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The Hennis Case: A Textbook Example of Double Jeopardy

By Kerry L. Erisman
Faculty Member, Legal Studies

In May 1985, a young mother named Katie Eastburn was raped and murdered in Fayetteville, North Carolina. Two of the mother’s young daughters, ages five and three, were also brutally murdered, the latter being nearly decapitated.

A third daughter, age one, was left alive in her crib. She was found several days later after surviving with no food or water. The husband and father of the victims was an Air Force captain who was out of town at the time, on temporary duty attending training in Alabama.

An investigation led to the arrest of Army Sergeant Timothy Hennis who was stationed at Fort Bragg, North Carolina, less than a mile from the crime scene. Hennis was charged with three counts of first-degree murder and one count of rape.

In 1986, Timothy Hennis was tried and convicted of all charges in North Carolina state court and sentenced to death. On appeal, the North Carolina Supreme Court reversed the conviction and ordered a new trial, concluding that the prosecution had excessively used “gruesome” photographs of the victims in obtaining the conviction.

In 1989, Hennis was again tried in North Carolina state court and found not guilty of all charges. Hennis returned to the Army and continued his career, retiring as a master sergeant from the Army in 2004 with over 20 years of service.

DNA Evidence Confirmed Hennis as the True Perpetrator in 2005

In 2005, a detective with the Sheriff’s Department in Fayetteville, NC conducted a cold case review of the rape and murders. The detective found a vaginal swab that had been preserved as evidence but never tested.

In the 1980s, DNA was a new concept and testing was not pursued in the original Hennis case. By 2005, however, DNA had become a valuable investigative tool.

The Fayetteville detective sent the evidence to the North Carolina State Bureau of Investigations crime laboratory for testing. The vaginal swab was tested, and the DNA results conclusively pointed to Hennis (1.2 quadrillion times likelihood).

But the state of North Carolina was prohibited from trying Timothy Hennis again for the rape and murders, since he was already tried and acquitted in state court for the crimes. The double jeopardy clause of the Fifth Amendment to the United States Constitution protected Hennis against another North Carolina state trial for the same offenses.

“No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb.” — Fifth Amendment, U.S. Constitution

Hennis Was Convicted for His Crimes during an Army Court-Martial

Would Hennis get away with these brutal crimes? Did the state of North Carolina have any recourse in pursuing the killer? The state of North Carolina handed the case over to the United States Army to consider a military court-martial over Hennis, who was an active-duty Army soldier when the crimes were committed and a military retiree since 2004.

The Army exercised jurisdiction over Timothy Hennis and recalled him to active duty in 2006 to be tried by court-martial for the rape and murders. The Army is permitted to recall military retirees for the purpose of court-martial, provided the alleged crimes occurred while the soldier was on active duty.

Timothy Hennis was tried by military court-martial in 2010 at Fort Bragg, North Carolina. After hearing the evidence, including the newly tested DNA, a military panel found Hennis guilty and sentenced him to death. Now, Hennis sits on death row at Fort Leavenworth, Kansas.

The Hennis Case Provides Deeper Insight into Double Jeopardy

“Wait!” you say. “What happened to the Fifth Amendment and the double jeopardy clause? Shouldn’t Hennis be protected from another trial for the same offenses? How can he be tried in state court, convicted, sentenced to death, retried in state court and found not guilty of all charges? And then later, Hennis had to then face trial by court-martial, be convicted and for a second time, sentenced to death?”

The double jeopardy clause protects us against being repeatedly tried for the same offenses when a prosecutor is not happy with the results. The concept, as explained by Supreme Court Justice Hugo L. Black, “is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty . . . .”

The Role of Dual Sovereignty in the Hennis Case

The double jeopardy clause applies to both state trials and federal trials, including military court-martials. However, an individual may be tried in state court and federal court (assuming proper jurisdiction) for the same offense per the dual sovereignty doctrine.

The Supreme Court of the United States discussed the dual sovereignty doctrine in United States v. Lanza, stating that “[w]e have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory. . . . Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.” As a result, Hennis’s double jeopardy protections under the United States Constitution were not violated when he was tried by both the state of North Carolina and by military court-martial (federal court).

The Hennis case has been extensively appealed since his military court-martial conviction in 2010. The Army Court of Criminal Appeals reviewed the case and affirmed the verdict and sentence.

In discussing the double jeopardy issue, the Court found that the double jeopardy clause does not prohibit one sovereign from proceeding on a charge of which an accused has been acquitted by another sovereign. In essence, even though Hennis was tried and found not guilty in a state of North Carolina court, a military court-martial was not prohibited from trying Hennis for the same crimes.

Following the decision by the Army Court of Criminal Appeals, Hennis’s lawyers appealed to the United States Court of Appeals for the Army Forces, the highest military court. The Court of Appeals for the Armed Forces reviewed the appeal and found that the conviction and death sentence were proper. The Court noted that the double jeopardy protections afforded by the Fifth Amendment to the Constitution were not violated in the Hennis case.

The Hennis Case Has Now Gone to the US Supreme Court

Currently, Hennis has petitioned the Supreme Court of the United States, asking the Court to accept the case for full litigation. The case is pending review by the Court in which it will decide to accept the case for appeal. While the Supreme Court receives tens of thousands of appellate requests each year, it normally only accepts about eighty or so cases for full review by the Court, so the likelihood of Hennis’s case being accepted by the Court is low.

[Related: 6 Supreme Court Cases to Watch in the Near Future]

As Hennis sits on death row today, will he ever be executed? The last military execution was in 1961, and though there has been some movement in military capital cases, it seems unlikely that Hennis will ever be executed. More than likely, Hennis will sit on death row until his natural death. 

Kerry L. Erisman is an attorney and associate professor of legal studies with American Military University. He is a retired Army officer who previously served as an Army military police and later as a prosecutor, chief prosecutor, and defense attorney. Kerry writes and teaches on important criminal justice issues and military spouse issues including leadership, critical thinking, and education.

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