Double Jeopardy

Submitted by: Mike Spindell, Guest Blogger

One of the main problems with any legal principle is that we humans are so complex in our interactions that even the most hallowed of legal principles are bound to run into conflict with a real life situation that turns it on its end and leaves even the most principled among us at a loss. This is why the timeless practice of training lawyers to be able to argue both sides of a case arose. Even those who are most respectful of our legal system and our Constitution, recognize that with the variety of human situations, sometimes the legal process leads to results that are far short of the mark of what a person might consider to be justice. Recently, while watching a TV real life murder show called “Unusual Suspects” I came across a case, whose resolution, left me confused as to whether the result was correct in a Constitutional sense. The first ten amendments to our Constitution that are known as “The Bill of Rights” are legal principles that I hold sacrosanct. Historically, the founders put them in place to safeguard the people from the tyrannies that often flowed from autocratic systems of government. These were principle that history and experience had taught them were necessary to protect and preserve the freedom of citizens.

The Fifth Amendment became famous in the 40’s and 50’s when it was invoked at congressional hearings striving to root out “communists”. People in the glaring spotlight of Congressional Hearings, sworn under oath, would be forced to invoke the Fifth Amendment to assert their right not to incriminate themselves. What was unfortunate about these “witch-hunts” was that according to legal procedure, if the person under oath answered any kind of question it was deemed that their Fifth Amendment Rights had been forfeited, since any answer, no matter how innocuous could be considered to have opened up a line of questioning. Thus if one was asked to discuss where they worked they would have to invoke the “Fifth”, or otherwise be opened to questions on who they worked with. The result of this was that by exercising their Constitutional Rights, these witnesses were made to seem guilty of hiding something, merely by asserting their right to remain silent. People’s careers were destroyed having been guilty of nothing more than associating with people who believed in a different economic system, that wasn’t inherently illegal. As the title indicates I’m writing about another aspect of the Fifth Amendment and the result of a particular murder case that left me intellectually and emotionally conflicted.

There is more to the Fifth Amendment then the right not to self incriminate. The Fifth Amendment is often alternatively referred to as “The Double Jeopardy Clause”. This concept traces its roots back 800 years in English Common Law to the Magna Carta. The Amendment reads:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

A layman’s explanation of this right appears in Wikipedia, upon which I hope the legal minds on this blog will amplify:

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .” The four essential protections included are prohibitions against, for the same offense:

retrial after an acquittal;

retrial after a conviction;

retrial after certain mistrials; and

multiple punishment

You can find many case citations and discussions of the various court rulings through the years that have modified or expanded the right of double jeopardy at the Wikipedia link above. However, I’m going to discuss a particularly heinous murder case and the conviction that ultimately came about.

In 1985 in Fayetteville, North Carolina, a military town serving Fort Bragg and Pope Air Force Base, the wife of an Air Force Captain and two of her three young children were found murdered via brutal stabbings and blunt trauma force. The mother Katie Eastburn, whose husband Gary Eastburn was away in Alabama at Squadron Officer’s School, was raped. Two of her daughters, five year old Kara and three year old Erin, were dead from multiple stab wounds. A third daughter, twenty two month old Jana, was found wailing in her crib suffering from dehydration and hunger.

Days after the murder, on a Saturday, Gary Eastburn had called home several times with no success. On the following day, which was Mother’s Day, a neighbor couple had noticed unopened newspapers on the lawn, went to the Eastburn front door, heard cries from inside and called the police, who arrived, broke in and found a gruesome scene. Thus began a sensationalized investigation occurring in a small City that only fifteen years before had gone through a sensational murder case involving the death of an Army wife and her two young daughters. Jeffrey MacDonald was a Green Beret Army Captain and Physician, who claimed his home was invaded by “hippies” murdering his family and leaving him wounded.

The doings in the MacDonald case had not quite ended because MacDonald who had been convicted had launched a strong appeal. We can only imagine then the frantic efforts to find the killer on the part of the police and prosecutors. Gary Eastburn was of course the first suspect, but he was quickly cleared by convincing evidence that he was at his training in Alabama for the entire time.

