Innocent Victims

by Whisnant, Scott;

  At the same time, other than the obvious DNA match, the physical evidence in the case, as it had for twenty-five years, either pointed directly away from Hennis or failed to implicate him. To criticize the evidence-gatherers and analysts may be to suggest that had they done their jobs more effectively, they would have found more evidence linking Hennis.

  The decision was made not to attack. The physical evidence was questioned and cross-examined without a full-bore attack on the credibility of those gathering or analyzing it. The tone was set for a low-key, measured defense intent on not making avoidable mistakes—an approach that was later regretted.

  The rest of the government case went as expected. Patrick Cone, now having basically cleaned up his act, again identified Hennis as the man he saw on the street at 3:00 a. m. Lucille Cook again said she remembered a man looking like Hennis using the bank card on Saturday morning and that her memory was not influenced by the detectives or by seeing Hennis in the newspaper multiple times. The neighbors recalled the barrel fire in Hennis’s backyard.

  The testimony was no stronger than it had been in the second trial. But, as Poppe would later recall, the DNA evidence would give it a context and credibility it never had before. With the DNA evidence in hand, everything else about Tim Hennis seemed believable.

  The prosecutors simply needed to enter the positive test into evidence and let it speak for itself. A second test of a slide prepared by the medical examiner, also from inside Katie’s body, was tested by the US Criminal Investigation Laboratory, known as USACIL. This “Y-STR” test, a relatively new type of DNA analysis that focuses on the Y-chromosome and therefore only applies to males, was only the second one USACIL had performed in a criminal trial. The result was a positive match to Tim Hennis, though the likelihood of it matching him was 1 in 426, a somewhat weaker identification compared to the SBI lab, and suggesting that, statistically speaking, as many as 9 of the 3,500 male soldiers in a typical brigade at Fort Bragg could have fit the profile. But the match was plenty powerful, especially given the overwhelming one the SBI lab had made.

  If Hennis’s sperm was inside Katie Eastburn, prosecutors reasoned, whether he could or couldn’t have been making bank withdrawals on a Saturday morning didn’t really matter. Nor did Patrick Cone’s sobriety or his motives for coming forward. Nor did the amount of other physical evidence in the home or the lack of it in Hennis’s car or home. The DNA evidence put Hennis in the home and in intimate contact with Katie Eastburn—directly contradicting his own story under oath. The rest of the trial basically filled in gaps for context.

  From the defense point of view, the DNA evidence had to be confronted, but how? There were essentially four options: claim it was in error, claim it was staged, claim it was the result of a consensual encounter between Tim Hennis and Katie Eastburn, or acknowledge their client raped and killed a mother and two little girls and prepare arguments to spare their client’s life.

  As for the first option, as subsequent events would show, if incompetence could skew the test result, then the SBI had the lab to do it. Even without the benefit of how deep the lab’s issues ran, the defense argued the lab’s testing methods were out of date—especially in light of today’s protocols. But ultimately, there really was nowhere to go. The SBI lab expert exuded credibility that stood apart from the lab’s overall reputation. She testified the material tested was in fact semen, though she did not perform her own test and simply relayed a finding from Brenda Bissette Dew’s testing back in 1985.

  That original testing found there was no cross-contamination from other known samples of Hennis’s blood, saliva, and hair that were stored in the same box. The testing process allows an examiner to first determine if the substance under analysis is semen, and this is what the SBI lab maintains took place. A contamination error would be rare in a competent lab, but certainly in play at a lab with this one’s history.

  With no ability to challenge the chain of custody of the evidence—and with the SBI lab’s multiple issues still unknown—the defense was never really able to challenge the identity of the semen’s owner. In fact, one test Colonel Parrish did allow the defense to run on its own was analysis of the vaginal swab in question. The defense has never released the result of that test.

  Disputing that the semen didn’t belong to Tim Hennis was never seriously put forward as a defense strategy.

