Here is the Fayetteville Observer article on the ruling today permitting the government proposed instruction on simple murder, i.e. not premeditated.  The judge apparently did not find the defense arguments regarding statute of limitations persuasive.  Below is the FayObs’s summary, which I don’t quite get because the 1986 change affected Articles 119 (manslaughter) to 132, not Art. 118, which has always had an unlimited SOL.  And the 1986 change amended it from 3 to 5.  Are they instructing on manslaughter, not Art. 118 without premed?   What am I missing?

Defense lawyers in the current trial wanted it excluded from the jury instructions, citing a change in the law in 1986 that imposes a three-year statute of limitations on that charge. They wanted premeditated murder or not guilty as the jury’s only choices in the killings.

But after researching the law, Parrish ruled the statute applied only to crimes committed after the law change took effect.

The case goes to the jury after the TC’s redirect (which starts at 2 pm).  We’ll let you know if deliberations start later today–unlikely.  Update:  Deliberations have begun according to the Fayetteville Observer, here.

19 Responses to “Judge Permits Non-Premediatated Murder Instruction in Hennis Case [Updated]”

  1. Dwight Sullivan says:

    From a real quick look at the sources, here’s what I think happened. The old statute of limitations provision excepted a number of offenses, including “murder.” As revised — apparently after the date of the murders at issue — Article 43 no longer excepted “murder,” but rather “any offense punishable by death.”

    So I assume the military judge ruled that the old exception for murder covered all forms of murder under Article 118 and that the old Article 43 continues to govern the statute of limitations for the offenses at issue in this case.

  2. DC Steve says:

    Mr. Sullivan,

    Assuming you correctly presume the judge’s thinking, do you think the judge answered the quesiton correctly?

    Appreciate your thoughts on the issue duy jouer.

  3. Dwight Sullivan says:

    DC, I was hoping to have the time to look at the question in greater depth tonight.

  4. Mike "No Man" Navarre says:

    CAAFlog–That’s the rub, the new Art. 43 in 1986 (which was effective after the date of the offense) excepted “murder” or “any other offense punishable by death” whereas the old one excepted “murder.” Either way unpremed murder is “murder.”

  5. Dwight Sullivan says:

    No Man, you’re right and I’m wrong. Now I don’t even see the defense argument for the statute having run for unpremed murder. Can someone enlighten me? (It’s also interesting that the defense was fighting against an unpremed murder instruction given that even a single member’s vote for unpremed murder would preclude a death sentence.)

  6. Anonymous says:

    That does seem somewhat unwise. Certainly I understand the idea/strategy of forcing an all or nothing situation for most crimes, but not when death is on the table.

    Particularly in this case when the central defense doesn’t seem to be “he didn’t plan this” but “he didn’t do this/you got the wrong guy.”

    If they believe he didn’t do it, the unpremed instruction won’t matter, and if they think he did it, the unpremed instruction could be huge.

  7. John O'Connor says:

    That’s interesting, Anon 1850. I used to think it was often best from the Government’s side to force an all-or-nothing verdict to blunt the tendency of panels to want to give soemthing to everyone. For instance, we would often charge larceny and receiving stolen property, and I would often drop the receiving stolen property before trial so the members couldn’t bail out for the lesser charge.

  8. Anonymous says:

    From my pov, if you as a defense attorney think your guy is going to get convicted of something, you should probably be looking to deal.

  9. Anonymous says:

    And a fine defense attorney you must be.

  10. Mike "No Man" Navarre says:

    Seems possible that their client believes he is innocent so they are trying to avoid a reasonable doubt verdict resulting in a compromise verdict if there are hold outs for pre-med–though that’s essentially what you get when you get a non-unanimous pre-med.

  11. Cap'n Crunch says:

    The argument is this: Hennis was charged TODAY, and thus the version of Article 43 in effect today, which only exempts death-eligible offences (and certain other non applicable offences), and its plainly applicable language, apply.

    Congress can limit actions, even if they are already committed, through subsequent changes to the UCMJ. What Congress cannot do is re-open an already expired limitations period, but that is not at issue. Today’s version of Article 43 has no “savings clause” regarding offenses committed in the past. Rather, it simply says that AWOL, missing movement, and death-eligible offences have no limitation. As to other offences:

    (b)(1) Except as otherwise provided in this section (article), a person charged with an offense is not liable to be tried by court-martial if the offense was committed more than five years before the receipt of sworn charges and specifications by an officer exercising summary court- martial jurisdiction over the command.

    That did not happen with the unpremidated. I believe Parish erred, and that the error is plain as a matter of statutory construction (given that the statute is plain), and, to the extent of any ambiguity with the statute, the rule of lenity applies.

  12. Dwight Sullivan says:

    Cap’n, as the No Man pointed out to me (without even saying “told you so”), the statute today says: “A person charged with absence without leave or missing movement in time of war, WITH MURDER, rape, or rape of a child, or with any other offense punishable by death, may be tried and punished at any time without limitation.” 10 U.S.C. 843 (emphasis added). Why wouldn’t “with murder” cover all forms of murder under Article 118?

  13. Cap'n Crunch says:

    Correction. The current version does permit prosecution of murder without limitation. There was a past version that did not. Congress cannot extend an already-run statute. Not sure if that is the case here without more research

  14. Friend says:

    Convicted after a mere 3 hours in deliberation…G on 3 counts of premeditated murder. Sentencing on Friday.

  15. anon says:

    “any other offense punishable by death, may be tried and punished at any time without limitation.” The word “other” here is key, no? Doesn’t that imply that the preceding list are examples of death-eligible crimes? Unpremed murder is not.

  16. Mike "No Man" Navarre says:

    Anon 1359: I was initially thinking along the same lines, but the inclusion of “murder” (which we know includes non-capiotal variants) makes that reading of the sentence illogical. Thus, “any other” must just mean any other and not be referring to the character of the prior offenses. That reading may be what defense cousnel was getting at, but I don’t see that reading in context winning the day.

  17. Dwight Sullivan says:

    The statute also lists UA in time of war and missing movement in time of war, neither of which is a capital offense. So the reference to “any other offense punishable by death” doesn’t indicate that only capital forms of the other offenses on the list have no statute of limitations; it couldn’t mean that given its inclusion of Articles 86 and 87. The only sensible way to interpret the phrase is that Congress meant to exclude all capital offenses but was simply acknowledging that some (but not all) of the offenses already on the list — such as rape, rape of a child, and two forms of murder — are capital offenses.

    (While this issue no longer matters for purposes of the Hennis case, it’s still interesting.)

  18. Anonymous says:

    I sense sarcasm there, so let me explain myself in more detail…

    seems to me your duty as a defense counsel is the best possible result for your client. In the scenario of a greater offense you think your client is likely to be acquited of and your professional opinion is that he is going to be convicted of a LIO, and you have nothing to stop that in your opinion, your first duty is to counsel your client that pleading guilty to that LIO might be his best option and seek out the best deal you can as opposed to going forward on the greater charge and a bunch of LIOs, risking the govt somehow proving you wrong and proving up the greater offense.

    Obviously, if he wants to plead not guilty, you do the best you can. I think in that scenario, you DEFINITELY want an all or nothing instruction if again your opinion is that he will be acquitted of the greater charge and convicted of a LIO.

  19. Anonymous says:

    it doesn’t specifically mention treason, which is punishable by death, and presumably would also not have an SOL, so that would buttress the idea that all murders are covered and that last bit was simply meant to encompass all DP eligible offenses.