## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before the Court Sitting En Banc 1

UNITED STATES, Appellee

v. Master Sergeant TIMOTHY B. HENNIS, United States Army, Appellant

ARMY 20100304

Headquarters, XVIII Airborne Corps and Fort Bragg
Patrick J. Parris h, Military Judge Colonel Thomas E. Ay res, Staff Judge Ad vocate (pretrial) Colonel Lorianne M. Camp anella, Acting Sta ff Judge Advocate (recommendation) Colonel Paul S. Wilson, Sta ff Judge Advocate (addendum)

For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Capt ain Ryan T. Yoder, JA (argued) 2 ; Lieutenant Colonel Jonathan F. Po tter, JA; Captain Michael J. Millios, JA (on brief); Lieutenant Colo nel Jonathan F. Potter, JA; Captain Ryan T. Yoder, JA (on brief in response to speci fied issues and on reply brief in response to specified issues); Lieutenant Colonel Jonathan F. Po tter, JA; Captain Ryan T. Yoder, JA (on reply brief).

For Appellee: Captain Jihan Walker, JA; Captain Carling M. Dunham, JA (argued); Major A.G. Courie III, JA; Major Janae M. Lepir, JA; Captain Carrie L. Ward, JA (on brief); Colonel Mark H. Sydenham, JA; Major A.G. Courie, III, JA; Captain Jihan Walker, JA (on br ief in response to specified issues).

6 October 2016

--------------------------------- OPINION OF THE COURT

--------------------------------- PENLAND, Judge:

1 Chief Judge RISCH, Senior Judge MULLIGAN, Senior Judge CAMPANELLA, Judge FEBBO, Judge CELTNIE KS, and Judge WOLFE are ta king no part in this
case as a result of th eir disqualifications.

2 The court heard oral argum ent on 5 May 2016. At th at time, Chief Judge WILSON and Senior Judge HAIGHT were members of this court; how ever, they took no part
in this case as a result of their disqualifications.HENNIS—ARMY 20100304

2 A general court-martial wi th enlisted repr esentation found ap pellant guilty, contrary to his pleas, of three specifications of prem editated murder, in violation of Article 118, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 918 (1956). The panel sent enced appellant to de ath, a dishonorable di scharge, forfeiture of all pay and allowances, a nd reduction to E-1. We revi ew this case under Article 66, UCMJ.

Appellant has assigne d forty-nine errors, some of which we discuss in detail,
none of which merit relief. We have also reviewed the matters personally raised by appellant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), and they are without merit. We specified and discuss three additional issues, none of
which merit relief.

BACKGROUND

The case stems from a triple homic ide in Fayetteville, North Carolina, occurring during the hours of darkness between 9 and 10 May 1985. The oldest victim, Mrs. KE, was marrie d to Air Force Captain GE, who was assigned to nearby Pope Air Force Base, but, at the time of the murders, wa s away on temporary duty at Maxwell Air Force Base, Alabama. Thei r five-year-old daugh ter, Miss KE, and three-year-old daughter, Miss EE, were also murdered. Their sole su rviving child, Miss JE, was left in her baby crib and discovered on 12 May 1985 by a law enforcement officer responding to a neighbor’s re port of hearing Miss JE’s cries
from within the house. Mrs. KE’s bo dy was partially naked and her wrists bore ligature marks; her underwear had been cut from her body and was disc overed along with her jeans on th e living room floor among other evidence of a struggle. All victims died from multiple stab wounds and cuts to their necks; Miss EE was nearly decapitated. The autopsy of Mrs. KE’s body revealed multiple intact spermatozoa in her vagina.

A jury convicted appellant and senten ced him to death fo r the murders in a
1986 North Carolina st ate trial. On appeal, the Su preme Court of North Carolina ordered a new trial, concluding the prosec ution had used exce ssively “gruesome” photos of the vic tims in obtaining the conviction. State v. Hennis , 323 N.C. 279, 372 S.E.2d 523 (1988). A jury acquitted appellant in his second state trial in 1989. Appellant resumed full active duty status, received servic e credit for his civilian confinement, and retired as a Master Se rgeant (MSG) from th e Regular Army in
2004.

Post-1989 advances in deoxyribonucleic acid (DNA) analysis enabled state and military law enforcement agencies to subsequently te st the recovered spermatozoa for the presence of DNA. Multiple te sts, results of which were ultimately admitted in to evidence at appellant’s court- martial, establ ished the near-HENNIS—ARMY 20100304

3 statistical certainty that appellant produ ced the sperm recovered from Mrs. KE’s body.

With this new discover y, the convening author ity sent a 29 June 2006
memorandum to the Assistant Secretar y of the Army (Man power and Reserve Affairs) (ASA (M&RA)), requ esting “approval to order [a ppellant] to active duty in
order to facilitate courts-m artial action.” In resp onse, the acting ASA (M&RA) issued a memorandum, with the subject “In voluntary Order to Ac tive Duty.” In pertinent part, it stated: “Under the provi sions of Article 2(a)(4 ), Uniform Code of Military Justice, 10 U.S.C. § 688, and Army Regula tion (AR) 27-10, [Legal Services: Military Justice] paragraph 5-2(b)(3), I here by order Mast er Sergeant (Ret.) Timothy B. Henni s to active duty.”

Implementing the ASA (M&RA)’s deci sion and order, the Army’s Human
Resources Command issued a 14 September 2006 order, no ting appellant’s retention on active duty and directing him to report to Headquarters, XVIII Airborne Corps, in October 2006. Appellan t complied and remained on ac tive duty with that unit through his court-martial.

ASSIGNMENTS OF ERROR 3 AND SPECIFIED ISSUES

I. WHETHER THE ARMY’ S PROSECUTION OF
MASTER SERGEANT HENNIS AT THE STATE OF NORTH CAROLINA’S REQU EST VIOLATES THE
PROHIBITION AGAINST DOUBLE JEOPARDY AND
THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT, WAS A SHAM ENGINEERED TO AVOID DOUBLE JEOPARDY, AND CONSTITUTED
A VIOLATION OF PO SSE COMITATUS.

Appellant asserts Army officials “eng ineered” his court-martial as a “sham,” prosecuting him on North Carolin a’s behalf and crea ting a subterfuge contrary to the Constitution’s Double Jeopardy Clause. Our review of this case yields nothing to support appellant’s argument, and we resolve the issue against him fo r the reason succinctly announced by our superior court in United States v. Schneider , 38 M.J. 387, 391-92 (C.M.A . 1993) (“The Double Jeopardy Clause does not bar one sovereign from proceeding on a charge of which an accus ed has been acquitted by another sovereign.”) (citing United States v. Wheeler , 435 U.S. 313 (1978); Bartkus
v. Illinois , 359 U.S. 121 (1959)).

3 For clarity we adopt the a ssignment of error numbers ap pellant used in his brief.HENNIS—ARMY 20100304

4 Appellant also argues his court-martial violated the Posse Comitatus Act (PCA), 18 U.S.C. § 1 385 (2000), which states:

Whoever, except in case s and under circumstances expressly authorized by the Constitution or Act of Congress, willfully us es any part of th e Army or the Air Force as a posse comitatus or otherwise to execute the
laws shall be fined under this title or im prisoned not more than two years, or both.

In United States v. Thompson , 33 M.J. 218, 220 (C.M.A . 1991), our superior court addressed the Department of Defens e’s (DoD) implementa tion of the PCA, which prohibited DoD law enfo rcement activities that were primarily motivated by a
desire to assist civilian law enfor cement agencies, while allowing DoD law
enforcement activities “related to enforcement of the Uniform Code of Military Justice . . . .” (quoting 32 C.F.R. § 213.10(a)(2) (1982) ). Appellant’s argument lacks merit because, despite his claims to the contrary, this case involves no governmental subver sion of the PCA, bu t rather a lawful ex ercise of authority pursuant to the UCMJ and federal law.

II – A. WHETHER THE COURT-MARTIAL LACKED
JURISDICTION TO TRY MASTER SERGEANT
HENNIS FOR THE CHARGED OFFENSES BECAUSE
HE WAS NOT LAWFULLY ORDERED TO ACTIVE DUTY, UNDER ARTICLE 2(A)(1), UCMJ, AND WHETHER, THEREF ORE, PERSONAL
JURISDICTION DID NOT ATTACH TO MASTER
SERGEANT HENNIS’ COURT-MARTIAL
RENDERING THE CO URT-MARTIAL VOID.