  As for the possibility of staging evidence, the tactics state prosecutors engaged in during the first two trials would certainly suggest anything is possible and, again, later events would suggest the SBI lab of that era easily could have acted as willing co-conspirators. To be sure, prosecutors were correctly horrified by the crimes and honestly believed Tim Hennis committed them. They became close to Gary Eastburn immediately, just as they immediately took a dislike to Hennis.

  It bothers Hennis’s lawyers to this day that not only did Larry Trotter check out the vaginal semen exhibit from the evidence locker and then, as was revealed during a pretrial hearing, take seven days to get it to the SBI lab, but that Trotter never had to explain this discrepancy once Colonel Parrish relieved the government from having to establish chain of custody. With the most important evidence that could unlock a cold case that haunted Cumberland County prosecutors and law enforcement officers for sixteen years, had Trotter put the exhibit on top of a nightstand in his home until he could get around to getting it to Raleigh? What exactly went on during that week? Trotter, widely credited as the investigating hero who unlocked the case, was never called to the stand to testify in the court-martial.

  But beyond the question of capacity to stage evidence was the very difficult one of how to do it. Exactly how would investigators go about extracting, or stealing, sperm or seminal fluid to frame this defendant? The defense believes Bittle, with the help of local police in places where Hennis lived, extensively investigated him to search for bad acts he may have committed during his seventeen years of freedom. But jumping from an inference of intent to articulating how something like this could have been done was not an argument Hennis’s lawyers were prepared or able to make.

  The “consensual sex” option, of the four available, would be the most plausible. However, to advance this theory would say as much, if not more, about Katie Eastburn than it would Tim Hennis.

  Practically from the moment the bodies were discovered, Katie Eastburn as martyred victim was put on a very high pedestal. And with good reason. The evidence from the crime scene suggested that, as her husband would later say, her dying breath was spent trying to protect her children. If one community could understand and empathize with a mother trying to manage three young children while her husband was out of town for an extended period, it would be the Fayetteville-Fort Bragg area. It wasn’t just that she was alone with the children, but her husband was training to help defend our country, as was the story in so many homes in that military community.

  Even a cursory investigation of her life would find that she was a product of two loving and stable parents in a quintessential midwestern home, had been a kind and supporting sister, devoted wife, and doting and attentive mother to adorable children. She projected nothing controversial, provocative, or questionable.

  That she was the subject of all sorts of rumors—placing her in league with her babysitter, certain neighbors, the defendant, and many others associated with the case—shortly after the case began presented some amount of temptation, but ultimately a third rail of trial strategy for all three proceedings, a rail that really wasn’t all that tantalizing. Touch it and regret it.

  Unless you had the goods to go there. In the first two trials, the defense theory was that Hennis met her on the Tuesday night when he got the dog, then the two parted amicably and never saw each other again. Katie Eastburn’s reputation wasn’t really an issue. Someone else, the defense argued, had come to her home two nights later, and there was nothing that she could have done to provoke or deserve what she got.

  The third trial presented a different conun
drum. The only rational explanation for Hennis’s semen to be inside her, outside of rape and murder, would be consensual sex.

  Which presented the second major fork in the defense strategy. The defense could stand behind its constitutional right to maintain that the government must make its case, and if it couldn’t, the defense had no obligation to explain anything. But in the more practical world, the panel had to be given a rational explanation of how Hennis’s semen wound up inside a murdered woman.

  Investigators for the defense collated rumors and some inferences that were actually real, if taken a certain way. But ultimately, it wasn’t really debatable. In the sober light of analysis, there was no “there” there. The client wasn’t making a case that he had consensual sex with the victim. And everyone agreed that if Katie Eastburn’s reputation was impugned without real evidence to back it up, no jury or panel would ever forgive it.

  So the defense moved forward with its case. By now, the momentum in this tiebreaking trial had shifted to the home team. The passage of twenty-one years worked against Hennis. Witnesses died, forgot, or simply no longer wished to be part of the case.