The only evidence the police turned up was from a man walking by the Eastburn’s home at 3:00am on a Friday Morning. He was returning from his girlfriend who lived in the neighborhood and passed a white male, carrying a garbage bag over his soldier. When passing him this unidentified male said “I’m just getting an early start”. That man turned out to be Army Sergeant Timothy Hennis, whose connection with the murdered woman was that a week before he had adopted a dog from her, that the Eastburn family had to give up because they were soon to be transferred to England. There is an excellent New Yorker article on this case, which I will be quoting, that you can read here to get the full flavor of the details. 

The following year, 1986, Hennis was convicted of first Degree Murder and sentenced to death. As is the case with many sensational murder trials, the prosecution focused less on the evidence and more on emphasizing the sensational, gruesome aspects of the case. Color blowup pictures of the bodies and the crime scene were displayed prominently throughout the court and the lack of anything more than circumstantial evidence was ignored as the prosecutors closing statement ended with:

“There’s your baby-killer!” he told the jury. “He’s the one responsible for the deaths of these kids and their mother. . . . The man responsible for taking their lives is sitting in this courtroom, breathing the same air as you are. And, hopefully, it won’t be for much longer.”

“The jury deliberated for ten hours before returning guilty verdicts on all counts, three of first-degree murder and one of rape. Hennis pulled off his wedding band and said to Richardson, “Give this to Angela. Tell her I love her.” Hennis was led from the courtroom to a suicide-prevention cell. Three days later, he was sentenced to death.

While the defense lawyers prepared an appeal, Hennis was shifted upstate, to a prison in Raleigh. He was one of seventeen convicts on death row. Nine weeks after he arrived, an inmate was executed by lethal injection. At the facility, Hennis received a letter, postmarked July 8th, the day of his sentencing:

Dear Mr. Hennis,
I did the crime, I murdered the Eastburns. Sorry you’re doin the time. I’ll be safely out of
North Carolina when you read this.
Thanks, Mr. X”

Authorities never determined Mr. X’s identity. (The sheriff’s office also received a Mr. X letter.)”

Perhaps, were Hennis Black and/or from a poor background, the case would have ended there. His father though was a retired IBM executive and financed an expensive and vigorous appeal which returned to court in 1988:

“Hennis’s appeal had reached the state Supreme Court, where Gerald Beaver, Hennis’s lawyer, argued that the many graphic photographs shown by the prosecution had unduly inflamed jurors against his client. The judges ruled, 5–2, in Hennis’s favor and awarded him a retrial. The Hennis ruling is still invoked by defense attorneys seeking to limit the presentation of photographs that are redundant or that could unfairly prejudice jurors. For almost three years, Hennis’s lawyers had been preparing ways to undermine the government’s case.”

The defense team at the new trial was able to discredit the witnesses, offer up physical evidence of the possibility of another murderer and generally had more energy than the new prosecution team. Capping it was that Hennis took the stand after preparing for weeks and was convincing. At trials end, the jury acquitted him after two days deliberation. He was set free, went on with his life and resumed his military career into retirement.

“After the acquittal, Hennis had to decide whether or not to reënlist in the Army. A 1987 Supreme Court decision had granted the military greater jurisdiction over civilian crimes, making it possible that he could be court-martialled. But Hennis reënlisted anyway, receiving three years of back pay, a good-conduct medal, and a promotion to staff sergeant. In September, 1990, he shipped off to Saudi Arabia, for Operation Desert Shield; according to Whisnant’s book, a thorough account of the first two trials, Hennis referred to the deployment as his “camping trip in Iraq.” He returned to the U.S. the following spring and then, a year later, went to Somalia; he flew home after the Black Hawk Down debacle. Hennis received awards and accolades for his service. One superior described him as a “sterling example for all,” and a colleague called him an outstanding soldier. Jeff Schartiger, who served with Hennis at Fort Drum, in New York, told me, “Tim was a gentle giant. I would trust the guy with my family.”

Scott Whisnant, a twenty-seven-year-old reporter, covered the Hennis retrial for the Wilmington Morning Star. Watching the Hennis proceedings, Whisnant realized that he was witnessing something historic: a death-row defendant on the verge of winning a jury trial. “I went from ‘I don’t think a jury is going to convict this guy’ to ‘I don’t even think he did it,’ ” Whisnant told me. “I have never seen a government case get so thoroughly dismantled. That was a rout, that second trial.”

Whisnant took a leave from the Morning Star to write a book. He originally set out to find the Eastburns’ killer, though the prospect of an investigation made him apprehensive. “I was afraid that there was something out there that I didn’t want to find out,” he said. “I lived in fear of it.” What if he found evidence that Hennis had killed Katie, Kara, and Erin? “I did not want to have exonerated somebody who did this murder.”

