CAAF will hear oral argument in the Army case of United States v. Hennis, No. 17-0263/AR (CAAFlog case page), on Tuesday, October 22, 2019, at 9:30 a.m. Hennis is a capital case, CAAF’s review is mandatory, and each side will get 60 minutes (three times the normal 20 minutes) to argue five issues:

I. Whether a break in Appellant’s service foreclosed the exercise of court-martial jurisdiction.

II. Whether the charges arose in the Armed Forces, and fell within the subject matter jurisdiction of a capital court-martial.

III. Whether the court-martial had personal jurisdiction over Appellant.

IV. Whether the military judge denied appellant a meaningful opportunity to present a complete defense.

V. Whether the military judge abused his discretion in restricting defense counsel’s voir dire and in denying defense challenges for cause.

The court-martial conviction and sentencing of Master Sergeant (E-8) Hennis, U.S. Army (Retired) was our #2 military justice story of 2010. That year a general court-martial convicted him of three specifications of premeditated murder and sentenced him to death. The case involved the gruesome rape and murder of Kathryn Eastburn, the wife of an Air Force captain who was out of town on temporary duty, and also the murder of the Eastburn’s two daughters, all of which occurred 25 years earlier, in 1985.

Hennis was tried three times for those crimes: twice by North Carolina and then finally by a court-martial. The first trial resulted in a conviction and death sentence, but it was reversed by the North Carolina Supreme Court in 1988. A retrial resulted in an acquittal in 1989 and Hennis was reinstated in the Army and eventually transferred to the retired list where – like every other regular retiree – Hennis remained subject to the UCMJ. But advances in DNA allowed investigators to determine that sperm found in the body of the murdered woman came from Hennis, and he was recalled to active duty in 2006, tried by court-martial for the murders, convicted, and again sentenced to death. The Army CCA affirmed the findings and sentence in 2016 (discussed here), 75 M.J. 796.

Hennis’ brief to CAAF raises 40 issues, and the five to be argued next were all raised before and rejected by the Army CCA. Broadly, the issues fall into two categories: challenges to the existence of court-martial jurisdiction over Hennis at the time of his court-martial, and challenges to rulings by the military judge.

Hennis’ jurisdictional challenges begin with the fact that after he was acquitted by a North Carolina jury and reinstated in the Army, he was discharged (due to expiration of his enlistment) and immediately reenlisted over the course of two days in June 1989. Today such a discharge would not prevent court-martial jurisdiction because under Article 3(a) any person who is currently subject to court-martial is also subject to court-martial for conduct during prior service (unless barred by the statute of limitations). But Article 3(a) said something different in 1989. At that time the statute limited continuing jurisdiction to serious offenses that could not be tried in the civil court:

Subject to section 843 of this title (article 43) [statute of limitations], 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.

Article 3a, 10 U.S.C. § 803(a) (1950). Congress removed the requirements that the offense be punishable for five years and not triable in the civil courts in 1992. Hennis claims that the requirement that his offenses not be triable in the civil courts was not satisfied in 1989 (when he was discharged and reenlisted) because they had actually been tried in North Carolina. His brief argues that “the plain meaning of ‘cannot be tried’ excludes, ipso facto, cases that have already been tried,” App. Br. at 27, and that “the best demonstration that a case is triable is that it has already been tried,” App. Br. at 28.

The Army CCA rejected that argument, concluding that Congress chose to write cannot be tried rather than could not be tried in Article 3(a) (1950) in order to consider the availability of the civil courts at the time of the court-martial, and not at some earlier time. It observed that “the state could have, and did, prosecute appellant previously; the state cannot do so today, because of the constitutional protection against double jeopardy.” 75 M.J. at 809 n.10. It then concluded that because the state cannot (re-)prosecute Hennis, the requirement of Article 3(a) (1950) were satisfied.

