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  http://en.wikipedia.org/wiki/Double_Jeopardy_Clause

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. http://en.wikipedia.org/wiki/Jeffrey_MacDonald

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. http://www.newyorker.com/reporting/2011/11/14/111114fa_fact_schmidle?currentPage=all 

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.)” http://www.newyorker.com/reporting/2011/11/14/111114fa_fact_schmidle?currentPage=3

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.” http://www.newyorker.com/reporting/2011/11/14/111114fa_fact_schmidle#ixzz291jKljKP

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:

http://www.huffingtonpost.com/2012/10/08/unusual-suspects-military-death-acquittal-video_n_1947405.html?utm_hp_ref=tv-replay&icid=maing-grid7|maing9|dl4|sec1_lnk3%26pLid%3D217283