction, which most do. And three, you cand make up any charge as long as it falls into two parameters:

    a.) That the accused did, or didn’t do something, and (b.) whatever he did, or didn’t do was prejudicial to good order and discipline of the armed forces.

    I hope my little tome helped :)

    – TC