Innocent Victims

by Whisnant, Scott;

  “You wake up feeling like someone just kicked you in the face.”

  Gary’s psychiatrist told him his subconscious was still trying to deal with the loss. In the summer of 1991, he had the dream for the last time.

  “She says, ‘Well, maybe I think I might want to go out and find someone else,’ and I just kinda say, ‘Hey, here’s the door, go.’

  “I guess that’s my mind saying that’s it. I woke up the next morning and felt like a million dollars.”

  There’s nothing obtrusive about the graves. Unless you knew where they were, you could hunt over a couple of acres before finding them.

  All three bear the same date of death—May 12, 1985—a reminder that something unnatural happened. They do not belong there. Kara should be kicking the soccer ball her father was going to buy for her sixth birthday, nine days after Mother’s Day. Erin should be getting ready for a dance recital. They should be teasing their little sister. They should be with their mother, but not here.

  Looking at those graves, it’s hard not to get angry. In Tim Hennis, a hulking soldier from nobody’s hometown, the cops gave that anger a name. And Fayetteville slept easier.

  You stand over the graves and expect an answer. You want the heavens to part, leaves to rattle, or letters to form in the clouds, something to tell you who did this.

  You need to know and the graves aren’t talking. But someone out there remembers what it sounded like to cut a helpless little girl’s throat.

  The original publication of Innocent Victims in 1993 ended with the central question of the Eastburn murder case—who killed Katie Eastburn and her two children—unanswered. Tim Hennis had been acquitted after previously being condemned to death row for these crimes, a situation unusual in American judicial history but not quite unique. Hennis shares the distinction of winning acquittal by jury after being sentenced to death row with forty-seven other defendants in American history.

  Now, the case is unquestionably unique. After the case lay dormant for seventeen years, an evidentiary breakthrough reinvigorated the investigation, prompting cooperation between civilian and military prosecutors that stretched, and perhaps bent, the intent of the US Constitution, resulting in an unprecedented legal event in American history.

  The electronic publication of Innocent Victims not only makes the original work available digitally, but also provides an update to this still-evolving case. Once again, a convicted culprit awaits execution on death row for murdering Katie, Kara, and Erin Eastburn.

  But is the story over? Just as with the original publication, there are significant unanswered questions. You will have to decide. Could it be that the final word, the epilogue, is not the last word?

  Epilogue

  After Tim Hennis’s acquittal, his lawyers had a final piece of advice for their soon-to-be-ex-client.

  “Get out of the goddamned Army,” Beaver and Richardson told him.

  From their viewpoint, the Army, other than those individual soldiers who had worked closely with Hennis, never acted as though it believed in his innocence. The Army had been eager to help Cumberland County prosecute Hennis in 1985 and had not been helpful to his defense. The Army agreed to reinstate him only because the law required it. The Army, his defenders believed, would never really welcome him back.

  But Hennis had nowhere else to go with a résumé that included two trials for triple murder and three years on death row. His parents advised him to go back, build a record, and use that leverage to find another career.

  So back to the Army he went. Hennis was given credit and received back pay for all the time he had spent incarcerated and on trial. And, by all accounts, for the next decade and a half, he was an excellent soldier.

  Hennis was promoted to staff sergeant, and fought in the first Iraq war and in Somalia. He regularly received promotions and, by the time he was set to retire in July 2004 after twenty-three years of service, had reached the level of E8, the highest classification among enlisted soldiers. He was selected to attend Sergeant Major Academy. A superior described him as a “sterling example for all,” and nothing in his military record said otherwise.

  By now, Tim and Angela lived in Fort Lewis, Washington, near Puget Sound. He took a job as a supervisor at a water treatment plant. His daughter, Kristina, and her husband moved into her parents’ home, along with their baby son. Hennis had no reason not to expect to quietly live out his days as a civilian and grandfather.

  The murder case for which he was twice tried for his life lay dormant. For the better part of sixteen years after Hennis’s acquittal in 1989, the case file was relegated to a box on a shelf in an evidence room within the Cumberland County Sheriff’s Department. The SBI’s reinvestigation of the case in 1989, such as it was, had led to no conclusions other than Hennis’s guilt. The publication of Innocent Victims in 1993 and airing of a four-hour movie of the same name in 1996 plenty irritated the prosecutors and investigators, but did nothing to move the case forward. Hennis had even become somewhat of a celebrated cause among death penalty opponents, ranking number thirty-nine on the Death Penalty Information Center’s “Innocence List.”

  The evidence didn’t even make it into the room reserved for “cold cases” that were to be reinvestigated. The Eastburn murder case was even colder.

  But not to Detective Larry Trotter. The box of evidence may be dormant, he noted, but the technology that could analyze it was not. DNA testing had become, in the prior ten years, an accepted and growing method of testing blood, bodily fluids, or genetic transfer onto any physical evidence. There were plenty of items in evidence from the now twenty-year-old murder case that, with modern DNA testing, could very possibly identify suspects’ genetic material. Most prominent among this evidence were semen samples taken from inside the body of Katie Eastburn.

