Here’s an interesting article from the Fayetteville Observer about the reaction to the trial by the husband and father of Hennis’s murder victims.

11 Responses to “Hennis coverage”

  1. Article 16 says:

    What if the Convening Authority just mitigated it to LWOP?

    Arguably, he could do it, and there’d be a few reasons for it based on the article and claims of error that were preserved in the sentencing phase.

  2. John O'Connor says:

    Could the CA even mitigate to LWOP, which was not an authorized punishment for thyis offense? I suspect he probably ciould, since it is a lesser punishment even if not an authorized one, but I’m by no means sure of that.

    But remember that because of brilliant Rule 705, the CA can’t even mitigate the sentence in return for a waiver of appellate review, so the CA would mitigate sentence and still have the accused assert, for example, lack of jurisdiction on appeal. So there’s no CA action to be taken (other than disapproving findings of guilty, or mitigation to a sub-jurisdictional sentence) that would end the Article 66 merry-go-round.

  3. Anonymous says:

    How many times has a CA mitigated a DP verdict to Life or LWOP?

  4. Article 16 says:

    I’m not 100% sure he could do it…the pertinent RCM section implies yes, the adjoining discussion section implies no.
    If LWOP were requested as part of the clemency petition, then the CA would possibly be mooting the appellated issues related to the death penalty sentence and the appeals could focus purely on errors related to jurisdiction and merits.

  5. Article 16 says:

    If the CA thought it could obviate the need to at least relitigate a sentence, it seems reasonable–especially when the victim’s family says they “won’t jump up and down” asking for execution and, most of all, the family wants closure.

  6. Dwight Sullivan says:

    In at least two cases, a CA commuted a death sentence to confinement for life. The two cases I’m aware of are both Marine Corps cases — United States v. Gibbs and United States v. Turner. (For those of you who practice military appellate law, that’s the same Turner case that we always cite for the difference between factual sufficiency and legal sufficiency review.)

  7. John O'Connor says:

    Let’s say the CA mitigates to LWOP, an unauthorized sentence but one less severe than death. Let’s further say that he is empowered to do this. Does it really moot sentencing issues on appeal? Doesn’t the accused go up on appeal and argue that errors in sentencing require a rehearing on sentencing. And in that case, would the max punishment available arguably be life with parole?

    Article 63 of the UCMJ says that, on a rehearing “no sentence in excess of or more severe than the original sentence may be approved.” Is that approved sentence or adjudged sentence? If it’s approved sentence, then mitigating to LWOP wouldn’t moot whether death was appropriate because the accused would have every incentive to challenge to death sentence in order to go back to a rehearing where his sentence would be capped at life WITH parole.

    I assume there’s case law on whether Article 63 refers to approved sentecne or adjudged sentence, which might make this entire musing stupid. But the article itself is less than clear and my quick flip through the MCM didn’t shed any light on the issue either.

  8. Defense Wins Championships says:

    John, I researched this recently for a mistrial motion after sentencing but prior to action. We were worried that if it we won the motion, we would open ourselves up to a worse sentence at a retrial because 63 might not apply since the sentence had not been approved yet. Didn’t find anything on point, but I think the only logical answer is that 63 applies to the adjudged sentence. There are just too many policy reasons not to read it that way.

  9. Anonymous says:

    Actually, if the CA were to approve LWOP, and the CCA or CAAF were to subsequently find a sentencing proceeding error requiring a rehearing, the maximum possible sentence that the rehearing could adjudge would be death. The CA, however, could not approve such a sentence. I do not think this means that life becomes the de facto maximum possible punishment when all is said and done. The rehearing could adjudge death, and the CA could once again approve LWOP, since “it involves a reduction in penalty.” United States v. Josey, 58 M.J. 105, 108 (C.A.A.F. 2003) (observing that a “convening authority has broad authority to commute a sentence into a different form so long as it involves a reduction in penalty”).

    CAAF has said that “the authority of a rehearing to adjudge a sentence is limited only by the maximum authorized sentence for the offenses of which the accused has been found guilty or the jurisdictional maximum of the court-martial.” United States v. Davis, 63 M.J. 171, 175 (C.A.A.F. 2006). Accordingly, “[a]t a rehearing, the sentencing body, whether members or military judge, should consider the evidence in aggravation, extenuation, and mitigation in light of the allowable maximum sentence for the findings of guilty and adjudge an appropriate sentence.” Id. This means that in Mr. O’Connor’s hypothetical, a rehearing would not be limited in deciding an appropriate sentence and could therefore sentence Hennis to death. However, since death would be a sentence in excess of the previously approved sentence, the CA could not approve it: “[t]he burden of protecting an accused against higher sentences rests with the convening authority at the time action is taken on an adjudged sentence from a rehearing.” See id. Indeed, RCM 1107(f)(5)(A) instructs that “[i]n acting on a rehearing or other trial the convening authority shall be subject to the sentence limitations prescribed in R.C.M. 810(d).” RCM 810(d), in turn, provides that “[o]ffenses on which a rehearing, new trial, or other trial has been ordered shall not be the basis for an approved sentence in excess of or more severe than the sentence ultimately approved by the convening or higher authority following the previous trial or hearing, unless the sentence prescribed for the offense is mandatory.” So, the maximum sentence the CA could approve, if death were adjudged at a rehearing, would seem to be LWOP.

    Of course, if the rehearing adjudged life, then the CA could not approve LWOP. See RCM 1107(d)(1) .

    While Hennis would have every incentive to pursue a sentencing rehearing even if the CA approved LWOP, since a rehearing could still adjudge life, LWOP appears to remain a possibility provided the rehearing adjudged death.

  10. John O'Connor says:

    Thanks, Anon. If your analysis is correct (and I have no reason to doubt it), it makes my larger point that mitigating to LWOP would not “moot” sentencing issues, as the accused would still have every incentive to seek a rehearing on sentence.

  11. Article 16 says:

    Nicely spelled out by both of you guys.

    I was thinking perhaps if LWOP were affirmatively requested in the defense clemency submission (as perhaps a secondary request expressly based on the allegations of error in sentencing), then having the request granted might somehow waive or “estop” the raising of assignments of error relating to sentencing on appeal. That, in my opinion, would promote judicial economy–but it’s probably not how it would/should work, and the I also agree as a practical matter that in this case the Defense should not look to bind itself and has every incentive to preserve all challenges to sentencing. If the military was actually carrying out the death penalty in short course it would be a different matter, but that’s not the case, and here, if he gets a new sentencing, he has a chance at Life with possibility of parole. Moreover, requesting LWOP is inconsistent with his claims of innocence and (as a matter of persuasion) undermines his demands for a new trial or a jurisdictional bar to trial.

    In my opinion if the Defense prevails on some of these big appellate issues, this whole ordeal will not have been worth it. Some prosecutors may think differently, e.g., “well, at least we kept the bad guy in jail for X many years,”–and that’s probably a good way of rationalizing things and sleeping at night, but it’s never helped me sleep at night.