To more fully consider this assigned error, we specified and received briefs regarding a clos ely-related issue of pe rsonal jurisdic tion: whether the ASA (M&RA) possessed authority to order appellant to active duty under 10 U. S.C. § 688, where the Secretary of the Army di d not personally issue said order. We took this approach considering the well- established principle that the lawfulness of an order depends on, inter alia , issuance by competent authority. United States v. Kisala , 64 M.J. 50, 52 (C.A .A.F. 2006).

This issue is the first of multiple jurisdictional disputes in this case, with enduring principles regarding the bu rden of proof and st andard of review
that transcend each. “When challenged, the Go vernment must prove jurisdiction by a prepond erance of evidence.” United States v. Morita , 74 M.J. 116, 121 (C.A.A .F. 2015) (citing United States v. Oliver , 57 M.J. 170, 172 (C.A.A.F. 2002)). “Whe n an accused contests pe rsonal jurisdiction onHENNIS—ARMY 20100304

5 appeal, we review that qu estion of law de novo, acce pting the military judge’s findings of historical fact s unless they are clearly erroneous or unsupported in
the record.” United States v. Melanson , 53 M.J. 1, 2 (C.A.A.F. 2000) (citing
United States v. Owens , 51 M.J. 204, 209 (C.A.A.F. 1999)).

Before trial, appellant moved to dismis s for lack of jurisd iction, arguing he
retired from the Arm y, entered a reserve component status, and was not lawfully called to active duty th erefrom (App. Ex. VIII). On 28 April 2008, the military judge denied appellant’s motion (App. Ex. LXIX ) and found:

1. In June 2006 the Genera l Court-Martia l Convening authority submitted a request through the Criminal Law Division, Office of the Judge Advocate General, to the
Office of the Assistant Secr etary of the Army (Manpower and Reserve Affairs) IAW [in accordance with (IAW)] AR 27-10, Chapter 5, for the purpose of obtaining the approval to order the accuse d to active du ty from his retirement status to face a potential court-martial. See [Appellate Exhibit] AE IX and its enclosures.

2. Shortly thereafter, the Acting [ASA (M&RA)] approved that request and or dered the accused to active duty. AE IX, encl. 2.

3. The Government has shown that it properly ordered the accused to active duty for th e purpose of prosecuting him under the provisions of the [UCMJ].

4. Under the authority of Artic le 2, UCMJ, the accused, a retiree, is subject to the UCMJ and may be prosecuted for
offenses committed while on ac tive duty or in a retired

status.

5. Accordingly, the motion to dismiss for loss of jurisdiction or, in the altern ative, to dismiss because the
Government failed to follow Army regulations in recalling
the accused is DENIED.

Article 2(a)(1), UCMJ, wh ich was in effect in May 1985, states “[t]he following persons are subject to this chapter: . . . other persons lawfully called or ordered into, or to duty in or for training in, the armed forces . . . .” While the UCMJ does not specify who may issue such an order, 10 U.S. C. § 688, assigns
retiree recall aut hority to the serv ice secretaries:HENNIS—ARMY 20100304

6 (a) Authority. Under regu lations prescribed by the Secretary of Defense, a memb er described in subsection (b) may be ordered to active duty by th e Secretary of the military department concerned at any time.

(b) Covered members. Except as provid ed in subsection (d), subsection (a) applies to the following members of the
armed forces:

(1) A retired member of the Regular Army, Regular Navy, Regular Air Force, or Regular Mari ne Corps.

(2) A member of the Retired Reserve who was retired
under section 1293 , 3911, 3914, 6323, 8911, or 8914 of
this title.

(3) A member of the Fleet Reserve or Fleet Marine Corps

Reserve.

(c) Duties of member orde red to active duty. The Secretary concerned may, to th e extent consistent with other provisions of law, assign a member ordered to active duty under this section to su ch duties as the Secretary considers necessary in the interests of national defense.

Not surprisingly, 10 U.S. C. § 3013, which vests in the Secretary of the Army a broad landscape of authoritie s and responsibili ties, specifically authorizes the Secretary to delegate auth orities to subordinat e Army officials:

The Secretary of the Army may assign such of his functions, powers, an d duties as he co nsiders appropriate to the Under Secretary of the Army and to the Assistant Secretaries of the Army. Office rs of the Army shall, as directed by the Secretary, re port on any matter to the Secretary, the Under Secretary, or any Assistant Secretary.

10 U.S.C. § 3013(f) (2000).

Subsection (g)(3) of the statute further authorizes the Secretary to “prescribe regulations to carry out his functions, powers, and duties . . . .”

With this framework of legal auth orities, we address whether the ASA (M&RA) was empowered to order ap pellant’s recall. Pursuant to United States v.
Paul , 73 M.J. 274, 278 (C .A.A.F. 2014) and United States v. Ayers , 54 M.J. 85, 90HENNIS—ARMY 20100304

7 (C.A.A.F. 2000), we take judi cial notice of De partment of the Army General Order (DAGO) 2002-03, Assignment of Func tions and Responsibilities Within Headquarters, Department of the Army, dated 9 July 2002 (rescinded by DAGO 2012-1, dated 11 June 2012). Signed by the Secretary of the Army and citing 10 U.S.C. § 3013 as authority, DAGO 2002-03 describes and assigns, inter alia

, functions to the ASA (M&RA):

The [ASA (M&RA)] has the pr incipal responsibility for setting the strategic directi on and providin g the overall supervision for manpower, pe rsonnel, and Reserve affairs across all the Army component s (Active, Guar d, Reserve, civilian and contractor). Among the responsib ilities of the ASA (M&RA) are: . . . [o ]verseeing th e personnel security, corrections , discipline, Office of the Special Counsel investigations; law enforcement; and military justice matters in coordination with the Army General Counsel. (Emphasis added).

In identifying the potential impact of this order, appellant asse rts it does not grant the ASA (M&RA) the required authority to reca ll appellant: “[DAGO 2002- 03] did not delegate authority specifically over retirees. A retir ee is not ‘Active,’ a member of the ‘Guard’ or ‘Reserve,’ and is not consider ed a ‘civilian’ or ‘contractor.’” We disagree with appellant’ s narrow reading of the order. First, the order establishes the ASA (M&RA)’s responsibilities “across all the Army components,” and we are unaware of any authority for appellant’s taci t corollary that his retirement removed him comp letely therefrom. (Emphasis added). We conclude the opposite, no ting his retirement order placed appellant in a control group administered by the reserve component. Se cond and finally, with his mandate to the ASA (M&RA) to overse e military justice matters, we co nclude the Secretary enabled
that assistant official to take all action s otherwise reserved to the Secretary under
the UCMJ.

We also note the ASA (M&R A)’s citation to AR 27-10, para. 5-2(b)(3). This regulation was issued in 2005 “By Order of th e Secretary of the Army,” over the signature block of the Chief of Staff of the Army, and si gned as “Official” by the
Administrative Assistant to th e Secretary of the Army. Pa ragraph 5-2(b)(3) states in pertinent part:

If necessary to facilitate co urts-martial ac tion, retired soldiers may be ordered to active duty. Requests for active duty will be forwarded by electronic message through the Criminal Law Di vision, ATTN: DAJA-CL, Office of The Judge Advo cate General, HQDA to theHENNIS—ARMY 20100304

8 Office of the Assistant Secr etary of the Army (Manpower and Reserve Affairs) for approval.

Appellant argues the passage’s use of the word “approva l” means something less than the ASA (M&RA)’s authority to actually order ap pellant to active duty. Instead, appellant argues the regulation gives the assistant secretary the authority to
make a recall re commendation to the Se cretary of the Army. As with DAGO 2002- 03, we do not share this narr ow view of the regulation. Cons idering the two documents together, we find the Secretary of the Army authorized the ASA (M&RA)
to call retirees to active du ty, therefore rendering him a co mpetent authority to recall appellant under 10 U.S.C. § 688 and Article 2(a)(1), UCMJ.