Whisnant, accepting that he “had no subpoena power” and couldn’t compel people to talk, settled for writing a story of vindication. “Innocent Victims,” as the book was called, was published in 1993, and sold about a hundred and seventy-five thousand copies. Three years later, a television miniseries based on the book appeared on ABC.”

Hennis retired from the Army in July, 2004, after twenty-three years of service, with the rank of master sergeant. He then took a job at a waste-treatment facility. Whisnant, who interviewed Hennis several times for his book, told me [the New Yorker writer] that he considered Hennis’s conduct after acquittal “compelling evidence” that he could not have committed the murders.

On May 12, 2005, twenty years after the Eastburn murders, Whisnant met with a group of North Carolina detectives who were discussing the case. A crime analyst who had worked with the Fayetteville Police Department, Billy Crawford, was teaching a seminar for homicide detectives on advanced criminal-intelligence techniques and he was presenting the unsolved Eastburn murders as a case study. Crawford had used Whisnant’s book to help develop the course.

As Whisnant was preparing to leave, Crawford told him that Larry Trotter, a homicide detective from Cumberland County, wished to speak with him privately. Trotter, a retired Army staff sergeant, is short (“five foot six on a good leg”), with a bald head and a bushy red mustache. He values his instinct for seeing the world “in black and white.” Trotter followed Whisnant into the parking lot and introduced himself. “Is the government going to solve this case?” Whisnant asked him.

 Whisnant told Trotter that at least one important investigative path had gone unexplored. Two sperm samples were taken from Katie Eastburn’s body with a vaginal swab. Although DNA testing had been unsophisticated in the late eighties, this was 2005, and Trotter could surely send the samples off for analysis. “This is a lab case now,” Whisnant said. That remark, he told me, is “something that haunts me to this day.”

Officer Trotter obtained the semen samples after a period and sent them off to be analyzed. They came back showing that they contained Hennis’s DNA. When notified of this the Fayetteville prosecutor’s office was stunned, but knew they could not prosecute Hennis at a state level.

“The Fifth Amendment insures that no citizen can be “twice put in jeopardy of life or limb” for “the same offense.” But double jeopardy pertains only to a specific judicial realm. State courts and federal courts represent distinct sovereigns. Under the “dual sovereignty” doctrine, stipulated in the Constitution, a defendant can be tried and acquitted in state court—and then be tried again for the same crime in a federal court. Justice Department policy nevertheless recommends restraint when pursuing individuals after state judgments. Exceptions have tended to involve civil rights. In 1991, after four Los Angeles Police Department officers accused of beating Rodney King were acquitted of criminal charges in state courts, U.S. attorneys charged them for the same offense in federal court. Two of them were convicted.

Army regulations state that a person subject to the Uniform Code of Military Justice who has been tried in a civilian court “may, but ordinarily will not” be tried by court-martial. In 1987, a soldier named Ronald Gray appeared in a North Carolina court and pleaded guilty to two murders and multiple rapes, among other crimes. Despite the fact that he received consecutive life sentences, the Army court-martialled Gray, charging him with two additional murders and several rapes, and secured a death sentence. Colonel Mike Mulligan, the head of the Army’s appellate division, told me, “In the Army, justice does not have a price.”

Some legal scholars contend that the Army violates the spirit of the Constitution’s prohibition on double jeopardy. Critics say that it is particularly problematic when the U.C.M.J. is used to prosecute members of the military for crimes allegedly committed in the civilian world. “The Framers were clearly opposed to the idea,” David Glazier, an expert on military law and a professor at Loyola Law School, in Los Angeles, told me. “The Articles of War, which were adopted during the Revolution and continued for half our history, said that when a soldier committed an offense against the local civilian population it was an offense for the commanding officer to fail to turn over a soldier to the civilian authorities.”

Things began to change during the nineteenth century. After American troops invaded Mexico in 1846, General Winfield Scott expanded the military’s jurisdiction over its soldiers into the civilian world, in order to hold them accountable for alleged crimes in Mexican towns and villages. The military maintained this authority well into the twentieth century. Then, in 1969, the Supreme Court ruled that military jurisdiction must be confined to “service-connected” crimes. The precedent lasted just eighteen years. In 1987, the Court, newly under the leadership of William Rehnquist, expanded U.C.M.J.’s reach, restoring the military’s authority to prosecute all sorts of crimes committed by its personnel.”