  Otherwise, the case as an unsolved murder was not discussed publicly. Just about the only public mention of any investigation of the Eastburn murders occurred during a seminar in nearby Raleigh for law enforcement officers on advanced criminal intelligence techniques. Billy Crawford, a retired Fayetteville Police Officer, led the course and used the Eastburn murders as the teaching model for the week-long program in May 2005. The curriculum focused on mistakes made by investigators and explored potential alternative leads, with the underlying premise being that the case should be reopened.1

  Trotter took the course as a reminder to get moving. He found the evidence in the custody room and identified the vaginal swabs taken from the autopsy. Then he sent them to the SBI lab and waited.

  A year later, the results came in. Robert Bittle, the sheriff’s detective who had taken it as a personal affront to the victims that Hennis had been acquitted, called Gary Eastburn—now stationed just fifteen miles from Hennis in Washington State—and asked him to sit down.

  The lab was able to get a DNA profile from the semen, and was able to match it.

  To Tim Hennis.

  The sample, the lab said, was 1.2 quadrillion times more likely to belong to Tim Hennis than any other white person in North Carolina. In other words, for all the population of planet Earth many times over, the only contributor, statistically speaking, was the only suspect the state of North Carolina had ever seriously considered.

  Hennis had already been acquitted in state court of the Eastburn murders and could not be tried again in that jurisdiction. So what could be done judicially with the new DNA finding?

  A basic tenet of the US Constitution’s Fifth Amendment holds that suspects accused of a crime cannot be placed in “double jeopardy,” which means the government cannot try a suspect for a crime once acquitted. But double jeopardy doesn’t completely prevent a defendant from being tried twice for the same crime. “Dual sovereignty” allows defendants to be tried in state and federal courts for the same crime—though the federal government typically is hesitant to retry defendants after trial in state court.

  Likewise, the military is considered a different jurisdiction from state court, though the Uniform
Code of Military Justice says that one who has been tried in civilian court “may but ordinarily will not” be tried by court-martial.

  Complicating the state’s dilemma was the fact that the crimes took place in a civilian neighborhood, just off Fort Bragg. Moving the case to the Army’s jurisdiction just to get a third crack at Tim Hennis would seem to stretch the intent of what the Constitution’s framers had in mind with the double jeopardy clause. Shortly after Hennis’s arrest, the Army consented to the state trying the case and was content to leave it in the state’s hands all the way through Hennis’s acquittal. It did no investigation, nor did it attempt to persuade the state to move the case to its jurisdiction for seventeen years.

  Yet, as an Army appellate division leader told the New Yorker magazine in 2011, “In the Army, justice does not have a price.” The district attorney’s office and Cumberland County law enforcement community took the same view. Buoyed by a recent case of a successful reprosecution via court-martial of an Army defendant who had won in state court, the state and the military had already agreed that a third trial of Tim Hennis was quite possible.

  This was known before the SBI ran its test. With its positive result in hand, all that was left to do was recall Tim Hennis to “active duty” and charge him with three counts of murder. Punishment in a military court-martial, as is the case in state and federal court, ranges all the way to the death penalty. The government made clear that this is what it would seek.

  Hennis was subject to recall at age forty-nine because, as a by-product of his retirement after twenty-one years in good standing, he received an Army pension—something he couldn’t have received had he left the Army in 1989 as his lawyers advised.

  On September 26, 2006, military legal officials, accompanied by local police, went to Hennis’s home and handed him a letter ordering him to report to Fort Bragg in thirty days.

  “This is bullshit,” Hennis said.

  He reported back to North Carolina within a month carrying a legal distinction unlike anyone in American judicial history. The government had forced a deciding trial in a best-of-three series for the life of Tim Hennis. No one has, before or since, been tried a third time for his life after being convicted, then acquitted.

  Fort Bragg was likely the last place on earth Hennis wanted to go. His parents, such staunch supporters through the first two trials, had both died. Angela and their children stayed in Washington, 2,400 miles away. He returned to a familiar and unwelcome place, though this time with an unusual twist. The Army had merely recalled him to duty and started a court-martial proceeding. He was not under arrest. On a day-to-day basis, the Army had no use for him. He certainly wasn’t going to assume a position of leadership, nor was he going to go back to rigging parachutes. Instead, he was given what were described as “supply duties.” In reality, for much of the next four years while awaiting trial, Hennis spent most of his days in the offices of Billy Richardson’s law firm, helping his new lawyers prepare his capital murder case.

  Military law was not a specialty of Richardson’s or Beaver’s, and the government early on made noises about both being potential witnesses. So Hennis hired sixty-two-year-old Frank Spinner, chosen specifically for his expertise in defending clients in military court-martials. He had defended Capt. Richard J. Ashby, a Marine pilot accused of killing twenty after flying a jet into a ski gondola in Italy, as well as clients involved in prisoner abuse at Abu Ghraib in Iraq and civilian murder in Afghanistan. Spinner was joined by two uniformed attorneys appointed by the government: Andrew Glass and Kris Poppe, veterans of numerous court-martial proceedings.

