AP report here.

33 Responses to “Hennis sentenced to death”

  1. John O'Connor says:

    If he did it, and I haven’t followed the case enough to opine on that, it’s hard to argue with the sentence adjudged. That said, I have a few random thoughts about this whole affair:

    1. It strikes me as constitutionally suspect that retirees can remain subject to trial by court-martial. What are the chances that a retiree will be called back into active service such that he, in any reasonable way, should be considered part of the “land and naval forces?” That said, there is strong historical practice in favor of this jurisdiction, so I suspect it will be upheld. But is it a reasonable system of justice, from a policy perspective, that subjects someone to the death penalty simply because he decided to accept a pension instead of forgoing it? I mean, if Hennis left active duty and got out instead of going onto the retired list, a decision which gave him money but caused him to perform no duties, he’s not subject to trial in any court. Assuming he’s guilty, that was one heck of a misjudgment on his part.

    2. It also strikes me as wrong that the United States, through the “garb of mercy” (Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 244 (1960)), “protects” Hennis by denying him the right to make a binding offer to waive appellate review and any right to seek parole, particularly when the members seemed interested in whether Hennis could be paroled. It seems to me it would have been powerful for Hennis to be able to waive parole in a binding way at that point, essentially cutting a deal with the members.

    3. The panel clearly struggled with this, what with the question re parole and the apparent reconsideration on sentence. This punctuates to me why the accused should not be limited in what rights he can waive, and the potential prejudice from the paternalistic denial of an accused’s rights to waive appellate and post-trial rights.

  2. Article 16 says:

    Here’s betting that CAAF in the year 2025 will be hearing quadruple jeopardy arguments.

  3. Jason Grover says:

    I wonder if they will able to get any statements from the members that at one point there was a vote for life but they kept revoting until they got unanimity. Very interesting and I think a good issue on appeal. Of course, they cannot get individual votes, but they may be able to learn if there was continued voting.

  4. Cheap Seats says:

    Well, now he’s closer to his exhaustion of remedies to allow the Federal habeas review as to jurisdiction. I’ll bet he dies of old age before this one ever sees a death sentence carried out. Mr. Eastburn already indicated he’s okay with that.

  5. Peter E. Brownback III says:

    1. I do not pretend to know what the courts will do with this issue. However, I think that “to make rules for the government and regulation of the land and naval forces” has already been seen to be more compelling than the 6th Amendment and the 8th Amendment, in certain situations. I certainly wouldn’t bet my life or my freedom on the Supremes saying that recalling a retiree for court-martial violates the Constitution.

    If not, than I shall no longer feel constrained by Article 88.

    2. As for being called back from retired status, well…. Let me tell you how it was back in the day.

    3. I agree with your view of the plea bargaining prohibitions. The military commissions have the same problem – if not worse.

  6. John Harwood says:

    Three words: wow.

  7. Anonymous says:

    world of warcraft?

    I agree it is a pretty shocking verdict. I really thought the question from the panel meant life was going to be the verdict.

  8. Outwest says:

    Its not that he was called back from retirement and charged; the government claims that there was ‘no’ break in service from the original time he enlisted in the Army.

  9. Anonymous says:

    Anyone who disagrees with the jurisdiction/verdict/sentence, let’s all meet up in the Army Defense Appellate Division in 2013 and have at it.

    See you there.

  10. Anonymous says:

    Lose a suppression motion in state court, causing the case to go south, give it to the military. The MJs will let it in. Likewise in capital cases. That’s military “justice” for ya.

    Sounds like Brownback 3 wants to unleash on the CINC.

  11. Cloudesley Shovell says:

    JO’C–I share your reservations re:jurisdiction. Art 2(a)(4) applies to any retiree from a regular armed force, so it necessarily includes medical retirees. It’s not just getting to 20 and taking a pension, it includes those medically retired after suffering combat injuries, and not qualified for further service or recall as a result of those injuries. Whatever the extent of the power to regulate the land and naval forces, surely it does not extend to lifetime criminal jurisdiction over persons separated from the service with a medical pension as a result of service-connected injuries.

    Reservists have a much closer and continuing connection to the armed forces, yet the jurisdictional reach over reservists is far narrower than that over those in the “regular” armed forces.

  12. Mike "No Man" Navarre says:

    Anon 2202: 2013? You know they haven’t finalized the medical marijuana instruction? Akbar was sentenced Apr. 28, 2005 and CA approved death on Nov. 20, 2006. Is his ROT even at ACCA yet? Last time I checked the answer was no. Witt was sentenced Oct. 2005, his case only recently arrived at AFCCA. 2013 is a pipe dream.

  13. NARDISH says:

    This case will answer the military retiree jurisdiction once and for all the supremes in 5 years.

  14. Anonymous says:

    Akbar’s appellant’s brief was finalized and delivered to ACCA on 1 Feb, and is awaiting the appellee’s response.

    That’s approx. 7 years from trial which would put Hennis at approx. 2017 for having the final brief by appellant submitted, give or take a year.

  15. Nancy Truax says:

    Re Akbar — I’m just curious about the delay, if anyone knows — was it between sentencing and action, or between action and referral to ACCA, as No Man’s post suggests? I guess I have the same question re Witt.

  16. Snuffy says:

    CAAF in 8 years.