After talking with the local prosecutor’s office three Army lawyers decided to try the case. Hennis was ordered back to active duty and then court-martialled for the murders. He was convicted in 2006 and is awaiting an execution.

“Whisnant, for his part, reacted to the DNA evidence with dismay. “I went into a tailspin,” he said. “I don’t want to have any part in exonerating somebody who has killed five- and three-year-old children and leaves a twenty-two-month-old in the crib to die.” Nevertheless, the military’s decision to take over the case struck Whisnant as “fundamentally wrong.” He wondered how the Army could allow itself “to be a pawn of the Cumberland County sheriff’s department.” He said, “I can’t believe that, in the United States of America, you can do a best-two-out-of-three for your life.”

“Colonel Mulligan, of the military’s appellate division, emphasized to me that the Army’s decision wasn’t made lightly. “The Hennis case was unique,” he said—an outrageous injustice that required a special response. He added, “I’m pretty sure we haven’t gone to trial on something like Hennis before.” The Hennis case may well not be the last of its kind, however: the Army has filed charges against a soldier in Kentucky, accusing him of murdering his wife and her former mother-in-law, after state proceedings ended in hung juries and mistrials.”

I still think Tim Hennis is innocent,” Scott Whisnant told me over lunch recently, in Wilmington. “I’m not as convinced as I was in 2005, when I was running my mouth about forensic testing. But something doesn’t add up. How does it happen that they got exactly the lab result they needed when all the physical evidence pointed elsewhere?”

Four months after the court-martial verdict, Whisnant noted, two former F.B.I. assistant directors released a report exposing problems at the serology unit of the North Carolina State Bureau of Investigation between 1987 and 2003. The report concluded that the unit had overstated, misreported, or withheld blood evidence in dozens of cases, including three that ended in executions. The investigation did not extend to the DNA unit, but it cast doubt upon the entire lab. Whisnant said, “They had to throw out cases and cases because the results were either doctored, wrong, or covered up. The S.B.I. lab was shown to be a total tool for the state’s prosecutors.”

So there you have this tale and I used parts of the excellent New Yorker article to fill in as many details as possible for you to think about. The full article is worth reading, but you have more than enough of it here to ponder the issues raided. Here is what bothers me about this case and sets me into a quandary. As a father and a husband I react to these murders on an emotional basis. The killer needs to be punished as severely as possible. My gut reaction is that Hennis is guilty and has gotten what he deserved. The problem is that on an intellectual level I don’t believe that there is a persuasive case to be made that because of the “dual sovereignty” doctrine, the Federal Government and Military can retry someone for the exact same crimes for which they have been acquitted in civilian courts.

The other thing that bothers me greatly is the fact that the DNA samples were found intact and usable after twenty-one years. The DNA samples were sent to the FBI crime lab, which has been shown to have a history of fudging their results. The local law enforcement people stung by their loss at retrial, embarrassed after having such a sensational case remain “cold” after so long, may well have seen fudged evidence as a means to the judicial ends they were seeking. Who know? I certainly don’t, nor do I have that much faith in the integrity of many minions of our current criminal justice system. So I say to you honestly, as someone who since a boy has believed in our Constitutional protections, I don’t know where I really stand on this particular case. I’m torn emotionally and intellectually. I know that I stand for the Fifth Amendment protection against “Double Jeopardy”, but at the same time I’m glad that Hennis was convicted. What do you think?

Submitted by: Mike Spindell, guest blogger

Link to the TV show that got me started:|maing9|dl4|sec1_lnk3%26pLid%3D217283

64 thoughts on “Double Jeopardy”

  1. Tony C. 1, October 13, 2012 at 4:08 pm

    I do not believe in the Constitutional prohibition on double jeopardy in the first place. (I believe it exists, I do not believe it should).
    So you don’t believe in the cafeteria constitution and that that is logical.