Hennis’ brief rails against the Army CCA’s decision, casting it as a “radically misguided conclusion” that “celebrates an absurdity,” App. Br. at 21, as “so strained, so aberrant, and so offensive to the spirit of the Double Jeopardy Clause and Article 44, UCMJ that Congress could not have foreseen it, let alone discussed or desired it,” App. Br. at 35, and as “tone deaf literalism [compounded] with inconsistency,” App. Br. at 40. Furthermore, considering that the constitutional protection against double jeopardy is the reason Hennis cannot be (re-)tried in North Carolina, Hennis’ brief accuses the CCA of an absurd weaponization of that protection against him, and it argues that “Americans have learned to tolerate a few subtleties, novelties, and fictions in our laws, but not outright absurdities.” App. Br. at 44.

The Government Division’s brief defends the Army CCA’s interpretation of the word cannot in Article 3(a) as mere recognition of the plain meaning of the statute. Hennis’ reply brief call that “a riddle . . . MSG Hennis can be tried because he ‘cannot be tried’ because he has already been tried.” Reply Br. at 4. It then offers what seems to be the core of his argument:

The purpose of Article 3(a), as it bears on this case, is to provide court-martial jurisdiction over offenses that could never be tried in American courts.

Reply Br. at 4 (emphasis in original).

Hennis also challenges jurisdiction based on the service-connection requirement of O’Callahan v. Parker, 395 U.S. 258 (1969), that was abandoned in Solorio v. United States, 483 U.S. 435 (1987). In short, under O’Callahan court-martial jurisdiction required that the charged offense be serviced-connected. Solorio, however, restored the historic rule that court-martial jurisdiction is based on the status of the accused. But Hennis argues that “capital cases are different,” App. Br. at 46, and that “when the case is capital, and the military interests weigh no more heavily than the civil ones, the Constitution has always guaranteed servicemembers and citizens alike the protections of grand and petit juries,” App. Br. at 48.

The Army CCA rejected that argument almost summarily. 75 M.J. at 811. The Government Division’s brief to CAAF goes a little further, rejecting the argument that capital cases are an exception to Solorio but also arguing that this case is service-connected under the pre-Solorio standard because of the military-dependent status of the victims, the location of the offense (close to Fort Bragg), and the fact that “only the military had jurisdiction over Appellant’s crimes.” Gov’t Div. Br. at 20. Predictably, Hennis’ reply brief notes that the military was not the only forum with jurisdiction, “North Carolina tried Timothy Hennis twice for these very allegations and the State certainly had jurisdiction-indeed it still does.” Reply Br. at 14-15 (noting that in North Caroline, double jeopardy is a waivable affirmative defense, not a jurisdictional bar to prosecution).

Finally, Hennis challenges personal jurisdiction over him as a retired member. The challenge is in two forms, only one of which will be argued next week. The challenge that won’t be argued is buried in Hennis’ brief and claims that “as a retiree, [Hennis] is no longer a member of land and naval forces.” App. Br. at 242. That argument is based on a characterization of the Supreme Court’s decision in Barker v. Kansas, 503 U.S. 594, 605 (1992), as holding that military retired pay “is nothing more than deferred compensation.” App. Br. at 252. The Air Force CCA recently rejected that argument in an opinion that I discussed in this post, and in which I highlighted that Barker was a tax case that included explicit language that “military retirees unquestionably remain in the service and are subject to restrictions and recall,” 503 U.S. at 599 (emphasis added). CAAF, however, will consider Hennis’ other argument: that he was improperly recalled to active duty for the court-martial in a way that failed to create jurisdiction under Article 2(a)(1) (for persons on active duty), but that also foreclosed the existence of jurisdiction under Article 2(a)(4) (for regular retired members).