Beyond his argument rega rding the limits of DAGO 2002-03 and AR 27-10, appellant asserts his recall from retirement under 10 U.S.C. § 68 8 was defective as not “necessary in the inte rests of national defense. ” Congress empowered the Secretary of Defense to impl ement the statute, and appellant draws our attention to a contrast between previous DoD implementa tion guidance, whic h enumerated UCMJ proceedings as a permissible recall purpos e, and its implementa tion guidance in effect at the time of appellant’s re call, which is si lent on the topic. 4

Appellant argues this co ntrast evinces the judgme nt of the Secretary of Defense that UCMJ proceedings fall short in justifying a co nclusion that such proceedings are “necessary in the interest s of national defens e.” We disagree and instead find nothing in th e DoD guidance whic h prevented the AS A (M&RA), acting as the designee of the Secret ary of the Army, fro m recalling appellan t to active duty in order to face court-martial charges. We find no arbitrariness or capriciousness as motivation for the ASA (M&RA)’s order as 10 U.S.C. § 688 provided an amply lawful purpose for ap pellant’s recall.

Based on the foregoing, we conclude the government proved personal jurisdiction under Article 2(a)(1), UCMJ , by a preponderanc e of the evidence.

4 See Dep’t of Def. Dir. [hereinafter DOD Dir.] 1352.1, Management and Mobilization of Regular an d Reserve Military Members (16 Jul. 2005) and DOD Dir. 1352.1 (2 Mar. 1990).HENNIS—ARMY 20100304

9 II – B. WHETHER THE COURT-MARTIAL LACKED
JURISDICTION TO TRY MASTER SERGEANT
HENNIS FOR THE CHARGED OFFENSES BECAUSE
OF HIS BREAK IN MILITARY SERVICE.

On appeal, appellant again argues a br eak in service occu rred between his 12 June 1989 discharge and 13 June 1989 re enlistment, depriving the court-martial of subject matter jurisdic tion. The military judge denied appellant ’s similar motion to dismiss without specifically concluding whet her a break in servi ce occurred, but he wrote, “[a]ssuming arguendo there was a break in serv ice based on the discharge
certificate issued on 12 Ju ne 1989, Article 3(a), UCMJ, addresses the issue of revived jurisdiction as it applies to offenses commit ted prior to 1992 .” Reviewing the four statutory requirements, which we ultimately address be low, the military judge ruled “if there was a br eak in service based on th e discharge issued to the
accused on 12 June 1989, jurisdiction is revived under Ar ticle 3(a), UCMJ.”

Appellant initially enlist ed in the Regular Army on 29 January 1981, agreeing to a four-year active duty commitment. On 1 February 198 4, he extended his Regular Army enlistment obligation for one year in order to at tend warrant officer training and flight school; 28 January 1986 be came the new date for his expiration of term of service (ETS).

On 16 May 1985, appellant was arrested by civilian au thorities for murder and rape, and remained in custody until 15 December 1985, when he wa s released on bail. In July 1986, appellant was convicted of murder and rape and sentenced to
death in North Carolina stat e court. On 6 October 1988, the Supreme Court of North
Carolina set aside his conviction and author ized a new trial. Hennis , 323 N.C. at 287, 372 S.E.2d at 528. His retrial ended in acqu ittal on 19 April 1989.

Appellant’s civilian pretrial confinem ent and post-trial incarceration tolled
the fulfillment of his enlistment obligati on; and, after his acqu ittal he returned to duty at Fort Knox on 21 April 1989, where he was pr eviously assi gned to the
installation’s Personnel Contro l Facility (PCF) after his firs t civilian trial. On 22 May 1989, acting under AR 630-10 (Upd ate 13, dated 16 Ma rch 1988), Absence Without Leave and Desertion, paragraph 1-8, appellant’s commanding general approved the PCF commander’ s recommendation to “reclassi fy . . . as unavoidable” his absences from 16 May to 15 December 1985 (initial arrest un til release on bail) and from 4 July 1986 to 19 April 1989 (post-trial in carceration until release onHENNIS—ARMY 20100304

10 acquittal). 5 Under paragraph 1-8c, “[a] period of unauthor ized absence that is
excused as unavoidable will be creditable for all purposes.”

On 1 June 1989, appellant requested to reenlist for four more years using Department of the Army (DA) Form 3340-R, Request for Regular Army
Reenlistment or Exte nsion. Block 2c of this docu ment contained 17 June 1989 as
the date of his then-current ETS, appare ntly adjusted in response to his civilian
confinement. Block 2d refl ects two enlistment extensions . The first, effective 1 February 1984 for twelve additional months, correspo nds with an extension document signed by appellan t on that date. The se cond extension, effective 6 January 1986 for seven additi onal months, has no corresponding exte nsion request in
the record of trial and wa s apparently made in resp onse to the seven months appellant spent in civilian pr etrial confinement.

On 12 June 1989, the Army honorably di scharged appellant . On 13 June 1989, using Department of Defense Form 4, Enlisted/Reenli stment Document,
Armed Forces of the United States (which bore the ty pewritten words, “Immediate Reenlistment,” in the top margin), appell ant reenlisted for four more years. Appellant remained on active duty in the Regular Army unt il his retirement on 31 July 2004. 6

Before we can reasonably apply the la w to this issue, we must accurately determine the necessary facts; and, to some ex tent, one of them is not self-evident. This court “is required to co nduct a de novo review of th e entire record of trial.” United States v. Washington , 57 M.J. 394, 399 (C.A.A .F. 2002). Just before appellant reenlisted on 13 June 1989, what was his ET S date in light of the commanding general’s 22 May 1989 decision? One could perhaps conclude it was

5 Paragraph 1-8b states, in pe rtinent part: “[B]efore an unauthorized ab sence may be excused as unavoidable, the responsible commander must decide if the following occurred: (1) The absence was not caused by the member ’s own misconduct. (2) The member acted as prudentl y and responsibly as could be expected to avoid the absence. (3) Represen tatives of the Army also acted as prudently and responsibly as could be expected to avoid the absence.”

6 Appellant later re quested the Army Bo ard for Correction of Military Records (ABCMR) correct certain as pects of his service reco rd, and on 7 A ugust 1991, the ABCMR decided to direct the following corr ections: showing hi s promotion to Staff Sergeant was effective 1 December 1988 wi th a date of rank of 4 November 1988; and, restoring an “appropr iate amount of l eave as determined by DFAS and by allowing a 3 year period in which to use the restored leave.” The ABCMR promulgated its deci sion on 19 August 1991.HENNIS—ARMY 20100304

11 17 June 1989, as the DA 3340-R showed, particularly where there is no evidence of appellant’s disputing it when he requested to re enlist. Alternativ ely, the documented ETS date was simply incorr ect, in light of the plain and, in our judgment, selfexecuting “creditable for all purposes” lan guage in AR 630-10, pa ragraph 1-8b. We conclude the latter, for the first view would effectivel y enable a soldier and his chain of command to incorrectly establish a term of service inconsistent with controlling Army policy. Fo r these reasons, we find th at, immediately before the reenlistment in question, appellant’s corr ect ETS date was—at the latest, applying
both enlistment extens ions—27 August 1986.

These facts lead us to examine the im pact of our superior court’s decisions and legislative changes to the UCMJ as they relate to two issues: whether appellant’s military status was terminat ed before his June 1989 reenlistment, resulting in a break in service; and, if terminated, wh ether the Army lo st authority to subject him to court-martial.

Considering appellant’s ETS was 27 Au gust 1986, our resolution of the first issue is partly informed by United States ex rel. Hirshberg v. Cooke , 336 U.S. 210 (1949), which held a servicemember’s honora ble discharge, followed the next day by reenlistment, divested the Un ited States of court-martia l jurisdiction for crimes committed during the previous enlistment period. However, we recognize our superior court’s decision in United States v. Clardy , which distinguished Hirshberg and examined jurisdictional issues wher e a service member was prosecuted for offenses “committed shortly be fore [he] had been discharg ed from a prior enlistment for the purpose of immediate reenlistment and [that] were not in the category of offenses as to which military jurisdiction was preserved by Arti cle 3(a), UCMJ.” 13 M.J. 308, 309, 31 1 (C.M.A. 1982).