    It is difficult to be constitutionally humble sometimes:

    History supports the argument that the judge cannot engage in “acquittal avoidance,” but must accept an acquittal with which he does not agree. In William Penn’s Case in 1670, the judge refused to accept the jury’s not guilty verdict and even threatened to cut the throat of the jury foreman. The judge also had Penn chained to the floor when he argued that the refusal to accept the jury verdict denied him “Justice.” The judge ordered the jury locked up for two days “without Meat, Drink, Fire, and Tobacco,” but the jury clung to its not guilty verdict. The judge ultimately accepted the acquittal but ordered the jurors imprisoned until they paid a harsh fine. See William Penn, The Peoples Liberties Asserted in the Tryal of William Penn and William Mead, 1670.

    (Brief of Criminal Law Professors, Blueford v. Arkansas, U.S. Sup. Ct.). Why should military law be superior to civilian law, superior to a jury verdict?

  2. @Dredd: The double jeopardy clause equalizes the 99% with the 1% because it has some essences of or similarities to sovereign immunity.

    False logic as usual, Dredd, and anything that “equalizes” us by letting us all get away with more crime is not the type of equalization I am interested in; that is only the equalization of anarchy.

    I charge the same false logic to those that claim a criminal will make another mistake to catch them on. That doesn’t even make sense, a person that kills their parents (or spouse) to inherit their fortune and escape their control and gets away with it accomplished the mission, why believe that reward will reappear? Why believe they will be more incompetent the second time around, as opposed to more calculating and plotting?

    The Double jeopardy clause senselessly prevents us from correcting an error that can be corrected, it endangers other citizens that need not be in danger at all by letting a person we learn with new evidence was damn well guilty remain free to hunt and kill another person, with more skill and more likelihood to escape justice the second time around. Like the fictional character Dexter, his first kill was sloppy and almost went wrong; then he figured out how to pursue his passion for killing with far less risk.

    We do not know that Hennis did not kill again, perhaps Hennis learned enough from his first attempt to avoid future suspicion.

    A very large majority of “murders by strangers” go unsolved, the vast majority of murders that are solved had an eyewitness (like a bar fight or killing in the heat of anger), or were perpetrated by a first time killer that panicked in their rush to leave the scene and left behind clues.

    The Double jeopardy clause only prevents the government (or individuals within it) from harassing innocents by gaming the system and putting them on perpetual trial without any evidence to warrant retrial. They might do that out of personal conviction of somebody’s guilt, or corruption, or both. That is a laudable goal for government, to prevent the legal system from being abused for selfish or personal grudges, but there are other ways of accomplishing it without being forced to ignore new and compelling evidence of guilt, and thereby knowingly endangering other women and children that might cross the path of the killer.

  3. Anonymously Yours 1, October 13, 2012 at 11:17 pm


    A reenlistment with full back pay means that there was never a separation hence in the militarys eyes they had/have full jurisdiction over the body
    He retired after that and was no longer military:

    Hennis retired from the Army in July, 2004, after twenty-three years of service, with the rank of master sergeant. He then took a job at a waste-treatment facility.

    After talking with the local prosecutor’s office three Army lawyers decided to try the case. Hennis was ordered back to active duty and then court-martialled for the murders. He was convicted in 2006 and is awaiting an execution.

    It is massively possessive, and psychologically impaired, for them to think once a person is in the military they are forever theirs to possess.

  4. Blouise 1, October 13, 2012 at 9:54 pm

    1, October 13, 2012 at 1:58 pm
    Blouise 1, October 13, 2012 at 12:48 pm

    … Why did he stay in the Military?
    He didn’t.


    I was referring to his first reenlistment after the second trial.

    After that the retired from the military in 2004 I think it was.

  5. Mike, another excellent article.

    I agree with Whisnant, this conviction makes me uneasy. The first part of the DNA era where DNA was a valuable tool to prove innocence is over. We are now into an era where DNA can be used by the unscrupulous as a foolproof method of framing the innocent. If police and prosecutors know that a particular suspect has committed a horrible crime through their superior expertise in detecting guilt but they have suffered a humiliating defeat in the court, what is to stop them asking a friend in the forensic laboratory to compare a sample of the suspects DNA with a sample of the suspects DNA and what is to prevent the forensic technician doing so, after all it is for a righteous cause. What if the two semen samples from 20 years earlier were too degraded to be tested, might not a right thinking technician have substituted part of the sample from Hennis. Even if the samples were not degraded and their profile was not that of Hennis, the authorities may still have decided to fudge as they may decide Hennis must have had an accomplice who carried out the rape. Even if the semen gave a profile matching someone who is already on file, the authorities may choose to ignore it since prosecuting someone else is an admission that they got it wrong and anyway the process of prosecuting and demonizing Hennis may have resulted in them seeing him as as evil as if he had comitted rape and tripple murder.

