CAAF decided the Army case of United States v. Hennis, __ M.J. __, No. 17-0263/AR (CAAFlog case page) (link to slip op.), on February 28, 2020. Hennis is a capital case and CAAF’s review is mandatory. Reviewing 40 issues raised by Hennis’ defense counsel and three issues raised by Hennis personally – but discussing only the five issues on which the court granted oral argument – CAAF affirms the findings, the sentence to death, and the decision of the Army CCA.
Chief Judge Stucky writes for a unanimous court.
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 Hennis 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, after which Hennis was reinstated in the Army and eventually transferred to the retired list where – like every other regular retiree – he remained subject to the UCMJ. Advances in DNA during the following years 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 raised dozens of challenges to his convictions and capital sentence, but CAAF heard oral argument on only 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 concludes that none of the issues in this case – not those heard at oral argument nor any of the others – provides a basis for relief, and it affirms Hennis’ convictions and sentence to death. As a result, Hennis remains one of only four people on military death row. The others are Gray and Akbar (whose convictions and sentence were affirmed by CAAF), and Hasan (whose case is still pending initial review by the Army CCA).
Chief Judge Stucky’s 29-page opinion considers the five argued issues in three groups. The Chief Judge first addresses the three jurisdictional challenges, then the evidentiary rulings by the military judge, and finally the voir dire and challenges for cause.
Hennis’ first jurisdictional challenge arose from 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 (at his own request) 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 slightly 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 3(a) (1950). Congress removed the requirements that the offense be punishable for five years and not triable in the civil courts in 1992, after Hennis was discharged and reenlisted.
At trial, Hennis claimed that he briefly left military service during the two-day reenlistment process in 1989, and that the break in service terminated court-martial jurisdiction for offenses committed before the break. The military judge disagreed, holding that there was no break in service and that even if there was then Article 3(a) provided continuing jurisdiction. The Army CCA disagreed with the military judge’s first holding and found that there was a break in service, but it agreed that Article 3(a) provided jurisdiction nonetheless because the Double Jeopardy Clause barred further prosecution of Hennis by North Carolina. Hennis’ brief to CAAF railed against that 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.
CAAF, however, agrees with the CCA that the double jeopardy prohibition on further state prosecution of Hennis triggers jurisdiction under (the old version of) Article 3(a). Chief Judge Stucky writes:
Based on the plain language of the statute, we reject Appellant’s interpretation of Article 3(a). The issue is not whether another jurisdiction could have ever tried Appellant, but rather whether there was any court that could try him at the time charges were preferred. At the time of preferral of charges, Appellant “[could not] be tried in the courts of the United States or any State” because, at that time, double jeopardy barred North Carolina from prosecuting and no federal statute under Title 18, triable in a U.S. district court, covered Appellant’s conduct. As no other jurisdiction could have tried Appellant at the time charges were preferred, the prosecution met its burden of establishing jurisdiction by a preponderance of evidence.
Slip op. at 8-9 (modification in original). Chief Judge Stucky also writes that “this analysis is consistent with our decision in Willenbring [v. Neurauter, 48 M.J. 152, 180 (C.A.A.F. 1998),” a decision that CAAF partially reversed in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018) (CAAFlog case page) (the #3 Military Justice Story of 2018). “In Willenbring, we held that the fact the appellant could waive his statute of limitations defense did not mean that the federal civilian authorities could try him, because the statute of limitations, although waivable, is ‘a limitation on the power of a prosecutor to bring charges and on the power of a court to try a case.'” Slip op. at 9 (quoting 48 M.J. at 176).
Hennis’ second jurisdictional challenge is an attempt to revive 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). Hennis argued that Solorio does not necessarily apply to capital cases and that the circumstances of his case fail the service-connection test. CAAF rejects both arguments:
Justice Stevens’s suggestion in Loving that Solorio may not apply to capital cases is unfounded. The Fifth Amendment’s exclusion of “cases arising in the land or naval Forces” from its ambit makes no distinction between the treatment of capital cases and that of infamous crimes. Although Solorio itself was an “infamous crime” case, the Supreme Court did not qualify its conclusion that “military jurisdiction has always been based on the status of the accused, rather than on the nature of the offense.” 483 U.S. at 439 (internal quotation marks omitted) (citation omitted). In fact, the majority cited military capital cases in support of its position. Id. at 449 n.14. We hold that Solorio applies to capital cases.
. . .
In United States v. Solorio, the C.M.A. held that the appellant’s off-base sexual abuse of the dependents of Coast Guardsmen was service connected. 21 M.J. 251, 255-56 (1986). It relied on the trauma to the parents, which diminished their ability to perform their duties, and the limitations on the appellant’s future assignments because of “the tensions that his presence would create in an organization.” Id. at 256. Moreover, Justice Stevens, upon whom Appellant’s argument relies, would have found Solorio’s offenses serviceconnected. Solorio, 483 U.S. at 451 (Stevens, J., concurring in the judgment). We have no doubt Justice Stevens would have reached the same conclusion in this case, where Appellant slaughtered the wife and two children of a military member.
Slip op. at 11-12.
