For 2nd Time, Man Sentenced to Death for Murders

Double jeopardy loophole brings Timothy Hennis to trial for third time.

September 17, 2010, 6:06 PM

Sept. 17, 2010— -- In May 1985, Kathryn "Katie" Eastburn and her two daughters, Kara, 5, and Erin, 3, were murdered in their home, on the outskirts of Fayetteville, N.C., near Fort Bragg. Police found the military wife next to her bed, raped and murdered. Two of her three daughters were also stabbed to death, their throats cut.

It would take 25 years to bring the man responsible for the grisly slayings to justice -- but not for a lack of trying.

In a nightmarish odyssey through the legal system, Timothy Hennis, a master sergeant in the U.S. Army, was convicted of the crime in 1986, and spent more than two years on death row awaiting execution, until that conviction was overturned. He was acquitted at a second trial in 1989 and released.

A free man, Hennis returned to his family and the military, serving with distinction in the First Gulf War, and as a Boy Scout leader in his community.

The question of who murdered the Eastburns still lingered, haunting husband Gary Eastburn, his surviving daughter, Jana, and detectives.

In 2006, a cold case detective at the Cumberland County Sheriff's Office took new interest in the case. He found a vaginal swab that had been taken from Kathryn Eastburn's body that contained semen from the man who'd raped her. The detective sent it to a crime lab for DNA testing -- a forensic technique that was not available at the time of the earlier trials.

The results showed, with 12,000 million to one certainty, that the semen from that swab belonged to Hennis.

"I just wanted to jump up and ... and scream, I was so happy," said Robert Bittle, one of the Cumberland County Sheriff's Department homicide detectives who originally investigated the case. "It was vindication."

Gary Eastburn was shocked by the news. "I started crying," he said. "Just hit with this wave of emotion. ... I get one more shot to see this man get justice."

Armed with this new evidence, prosecutors was determined to take Hennis back to court.

Only one thing stood in the way: the U.S. Constitution. Double jeopardy, prohibited by the Fifth Amendment, meant Hennis could not be retried by the state for a crime for which he had been acquitted.

Prosecutors, however, found a little-known loophole: The state couldn't try Hennis, but because he'd been a soldier, the U.S. Army could.

The reason is as old as the nation itself: The federal government is a sovereign authority separate from the individual states that make up the country.

Hennis, who retired from his post-acquittal Army stint in 2004, was ordered out of retirement and back to active duty to allow for his court-martial for the murders.

Hennis' DNA Cited, While Previous Trials Relied on Eyewitness Testimony

Hennis had adopted the Eastburns' dog in early May 1985. Prosecutors claimed that Hennis had learned that Kathryn Eastburn's husband, Gary, who was in the Air Force, was away. They alleged Hennis returned to the house a few days later, tied up and raped Kathryn and murdered her and her daughters. Before leaving the house, prosecutors argued, Hennis stole an ATM card and money from Kathryn Eastburn's purse.

The case against Hennis in the two previous trials relied largely on eyewitness testimony. One neighbor said she'd seen a white Chevy Chevette, the same car that Hennis drove, parked near the Eastburns' home, and another neighbor said he'd noticed a man, later identified as Hennis, leaving the crime scene at about 3 a.m., soon after the murders were believed to have taken place. Someone else said she'd seen someone she later identified as Hennis using an ATM card that detectives had traced back to the Eastburns.

But eyewitness testimony can be problematic, and in the earlier trials as well as at the court martial, Hennis' defense attorneys raised questions about the witnesses who had identified him.

This time, though, Army prosecutors had DNA evidence linking Hennis to the rape and the murders.

In the defense's closing arguments, attorney Frank Spinner urged jurors, out of passion, not to convict his client. He noted that there was no blood, fingerprint or fiber evidence that connected Hennis to the crime and that Hennis had been seen working on a dollhouse, presumably for his young daughter, at the time bank transaction records showed the stolen ATM card had been used.

Spinner even suggested that it was possible there was no rape, but rather that Eastburn and Hennis had had consensual sex a couple days before she and her children were murdered by some other unknown person or persons.

The military jury rejected the defense's arguments, and in April 2010, found Hennis guilty on three specifications of premeditated murder.

Hennis is now on death row at an Army facility in Fort Leavenworth, Kan., while his lawyers plan his appeal. The case could eventually reach the U.S. Supreme Court.

While the case goes on for Hennis and his family, it's finally over for the Eastburns.

"My heart goes out to them. I can certainly relate to the pain they're feeling," said Gary Eastburn. "I ... hope none of you feel that I'm gloating over this. ... I just feel that justice has finally been done."

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