  The jury, or “members,” would be a panel of fourteen uniformed servicemen and women made up of officers who were at least at Hennis’s rank, usually higher. In some ways, this would work in favor of the defense. The members would be professional and educated, and likely less interested in the emotion that often surrounded the case. They would not be prone to the “Hennis Hysteria” that Beaver argued had gripped Fayetteville before the first trial. And they would understand the fallibility of witness identification and how law enforcement could possibly influence testimony.

  On the other hand, the members would certainly believe in the science of DNA. Two-thirds needed to agree to convict Hennis. If the verdict were unanimous for guilt, a separate hearing would be needed to decide on the death penalty.

  Opening statements began March 17, 2010, in a new courthouse at Fort Bragg that seated close to sixty people. For most of the court-martial through the next month, it would be full. The government openly conceded the case against Hennis had not changed, save for the positive DNA match. The prosecutor’s opening address came against a backdrop of a giant PowerPoint slide that stated: “The Accused’s sperm was found inside Katie Eastburn’s vagina.”

  Not exactly “If it doesn’t fit, you must acquit,” but the point was made.

  Poppe argued in his opening statement that crime scene investigators had not secured the scene, that the SBI lab had proved to be incompetent and willing to overlook evidence, and that no steps had been taken to preserve the case evidence. Shortly before Poppe made his remarks, a seemingly helpful newspaper article ran in the state’s major newspapers. The SBI lab was under investigation for inaccurately—and incompetently—reporting evidence from past criminal trials. Could this behavior have impacted the Eastburn case, and at the least, did it involve some of the same lab personnel?

  The defense asked Col. Patrick Parrish, presiding over the trial, to continue the case long enough to find out what the SBI lab inquiry was about. The prosecutors responded that, based on information from the SBI lab, it only involved one case and was unrelated.

  As it turned out, neither side nor the judge at the time knew the depth of the SBI lab’s problems. On August 19, long after trial had concluded, came a report that a five-month independent audit of the lab involved not one, but 230 cases of “shoddy investigations” by the SBI lab. The Raleigh News & Observer reported these findings shook North Carolina’s justice system through what was called a “staggering lack of competence.”

  For two decades, the lab had withheld or distorted evidence to favor prosecutions. In three cases where serious mistakes had been made, the defendants had already been executed.

  “This report is troubling,” said Roy Cooper, the state’s attorney general. “It describes a practice that should have been unacceptable then and is not acceptable now.”

  FBI agents found that lab analysts were ordered to not report key lab results, a practice that became a written policy. The News & Observer reported that lab practices were “out of step with the larger scientific community.” Top lab leaders lost their jobs, unable to explain how the lab acted without rules and with “misguided notions about the science behind blood analysis,” the newspaper reported.

  “Why didn’t they just say ‘we lied,’” said a state appellate defense attorney. “That’s what they did. Sadly, I’m not surprised.”

  A focus of the probe was the serology department, home of the damning evidence against Tim Hennis. While the Hennis case was not one of those reviewed, the chief serologist in the original investigation of the case, Brenda Bissette Dew, lost her job after it was discovered a defendant had been convicted after she inadvertently swapped the blood samples of a victim and suspect.

  FBI agent Chris Swecker found that lab polices didn’t follow rules of serology and were not fair.

  “There was anecdotal evidence that some Analysts were not objective in their mindset,” the agent wrote in the report.

  How much the full brunt of that assault on the SBI’s lab would have helped the Hennis defense will never be known. Based on the representation that it involved only one unrelated case, Colonel Parrish ordered the trial to move forward.

  The defense also wanted to make an issue of the chain of custody of the case evidence, saying it had been opened, closed, and repackaged multiple times while it sat in a box for sixteen years. The Cumberland County Sheriff’s D
epartment had some high-profile difficulties with protecting case evidence during this time, the most notable coming when an officer in custody of evidence from 1993–94 was convicted of stealing guns from the evidence locker. The defense argued that evidence with such a murky history of preservation should not be allowed into trial.

  Colonel Parrish ruled against them on this one as well. All the physical evidence would be allowed without the government having to establish a chain of custody. This evidence would include the most damning piece—the vaginal swabs that led to the DNA match to Hennis.

  But with the advances in DNA testing, wouldn’t it be possible to detect genetic transfers on other items of evidence? The defense sure thought so. There were fingernail clippings from the victims. A bloody towel used in the cleanup. Unknown head hairs under Katie Eastburn’s sheets and on Kara Eastburn’s body. An unknown pubic hair at the scene of the rape. The defense put together a list of thirty items it wanted DNA-tested, and asked for $20,000 in funding to do so.

  Colonel Parrish shut this down well before the trial began. Leading up to the court-martial, the government tested not only the vaginal swab, but also a bloody towel and fingernail clippings. These tests results didn’t help the case, and the government lost interest in further testing. The defense pleaded for further testing, but the judge reasoned that unless it could show the government’s DNA testing had been faulty or in error, he would not allow the defense access to the evidence.

  The confluence of these developments put the defense in a strategy quandary early in the trial. Though Poppe had indicated in his opening statement that the defense intended to attack the SBI lab and the overall collection of physical evidence, the court’s rulings took away much of its fuel. Would such an attack, much of it now barred by the court, lead to any benefit, or would it annoy the military panel?