The Army CCA rejected that argument by concluding that Hennis was validly called to active duty. 75 M.J. at 806. The Government Division’s brief to CAAF defends that conclusion by arguing that Hennis was properly recalled, Gov’t Div. Br. at 26-27, but it also argues that court-martial jurisdiction continued uninterrupted by any change in Hennis’ status from active duty to retirement to recall:

In his brief, Appellant argues that, “[t]he Army foreclosed any claim of personal jurisdiction based on [his] retired status when, over his objection, it treated him as a soldier on active duty.” (Appellant’s Br. 72). Appellant fundamentally misconstrues the relationship between personal jurisdiction and his recall to active duty for purposes of prosecution. The Army never lost personal jurisdiction over Appellant because his crimes occurred while he served on active duty, and when the Army prosecuted him for those crimes, he held a “retired” status. Both active and retired military status may justify the exercise of court-martial jurisdiction. See Dinger, 77 M.J. at 453; Harmon, 63 M.J. at 101 (citing Solorio, 483 U.S. at 439). As the Army did not lose jurisdiction over Appellant when he retired from active duty, it cannot follow that the Army lost jurisdiction when it brought Appellant from one authorized military status to another without creating a break in service.

Gov’t Div. Br. at 25. Hennis replies by restating a claim made in his initial brief:

that proposition rebels against the basic meaning of those terms—a servicemember cannot be retired and active at the same time, as retirement and active service are mutually exclusive statuses. See United States v. Smith, No. ACM 38157, 2013 CCA LEXIS 1084, at *10 (A.F. Ct. Crim. App. Dec. 5, 2013).

Reply Br. at 17. See also App. Br. at 66-67 (quoting Smith). It’s telling that Hennis must rely on an unpublished decision from the Air Force CCA (link to slip op.) to argue that retired and active duty are mutually exclusive statuses (particularly since jurisdiction was conceded in that case). Furthermore, there is such a thing (at least in the Navy) as retired-retained status. See MILPERSMAN 1811-010 (“Retention or Recall to Active Duty in a Retired Status”).

The first of Hennis’ two challenges to rulings by the military judge involves the denial of requests for witnesses, for expert assistance, and for access to physical evidence for forensic testing. Hennis’ brief asserts that those rulings prevented him from presenting a theory that a third party committed the crimes. App. Br. at 134-156. Furthermore, because any error was preserved by defense motions at trial, Hennis argues that the Government Division cannot show harmlessness.

The Army CCA rejected Hennis claims of error on the basis that the defense didn’t make adequate showings of necessity at trial (the same conclusion reached by the military judge). 75 M.J. at 820; 75 M.J. at 825. The Government Division’s brief argues that as well.

Finally, Hennis challenges restrictions imposed by the military judge on the defense voir dire of the members, and on the denial of challenges for cause of four members. His brief explains that:

Defense counsel sought to reach a panel member’s views through a series of hypothetical questions. The purpose of the hypothetical was to test whether, at the point of findings, a prospective member would be “prevented or substantially impaired” from considering evidence in mitigation.

App. Br. at 195.The military judge allowed only a limited amount of hypothetical questioning that Hennis argues was too restrictive, and then further restricted the voir dire to “generally what their views are on the death penalty.” App. Br. at 196 (quoting record). The military judge also denied four challenges for cause, and stopped the voir dire of one member before the defense could establish a basis for a fifth challenge.

The Army CCA – citing roughly 2,000 pages of voire dire transcript – found that the military judge did not impair the defense voir dire. 75 M.J. at 828. The Government Division argues that the military judge “appropriately exercis[ed] his discretion under R.C.M. 912 to manage voir dire,” Gov’t Div. Br. at 109, and that his denials of challenges were not an abuse of discretion.

CAAF’s decision on the three jurisdictional issues will almost certainly turn on the law, while its decision on the military judge’s rulings will likely turn on the facts. With a total of two hours of time allotted for argument, those facts should get a thorough vetting.

Case Links:
ACCA opinion (75 M.J. 796)
Blog post: ACCA affirms death for Hennis
Blog post: Hennis docketed at CAAF
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

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