    These days DNA is considered un-rebuttable evidence but that assumes competence and honesty on the part of the personnel in the crime lab. One part of competence in DNA analysis consists of avoiding contamination of crime scene samples with DNA taken from suspects. Honesty requires that in testing crime scene samples the technician does not cheat by for instance splitting the sample from a suspect into two parts and analysing one of them in place of the crime scene sample. I would suggest the need for a strict rule that samples from the crime scene and samples from suspects should never exist in the same laboratory.

    The problem with all legal systems is that they only work if every one who works in them is a highly principled saint.

  6. TonyC,

    Check on the bag.
    But the dog being purchased and then alleged to being sold due to imminent overseas posting in a matter of days befóre the murder, is still worrying me. He knew he was going overseas, you know what is coming generally in the military. So why the dog? Peace offering to the wife? Hardly, as she would also know that the posting was coming.
    Sure, “Sgt Smith is away, I’ll just visit his wife, they say she is hot”, is possible.

    But murder is more likely planned by someone close.
    Harris never did commit another crime, as far as we know (aber), so does that speak well for him?

    Sexual murders accompanied with as yet here undisclosed details pointing to serious derangement, leaves many clues not known by us.


    Excellent motivation. I dubbed it a superpower against an individual. You got us over to the vindictive part to consider. And vindiction we see constantly IRL.

  7. Got home late and heading off to bed, but I just wanted to thank Anonymously Posted for the link to the Morris article which I was unaware of and just blew me away. I always had suspicions about the MacDonald case and now they seem confirmed. How curious the similarity in cases in the same town so many years apart?

  8. Darren Smith sez, “…it is ONLY a matter of time before they do something stupid again and they get thrown in jail and convicted on the new offense. So as I told rookies when they were worried that they would lose a case on an arrest they made, I just tell them to wait for the next time. And you can arrest them again.”


    Well said. Crooks always make a second mistake. I tell inmates in our drug and alcohol program they have already proven they are not smart enough to not get caught, so they really need to learn some new ways of doing things. Some learn, most don’t.

    Once a criminal beats the system, they may discover some detective has decided to make them his or her hobby for the foreseeable future. “Getting away with it,” is usually a temporary condition.

  9. Dredd,

    A reenlistment with full back pay means that there was never a separation hence in the militarys eyes they had/have full jurisdiction over the body…. Not much difference in a civilian being on a military installation and committing a crime…. They have full jurisdiction…. In this case…. They had jurisdiction over the solider…..period….

    Conversely, an attorney goes to another state or country and commits a crime…. Though no act was ever done in the state of licensure…. The Bar has the ability to discipline that attorneys conduct….

    In another light…. Say you are licensed to drive a vehicle… A case in particular I am familiar with is the person got two wreckless driving tickets in ohio, the state issuing the license…..they move from Ohio to Michigan…the SOS issues a temp license….. Then takes a look at the master driving record….. They revoke his Michigan license…. He goes back to the state of original issuance…. They won’t give him his license back because it’s revoked….. If I recall wreckless driving in Ohio is/was a civil infraction… In Michigan its a 6 month, with 6 points….. Since he had two… The magic number of 12 points was reached…. He got a revoked license…. Is that fair?

  10. Malisha contributed:
    “We just have to accept that there will be some unfairness and some mistakes on the side of defendants escaping conviction for real crimes rather than give up all the protections that keep us from becoming as bad as some countries…”
    Your comment is paramount in the issue. While most of the times it is not as dramatic as a murder issue, practical real word scenarios prove this to be correct over and over.

    What I mean by the is if a person gets somehow involved in circumstances where she is accused of a crime but after the ordeal of a trial winds freedom and acquittal, not only do their receive justice but they are even more unlikely to repeat getting themselves involved in something foolish again.

    But, the criminal who gets off on a technicality or otherwise gets away with the crime, it is ONLY a matter of time before they do something stupid again and they get thrown in jail and convicted on the new offense. So as I told rookies when they were worried that they would lose a case on an arrest they made, I just tell them to wait for the next time. And you can arrest them again.

