A DISCUSSION OF LAW AND JOURNALISM

Can a Murderer be Convicted After He was Acquitted Without Violating the Law Against Double Jeopardy?

By Jeremy Potter

On April 9, a military court found Army Master Sgt. Timothy Hennis guilty of murdering Kathryn Eastburn and her two daughters, ages three and five.  Eastburn was raped and all three were stabbed to death in their home just outside Fort Bragg, NC, while father and husband Gary Eastburn, an officer in the Air Force, was deployed at officers training in Alabama.

Hennis had adopted the Eastburn family dog two days before the murders; he was identified by an eyewitness in the original trial and convicted for the triple-homicide and sentenced to death in 1986.  Three years later, he was acquitted on appeal.

A free man, Hennis returned to the Army, eventually serving in Operation Desert Storm; he retired in 2004.  DNA evidence that was not available in the 1980s came to light in 2006, when authorities were able to match the DNA of the stored sample Hennis had voluntarily provided.

In 2007, in order to bring the murder charges against him, the Army recalled him to active duty.

Most people’s immediate response when hearing about the case is to wonder how Hennis could be retried as he’d already been acquitted.   After all, you don’t have to be a police-drama junkie to know that under the Double Jeopardy Clause of the Fifth Amendment the government may not subject someone who was acquitted to a second prosecution for the same crime.

In 1922, The Supreme Court case U.S. v. Lanza (a prohibition-era case involving bootleggers who violated both state and federal law) held that a single crime can be prosecuted by both a state and the federal government. Today, the so-called “dual-sovereignty doctrine” stands for the proposition that a single crime can lead to charges from the state and federal government or from two different states. We recently saw this come into play in the prosecution of Michael Vick.  Vick was convicted on federal dog-fighting charges and still had to negotiate a plea bargain for the state charges against him in Virginia.

Like all standard homicide cases, criminal charges against Hennis were initially brought by the state (North Carolina).  He could not be retried in North  Carolina criminal court after his acquittal.

But a military tribunal is within the jurisdiction of the federal government. Because of the long delay between prosecutions and the sensational nature of the murders, Hennis’s case seems unusual, but his legal situation was no different from that posed by any act that violates the law of two sovereign governments.

This case was handled well in the media by both military trade publications and the Army News Service, as well as the mainstream press that included ABC News, the New York Times, and the L.A. Times. Only the Associated Press story failed to address the question of double jeopardy, which led to a series of comments about our government’s riding roughshod over our inalienable rights, and other muddled accusations from readers.

The tragic story of the Eastburn family lends itself to sensationalism and hyperbole.  And lets not forget commercialization:  The story was made into a book and TV-movie.  For the most part, however, the stories about the unusual way that Hennis journeyed to death row were respectful and explained well why double jeopardy did not apply.

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