Focusing on whether Clardy had shed hi s military status, the majority quoted Colonel William Winthrop’s, Military Law and Precedents (2d ed. 1920 reprint):

[I]t is the opinion of the author that, in separating in any legal form from the service an officer or soldier or consenting to his separation therefrom, and remanding him
to the civil status at whic h the military jurisdiction properly terminates , the United States . . . must be deemed
in law to waive the right to prosecute him before a courtmartial for an offence previously committed but not brought to trial. In this view, a subsequent re-appointment or re-enlistment into the army would not revive the jurisdiction for past offenc es, but the same would be properly considered as finally lapsed.

Clardy , 13 M.J. at 309 (Emphasis in original.).HENNIS—ARMY 20100304

12 The majority further reasoned:

Colonel Winthrop’s remark . . . would be consistent with a view that, where a servic emember is discharged prior to the expiration of his enlistment for the specific purpose of immediate reenlistment, he is never remanded ‘to the civil status,’ so he can be tried for offenses co mmitted in the
earlier enlistment.

Id . at 310 (Emphasis added.).

In an explanatory foot note, the court wrote:

This type of discharge is now often referred to as a “shortterm discharge” -- i.e. , a discharge given to a
servicemember even before he completes his obligated term of service, which is granted for the mutual
convenience of the servicemem ber and the Government in order to allow him to reenlist immediately and thus remain on active duty.

Id . at n4.

Affirming this court’s deci sion to set aside th e findings of guilt y of the crimes that the soldier had committed in his previous enlistment, Clardy prospectively established the short-term discharge exception to a jurisdictional bar based on a
break in service. However, this ex ception was narrow:

[W]e do not question that under Hirshberg military jurisdiction is terminated by a discharge at the end of an enlistment or period of obli gated term of service even though the servicemember immediately reenters the
service. This brea k in “status,” irresp ective of the length of time between discharge an d reenlistment, is sufficient to terminate jurisdiction.

Id . at 316 (footnote omitted) (Emphasis in original).

Following his acquittal and release from incarceration, appellant served continuously on active duty on active duty until 12 June 1989. We further find as fact that, the next day, appellant continued to maintain significant indicia of military
status and reenlisted. Until 22 May 1989, appellant’s post -acquittal mil itary service was pursuant to his contract ual enlistment, the fulfillment of which had been tolled during his civilian co nfinement. Howeve r, once his confinem ent-related absenceHENNIS—ARMY 20100304

13 was excused on 22 May 1989, appellant’ s ETS date reverted to 27 Augus t 1986 (at the latest). Th erefore, from 22 May until 12 June 1989, appell ant served on active duty beyond the “period of obligated service” required by his enlistment. We further find appellant’s discharge appeared to be, as a matter of fact , solely for the purposes of immedi ate reenlistment; however, as a matter of law under Clardy , we cannot characterize appellant’s discharg e as “short-term,” where it occurred after his
contractual service obli gation expired. We therefore find appellant’s military status terminated—albeit briefly—immediately before his reenlistment. 7

Our resolution of this first question, however, is not dispositive, for we must consider whether subject matter jurisdicti on was nonetheless preserved under the version of Article 3(a), UCMJ, applicable to the case. In response to Hirshberg

, 8 Congress passed legisl ation codified at 10 U. S.C. § 803(a) (1950): 9

Subject to section 843 of this title (article 43) [statute of limitations], no person char ged with having committed,
while in a status in which he was subject to this chapter, an offense against this chap ter, punishable by confinement for five years or more and fo r which the person cannot be
tried in the courts of the Un ited States or of a State, a Territory, or the District of Columbia, may be relieved from amenability to trial by court-mart ial by reason of the
termination of that status.

Appellant argues Article 3(a), UCMJ, does not confer jurisdiction, because he “could have been tried in a U.S. state, territo ry, or the District of Columbia. In fact,
he was tried twice by North Caro lina.” Accordi ng to appellant, the “more logical and appropriate definiti on of ‘cannot be tr ied’ is ‘could not have been tried.’” Appellant writes, “the CAAF in Willenbring also reiterated that Congress’ intent

7 Considering this find ing, it is unnecessary to consider the effect of any statutory time limit, under 10 U.S.C. § 651 (1976), on appellant’s initial enlist ment term.

8 In United States v. Gallagher , 7 U.S.C.M.A. 506, 509, 22 C.M.R. 296, 299 (C.M.A. 1957), our superior court wrote, “[w]e have not the slightest d oubt but what Congress passed this statute for the prin cipal purpose of cove ring the situation brought about by th e decision in [ Hirshberg ].” In support of th is observation, the court provided detailed ex cerpts from the associat ed legislative history.

9 Congress amended the stat ute in 1992, rem oving the five-year confinement and “cannot be tried” in civilian courts provis ions. Pub. L. 102–48 4, div. A, title X, § 1067, Oct. 23, 1992.HENNIS—ARMY 20100304

14 behind Article 3(a) was meant to only confer ‘jurisdictio n to serious o ffenses that
could not otherwise be tried.’” (internal quote from Willenbring v. Neurauter , 48 M.J. 152, 161 (C.A.A.F . 1998)) (Emphasis ad ded by appellant).

Essentially, appellant argues we shou ld replace Article 3( a)’s present tense “cannot” with the past tense “could not.” However, these words are not fungible. Describing “cannot” as “[ t]he negative form of can ,” the American Heritage Dictionary of the English Language (Third Edition, 1992) define s the present tense verb “can” as, inter alia , “possession of a specified powe r, right, or privilege.” The same dictionary descri bes “could” as the “[p] ast tense of can . . . [u]sed to indicate ability, possibility, or permission in the past.” 10

When analyzing the jurisdictional disp utes in this case, we recognize “[a] court-martial organized under the laws of th e United States is a court of special and limited jurisdiction.” Runkle v. United States , 122 U.S. 543, 55 5 (1887). Had Congress intended for Article 3(a), UCMJ, to be ap plied with a view toward a state or federal court’s past ability to try a case , we are confident it would have used the “could not have been tried” phrase–or an equivalent variant–for which appellant advocates. Instead, the stat ute is worded in a manner wh ich requires us to evaluate
whether such courts “cannot.”

We return to the Willenbring decision in resolvi ng this ques tion against appellant. In that case, the accused was charged with rapes occurring on a federal enclave in the United States. However, at the time of his court- martial, prosecution
in federal district court was barred by the followin g statute of limitations:

Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the in dictment is found or the information is instituted within five year s next after such offense shall
have been committed.

10 In Willenbring , at the time of preferral, one might have said, “The government
could have tried the accused in a federal district court within the statute of
limitations under 18 U.S.C. § 3282, but be cause that time ha s expired, now it cannot.” Similarly, at the time of appe llant’s court-martial—and today, for that matter—one might have said of the prospect s of a North Carolina trial, “The state could have, and did, prosecute appellant prev iously; the state cann ot do so today,
because of the constituti onal protection against do uble jeopardy .” These hypothetical statements illu strate the fundamentally di fferent meanings of “could
not” and “cannot.”HENNIS—ARMY 20100304

15 Willenbring , 48 M.J. at 176 (quo ting 18 U.S.C. § 3282 (1994)) (Emphasis in original).

Focusing on the effect of a statute of limita tions, our superior court wrote, “a
statute of limi tations does not establish a defense to the merits of a charge; rather, it is a limitation on the power of a prosecutor to bring charges and on the power of a court to try a case.” Id. (citing Waters v. United States , 328 F.2d 739, 743 (10th Cir. 1964)). After discussi ng the practically, if not le galistically, jurisdictional effect of a statute of limitations, th e court noted the ab sence of the word “jurisdiction” from th e law now in question:

[E]ven though Congress sp ecifically used the word “jurisdiction” at se veral points in th e drafting of other aspects of Articles 2 and 3, it did not use that word in the
Article 3 criteria li miting court-martial jurisdiction over prior-service offenses, wh ich it could have done by restricting military trials to cases outside the “jurisdiction” of civilian co urts. Instead, the statute
referred to cases that “cannot” be tried.

Willenbring , 48 M.J. at 177.