Hennis’ third jurisdictional challenge was to personal jurisdiction. Personal jurisdiction over retired members has been a hot topic recently, as the #1 Military Justice Story of 2017, the #6 Military Justice Story of 2018, and the subject of a pair of remarkable published opinions from the NMCCA in United States v. Begani. Hennis’ challenge is unique, however, because he was not tried from retired status (under Article 2(a)(4)) but instead was recalled to active status and then tried as a regular (under Article 2(a)(1)). Hennis’ challenge to personal jurisdiction focused on the circumstances of that recall, which he claimed was improper. CAAF rejects that challenge, finding that Hennis was properly recalled to active duty:
the convening authority asked the Assistant Secretary of the Army (Manpower and Reserve Affairs (ASA (M&RA)) to order Appellant to active duty “to facilitate courts-martial action.” The Acting ASA (M&RA) ordered Appellant to active duty under the provisions of Article 2(a)(4), UCMJ, 10 U.S.C. § 802(a)(4), 10 U.S.C. § 688, and Dep’t of the Army, Reg. 27-10, Legal Services: Military Justice ¶ 5-2(b)(3) [hereinafter AR 27-10] (Secretary’s authorization to recall retired members for purposes of court-martial proceedings).
Once Appellant was properly recalled to active duty, he was subject to the UCMJ “from the date when [he was] required by the terms of the call or order to obey it.” Article 2(a)(l), UCMJ.
Slip op. at 12 (modifications in original) (paragraphing added). Yet Hennis also argued that he was part reservist because he was attached to a reserve unit in his retired status. CAAF rejects that argument outright, with a blunt explanation that regulars and reservists are not the same:
Appellant accepts that the Army could have tried him as a retiree but disputes that the Army had the ability to recall him to active duty. Appellant contends that, as he was assigned to a reserve unit, he was both a retiree and a reservist. He argues that a reservist cannot be recalled to active duty for any offense committed before 1987.
But Appellant was not a reservist, nor was he recalled from reserve status. He was recalled to active duty as a retired member of the Regular Army under regulations prescribed by the Secretary of Defense. See 10 U.S.C. § 688(a), (b)(l) (2000); Dep’t of Defense Dir. 1352.1, Management and Mobilization of Regular and Reserve Retired Military Members ¶ 4.1. (July 16, 2005); AR 27-10 ¶ 5-2(b)(3). The fact that Appellant was attached to a reserve organization for accounting purposes did not make him a reservist.
Slip op. at 13.
The final two issues address rulings by the military judge.
First, Hennis asserted that the military judge denied him necessary witnesses and the funding and access to evidence for additional forensic testing. All assertions are rejected on the basis of relevance and necessity, with Chief Judge Stucky writing that mere speculation by the defense, slip op. at 16, and the mere possibility that additional forensic testing would be helpful, slip op. at 19, are insufficient to warrant reversal of the military judge’s rulings (or even to make the rulings wrong in the first instance).
Second, Hennis asserted that the military judge unfairly restricted his voir dire of the members and wrongly denied challenges for cause. CAAF affirms the restriction of voir dire with the observation that:
The military judge gave both parties considerable latitude in questioning the members. He was concerned, however, with defense attempts to get court members to express opinions as to whether the death penalty would be appropriate by referencing aggravating factors without reference to mitigation and extenuation.
. . .
The military judge did not prevent the defense from asking, whether, if the court found Appellant guilty of the murder of a woman and her two children, they would automatically sentence him to death. He permitted a scope of voir dire broad enough for Appellant to challenge members who would “not be able impartially to follow the court’s instructions and evaluate the evidence” and “to ascertain whether [the] prospective” panel members would impose the death penalty regardless of the facts and circumstances of the conviction. Morgan v. Illinois, 504 U.S. 719, 730, 735-36 (1992).
Slip op. at 20 (modification in original). The court also finds no error in the military judge’s denials of defense challenges of certain members, finding for each that “the military judge did not abuse his discretion in denying the challenge for actual bias” and that the challenged member’s “inclusion would not have caused the public to perceive Appellant’s panel as less than fair and impartial.” Slip op. at 24, 26, and 28-29.
CAAF’s affirmation of Hennis’ court-martial conviction and death sentence does not mean that he will soon be executed. Far from it. Hennis is entitled to petition the Supreme Court for certiorari, and he almost certainly will do so. After that, the death sentence must be approved by the President before it can be carried out. Even then, however, it’s likely that any execution will be stayed pending collateral attacks in the district courts.
The last President to approve a military death sentence was George W. Bush, who approved Ronald Gray’s sentence in 2008 (our #4 Military Justice Story of 2008). Gray was convicted and sentenced 20 years earlier, in 1988. Gray still lives on military death row, while habeas litigation continues. See Gray v. Hilton, Dkt. No. 5:18-cv-03305 (D. Kan.) (PACER link). See also United States v. Gray, 77 M.J. 5 (C.A.A.F. 2017) (per curiam) (CAAFlog case page).
Nearly 60 years have passed since an execution as the result of a court-martial. The last was Army Private First Class John A. Bennett, whose convictions for the rape and attempted murder of a child led the Court of Military Appeals to observe that “seldom, if ever, have we been faced with a record which revealed a more vicious offense, or an accused who had less to entitle him to any consideration by the fact finders.” United States v. Bennett, 21 CMR 223, 225 (C.M.A. 1956). Bennett was hanged in the boiler room of the United States Disciplinary Barracks at Fort Leavenworth on April 13, 1961. See Dwight H. Sullivan, The Last Line of Defense: Federal Habeas Review of Military Death Penalty Cases, 144 Mil. L. Rev. 1, 76 (1994) (citing James J. Fisher, A Soldier is Hanged, Kan. City Star, Apr. 13, 1961, at 7).
• 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
• Oral argument audio: Part 1 (wma)(mp3); Part 2 (wma)(mp3)
• CAAF opinion
• Blog post: Opinion analysis