  A neighbor in 1986 had given a statement placing a white car—which the state would argue belonged to Hennis—in front of her house at a time when Hennis could not have been there. But she wanted no part of testifying on his behalf. John Raupach, brought in under subpoena, showed up angry and bitter, claiming he had been used in the previous trial, and was certainly not willing to reprise his role as the neighborhood walker. Charlotte Kirby, the witness who said she saw someone else in the Eastburn yard early May 10 while delivering newspapers, was now dying of cancer. The defense wasn’t sure she’d live through the trial. She made for a sad and confused witness and died not long afterward.

  And Julie Czerniak, the Eastburn babysitter, remained as enigmatic as ever at age forty. Now in rehabilitation for drug addiction, she intrigued the defense team as perhaps knowing more than she let on. But in the end, she was uncooperative. She attended the trial under subpoena, but never testified.

  Still, the conflicting accounts of how Hennis spent his time that weekend, as well as the other physical evidence that pointed away from him, kept the defense in the game. Then, after all evidence had been presented, Spinner addressed the DNA match.

  During final arguments, he attempted to thread a needle he hoped the educated panel would appreciate. The crime scene, he argued, didn’t add up to a frustrated, raging Tim Hennis taking out his aggressions on this family. Of all the physical evidence that was recovered, the only piece that matched his client came from inside the victim’s body.

  With that, he posed what he considered a reasonable question, injecting the phrase “consensual sex” into the trial.

  “Does the evidence take you beyond adultery to murder?” Spinner asked. “You should follow that evidence wherever it leads you, no matter how uncomfortable it may make you.”

  Everyone sitting on the right side of the courtroom, behind the prosecutor’s table, was plenty uncomfortable. The Fayetteville Observer reported that Gary Eastburn “sat up straighter” and spectators “buzzed angrily” among themselves.

  Capt. Jody Young, an earnest, plainspoken member of the prosecution team, immediately jumped up.

  “Your Honor, I’m going to object to ‘consensual sex.’ There is no evidence of consensual sex.”

  The court overruled the objection—Colonel Parrish said “a blind man” could have seen this inference coming. The defense had established that semen could stay intact for a few days inside a woman’s body, opening up a door to argue consensual sex days before. But the objection was sustained in the hearts of just about anyone who attended or followed the trial.

  “The jury was lost as of that moment,” Poppe would say later.

  The guilty verdict came April 8, 2010, after three hours of deliberation over two days. A week later, twenty-five-year-old Kristina, pregnant with her second child, testified her father was her hero and that he read to her every night. The panel was shown photos of the defendant reading her James and the Giant Peach.

  No matter. After thirteen hours of deliberation over three days, the panel unanimously recommended the death penalty, rendering Timothy Baily Hennis as the first defendant in American history to return to death row after being acquitted on the same charges. He remains imprisoned at Fort Leavenworth, Kansas, to this day, presumably awaiting execution as one of six military death row prisoners, though none with that distinction have been executed since the military hanged a prisoner in 1961.

  “I think he deserves to die for what he did,” Gary Eastburn told reporters, adding that it’s “not very Christian-like, but there’s nothing he can say to me that would make me forgive him.”

  With the verdict behind him, Eastburn, now sixty-seven and retired from military and civilian air traffic careers, returned to a quiet life with Liz, his wife of more than a quarter-century. Eastburn has said he has no interest in seeing Hennis executed or for his family to suffer, but he would like for him to “rot away in jail.”

  Jana Eastburn, the surviving daughter, testified at the court-martial about what was taken from her, describing not remembering her mother and sisters. “I don’t have that deep-rooted sadness that everyone else has,” she testified. When visiting the graves, others cry but she said she feels nothing. “It makes me feel bad that I don’t remember.”

  At the time of the trial, she was studying to be a veterinarian, and at this writing she was continuing her education. At age thirty-three, she has outlived her mother.