This observation squarely addresses appellant’s argument that Article 3(a), UCMJ, only allows court-mar tial jurisdiction wh ere a state or fede ral court lacks its own jurisdiction to adjudicate the case. The statute is not so lim ited. Of course the bar to Willenbring’s civilian prosecution was different from th e one here, but any
distinction between the two works to appellant’s detriment, because his constitutional double jeopardy protection agai nst further state prosecution is at least as powerful as, and perhaps mo re powerful than, another’ s benefit under a statutory limitations period. 11

For these reasons, we find by a preponderance of the evidence that despite any break in service created by appellant’s discharg e and reenlistment , the version of

11 On remand, the trial judge determined no break in Willenbring’s service occurred. On appeal of his subseque nt conviction and se ntence, our court found jurisdiction was based on his continuous military serv ice, further determ ining “we need not consider whether the criteria of the appli cable version of Arti cle 3(a), UCMJ, have
been met.” United States v. Willenbring , 56 M.J. 671, 676 (Army Ct. Crim. App. 2001) (citing Willenbring , 48 M.J. at 175). Our superior court summarily affirmed. United States v. Willenbring , 57 M.J. 321 (C .A.A.F. 2002), cert. denied

, 537 U.S. 1112 (2003)

.HENNIS—ARMY 20100304

16 Article 3(a), UCMJ, in effect at the time of his court-ma rtial provides jurisdiction
over the offenses of which he was found guilty.

II – C. THE GOVERNMENT FAILED TO PROVE
SUBJECT MATTER JURISDICTION OVER THE
OFFENSES BECAUSE THE ALLEGED OFFENSES
WERE NOT SERVICE CONNECTED.

The Supreme Court overturned the se rvice-connection requ irement for courtmartial jurisdiction in Solorio v. United States , 483 U.S. 435 (1987). Citing Justice
Stevens’s concurri ng opin ion in Loving v. United States , 517 U.S. 748, 774 (1996), appellant asserts Solorio was limited to non-ca pital cases: “ Solorio’s review of the
historical materials would seem to undermin e any contention that a military tribunal’s power to try capital offenses must be as broad as it s power to try noncapital ones.”

Appellant also cites United States v. Gray , 51 M.J. 1, 11 (C.A.A.F. 1999), a capital case in which our superior court recognized Justice Stevens’s concurrence
but declined to deci de the question of Solorio’s reach. Instead, our superior court determined it was unnecessary to do so because, assuming arguendo Solorio left intact the service-connection jurisdictional requirement in capital courts -martial, the
facts in Gray satisfied it.

Justice Stevens’s sepa rate concur rence in Loving does not cont rol the result here. We perceive nothing in the Solorio majority opinion whic h limits its holding to non-capital cases. Considering the holding th erein—that court-martial jurisdiction depends on whether the accused “was a me mber of the Armed Services at the time of the offense charged,” Solorio , 483 U.S. at 451—w e can identify no principle of law to support appellant’s tacit argument that it must specifically identify classes of cases to which it extends.

The following passage from the Loving majority further informs our opinion on the topic:

In 1950, Congress confronted the problem of what criminal jurisdic tion would be appr opriate for Armed Forces of colossal size, stat ioned on bases that in many
instances were small societie s unto themselves. Congress, confident in the procedural pr otections of th e UCMJ, gave to courts-martial jurisdiction of the crime of murder. Cf

. Solorio, supra , at 450-451 (Congr ess may extend courtmartial jurisdiction to any criminal offense committed by a service member during his peri od of service). It further
declared the law that service members who commitHENNIS—ARMY 20100304

17 premeditated and felony murder may be sentenced to death by a court-martial. There is nothing in the constitutional
scheme or our traditions to prohibit Congress from delegating the prudent and pr oper implementation of the capital murder statute to the President acting as
Commander in Chief.

Loving , 517 U.S. at 768-69.

While recognizing the pa ssage is dicta, we not e the Supreme Court in Loving
cited Solorio but did not take the opportunity to qualif y a service member’s jurisdictional eligibility for capital punishm ent with any service-connection requirement. Therefore, we hold, in accordance with Solorio and Loving , an accused’s military status at the time of the offense under the UCMJ is the sole criterion for establishing subj ect matter juri sdiction in a court-martial, capital or
otherwise.

III. THE EGREGIOUS DELAY FROM MASTER SERGEANT HENNIS’ ACQUITTAL IN STATE
COURT IN 1989 TO THE ARMY’S PREFERRAL OF
CHARGES IN 2006 VIOLATED MSG HENNIS’ DUE
PROCESS RIGHTS.

Denying appellant’s similarl y grounded motion before trial, the military judge found, inter alia , the following facts:

There is no evidence that the Government, intentionally or otherwise, used th e time from the acqu ittal in state court in 1989 to the preferral of th ese offenses on 10 November 2006 to gain some sort of tact ical advantage. Evidence of the Army’s good faith in this process is that the accused’s command held in abeyance the execution of his
administrative discha rge for a civilian conviction in 1986 pending appellate review. That appellate review ended in
a reversal and the accused’s su bsequent acquittal in state court. The Army acted reason ably in accepting the results of the civilian ju stice system in 1989 and allowing the
accused to continue with his military career. There is no evidence the Army became involved in investigating this case after the acquit tal in 1989 until afte r the local civilian authorities provided it with the new DNA evidence test results in 2006 during its cold case review. The military authorities at Fort Bragg proceeded in a timely manner after receiving th at new evidence.HENNIS—ARMY 20100304

18 To obtain relief for pre-preferral delay under the Fi fth Amendment Due Process Clause, which grants protections be yond an applicable st atute of limitations, an accused must show the “p rosecutor intentionally delayed the indictment [here, preferral] to gain a tactical advantage and that the [accused] incurred actual prejudice.” United States v. Reed , 41 M.J. 449, 452 n.1 (C.A.A.F. 1995) (quoting United States v. Byrd , 31 F.3d 1329, 1339 (5th Cir. 1994)).

Citing United States v. Lovasco , 431 U.S. 783 (1977) and United States v.

Marion , 404 U.S. 307 (1971), th e military judge concluded appellant had not met his burden to establish a due pr ocess violation and denied the motion to dismiss. Appellant does not argue the military judge abused his discretion, wh ich is the
correct standard for our re view of this issue. Reed , 41 M.J. at 4 53 (Sullivan, C.J., dissenting) (citing United States v. Fuzer , 18 F.3d 517, 519 (7th Cir. 1994)). See
also United States v. Sherlock , 962 F.2d 1349, 1354 (9th Cir. 1992), cert. denied sub nom. Charley v. United States , 506 U.S. 958 (1992). The military judge’s findings of fact were not clearly er roneous, and his application of the applicable law was correct. We hold the military judge did not abuse his disc retion in denying appellant’s motion to dismiss.

IV. THE MILITARY JUDGE’ S DENIAL OF EXPERT
ASSISTANCE IN TESTING EVIDENCE POSSESSED
BY THE GOVERNMENT DE NIED MSG HENNIS HIS
RIGHT TO PRESENT A DEFENSE.

On 27 April 2009, appellant filed a Motion to Compel Appointment of Experts and/or Equal Access to Evidence or for Appropriate Relief. Despite its title, the motion itself provided few examples of eviden ce to which appellant sought access by two requested experts, Dr. EB and Mr. PB. Appellan t did specifically mention in Appellate Exhibit 154 his desire to gain access to anonymous “M r. X” letters, in which the writer sugges ted another person committed the crimes:

These letters were analyzed by government experts using DNA and non-DNA analysis. Th e results do not connect
MSG Hennis as the author. Ye t, the government is denying access by the de fense experts to these potentially exculpatory letters.

