The court-martial panel in the capital case of United States v. Hennis recessed at 1740 without reaching a sentence, as reported in this AP article.

The members also asked an interesting question:  whether Hennis would be eligible for parole if sentenced to life instead of death.  AP reports that “Judge Col. Patrick Parrish told the jury that ‘life means life,’ and reminded jurors of his instructions to impose a sentence they view as fair.”  Of course, the actual answer to the question is yes, since the offense occurred before Congress established the punishment of LWOP in 1997, he would be eligible for parole if sentenced to confinement for life.

The WRAL report to which we linked earlier got that wrong.  That piece erroneously reported:  “If they do not unanimously agree on the death penalty, Hennis will spend the rest of his life in prison without the possibility of parole.”

29 Responses to “Hennis panel recesses — and asks interesting question”

  1. Outwest says:

    Are you saying that Judge Col. Patrick Parrish got it wrong and instructed the jury on the wrong information? I would not think so!

  2. Dwight Sullivan says:

    Members are supposed to be instructed to assume there won’t be any clemency, so it seems fair to instruct that the members should assume life means life, since they shouldn’t assume that he actually would get parole even if eligible. So I have no beef with the instruction that the military judge gave. WRAL, on the other hand, just plain got it wrong.

  3. Outwest says:

    If the panel members were instructed not to assume he would get parole, then why did they ask the question in the first place?

  4. Dwight Sullivan says:

    The standard instruction doesn’t refer to parole per se. Here’s the standard instruction used in the Department of the Navy (I believe the Army instruction is similar): “You may not adjudge an excessive sentence in reliance upon possible mitigating action by the convening or higher authority.” Instructing that “life means life” seems like a reasonable application of that principle.

  5. Outwest says:

    It seems to me that the jury could be mislead and render a life sentence thinking one thing but the truth be something different.

  6. Not says:

    I agree outwest…he is getting Life…if at least one person wanted the Q asked, that answer would be enough to have that one vote life..IMO.

  7. Outwest says:

    The jury panel should have the right to know if it is life without parole.

  8. John Harwood says:

    I think the answer the judge gave is spot-on. Life in prison means life in prison. It’s not for the members to speculate about whether he might be paroled or not. It’s certainly not a reason to impose a death sentence. From the question, one could assume this logic on the part of the members: “We don’t want him ever getting out. If we impose a life sentence, he could potentially get out. To avoid him ever breathing free air again, our only option is a death sentence.” Yikes.

  9. Jason Grover says:

    Another way to say it is “parole is not a matter for your consideration. Decide the sentence based on the evidence you heard in court and the law I gave you.”

  10. Outwest says:

    There’s a difference in life and being eligible for parole although he might never get paroled and life with no parole ever; that he doesn’t qualify for parole.

  11. Outwest says:

    At 4:53 p.m., the jury sent three questions to the judge asking about the possibility of Hennis getting parole if sentenced to life in prison and if Hennis would be eligible for retirement benefits from the Army if sentenced to life in prison.

    The jury also asked if it should provide a sentence for each murder Hennis committed.

    The judge said Hennis would not be eligible for retirement benefits and that it would be highly unlikely he would be eligible for parole in the future.

    He also said the jury should decide a sentence for the case on the whole, not on each murder.

  12. Outwest says:

    Explain why it would not be 3 life sentences considering 3 murders?

  13. Dwight Sullivan says:

    As the Supreme Court discussed in 1957, in military practice, a court-martial adjudges “a single gross sentence” for all offenses of which the accused is convicted: “It is true that the sentence was not broken down as to offenses. That is not permitted. However, the petitioner in his analysis overlooks entirely the requirement of military law that only the entry of a single gross sentence for both of the offenses is permitted. This Court has approved this practice. Carter v. McClaughry, 1902, 183 U.S. 365, 393, 22 S.Ct. 181, 192, 46 L.Ed. 236. See also McDonald v. Lee, 5 Cir., 1954, 217 F.2d 619, 622; Winthrop, Military Law and Precedents (2d ed. 1920), 404. The sentence here was a gross sentence. It covered both the convictions. What the petitioner would have us do is to strike down this long practice, not only approved over the years by the Congress but by our cases. This we cannot do.” Jackson v. Taylor, 353 U.S. 569, 574 (1957).

