Kelsey Braford (PO ‘22)
The Founding Fathers wrote into the fifth amendment protections against double jeopardy — i.e. being tried for the same crime twice. However, the infamous case of Tim Hennis, who faced three trials for one crime, is an interesting example of how dual sovereignty offers a loophole to this provision. While some might say the use of this loophole violates the spirit of the Constitution, others argue that it offers a second chance for perpetrators of heinous actions to be brought to justice.
The doctrine of dual sovereignty asserts that when a person commits a crime that breaks the laws of separate sovereignties, they have committed two separate offenses. Thus, two separate persecutions are permissible. The Supreme Court first expressed this principle through three landmark cases from 1847-1852. The first, Fox v. Ohio, asserted that a person owes an independent allegiance to both state and federal sovereigns, and can thus be punished by both entities. United States v. Marigold and Moore v. Illinois reaffirmed the principle that violating a statute of each sovereign allows for each to prosecute. However, the issue of successive prosecutions was not directly addressed until United States v. Lanza in 1922. The Court once again held that both state and federal government, as separate sovereignties, had the power to prosecute an individual for a single act that broke the laws of each sovereign.
In 1985, Katie Eastburn and two of her daughters, Kara (5), and Erin (3), were found brutally murdered in their home in Fayetteville. Their husband and father, Air Force Captain Gary Eastburn, was away in Alabama undergoing military training at the time. By a miracle, one-year-old Jana Eastburn had survived the attacks, presumably because the killer was unaware of her. However, she had been alone in the home for several days, and by the time police discovered her she was mere hours from death.
Just days before their deaths, Army Sergeant Tim Hennis had responded to a newspaper ad searching for a new home for the family’s dog, as the Eastburns were preparing to move overseas. Following their deaths, the police announced that they were looking for the person that purchased the dog, and Tim Hennis came forward.
A spitting image for the sketch of the suspect, Hennis was immediately a suspect. Multiple eyewitnesses came forward placing him at the scene and reporting other suspicious behavior. Hennis was reported to have been wearing a distinctive “Members Only” jacket outside of the Eastburn’s home the night of the murders, a jacket that he had dry cleaned the next day. Another witness placed him near an ATM where Katie’s stolen card had been used. He withdrew a total of $300, which happened to amount to his late rent bill that was paid almost immediately after the murders. He also burned a barrel fire in his backyard – something he had never done before – just days after the murders.
Significant circumstantial evidence and eyewitness accounts made Hennis a prime suspect in the case, however, none of the physical evidence collected matched Hennis. Unfortunately, the 1980’s forensic technology was not very advanced, so hairs, blood, and even semen collected from Katie’s rape-kit all came back inconclusive.
Hennis was tried for the triple murder and rape in 1986. During the trial, the prosecution showed gruesome photos of the murder to jurors in a slideshow that lasted over an hour. Hennis was convicted and sentenced to death. However, two years later Hennis’ appeal was brought before the North Carolina Supreme Court, where his attorneys argued that the gruesome and prolonged slideshow prejudiced the jury. The ruling was in his favor, and he was awarded a retrial. The Hennis ruling is still used by defense lawyers to argue for limitations on the unrestrained presentation of photographs.
At his second trial, his defense completely changed their strategy and focused on instilling reasonable doubt in all of the prosecution’s arguments. One of their most notable moves was calling a witness who looked strikingly similar to Hennis. This witness testified that he was a neighbor of the Eastburns, and around this time he would wander the streets restlessly late at night wearing a “Members Only” jacket. With significant cause for reasonable doubt, Hennis was acquitted in 1989 and following his trial became the “poster boy” for false convictions.
Nearly 20 years later the Cumberland County Sheriff’s Office, pursuing the cold case, had a semen sample from Katie’s rape-kit tested for DNA evidence. It was a match for Hennis.
However, due to fifth amendment double jeopardy protections, the state could not retry Hennis. Double jeopardy exists to protect citizens from being tried twice for the same crime under the same set of laws. In this case, Hennis was tried and eventually acquitted, so the state cannot retry him. However, people can be tried for the same crime under different sets of laws.
The Uniform Code of Military Justice (UCMJ) represents a different judicial realm. The UCMJ states that “a person subject to the UCMJ who has been tried in a civilian court may, but ordinarily will not, be tried.” State and federal courts represent distinct sovereigns, and under the dual sovereignty doctrine a person can be tried for the same crime in separate courts. The Justice Department usually exercises restraint in invoking dual sovereignty, but it is completely legal.
Despite being in retirement, Hennis was recalled to duty in 2006, and promptly court-martialed for the murders of Katie, Kara, and Erin. At his third trial, eyewitness testimony took a backseat to forensic evidence, and Hennis was convicted and sentenced to death.
While the invocation of dual sovereignty allowed for the proper application of justice in this case, critics argue that the doctrine infringes on double jeopardy protections and can be a loophole used by the government to have a second chance at convicting someone after they have been acquitted. Regardless, the Supreme Court has long held that this is legal, thus we rely on the discretion of the Justice Department to only invoke it when it is just and necessary.