  17. Ama Goste says:

    Part of the Witt delay was due to the incredibly long period of time devoted to transcribing the court-martial. Robins farmed the transcription out to court reporters scattered around the country, and completeness of the transcript became an issue.

    While we’re on the subject of delays in military death penalty litigation, let’s not forget that Gray’s case sat on the President’s desk for about 7 years. Of course, I don’t think any of the appellants mind such delays.

  18. Anonymous says:

    I said 7 and obviously I can’t count, should be five years which would put Hennis at 2015.

  19. anonymous says:

    If he murdered children, he should be killed. Does anyone really disagree with that? Mr. O’Connor hit the nail on the head there. Unfortunately, it may take a long time to see justice done, but lots of things take a long time to do.

  20. Anonymous says:

    Yes, I disagree with that. I certainly disagree with it as some sort of categorical rule, kill kids = death penalty.

    I’m against the DP period but even were I for it, I would always believe there are things like childhood trauma, mental illness, retardation, etc. which would tell me no DP.

  21. Article 16 says:

    While I’m not categorically against the death penalty, I don’t believe it’s justifiable on retribution grounds alone. I don’t think the prosecutors had any specific deterrence arguments to offer.
    Also, we already know that “beyond a reasonable doubt” has not kept at least some innocent men off death row. The possibility that an innocent person has been executed is probably more appalling to me than whatever hypothetical crimes could have initiated the prosecution.
    If the Hennis panel vacillated on even one vote, I don’t trust the government to execute him.

  22. John Harwood says:

    As a current defense counsel and a not-very-vocal death penalty opponent, I can’t even imagine what that must feel like to be standing at that table when the president of the panel announces the sentence. Just awful.

  23. anon says:

    Was Frank Spinner Witt’s attorney? If so, ouch. Double ouch.

  24. Defense Wins Championships says:

    I’d kill…to know the rank of the juror who posed the “What if not unanimous?” question. Does anyone know at what point during deliberations it was asked?

  25. anon says:

    I thought once a formal vote was taken, if it’s not unanimous death, then it’s life…no more deliberating…no?

  26. Bridget says:

    I have always found it odd that a retiree in a wheelchair who would never be called to serve can be recalled for court-martial, but a reservist who is still required to serve, at least once a month and AT is not unless drilling. It strikes me as very odd.

  27. Anonymous says:

    IMO that is how it should be, but unfortunately the manual does not differentiate between capital and non-capital cases when it comes to sentence reconsideration, which can be done upon a majority vote before sentence is announced in open court.

    The Courts may decide to apply a different standard but the MCM doesn’t appear to.

  28. Article16 says:

    I have the same opinion..

    Has anyone ever heard of a death penalty sentence result when the accused didn’t even have or warrant pretrial confinement?

  29. Article16 says:

    It was probably asked by the president of the panel…not whoever the swing vote(s) may have been.
    There’s no way of knowing if the panel even knew who was the swing vote–they shouldn’t have but, it might have been apparent.
    As I’m sure you know, what’s scary is that in voir dire you can ask the whole “you’re not going to change your vote if you’re the only ‘no’ vote” hypo and try to instill some independence and courage in the prospective member…but it may also plant an idea that voting on a sentence will be happening.

  30. Jason Grover says:

    John,
    In Walker we had to mentally prepare ourselves for the President to say “this court-martial sentences you to death.” I spent so much emotional energy trying to prepare myself for that moment that I was somewhat unprepared for the life sentence. I hadn’t really thought how I would react to that. It was as nearly overwhelming. All the tense emotion draining out. One small detail – in Walker we (the DC) knew it was a life sentence when the President flipped to the last page of the 3 page sentencing worksheet. We knew (as I am sure the court-reporter and the TCs knew) that he would have to read the first two pages discussing aggravating factors and the weighing step before announcing a death sentence. So as soon as he flipped to the last page, it hit us. Quite an experience.

  31. Jason Grover says:

    Anon 1958, I am not skilled enough with technology to bring you to the link, but see John Baker’s earlier post on the Hennis instructions. He posted in the instructions Judge Robinson gave in Walker. Different judges, different intructions. The Benchbook is inadequate in my view for capital cases in part because we have so few as a system – and so few appellate decisions to help shape it, that it doesn’t keep up with current death penalty practice in the civilian world. Knowing as few details as I know, I imagine this is an issue worth a closer look on appeal.

  32. Anonymous says:

    Yes, if you kill another human being, you should die.

    “I would always believe there are things like childhood trauma, mental illness, retardation, etc. which would tell me no DP.”

    Ya, then what would prevent anyone accused of murder from claiming something as vague as “mental illness”.

    The only one with mental illness are the attorneys who – ok I’ll stop right there.

    I have a problem with the death penalty in this case, the Scott Peterson case, etc. I have no problem with Witt and Akubar.

    In my mind the standard for the death penalty should be “no doubt”. Cases that hinge on DNA evidence like Hennis and Scott Peterson that rely on DNA should be exempted from the Death Penalty.

    Those cases were there was “no doubt”, where the crime was caught on tape, overwhelming evidence, and numerous witnesses – those cases are ripe for the death penalty, in which the sentence should be expedited.

  33. Anonymous says:

    Yes, he was, although Frank didn’t have much to work with in Witt.