Despite the motion’s vagueness, multip le enclosures thereto provided a clearer picture of what a ppellant wanted to analyze. 12 For example, in his 25 March

12 Defense-requested ite ms, listed by Cumberland County Sheriff’s Office evidence
voucher numbers:

(continued . . .)HENNIS—ARMY 20100304

19 (. . . continued) 22 - Plastic bag of fibers from [Miss KE ’s] left hand 24 - Plastic bag of na il clippings from [Miss KE’s] left hand 25 - Plastic bag of na il clippings from [Miss KE’s] right hand 26 - Plastic bag of fibers from [Miss KE’s] mouth 28 - Plastic bag of na il clippings from [Mi ss EE’s] left hand 29 - Plastic bag of na il clippings from [Mi ss EE’s] right hand 30 - Plastic bag from [Miss EE] cont aining hair from body and clothing 33 - Brown bag containing pub ic hair from [Mrs. KE] 36 - Cardboard container containing vaginal smears of [Mrs. KE] by
medical examiner’s office
37 - Cardboard container containing anal and or al smear from [Mrs. KE] by medical exam iner’s office 38 - Yellow envelope containing vaginal swabs of [Mrs. KE] 39 - Small box of oral swabs from [Mrs. KE] 40 - Clear plastic bag co ntaining left hand fingernail and fibers from [Mrs. KE] 41 - Clear plastic bag cont aining right hand fingernail and fibers from [Mrs. KE] 42 - Clear plastic bag cont aining hair and fibers from back of [Mrs. KE] 60 - Yellow envelope containing ha ir from foot of bed in master
bedroom 62 - Yellow envelope containing hair from blue cover in master
bedroom 63 - Yellow envelope containing hair from chest of [Mrs. KE] 64 - Yellow envelope containing ha ir from outside door of master
bedroom 66 - Yellow envelope containing hair from leg of [Mrs. KE] 67 - Yellow envelope containing ha ir on carpet besi de [Miss EE’s] body 68 - Yellow envelope containing hairs from between [Miss EE’s] legs
on carpet 69 - Yellow envelope containing hairs from [Miss EE’s] groin 71 - Yellow envelope containing hair from pillow from first bedroom 72 - Yellow envelope containing hair from bed near [Miss KE] in first
bedroom 82 - Brown paper bag contai ning four envelopes of drain pipe parts and a glass jar of sink contents 83 - Brown paper bag contai ning five envelopes of drain parts and hair with one glass jar of water from drain

(continued . . .)HENNIS—ARMY 20100304

20 2009 letter requesting appoin tment and funding of Dr. EB , a DNA expert, civilian
defense counsel wrote:

A complete list of items to be fore nsically analyzed, whether by DNA analysis or ot her analysis, is attached.
Some of the items have been analyzed by the government
and some have not. Part of the purpose of analyzing items that have not previously been examined is investigatory, i.e., to determine wh ether other su spects or third parties were present at the crime scene and potentially involved in
the crimes . . . . This list is not exhaustive as [the requested expert] has indicated that further consultation may disclose that additional items should be examined.

Civilian defense counsel at tached and similarl y referred to this list of items in a 6 April 2009 letter re questing appointment and fundin g of Mr. PB, a criminalistics expert, “mean[ing] fiber, hair, fing erprint and document analysis.”

(. . . continued) 84 - Brown bag containing three envelopes of dr ain pipe parts, one connect pipe, and two glass jars with drain water 88 - Brown bag of three envelopes containing vacuum particles from living room carpet 89 - Brown paper bag of three envelopes contai ning vacuum particles from master bedroom carpet 100 - Yellow envelope containing hair from ma ster bedroom sink’s
countertop 101 - Yellow envelo pe containing whit e bath sponge wi th hair on same 102 - Yellow envelope containing bar of soap with hair on same
103 - Yellow envelo pe containing paper tissue fr om trash can in master
bedroom with hair on same
111 - Yellow envelo pe containing eight latent lift cards lifted at crime
scene 5/29/85
112 - Yellow envelo pe containing three latent lift cards lifted at crime
scene 5/22/85 114 - Brown paper bag co ntaining hair collected from [family] living
room and known head ha ir samples of Mr. JR , Ms. JC, and Mr. BW 115 - Clear plastic bag cont aining sixty- four latent lift s and eight photo copies of Mr. X letters [104] - Original Mr. X letters and envelopesHENNIS—ARMY 20100304

21 In an Article 39(a), UCMJ, session on 8 May 200 9, the military judge heard parties’ arguments on the moti on; no witnesses testified. In response to the military judge’s observation that the defense had a pparently not used the experts after the convening authority a ppointed them, civilian defense counsel e xplained, “we were basically waiting for th e government to complete their testing and to have all of the
evidence back at this location so that we could send it off to our experts at one
time.”

Seeking to clarify the proposed responsibilities of Dr. EB and Mr. PB, the military judge asked about th e scope of work for Dr. DK, another defense expert. Civilian defense counsel explained, “[Dr . DK’s] focus was on examining the lab work performed by the government experts. So we were not bringing him on board-- we did not request hi m for the purpose of analyzing any evidence .” Defense counsel then stated: “Dr. [EB] . . . is the one who is actually goi ng to do an analysis on the evidence. So they are not du plicating their efforts. They’re working in completely
different areas.”

The military judge and civilian defens e counsel had the fo llowing exchange:

MJ: But the government has already provided Dr. [DK]?

CDC: Right. An d there are no issues about Dr. [DK]. Now, with Dr. [DK], though, wh ere his role comes in is
that one of the reasons that we did not specifically identify
what items we wanted tested is because--or re-analyzed by Dr. [EB] is because we want ed Dr. [DK’s] input after looking at the lab re sults by [United States Army Criminal Investigation Laboratory] USAC IL or whatever labs--the [State Bureau of Investigation] SBI lab, whatever labs the government used--we wanted Dr. [DK’s] input in terms of
his recommendations of what items we should send off for analysis.

MJ: So you are only going to send off for analysis those items which Dr. [DK] su ggests that you do?

CDC: Dr. [DK] or one of ou r other experts. He was one person who provided input to us, and he did not complete
his work until Janu ary of this year.

MJ: So Dr. [DK] ha s examined all of th e evidence, and he completed his work in January?

CDC: Yes, Your Honor.HENNIS—ARMY 20100304

22 MJ: And he has made cert ain recommendations as to
items which he believes shou ld be retested or tested--
either tested anew or te sted which wasn’t tested originally?

CDC: Yes, Your Honor. We also--we have been provided a number of--we’ve been prov ided an investigator, Mr. [TVO]. We’ve also been provided another crime scene expert. We have basically asked our--those experts who have already been provided to us for their input as well, based on their expert ise and experience. So you see, as an attachment to our request for Dr. [EB] and for Mr. [PB], a
list of exhibits that we want to send off for testing. Those exhibits were created based on the inputs of our other
confidential consultants.

[. . .]

MJ: As I understand it, the de fense theory is that someone else raped and murdered these individuals?

CDC: Exactly, Your Honor.

MJ: And it’s not a ca se of there was any consensual sex at all; there was never any se x and so some one else had raped [Mrs. KE] and killed her and her two children?

CDC: Yes, Your Honor . . .

In an 11 May 2009 ruling which granted the motion in part and denied it in part, the military judge found:

As set forth in the enclosures to the appellate exhibits, the government originally granted the defense request for the appointment of Dr. [EB] as a forensic serology/DNA analyst and Mr. [PB] as a forensic criminalist. The government rescinded those appointments after the government believed the defe nse was not utilizing their expert services. The gover nment later re -appointed Dr. [EB] as an expert consultant; however, the government limited Dr. [EB’s] access on ly to certain evidence.HENNIS—ARMY 20100304

23 The defense has shown, and the government initially conceded, that the requested expert assistance is

necessary.

The defense requests the cour t order the government to provide access to the evidence set out in enclosure 1 to AE
154. The defense has had acce ss to inspect the requested
evidence located in the law enforcement evidence locker. The defense is essentially requ esting the cour t to order the
evidence be sent to the defe nse experts for inspection and testing at the defens e expert’s lab. The evidence consists of essentially three groups.

[1] Evidence which was tested and inculpates the
accused. The defense has sh own how further testing of that evidence is necessary for the preparation of its

case.

[2] Evidence which was tested and exculpates the
accused because it does no t link the accused to the
crime scene. Those test re sults allow th e defense to argue to the court members the exculpatory nature of
that evidence. The de fense has not shown how additional testing by defense experts of that established exculpatory evidence will materially add to the preparation of the defense case.

[3] Evidence which was not analyzed by government experts. The failure by the government to test some items seized from the crim e scene necessarily allows the defense to argue that absence of evidence exculpates the accused. The defense has not shown how testing of that type of evidence will materially add to the preparation of the defense case.

The defense motion is granted in part an d denied in part:

[1] The government will arrange for the expert
consultant services of Dr. [EB] and Mr. [PB]. Those experts will be a part of th e defense team with the same confidentiality as any other member of the defense

team.HENNIS—ARMY 20100304

24 [2] The government will arrang e for the delivery of the [vaginal smears from Mrs. KE, vaginal swabs from Mrs. KE, left hand fingernail and fibers from Mrs. KE, right hand fingernail and fibers from Mrs. KE, 64 latent lifts and 8 photo copies of Mr. X letters, original Mr. X letters and envelopes] to the defense expert’s lab . . .

