CAAFlog » October 2017 Term » United States v. Hennis

CAAF decided the Consolidated motion to compel funding for learned counsel, a mitigation specialist, and a fact investigator; for appointment of appellate team members; and for a stay of proceedings, in the capital Army case of United States v. Hennis, 77 M.J. 7, No. 17-0263/AR (CAAFlog case page) (link to slip op.), on Monday, November 20, 2017. Concluding that there is no constitutional, statutory, or regulatory authority for the court to grant the motion, CAAF denies it.

Judge Ohlson writes for a unanimous court.

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Jacobsen, No. 17-0408/AR (CAAFlog case page): Oral argument audio.

United States v. Guardado, No. 17-0183/AR (CAAFlog case page): Oral argument audio.

United States v. Hennis, No. 17-0263/AR (motion to compel funding) (CAAFlog case page): Oral argument audio.

CAAF will hear an unusual argument on Tuesday, October 10, 2017, it’s first day of oral arguments in the term. Military appellate defense counsel representing Master Sergeant (E-8) Hennis – whose conviction and capital sentence were our #2 military justice story of 2010 – will go up against military counsel for the Army Government Appellate Division to argue a “Consolidated motion to compel funding for learned counsel, a mitigation specialist, and a fact investigator; for appointment of appellate team members; and for a stay of proceedings.”

It’s not the first time CAAF has heard oral argument on a motion, but I believe that it is the first such oral argument this century.

The motion asks CAAF to:

order the government to provide funding and contract for learned appellate counsel, a capital mitigation specialist, and a fact investigator. Further, appellant requests this Court order the government to provide defense team members deemed necessary in accordance with AR 27-10. Finally, appellant requests oral argument and a stay of proceedings pending receipt of required resources pursuant to C.A.A.F. R. 33 and 40.

Mot. at 1-2.

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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 decisionHennis 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.