The Hennis case arises from a truly horrific crime.  Kathryn Eastburn, the wife of an Air Force captain who was out of town on temporary duty, was raped and killed in the Eastburn family’s home outside Fort Bragg on 9 May 1985.  The Eastburns’ three- and five-year-old daughters were also murdered.  Their infant baby was left alone in her crib.  The baby’s cries two days after the murders alerted neighbors that something was wrong.

Law enforcement officials quickly focused on Timothy Hennis, a soldier at Fort Bragg who had been to the Eastburns’ home to pick up a dog a few days before the murders.  In 1986, Hennis was tried by the state of North Carolina for the three murders and rape.  He was convicted and sentenced to death.  The North Carolina Supreme Court reversed the conviction, holding that the trial court erred by allowing the prosecution to present numerous grizzly crime-scene and autopsy photographs during the guilt/innocence stage.  State v. Hennis, 372 S.E.2d 523 (N.C. 1988).  Two justices dissented.  Id. at 528-31.  In 1989, Hennis was retried by the State of North Carolina and acquitted.

Hennis then chose to stay in the Army until retirement.  Bad move.  Scientific advancements provided law enforcement agencies with more sophisticated tools following the two original trials.  In 2006, a Cumberland County Sheriff’s Office “cold case” detective ordered DNA testing of evidence from the case.  The results conclusively identified Hennis as the source of semen found in Mrs. Eastburn’s corpse.  Because Hennis had retired from the military, he was still subject to UCMJ jurisdiction.  Article 2 of the UCMJ provides:  “The following persons are subject to this chapter: . . . (4) Retired members of a regular component of the armed forces who are entitled to pay.”  10 U.S.C. § 802(4).

And because the federal government is a separate sovereign from the State of North Carolina, he could be tried by court-martial notwithstanding the Double Jeopardy Clause and Hennis’s acquittal at his second state trial.  See, e.g., Moore v. Illinois, 55 U.S. (14 How.) 13, 20 (1852), which we discussed here.

And tried by court-martial he was.  The DNA evidence in the case was devastating — so devastating, in fact, that during the defense findings argument, Hennis’s civilian defense counsel offered a new theory:  Hennis and Mrs. Eastburn might have had a consensual affair. 

After convicting Hennis of three specs of premeditated murder, the members sentenced him to death.  It was the first death sentence adjudged by a court-martial since 2005 and only the 16th adjudged under the current military death penalty procedures, which President Reagan promulgated in 1984.  (Two of the 16 adjudged death sentences were set aside by the CA and another 8 were reversed on appeal.)

Those facts alone would be sufficient to make Hennis one of the top military justice stories of the year.  But there’s more.  Before trial, Hennis’s counsel launched an ultimately unsuccessful bid in U.S. district court to stop the court-martial on jurisdictional grounds.  The district court denied habeas relief on abstention grounds in this decision.  Hennis v. Hemlick, No. 5:-09-HC-2169-BO (E.D.N.C. Mar. 16, 2010).  Hennis’s counsel appealed to the Fourth Circuit for injunctive relief in an attempt to stop the court-martial.  The Fourth Circuit denied injunctive relief in this decisionHennis v. Hemlick, No. 10-6400 (4th Cir. Apr. 1, 2010). But while the Fourth Circuit declined to stop the trial in April, an appeal of the merits of the habeas denial is still proceeding in the Fourth Circuit.  Hennis’s brief, available here, argues that there was a break in MSGT Hennis’s service that precluded the exercise of court-martial jurisdiction over the 1985 offenses. 

The version of Article 3 of the UCMJ in effect at the time of the offenses provided:

Subject to section 843 of this title (article 43), no person charged with having committed, while in a status in which he was subject to this chapter, an offense against this chapter, punishable by confinement for five years or more and for which the person cannot be tried in the courts of the United States or of a State, a Territory, or the District of Columbia, may be relieved from amenability to trial by court-martial by reason of the termination of that status.

The 1969 (Revised) MCM included this interesting notation following Article 3(a):

NOTE:  This article has been held to be unconstitutional to the extent that it purports to extend court-martial jurisdiction over persons who, although subject to the code at the time of the commission of the offense, later ceased to occupy that status.  (Toth v. Quarles, 350 U.S. 11 (1953)).  This article is still applicable to such persons, however, if they subsequently return to the status of a person subject to the code.  (United States v. Winton, 15 USCMA 222, 35 CMR 194 (1965); United States v. Gallagher, 7 USCMA 506, 22 CMR 296 (1957)).  See United States v. Wheeler, 10 USCMA 646, 28 CMR 212 (1959).

