Argument Preview: CAAF’s mandatory review of the findings and death sentence in United States v. Hennis, No. 17-0263/AR
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.