[3] The motion to provide all of the other evidence
listed in enclosure 1 to AE 154 to th e defense expert’s
lab is denied. If the defense is able to show how further inspection and possible testing of the evidence described in [subparagraphs 2 and 3] above is material to the preparation of its ca se, the court is willing to reconsider its ruling.

On 10 July 2009, th e defense filed a motion to co ntinue the cour t-martial until 11 January 2010, “in order to allow the defense suffi cient time to conduct DNA analysis of evidence now in the possession of the g overnment and engage in trial preparation.” Th e defense also wrote that the ev idence regarding which the military judge granted testing in hi s 11 May 2009 ruling had been provided to Dr. EB and Mr. PB for analysis. The defense stated its “inten[t] to revisit and justify additional testing and analysis.” However, Dr. EB ’s work was pending completion, and the
defense continued:

Without his consultation a nd analysis, th e defense is unable to proceed at this time on three motions: due process, former je opardy and third party exculpatory evidence, not to mention an anticipated motion for
additional labora tory analysis.

On 28 July 2009, th e military judge ordered the court-martial co ntinued until February 2010. On 3 Se ptember 2009, civilian defe nse counsel filed a motion requesting additional expert funding fo r Dr. EB, writing, inter alia : he had been unable to complete the testi ng and consultation services previously or dered by the military judge; and, the convening authority denied additional funding to facilitate
consultation. Civilian defense counsel also wrote that Dr. EB ha d not been able to forensically examine the Mr . X letters before exhausti ng the previous ly ordered funding.

The military judge held an Article 39(a), UCMJ, se ssion on 9 September 2009 to address, inter alia , the defense’s reques t for additional fundi ng. Defense counsel explained he was working with Dr. [EB] to not only examine the evidentiary items
which he had receive d, but also to develo p one of multiple “affi davits from severalHENNIS—ARMY 20100304

25 experts supporting . . . additional testing. ” Referring to a future Article 39(a), UCMJ, session scheduled fo r 29 September 2009, defe nse counsel continued:

Those 10 [additional] hours are for consultation with Dr. [EB] to fully understand what he ’s done so fa r, prepare an affidavit to submit to the court that says--from an expert that says, “Hey, here are some things that were not tested but in my experien ce should be test ed, and here’s how they will help the case. Here’s how they are material to the preparation of th e case,” which is what the court at
least alluded to in its orde r and its statement regarding potential reconsider ation. That’s wh at the defense is trying to do was to give the co urt, as promptly as possible,
that material so that it could rule.

On 10 Septembe r 2009, the military judge ordered, inter alia , additional funding for Dr. EB’s DNA expe rt consultation. As fore shadowed by the previous day’s motion session, the defense filed another mo tion, dated 25 September 2009, seeking the military j udge “to order the government to fund additional DNA analysis and to order that the government provide the defense equal access to evidence . . . .” The defense additionally wrote:

Upon further consultation with Dr. [EB] and Mr. [LR], the defense crime scene analyst and reconstruc tionist, the defense hereby renews the mo tion for equa l access to evidence and funding in the amount of $20,000 for

examination of evidence a nd additional DNA testing.

The motion included subs equent declarations sign ed by Mr. LR and Dr. EB and requested the military judge to allow ex parte defense submis sions, “if the proffered declarations are found to be inad equate . . . .”

Mr. LR’s declaration contained, inter alia

, 13 the following:

13 The declaration included “a th ree level priority list of evidence . . . and type of significant findings to be exam ined . . . .” The list cont ained 147 line items, ranging from the vaginal swab obta ined from the autopsy of [Mrs. KE’s] body to four toboggans and duffle bag fibe rs obtained from appellan t’s residence. At the subsequent Article 39(a) sess ion, civilian defense coun sel informed the military judge that the defense sought access to examine and test this broader list.HENNIS—ARMY 20100304

26 A Crime Scene Analyst, wh en employed as a defense consultant, often does more than analyze items of evidence or even simply analyze items that have been subjected to analysis by govern ment experts. The analyst
consults with defense counsel as part of the investigative team, with the goal of locati ng, identifying, and sampling
items of evidence to determin e whether bloodstains, hair, fibers, fingerprints, shoepr ints, handwriti ng, or other physical evidence exists that can be used to identify
individuals involved in the cr ime or present at the crime scene and patterns of activity at the crime scene or at
other locations relevant to th e commission of the crime.... Thus, these services are more comprehensive than simply performing a labora tory analysis.

Based on my experience, it is not unusual for government analysts to mishandle or miss sources of rele vant evidence
seized at a crime sc ene or other locations. This evidence can be exculpatory. I also realize that the defense often
has access to information not known by the government. That is why confidential ity is important. Using
information from de fense counsel or ot her members of the defense team, I often examine or sample items of evidence that are not analyzed by government experts, because they may be relevant to a defense th eory that is not held by the government. Additionally, in the course of consulting with the defense team, it has not been unco mmon that in the course of perf orming my services, other items of evidence than those originally identified become important

. . . . 14

Dr. EB’s declaration contained, inter alia , the following:

14 Mr. LR would testify later at trial as a defense witne ss and, while the contents of his testimony were unknown to th e military judge when he ruled on the mo tion, it is not irrelevant to our appellate review. Ca lled by the defense a nd recognized as an expert in forensic crime sc ene analysis, Mr. LR said he focused on the blood, fiber, hair and fingerprint anal yses—not DNA. He furthe r testified that the law enforcement agencies “processing this report edly did a good job. I haven’t seen all the paperwork that would have been involved .” He responded, “N o,” in response to a question from the panel whether his review of the case yielded “anything out of the ordinary based on the standards that were applicable in 1985?”HENNIS—ARMY 20100304

27 At this point, I ha ve independently anal yzed certain items of evidence already analyzed by government experts. My confidential report of this wo rk is dated Ju ly 22, 2009. I have not yet analyzed what has been characterized as the
“Mr. X” letters and envelopes. I also understand that the convening authority disapproved a defense request for me to examine and analyze other items of evidence deemed
relevant to defense counsel. This affi davit justifies my
access to other items of evidence deemed relevant for examination and po tential DNA analys is by defense
counsel.

[. . .]

It is my understanding th at the government does not challenge my credentials or expe rtise, they simply seek to deny the defense access to ce rtain items of evidence for the purpose of my examination and analysis. Therefore, my comments below address the reasons for requiring access to the disputed items of evidence.

A forensic serologist, when employed as a defense or prosecution consultant in a criminal case, often does more than analyze items of evidence that have been subjected to analysis by governmen t experts. The se rologist consults with defense counsel, with the goal of locating, identifying and sampling items of evidence to determine whether biological material ex ists that can be used to identify individuals involved in the crim e or present at the
crime scene or at other lo cations relevant to the
commission of the crime. Expert serologists may also prepare reports to aid defense counsel in identifying who was present at the crime scen e, the association of one
individual with another at th e crime scene or to develop a more comprehensive und erstanding of the series of events
at the crime scene. Thus , these services are more comprehensive than simply performing a laboratory analysis . . . .

Based on my experience, it is not unusual for government analysts to miss sources of relevant biological matter
seized at a crime sc ene or other locations. This evidence can aid in identifying who was at the crime scene. I also realize that the defense may have access to informationHENNIS—ARMY 20100304

28 not known by the government . Using information from defense counsel, I often examine or sample items of evidence that are not analyz ed by government experts, because they may be releva nt to a defense theory. Additionally, in the course of consulting with the defense counsel, other items of evidence than those originally
identified become relevant . . .

In this case, it is my under standing that MSG Hennis was previously tried twice for the same offenses for which he is currently charged. Furthermore, over the years multiple experts have investig ated this case and analyzed evidence from the crime scene. According to defense counsel, no one has been able to prove whether there were two or more perpetrators in this case. Importantly, defense
counsel believe no forensic ev idence has established that MSG Hennis was ever physical ly present in any of the
rooms where the murders oc curred. Finally, defense counsel state that no physica l evidence from the crime
scene was ever located in or on property possessed by
MSG Hennis. Given this contex t and in light of their duty to provide effective assistance, it is critical that the defense attorneys receive broad latitude in their investigation of the extent [s ic] physical evid ence. This investigation includes the confidential investigation of biological evidence from the crime scene and perhaps
other locations that defense co unsel believe may reveal the identity of perpetrators not re vealed or cons idered by the government’s in vestigation.