The Hennis brief argues that the old Article 3(a) doesn’t provide court-martial jurisdiction because the Double Jeopardy Clause doesn’t absolutely bar a retrial in North Carolina courts since the protection against double jeopardy can be waived. 

The Hennis case is also significant due to the role it has played in the death penalty debate.  After Hennis was acquitted at his second trial, his case was offered by death penalty opponents as an example of someone who had been sentenced to death and subsequently exonerated, thus suggesting the fallibility of verdicts in capital cases.  (The Death Penalty Information Center discusses the listing of the Hennis case as an exoneration here.)  But as a result of the evidence presented at his court-martial, it appears that Hennis is factually guilty and he has been adjudged as such.  The pro-capital punishment Criminal Justice Legal Foundation issued this press release arguing Hennis’s reconviction “conclusively debunked” DPIC’s “innocence list.”  The controversy calls to mind the recent New Republic article  (11 November 2010 issue) by Charles Lane of the Washington Post arguing that death penalty opponents made a tactical mistake by relying so heavily on the risk of wrongful execution.

There will be a post-trial Article 39(a) session in the Hennis case later this month, as the Fayetteville Observer reported here.  That hearing is apparently scheduled for 21 January at the USDB, as we discussed here.

We’ll continue to follow the developments in the Hennis case — in both the Article I and Article III courts — throughout 2011 and no doubt well beyond.

18 Responses to “Top 10 military justice stories of 2010–#2: The reconviction and death sentence of MSGT Timothy Hennis (Ret.)”

  1. Anonymous says:

    Regardless of how one feels about the death penalty or the results in this particular case, I’m sure we all appreciate that the military mission and professional duty of the government counsel assigned to this case was to obtain the results they did. They performed that military mission brilliantly and successfully. Hopefully we’ll see Hennis executed.

  2. Dwight Sullivan says:

    Anon 1122, I agree completely with your statement about the trial counsel’s military mission, their professional duty, and their mission accomplishment.

    Interestingly, in Hennis, the prosecution prevailed on an important instructional issue on which the defense prevailed in Walker. The issue arose in both cases as to the effect of a non-unanimous vote on death. In Walker, the members were instructed essentially that a non-unanimous vote on death compels a life sentence. Language from at least one CAAF decision supported that instruction. In Hennis, the members were instructed to continue voting until they reached either a 3/4 vote for life (LWOP wasn’t authorized in the case) or a unanimous vote for death. Whether that instruction was correct will no doubt be one of many appellate issues in the case. It’s somewhat remarkable that 26 years into the current military death penalty system, we don’t have a definitive resolution of which of those two competing instructions is correct. I suspect that the instruction was outcome determinative in both cases.

  3. Objection says:

    How can one put on a defense when the judge denied forensic testing on 98% of their requested items? I would hate to know that my butt was sitting on death row due to the opinion and analysis of a corrupt and junk science North Carolina SBI crime lab.

  4. Christopher Mathews says:

    How can one put on a defense when the judge denied forensic testing on 98% of their requested items? I would hate to know that my butt was sitting on death row due to the opinion and analysis of a corrupt and junk science North Carolina SBI crime lab.

    I’d hate for you to be there under those circumstances, too.

    But here, the defense conceded the accuracy of the DNA analysis and tried — albeit unsuccessfully — to come up with an alternate version of events to explain it away.

  5. Anonymous says:

    An interesting related question from a recent military DP case is sentence reconsideration. The RCM makes no distinction between capital and non-capital trials on sentence reconsideration prior to the announcement of the sentence, but one wonders, what if the reconsideration is after a formal vote where 1 or more people voted for life and then death is the result of the second vote?

    The real problem is that we really have not carved out in any uniform and complete manner capital procedures from non-capital procedures.

    1004 really isn’t sufficient.

  6. Objection says:

    Christopher Mathews:

    Although I disagree with the defense strategy the alternative theory was a “Hail Mary pass” after being denied evidence testing by a pro prosecution judge.

  7. Dew_Process says:

    Mr. Mathews – I’m not sure that the defense “conceded the accuracy of the DNA analysis,” as much as they were forced to accept it as prosecution evidence and deal with it before the members after the MJ denied defense efforts at further testing.
    http://court-martial-ucmj.com/discovery/hennis-dna-issues/

    http://www.allbusiness.com/legal/evidence-testimony/14134268-1.html

    http://www.allbusiness.com/legal/evidence-testimony/14192391-1.html

    http://www.fayobserver.com/Articles/2010/03/26/986482

    Anon 1122: I must respectfully disagree. The obligation of the Trial Counsel was to seek justice, not a conviction and DP. If they were so sure of the validity and accuracy of their DNA testing, they shouldn’t have opposed the defense efforts for further testing. After 25 years, a speedy trial was hardly the issue, but fundamental fairness surely was.