  11. Bill McW, I don’t think it is analogous to give up double jeopardy just because a convicted person can be exonerated by after-discovered evidence later on. This is why: If a person is wrongly acquitted, and new evidence appears, the harm to the state is that they could not convict. It is impossible to prove that they would have convicted if only they HAD the evidence when the trial took place. There has to be a certain amount of error built into the system because unless the defendant agrees completely with the prosecutor’s version of events, there is never a situation of “zero doubt” even upon a valid conviction. On the other hand, the harm done by a mistaken acquittal is small compared to the harm that could be done by someone prosecuted over and over and over and over because more or different evidence continued to trickle in after a full trial and an acquittal. Think of how that could be abused by prosecutors and judges who were corrupt and/or by a jurisdiction that wanted to harass somebody until they managed to destroy them. They could, for instance, bring a guy up on charges he assaulted somebody, and he could be acquitted after a year in the county jail on high bail waiting for trial and represented by the public defender who didn’t fight for a speedy trial date. Once free, he could be hauled back to court and charged with the same crime because the prosecution claimed they had new evidence, and this time, the bail might be even higher because they would insist that he had fooled the court system into wrongly freeing him the time before. It could go on and on with no end in sight if there were no protection against double jeopardy.

    We just have to accept that there will be some unfairness and some mistakes on the side of defendants escaping conviction for real crimes rather than give up all the protections that keep us from becoming as bad as some countries I know where you can get stoned to death simply because a crowd has gotten whipped up into a rage against you for some imagined bad act.

  12. Dredd
    1, October 13, 2012 at 1:58 pm
    Blouise 1, October 13, 2012 at 12:48 pm

    … Why did he stay in the Military?
    He didn’t.


    I was referring to his first reenlistment after the second trial.

  13. If one is found guilty of a crime and years later evidence is found that proves the person is factually innocent of the crime for which they were convicted (or pleaded guilty to). many people believe the person should at least be granted a new trial, or a trial.

    Shouldn’t the same logic apply in a case where the defendant is found not guilty at trial and evidence proving factual guilt is found years later…as in the case here?

  14. Dredd,

    Well thank you…. AN FYI…. If you get behind in child support payments…. They can place you in confined quarters until you are current…. But that all depends on whose oxs they want to roast….. Made it happen to a Navy pilot…..

  15. Anonymously Yours 1, October 13, 2012 at 8:08 pm

    The Code of Military Justice is a beast within its own right….. Does not apply to state or federal crimes….. So long as he was a member of the armed forces when the alleged crime occurred….. He is subject to whatever they say…..
    Well said.

  16. The Code of Military Justice is a beast within its own right….. Does not apply to state or federal crimes….. So long as he was a member of the armed forces when the alleged crime occurred….. He is subject to whatever they say…..

  17. Tony C. 1, October 13, 2012 at 4:08 pm

    I do not believe in the Constitutional prohibition on double jeopardy in the first place. (I believe it exists, I do not believe it should).
    The double jeopardy clause equalizes the 99% with the 1% because it has some essences of or similarities to sovereign immunity.

    That means it is another one of those places that helps you tell where someone is coming from … government by the people … or instead is coming from … government over the people:

    “Because one prime purpose of the clause is the protection against the burden of multiple trials, a defendant who raises and loses a double jeopardy claim during pretrial or trial may immediately appeal the ruling, a rare exception to the general rule prohibiting appeals from nonfinal orders.

    (Cornell Law Thingy, emphasis added). Lawyers know that officials can appeal immediately if they raise a sovereign immunity defense and the court rejects it upon their motion.

    Same with double jeopardy.

    This is another one of those national DNA markers that you can use to tell where all things liberty stand.

  18. @Idealist: Although I obviously do not know it for a fact, I would suspect the garbage sack contained his bloody clothing, Hennis had probably showered and changed into either Eastburn’s clothing or clothing he brought for a premeditated murder. He did not want to be seen or stopped with blood on him or his clothing; but a garbage bag hidden in the trunk would be unnoticed, first because the trunk probably would not be searched, and second because it would appear innocuous. In fact we might say that “worked,” the person that saw him could not see what was in the bag.

    I suspect the reason for killing the children and not the infant was to eliminate eyewitnesses to his crime. I do not think the children were sexually assaulted (or it would have been mentioned in the article); although he may have used the threat of harm (or actual harm) to one or both to coerce their mother into cooperating with his sexual fantasy. Or perhaps killed them to prevent them from running for help or interfering with his rape of their mother.

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