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Defense Questions Whether Soldier Should Be Charged in Triple Murder

Posted May 16, 2007

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— Defense attorneys challenged the military's ability Wednesday to try a retired soldier for the murders of an Air Force captain's wife and daughters -- a crime for which he was acquitted in civilian court two decades ago.

No witnesses testified in the opening hours of a hearing held to consider evidence against Master Sgt. Timothy B. Hennis. The Army recalled him to active duty last year in order to charge him with the deaths of Kathryn Eastburn and two of her daughters, who were found in their home near Fort Bragg with their throats cut in May 1985.

DNA linking Hennis to the crime was obtained during an autopsy of one of the victims, according to written information released by the military Wednesday.

Col. William Deneke, who is presiding over the hearing, said he would note the defense's jurisdiction challenge in his report to Lt. Gen. Lloyd Austin. As commander of the 18th Airborne Corps., Austin will decide whether Hennis will face a court martial -- the military equivalent of a trial -- and on what charges.

Hennis was arrested shortly after the murders, and civilian prosecutors charged him with raping and killing Eastburn and killing daughters Kara Sue, 5, and Erin Nicole, 3. Officials said all three had died from multiple stab wounds. A third child, 22-month-old Jana Eastburn, was found unharmed in her crib.

Chief Medical Examiner John D. Butts, who conducted Eastburn's autopsy, testified Wednesday that sperm was presented in her vaginal area. However, he could not confirm whether it came from Hennis.

Hennis was convicted in 1986 in a civilian court and sentenced to death, but the state Supreme Court awarded him a new trial after finding his first trial was run unfairly and with weak evidence. A second jury acquitted Hennis in April 1989.

Last year, using technology that was unavailable at the time of the slayings, the State Bureau of Investigation tested DNA samples from the crime scene. Hennis voluntarily gave a blood sample to the Cumberland County Sheriff's Department when he was first arrested.

Local prosecutors said the results warranted reopening the case, but civilian authorities were unable to again charge Hennis with the crimes because of the constitutional protection against double jeopardy.

But he can stand trial on those charges in a military court. A provision in military law allows the Department of Defense to recall retired personnel who are receiving retirement pay and charge them with crimes, said Scott Silliman, a Duke University law professor and retired Air Force lawyer.

Local prosecutors turned the DNA tests over to the Army, which recalled Hennis to active duty in September. He had retired in 2004, and was living in Lakewood, Washington Hennis was charged in November with three counts of murder and one count of rape.

"If the DNA sample has had a good chain of custody ... it can be used as evidence," Silliman said.

On Wednesday, Deneke discussed testimony from Hennis' prior trials, and the DNA and autopsy reports he will consider when recommending whether Hennis should be tried. Deneke, a civilian federal prosecutor in Tennessee and Army reservist, is presiding over the Article 32 hearing, similar to a civilian grand jury proceeding.

The case against Hennis originally involved a witness who reported seeing someone in the driveway of the Eastburn home at about 3:30 a.m. on May 10, 1985. That witness picked Hennis out of a photo lineup. Hennis had adopted the family's dog several days earlier.

Eastburn's husband, Air Force Capt. Gary Eastburn, was at squadron officers training school in Alabama at the time.

The hearing continues at 9 a.m. Thursday.


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  • alwaysCool May 17, 2007

    MSGT J - the military does think its way above the law. It determines when it wishes to procecute and when it wants the civilian courts to handle its affaris. They still tranfer people all the time when they do not want the local juristrication to come near them.

  • alwaysCool May 17, 2007

    DNA- well he was having an affair with the lady, so his DNA was in the house. Its possible that he had contact w/the kids too. Sound weak at the moment.

  • illegals--GO HOME May 16, 2007 know not of what you speak. The only reason he escaped conviction (he was convicted at his first trial), was that at that time they did not have the DNA matching system that they now have. Had it been there at that time, there would have never been a second trial where he escaped punishment. That family deserves justice and if they DNA matches then Mr Hennis deserves his day in prison....he has been free all this time while that surviving spouse and child have been tortured mentally by the deaths at his hand.

  • MSgt J May 16, 2007

    Trooper and mvnull, the military doesn't think it is above the law. The law for the military as I stated in my earlier comment is the Uniform Code of Military Justice or UCMJ. It is the law of the armed forces. Civil law still applies to us but so does the UCMJ. Think of this, if you don't show up for work for a week at your daily job you will probably get fired. If I don't show up for a week at my appointed place of duty I will be court martialed and if convicted have a felony for not going to work. A different set of laws applies to us. Tecnically the MSgt isn't retired unless he completed 30 years of service so he can be called back to active duty for any reason that the Army sees as necessary. Just as laws are different from state to state and country to country they are different for us in the military. The only constant is that military law is the same no matter where we are and both military and civilian law applies to us.

  • MSgt J May 16, 2007

    I remember this case very well. It happened in Summerhill subdivision off of Yadkin Rd. I was the manager at a pizza place that was a stones throw away. One of the witnesses was an employee of mine. The whole case was funny. All of the evidence was circumstantial for the most part from what I remember. I don't think he did it but if they have DNA to prove it then he should fry. For those of you that don't know how military law works, it is slightly different from civilian law. We have protection from double jeopardy also. However, we have article 134 of the Uniform Code of Military Justice that is a general article and this allows service members to be charged with things like conduct unbecoming.

  • onpointe May 16, 2007

    If the DNA is linked to him then he must be brought to justice. Think of the brutal murder of those little girls and their baby sister left alive in her crib for days all alone. I hope they find and convict whoever did this.

  • mindyourown May 16, 2007

    DNA my freinds, that'll catch em every time! :)

  • bigjim835 May 16, 2007

    I knew Timothy while he was incarcerated at Central Prison. I have never thought this man committed the crimes he was accused of. I think he got this case overturned by the Supreme Court in North Carolina because of an out of control Cumberland Co. DA. Much like Nifon and the Duke Lacross case. I think he is being retried in the Military again because of an out of control SBI and Cumberland Co. DA. When is enought enought for this indivdual. If he is not tried or convicted by the military how much more will he have to suffer because of an out of control DA and SBI.

  • mvnull May 16, 2007

    "mvnull - Double jeopardy wouldn't be given a second thought if it was your family...." I would hope not, but we all fall short. I don't believe in relativism in morality. The United States is based on certain principle. Double jeopardy is one of them. Mistakes do happen, though (which is one reason why I am opposed to the death penalty). It is part of the compromise that makes this country civilized. The only way we could ever be assured (if then) is if we immediately convict everyone suspected of a crime (or lower the level for "proof"). I would not want to live in a police state like that. The price is that sometimes we release guilty people.

  • Trooper May 16, 2007

    This is double Jeopardy, it is a way for the military to get out of paying him retirement, also like the back door draft of soldiers to go back to Iraq, just like having to wait 5 years for a VA decision. Even if he is guilty, he has been acquitted by a jury and the constitution Say's you can't be tried again. The military thinks its above the constitution,"I don't think so"