CAAFlog » October 2019 Term » United States v. Hennis

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

United States v. Hennis, No. 17-0263/AR (CAAFlog case page): Part 1 (wma)(mp3); Part 2 (wma)(mp3)

Note: CAAF posted the audio in two parts. Part one contains Appellant’s initial argument, after which there was a ten-minute break. Part two contains the Government Division’s argument and Appellant’s rebuttal argument.

The audio is also available on our oral argument audio podcast (as a single file with quality improvements).

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.

Read more »

CAAF review of capital sentences is mandatory. See Article 67(a)(1). The sentence to death for Master Sergeant Timothy Hennis (U.S. Army Ret.), for three specifications of premeditated murder, was affirmed by the Army CCA last October (discussed here) and the case was docketed at CAAF on March 2. On March 6 the court issued the following order:

No. 17-0263/AR. U.S. v. Timothy B. Hennis. CCA 20100304. It is ordered that the briefs of the Appellant and Appellee, and the reply of the Appellant, if any, in the above-captioned case may be filed electronically, but should counsel file said pleadings in a paper format, such pleadings shall conform in all respects to the requirements of Rule 37(a), Rules of Practice and Procedure, with the additional requirement that they be printed on 3-hole pre-punched paper. Additionally, the joint appendix shall be printed on 3-hole pre-punched paper and otherwise comply in all respects with Rule 24(f)(2). The briefs and the reply, if any, shall be divided into the following parts:

Part A shall set forth systemic issues and case-specific issues raised before the Court of Criminal appeals but not previously decided by this Court.

Part B shall set forth all issues not raised before the court below.

Part C shall set forth systemic issues previously decided by this Court but raised to avoid waiver; these issues may be listed without argument as an exception to Rule 24(a), but must cite pertinent authority to support the position taken.

All exhibits cited in the pleadings filed before this Court shall be included in the joint appendix.

It is the third capital case on CAAF’s docket in as many terms. Last term CAAF reinstated the Air Force CCA’s reversal of the capital sentence in United States v. Witt, 75 M.J. 380 (C.A.A.F. Jul. 19, 2016) (CAAFlog case page), and the term before that it affirmed the capital sentence in United States v. Akbar, 74 M.J. 364 (C.A.A.F. Aug 19, 2015), cert. denied, __ U.S. __ (Oct. 3, 2016) (CAAFlog case page).

Hennis is one of only four prisoners on military death row, our #2 Military Justice Story of 2016. The others are Gray, Akbar, and Hasan. Witt is pending a sentence rehearing that could return him to death row. Loving’s capital sentence was commuted to life without the possibility of parole.

In a published opinion in United States v. Hennis, 75 M.J. 796, No. 20100304 (A. Ct. Crim. App. Oct. 6, 2016) (en banc) (link to slip op.), the Army Court of Criminal Appeals unanimously affirms the findings and the sentence to death of Master Sergeant Timothy Hennis (U.S. Army Ret.) for three specifications of premeditated murder.

Our #2 military justice story of 2010 was the conviction and capital sentence of Hennis.. Hennis is one of only five current military death row inmates (the others are Gray, Loving, Akbar, and Hasan; Witt is pending a sentence rehearing).

Hennis was tried three times for the gruesome 1985 rape and murder of Kathryn Eastburn, the wife of an Air Force captain who was out of town on temporary duty, as well as the murder of their two daughters. The first two prosecutions were by state authorities in North Carolina. First, Hennis was convicted of the murders in 1986 and he was sentenced to death. The North Carolina Supreme Court reversed that conviction in 1988. Hennis was then retried by North Carolina in 1989, and he was acquitted.

Hennis decided to remain on active duty in the Army after his acquittal, and he retired in 2004. However, retired members of an active component aren’t retired in the traditional sense of the word; they remain in the military, they’re subject to the UCMJ, and their retirement pay isn’t a pension but rather “is reduced compensation for reduced current services.” McCarty v. McCarty, 453 U.S. 210, 222 (1981). And so when advances in DNA allowed investigators to determine with scientific certainty that sperm found in the body of the murdered woman came from Hennis, he was recalled to active duty in 2006 and tried by court-martial for the murders.

He was convicted and, on April 15, 2010, the court-martial sentenced him to death, dishonorable discharge, total forfeitures, and E-1.

After rejecting numerous assertions of error (including jurisdictional challenges) the Army CCA finds the capital sentence appropriate for Hennis, concluding:

We are required to assess the proportionality of appellant’s death sentence. Under Article 66(c), UCMJ, we conclude the approved sentence is correct in law and fact. Further, under the circumstances of this case, including appellant’s rape of one of the murder victims, the vulnerability inherent in the young ages of the other two murder victims, and appellant’s mutilation of all three murder victims, we conclude the adjudged and approved death sentence fits the crimes of which he was found guilty. We further find “the sentence is generally proportional to those imposed by other jurisdictions in similar situations.”

Slip op. at 106 (citations omitted).