Here is the Fayetteville Observer’s latest update on the SPC Eric Mead murder trial at Ft. Bragg.  According to the report, the government played the accused’s 911 call, in which he states that “he awoke in his car covered in blood with no recollection of what happened. ‘Where the hell am I and what the hell did I do?’ Mead asks the operator. ‘I’m not injured, but there’s blood all over me.’  Mead gave the operator his name and address and asked that someone check on his brother-in-law.”

Here is a full report on SGT Bozicevich’s testimony in his capital trial.  Appears testimony for the defense will continue today.

From AP (via WaPo), SGT Bozicevich testifies that he fired at two superior NCOs because they pointed guns at him to get him to sign a negative evaluation:

Sgt. Joseph Bozicevich . . . wept as he testified Tuesday at his court-martial at Fort Stewart. He said Staff Sgt. Darris Dawson and Sgt. Wesley Durbin pointed guns at his head after Bozicevich refused to sign written critiques that could have cost him his rank.

Defense attorney Charles Gittins told the military jury that a psychiatrist will testify Bozicevich suffers from delusions. But he says Bozicevich truly believed his life was in peril.

Prosecutors say the 41-year-old Bozicevich killed both soldiers in anger in September 2008 after they critiqued him for poor performance.

More updates later.

Here’s today’s media update on the Bozicevich capital court-martial being tried at Ft. Stewart.

h/t NIMJ blog

You wouldn’t know if from the media, but a capital court-martial continues to be tried at Fort Stewart, Georgia.  There were a spate of stories about the case when the government made its opening statement on 20 April.  But a Google News search for “Bozicevich” doesn’t come up with a single hit since 22 April.

The case is still ongoing, witth the prosecution continuing to present its case on the merits.  SGT Joseph Bozicevich is accused of killing SSg Darris Dawson and SGT Wesley Durbin in Iraq.  The case has been referred capitally and is being heard by a 12-member panel.

We’ll try to continue to provide updates.

Today is the 50th anniversary of the last execution of a U.S. servicemember by the U.S. Armed Forces.  PFC John Bennett was hanged at the USDB for the 1954 rape and attempted murder of  an 11-year-old girl just outside Salzburg, Austria.

An alert reader called our attention to the fact that military death row inmate Timothy Hennis’s counsel filed his reply brief in Hennis’s appeal of denial of habeas relief.  The case is pending before the 4th Circuit.  We’ve posted the reply brief here.

MSNBC reports that Army Secretary John McHugh has ordered disciplinary action against nine officers who allegedly failed to take note of or action regarding behavior by MAJ Nidal Hasan prior to the Ft Hood shooting spree that left 13 dead and 32 wounded. The MSNBC report indicates that “non-judicial punishment” will be taken against the officers, but an Associated Press report indicates the actions will be administrative in nature.

We’ve previously noted that military death row inmate Ronald Gray’s counsel have asked the U.S. District Court for the District of Kansas to put his habeas case on hold while his counsel litigate a petition for writ of error coram nobis at ACCA.  On Monday, Gray’s counsel filed this reply to the Respondent’s opposition to the defense motion to put the federal habeas proceedings on hold while awaiting ACCA’s ruling.

A lot happened while I was gone, including the filing of this defense motion to stay federal habeas proceedings in Gray v. Belcher, No. 02-CR-116, pending ACCA’s resolution of Gray’s recently filed petition for writ of error coram nobis, available in two parts here and here.  And here’s a link to the Respondent’s opposition to the motion to stay proceedings.

NIMJ’s blog reports here that Major Hasan’s Special Court-Martial Convening Authority has forwarded the case to the General Court-Martial Convening Authority recommending a capital referral.

Military death row inmate Ronald Gray today filed a petition for a writ of error coram nobis at ACCA.  Gray also has a habeas petition pending in the United States District Court for the District of Kansas, which has issued a stay of execution in his case.

NIMJ’s blog has posted this helpful update on the MAJ Hasan case.  NIMJ links to this KXXV report that ”Ft. Hood announced Tuesday night Colonel Morgan Lamb will delay making a decision on what action to take or recommendation to make regarding a court martial for Nidal Hasan until February 23rd, when Hasan’s defense team will meet with Lamb.”

Sooner Grunt calls our attention to this AP article reporting that a “military panel’s mental evaluation of the Army psychiatrist charged in the deadly shooting rampage at Fort Hood will not prevent the military from pursuing a court-martial, his lead defense attorney said Tuesday.”

An alert reader sent us this link to a Fayetteville Observer article reporting that the military judge in the Hennis case denied the defense’s request for access to witnesses and documents concerning the North Carolina State Bureau of Investigation, which performed crucial DNA testing in the case.  The accuracy of some Nort Carolina SBI lab results in other cases has been called into question recently.  A post-trial Article 39(a) session in the Hennis case was held today at the USDB.

This evening the Appellees — essentially the United States Army — filed their brief in Hennis v. Hemlick, an appeal of the denial of habeas relief in the capital court-martial of United States v. Hennis.  The appeal is pending in the Fourth Circuit.  We’ve posted the Appellees’ brief here.  The filing of that brief comes two days before a post-trial Article 39(a) is scheduled in the court-martial case at the USDB.

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 decision.  Hennis 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.