In a published opinion in United States v. Hennis, 75 M.J. 796, No. 20100304 (A. Ct. Crim. App. Oct. 6, 2016) (en banc) (link to slip op.), the Army Court of Criminal Appeals unanimously affirms the findings and the sentence to death of Master Sergeant Timothy Hennis (U.S. Army Ret.) for three specifications of premeditated murder.

Our #2 military justice story of 2010 was the conviction and capital sentence of Hennis.. Hennis is one of only five current military death row inmates (the others are Gray, Loving, Akbar, and Hasan; Witt is pending a sentence rehearing).

Hennis was tried three times for the gruesome 1985 rape and murder of Kathryn Eastburn, the wife of an Air Force captain who was out of town on temporary duty, as well as the murder of their two daughters. The first two prosecutions were by state authorities in North Carolina. First, Hennis was convicted of the murders in 1986 and he was sentenced to death. The North Carolina Supreme Court reversed that conviction in 1988. Hennis was then retried by North Carolina in 1989, and he was acquitted.

Hennis decided to remain on active duty in the Army after his acquittal, and he retired in 2004. However, retired members of an active component aren’t retired in the traditional sense of the word; they remain in the military, they’re subject to the UCMJ, and their retirement pay isn’t a pension but rather “is reduced compensation for reduced current services.” McCarty v. McCarty, 453 U.S. 210, 222 (1981). And so when advances in DNA allowed investigators to determine with scientific certainty that sperm found in the body of the murdered woman came from Hennis, he was recalled to active duty in 2006 and tried by court-martial for the murders.

He was convicted and, on April 15, 2010, the court-martial sentenced him to death, dishonorable discharge, total forfeitures, and E-1.

After rejecting numerous assertions of error (including jurisdictional challenges) the Army CCA finds the capital sentence appropriate for Hennis, concluding:

We are required to assess the proportionality of appellant’s death sentence. Under Article 66(c), UCMJ, we conclude the approved sentence is correct in law and fact. Further, under the circumstances of this case, including appellant’s rape of one of the murder victims, the vulnerability inherent in the young ages of the other two murder victims, and appellant’s mutilation of all three murder victims, we conclude the adjudged and approved death sentence fits the crimes of which he was found guilty. We further find “the sentence is generally proportional to those imposed by other jurisdictions in similar situations.”

Slip op. at 106 (citations omitted).

11 Responses to “Army CCA affirms death for Hennis”

  1. Dew_Process says:

    Read the section on the many issues regarding defense access to physical evidence, and the government’s protracted objections and “nickel-and-diming” the defense on DNA testing, both for evidence that they were given access to, as well as the evidence where access was denied.  Again, a trial gambit that was unnecessary and unlikely to ever make it past habeas corpus review if it survives CAAF.
     
    DISCLAIMER:  I worked on one aspect of Hennis (not the DNA issues) pre-trial, and so have some “inside” knowledge and am quite biased that he did not get a fair trial based upon the DNA and other issues.

  2. ed says:

    The MJ as a banality numerous acts of prosecutorial misconduct some of which were not objected to by DC. Given the mentality of the court this probably didn’t make a difference but as Mr. Gittens said OBJECT OBJECT OBJECT

  3. John O'Connor says:

    Given the statutory changes wrought by the McCarty decision, and the ridiculousness of the concept that retirees are really just sitting around available for active service, I question the constitutionality of prosecuting retirees. I also have little doubt that, having seen the result in Ali, that CAAF will find jurisdiction.

  4. stewie says:

    But prosecuting retirees is something that has gone on for a long, long, long, long, long time. I recall an early 1900s Supreme Court case that tangentially, but favorably, touches on it.
     
    I’m sure one can make an argument against it, but I would be shocked if it were ever declared unconstitutional. All I know is, if I’ve been repeatedly tried for murder, I’d probably stop doing the one thing still possibly subjecting myself to possible trial: receiving retirement pay.
     
    Thankfully, as I’m against the death penalty, the odds are exceedingly high that he will die of natural causes just like the rest of the death row inmates.

  5. Philip Cave says:

    Stewie, You might be thinking of Barker v. Kan., 503 U.S. 594 (1992), a taxation of retired pay case?

  6. Concerned Defender says:

    I’m somewhat familiar with the case, and didn’t read the 100+ pages.  Wasn’t this the case where he answered a classified ad and went to the victims home to buy or give a pet to/from the victim?  Anyway, semen DNA seems pretty solid absent some other reason his DNA was in the victim.  He was also convicted (albeit overturned later) in state court.  Seems to me a fairly solid case and conviction.  But I can’t say with certainty and trust that the DNA pretty much sealed his fate.
    As for being recalled onto active duty, I agree with Stewie that if you’re subjecting yourself to jurisdiction while sitting on a murder rap, cut all ties….
    As for the retirement jurisdiction issue, I don’t see an issue with being recalled for a crime that has no statute of limitations like murder.  Think of it this way – if you commit a murder in Arkansas in 1990 and move away, Arkansas can prosecute you indefinitely right?  The crime was committed while he was in service, so that’s a lifetime connection to the UCMJ for that allegation. 

  7. stewie says:

    No, this was a 190? Supreme Court case out of divorce/retirement pay issue out of California that has dicta recognizing the risk of being recalled to active duty off retirement.

  8. Dew_Process says:

    @ Concerned Defender:  Your memory is pretty good. But, there were many issues involving the DNA testing – that evidence was originally examined by the NC State Bureau of Investigation, that had so many problems that most employees at the time in the Serology Department, were either fired or demoted or left. That included contamination of samples. In Hennis, there were missing “chain-of-custody” documents for some of the key DNA evidence and some indicial of tampering.  But, one of the key issues at the court-martial, was that DNA from another white male was found on a bloody towel at the scene that excluded Hennis as the contributor.  The defense was that another white male, not Hennis, committed the murders, and so they wanted access to the physical evidence so their DNA experts could re-test them.
     
    But, the government balked and objected to this and when (prior to Defense testing) the defense couldn’t articulate what re-examination would show, the MJ bought into this.  That’s somewhat set out in the ACCA opinion.  Here is a LINK to a blog that discusses the forensic issues (and failures) in Hennis – something that the defense was attempting to pursue.  For example, the supposed “key” DNA evidence linking Hennis to the murders, was a vaginal swab that supposedly contained his DNA, which another Forensic Examiner said had not been there when he examined the swab earlier.  And then there was the condom wrapper found under the wife’s bed, but apparently not tested.
     
    My point is that if the government’s case was so strong, why did they fight to keep the defense from getting access to physical evidence for defense testing?

  9. Leaf Blower says:

    And of course there’s the closing argument where the CDC suggested Hennis had sex with the wife…why would he do that if Hennis didn’t have sex with her?

  10. Leaf Blower says:

    Dew Process,
    Can you shed some light on my previous question?  You obviously have some inside knowledge of the case, so any info on this would be most interesting.  Because I’ve got to tell you, from the outside looking in, it looks like his defense team wanted him to get convicted by making that out-of-left-field argument.  Particularly given what you posted above.  I’m sure it threw the panel for a loop…and then they realized they hated him even more for suggesting this.  Hard to figure.

  11. Sad Clown says:

    I’d like to know more about that, too…couldn’t believe it when I read that the CDC conceded the sex in closing…