    It is hardly a brilliant move to create an unnecessary post-trial/appellate issue that potentially sabotages the results. The government knew from day one that there were problems with the DNA evidence — why not minimize them and the collateral issues, as opposed to creating the evidentiary quagmire that now exists?

  8. Anonymous says:

    Regardless of how one feels about the death penalty or the results in this particular case, I’m sure we all appreciate that the military mission and professional duty of the government counsel assigned to this case was to obtain the results they did. They performed that military mission brilliantly and successfully. Hopefully we’ll see Hennis executed.

    OK, ok, ok. You guys are hilarious.

    Now I demand a more thorough explication of the fine efforts of defense counsel in this case. I thought this was supposed to be a defense-oriented blog…

    V/R,

    Reformed Defense Counsel Turned Government Hack and General Malcontent

  9. Christopher Mathews says:

    Objection & DP —

    When you suggest the DNA evidence implicating your client in a sexual assault can be explained by a consensual affair, you really are conceding its accuracy.

    And I’m shocked, shocked I say, at the notion that the defense would suggest such a thing merely as a strategy to deal with the prosecution evidence. Especially since the strategy failed so spectacularly.

  10. Objection says:

    Christopher Mathews:

    I don’t believe for a moment that Mr. Hennis ever agreed to using the “consensual affair” as a last minute strategy.

  11. Christopher Mathews says:

    Christopher Mathews: I don’t believe for a moment that Mr. Hennis ever agreed to using the “consensual affair” as a last minute strategy.

    You may be right. I generally treat the defense as a black box in which there’s little benefit — absent an IAC claim that must be resolved — in trying to parse out who thought up or signed off on which parts of the strategy.

    I am curious, though, why you don’t “for a moment” believe MSG Hennis signed off on this particular strategy. In hindsight, it was a clear loser. You could pretty easily make the argument that even at the time it was an obviously foolish move. But the lawyer whose mouth the suggestion came from clearly thought it was worth making, or he’d not have said it. Why is it unbelievable that the accused might have thought so, too?

  12. Objection says:

    Christopher Mathews:

    The statement was a last desperate attempt to throw some reasonable doubt into the equation.

  13. Christopher Mathews says:

    Christopher Mathews:The statement was a last desperate attempt to throw some reasonable doubt into the equation.

    So you believe it was a spur-of-the-moment thing, rather than part of any plan discussed with the client? Again, I’m curious: why do you think that’s so?

    That argument is frankly the kind of thing that could seriously offend the members. It’s not one I’d have advanced lightly, and to be perfectly honest, it’s not one I’d have wanted to make at all.

  14. Objection says:

    Whether is was spur-of-the-moment or last minute planning no foundation had previous been laid before or during the trial.

  15. Charles Gittins says:

    Hypothetical: When faced with a judge who is a clueless government hack who denies you the only possibility of challenging the evidence, what do you do to come up with an alternate plan? All those practicing MJ need to consider that issue because there are more clueless government hack judges on AD than not. In an age where TC/DC Judges try less than 10 cases a year to a jury, no one should be surprised that the level of advocacy is, well, less than stellar.

  16. Christopher Mathews says:

    Charlie, in your hypothetical, is the judge’s ruling right or wrong? Even clueless hacks can rule correctly, as you know.

    If we posit that the judge ruled incorrectly, and there’s no possibility of an interlocutory appeal, then — assuming your client is convicted — your only route is through the CCAs and then CAAF, and possibly SCOTUS. If they don’t disturb the trial court ruling, I suppose at some point you have to suck it up and entertain the possibility that the trial judge was actually right, or that right or wrong his ruling didn’t affect the outcome of the trial.

  17. anon says:

    If memory serves, this case was the subject of a made for YV movie,Hal Holbrook as the father of Hennis. It ends with his acquittak in the second NC State court acquittal. Sequel anyone? Could be fun to rent the video.

  18. anon says:

    I was right.The 1996 film Innocent Victims covers the first two trials of Tim Hennis in the NC Stae court system and portrays as heros the defenae counsel who diligently worked to obtain a new trial for Tim Hennis after losing the first one and then securing a defense verdict in the second. The NC State police are portrayed as dolts too stupid to accept that they got the wrong guy. The Hennis family lost everything to pay for the defense and at the end of the movie Hennis stands as a free and vindicated man. Absent the dual sovereign doctrine and continued jurisdiction over a military retiree DNA would have proven a guilty man walked among us and got away with murder. An odd twist considering that DNA is usaully offfered to showe that law enforcement got the wrong guy.Maybe there should be a sequel.

    T7