  14. Outwest says:

    How long would a person have to serve of a life sentence before coming up for parole?

  15. John O'Connor says:

    Isn’t the play here to say “defense counsel, I want you to write on this piece of paper how you want me to answer this question, because I’m probably going to give whatever response Hennis wants.”

  16. John O'Connor says:

    I should add that the MJ should also say “but I’m not going to tell an express lie to the members.”

  17. Gordon Smith says:

    He would have to serve a minimum of ten years before being eligible for parole. A defendant in the military sentenced to LWOP would have to wait for twenty years before he could petition the secretary of the service concerned to have the no-parole condition commuted so he would be potentially eligible for parole.

  18. Anonymous says:

    even LWOP doesn’t mean you can’t ever get paroled. The parole board can still convert that to Life with Parole. And obviously the CA and President can give clemency.

  19. Mike "No Man" Navarre says:

    A great point that with the Secretarial Clemency power nothing is forever in MilJus.

  20. Anonymous says:

    This means that a convict could be entitled to spend the rest of the sentence (i.e., until he or she dies) outside prison; this is usually conditional depending on past and future conduct, possibly with certain restrictions or obligations. In contrast to jurisdictions without life imprisonment, a convict after having served the given prison sentence is free upon release.

    The length of time and the modalities surrounding parole vary greatly for each jurisdiction. In some places convicts are entitled to apply for parole relatively early, in others only after several decades. However, the time of legally being entitled to apply for parole does often not tell anything about the actual date of being granted parole.

  21. Outwest says:

    So, basically a life sentence in military court is similar to 2nd degree murder conviction sentence in state court of 10 to 30 years.

  22. Gordon Smith says:

    I would also add that with the Executive Clemency power nothing is forever in MilJus. In fact, the first six servicemen confined under a sentence of LWOP all received executive clemency from President Gerald Ford two days before he left office. The six servicemen had all been sentenced to death by general court-martial and had the sentences reduced to LWOP by President Eisenhower. One of them was Maurice Schick. Even he eventually made parole after the no-parole condition was removed by Ford.

  23. Outwest says:

    The Hennis case might be different in that two children were murdered.

  24. Jason Grover says:

    My Lai and Lieutenant Calley come to mind . . . .

  25. Outwest says:

    The Hennis case might be different in that two children were murdered and it was not a part of a war.

  26. Jason Grover says:

    Outwest, I agree, I was just referencing executive clemency in life cases.

  27. Dwight Sullivan says:

    Actually, no. Someone sentenced to 10 to 30 years will do no more than 30 years minus good time. Someone sentenced to life in the military may serve far longer than 30 years of confinement. As mentioned earlier, under Army Reg 15-130, a soldier sentenced to confinement for life will receive parole consideration at 10 years, but almost certainly won’t receive parole at 10 years. Also, a prisoner sentenced to confinement for life doesn’t earn good time credit. The average state prisoner sentenced to 10 to 30 years will likely be released far, far sooner than the average military prisoner sentenced to confinement for life.

  28. Michael Lowrey says:

    The other thing to remember is that Hennis is already 52 years old, which makes it very questionable as to whether he’d live long enough to be paroled.

  29. John Baker says:

    This exact issue came up in the Walker case and Judge Robinson refused to take the bait and simply reminded the members that their punishment choices were confinement for life and death and that they were to decide their sentence based on the evidence presented in court and the law as he instructed them. In getting Judge Robinson to this decision, we reminded him:
    1) that plain language of the sentence is confinement for life under the law applied in our (and Hennis’) case not life with or without the possibility of parole as the law stands today and
    2) that the emperical data as compiled by the Capital Jury Project shows that jurors who are told there a chance at parole become automatic death penalty votes so telling them that parole could be a possibilty was error.