  In interviews she gave after the court-martial, she discussed her survivor’s guilt.

  “Why didn’t he kill me?” she asked.

  As for Tim Hennis, the central question of the case remains one that Spinner posed after the verdicts:

  “How could a man who’s led such an exemplary life be the same man who committed these murders?” This question remains either unanswerable or irrelevant, depending on point of view.

  So is that where the story ends? A Fort Bragg solider, frustrated by sexual desire and overcome by rage, murders a woman and then covers up his crime by eliminating potential witnesses and cleaning the scene? And later enjoys seventeen years of undeserved freedom as the fruit of clever lawyering and circumstances that broke his way?

  For the vast majority of those who have studied or casually monitored this case, all roads lead to a positive DNA test, an evidence mountain that hasn’t been explained and is too daunting to climb. Few are inclined the try. The historic nature of the tiebreaking third trial drew the attention of ABC’s 20/20, the New Yorker, and CNN’s Death Row Stories, and, with the possible exception of the CNN production, left viewers and readers with little room to invest in Hennis’s innocence.

  As with every death row resident, Hennis has his appeals. Even some who are sure of his guilt question how a United States citizen can be put to trial on the same set of facts after being acquitted in a legitimate court of law. The double jeopardy argument in its most basic form is still alive and awaiting a decision at an appellate level. As Richardson told 20/20, one of the fundamental founding principles of this nation was to escape a government that could continue to try a defendant until it got the outcome it wanted.

  A more technical application of the jurisdictional question concerns a “break” in Hennis’s Army service after his first conviction in 1986. Under case law at that time, if a service member had a break in service and then reenlisted, the member could not be prosecuted under military law for crimes committed during the first term of service.

  Before the court-martial, Colonel Parrish agreed with the defense that Hennis’s arrest and conviction officially led to an “Expiration of Term of Service” before the second trial, ruling against the government’s argument that his awarding of back pay for time missed and reenlistment in 1989 in good standing constituted continuous service. A federal law change went into effect in 1992 to allow military prosecution during previous term
s of service, but Hennis’s lawyers argue this law should not apply to their client. To them, case law in place after his first conviction applies to his break in service and therefore ends the military’s jurisdiction.

  The defense continues to appeal Colonel Parrish’s ruling to not delay the case to allow the defense time to investigate improprieties of the SBI lab. And then there is the issue of testing other key items of evidence for DNA transfer.

  The technology that linked Tim Hennis’s DNA to sperm found inside Katie Eastburn’s body had improved in the four years before the 2010 trial and has substantially improved since. The defense argues testing could identify DNA on other key items and should have been made available at the court-martial. The origin of the pubic hair at the believed location of the rape, the head hair in Katie Eastburn’s bed, and the head hair in Kara Eastburn’s body bag escaped the SBI lab’s ability to find a match through pre-DNA-testing methods. Would that change with better DNA technology?

  What about the bloody towel left behind in the master bathroom, or fingernail clippings from Katie Eastburn and even the young girls? And, perhaps most of all, the pubic hair combings from Katie’s body. The medical examiner’s report in 1985 noted that an “abundant” amount of semen was found at the vaginal opening and matted in her pubic hair. Regardless of what anyone thinks of the possibility of consensual sex planting semen inside of her, surely the material outside her body either belongs to her killer or to someone who was with the killer.

  Among the few tests the judge allowed, USACIL, the government’s lab, found male DNA on the bloody towel and on Erin’s fingernails. USACIL’s lab expert testified male DNA within the blood on the towel did not belong to Hennis, but was not as definitive on what the tests showed about Erin’s fingernails. The “noise,” he said, regarding male DNA, didn’t point to Hennis, but that such findings were inconclusive. Hennis’s lawyers believe, after reviewing the expert’s notes, there is evidence within to conclude that this three-year-old child, so overcome that she didn’t have any defense wounds, did indeed pick up the DNA of a male under her fingernails, and it wasn’t their client.