In my judgment defense counse l should be given access to appropriate items of physica l evidence for examination and potential DNA testing. Th e evidence de fense counsel deems necessary to provide effective assistance to their client has apparently already been specified. Defense counsel is in the best positio n to identify such evidence because they are the ones with the most complete knowledge of the case history . . . .

On 1 October 2009, the mi litary judge heard argument in an Article 39(a), UCMJ, session, which began wi th civilian defense counsel indicating that the motion constituted a request to recons ider his 11 Ma y 2009 ruling, supra . Civilian defense
counsel also stated he was now seeking access to additi onal items, listed in an
attachment to Mr. LR’s d eclaration. After the milita ry judge confirmed withHENNIS—ARMY 20100304

29 government counsel that its DNA analysis of the vaginal sw abs was “[t]he only forensic evidence” linking appellant to the crime scene and that fingerprints, footprints, hair, fibe rs and blood excluded him, ci vilian defense counsel argued:

Your Honor, in that regard, obviously there are two ways-- there are a couple of different ways to defend a case. One is to hold the government to it s burden of proof and to say that--and argue just those poi nts that were made through the questioning with the trial counsel. Another way to defend a case is to prove th at someone else could have
committed the crime--for the de fense to put on affirmative
evidence to show that some one else was pr esent at the crime scene and, therefore, is the potential perpetrator.

[. . .]

[I]f you find the same DNA evidence in one room and the same DNA into [sic] another ro om and you find more of it and, if at some point, some of it can be shown to have originated from sperm and it’s not the accused’s sperm, then that is very strong exculp atory evidence at that point. But as it sits right now, without our experts being able-- either of our experts--bot h our DNA expert and our nonDNA expert being able to lo ok at that evidence, then you’ve essentially tied one hand behind our backs as defense counsel whereas the government has freedom to
test and examine all of the evidence.

The military judg e and civilian defe nse counsel later had the following exchange:

MJ: Let’s assume for the mo ment that they analyze the
hair and determ ine they can do the DNA testing. If the testing that’s been done already excl udes the accused as the contributor of that hair, how does further testing make that even more exculpatory?

CDC: Further exam ination, Your Hono r, may lead to DNA analysis, which may lead to a DNA profile, which through CODIS [Combined D NA Index System] and other databases, may point to some one else who committed the
crime . . . .

MJ: In order to build a potential DNA profile?HENNIS—ARMY 20100304

30 CDC: That’s correct, Your H onor. And, furthermore, if you test a hair and you can get a DNA r eading on it and then you test a towel and you get the sa me DNA reading on the towel, and now you have two items of evidence that connect another person to th e crime scene. And if the
towel is a towel that has the blood of the vi ctims on it, then that would be pretty significant evidence, Your Honor. So you may not have identified exactly who that person is, but now you have put togeth er some pretty strong and powerful ci rcumstantial evidence to show that it was not Sergeant Hennis . . . .

[. . .]

MJ: It might be helpful if I were to know the results of your expert’s analysis of the DNA swab and smear in order to put your argument in context.

CDC: Your Honor, I will say right now it’s totally
irrelevant to this is sue. First of all, we have been limited
in how we can connect that information with other
information from the crime scen e and in consultation with our experts. And so one aspect of this is that semen was found in these vaginal swabs in side [Mrs. KE’s] body, but you don’t know where you go wi th that information.

MJ: Well, if for instance, the experts who analyzed the DNA evidence came to oppos ite conclusions as to who contributed the DNA sample th at might put things in a
different context.

[. . .]

MJ: My concern is, Mr. Spinner, that the evidence is--or
lack of--either there is evid ence or there’s lack of evidence both of which are exculpatory for the accused; and you’ve said that you wish to examine and then perhaps
test the evidence to devel op a potential DNA profile of someone else who may have contributed--

CDC: Who may have committed the crime or then assisted in some way.HENNIS—ARMY 20100304

31 MJ: Yes. But you can’t cite me any case law that says you have a right to develop this potential DNA profile.

CDC: Yes, Your Honor. I have. I’ve cited [ United States
v. McAllister , 55 M.J. 270 (C.A.A.F. 2001)] and [ United
States v. Walker , 66 M.J. 721 (N.M. Ct. Crim. App. 2008)]. And those ca ses don’t say the defense does not have a right to test other items; but th ey do say DNA is powerful evidence, it’ s unique evidence , it provides us things that we can do today that other types of forensic testing cannot do . . . .

MJ: And McAllister was assistance to test the items that
were admitted in court?

CDC: Right, Your Honor. But there’s nothing in
McAllister inconsistent with what I’m arguing here today.

Arguing in oppositi on, government co unsel expressed its view that the
defense conceded Mrs. KE had been raped and murdere d. This argument prompted
civilian defense counsel to respond that whether she ha d been raped, an alleged aggravating factor, was a matte r “in contest.” Government counsel cont inued, later indicating that four other persons of in terest, Mr. WHH, Mr. PC, Mr. BWW, and Mr. JR, had provided buccal sw abs, DNA analysis of wh ich excluded them as
contributors of the semen on the vaginal smear. Ultimately, go vernment counsel concluded his argument by agre eing with the defense motio n only to the extent it would allow the defense expert to analyze the Mr. X letters.

In rebuttal, responding to government counsel’s argument that the defense
could not cite a case supporting its motion, civilian de fense counsel referred to the earlier state proceedings in which the trial cour t granting defense expert access to evidence obtained during the original inve stigation but not othe rwise tested. The defense did not argue for permission to submit matters ex parte, instead relying on
its brief. Aside from th e declarations described ab ove, the defense offered no
matters with its motion indicating the government’s fore nsic analysis in this case was faulty.

The military judge denied the defense motion on 13 October 2009, finding and concluding inter alia :

The defense request amounts to a request for the court to reconsider its [11 Ma y 2009 ruling] which, in part, denied expert assistance to analyze and test certai n items. This defense motion also expa nds upon the pr ior defenseHENNIS—ARMY 20100304

32 motion...and now includes all the items of evidence set out in [Mr. LR’s declaration]. . . .

The defense has access to all the evidence set out in [Mr. LR’s declaration]. What de fense is more specifically requesting is for th e court to order the government to fund a defense expert to analyze the evidence in [Mr. LR’s declaration] in an effort to develop a potential DNA profile of the person or person s who were the contributors of biological matter on the evidence in an effort to identify the actual perpetrato r(s). It is unclear how a specific person could be identified with out comparing the results to a known DNA sample. There is no proffer that
the test results would indica te when the evidence which the defense requests to be analyzed had been left in the house rented by the [E] family . The accused has the right
to necessary expert assistance. He does not have the right to unrestricted expert assistance. See United States v. Gray , 51 M.J. 1 (C.A.A.F. 1999) and United States v.

Garries , 22 M.J. 288 (C.M.A. 1986).

Under Rule for Cour t Martial 701(a)(2)(A) the government shall permit the defense to inspect inter alia tangible objects “which are within the possession, custody, or control of military authorities, and which are material to the preparation of the defense or are intended for use by
the trial counsel as evidence in the prosecution case-inchief at trial, or were obta ined from or belong to the
accused.”

The defense has had the opp ortunity to examine and conduct independent DNA te sting on the physical, linchpin, evidence the government intends to offer at trial.
See United States v. Walker , 66 M.J. 721 (N.M. Ct. Crim. App. 2008), United States v. McAllister , 55 M.J. 270 (C.A.A.F. 2001), and United States v. McAllister , 64 M.J. 248 (C.A.A.F. 2007).

The government has previous ly tested some of the requested items. The result s of those tests conducted by the government experts exclude the accused as the contributor of any biological matter on that evidence. Those test results are, ther efore, exculpatory for the accused. While the government indicates that it does notHENNIS—ARMY 20100304

33 intend to use those ite ms in its case-in-chief, the defense may use those items and test results in it s case. The
defense has not shown how furt her testing of items which are already exculpatory for the accused is material to the preparation of the defense.

The other items requested by the defense to be analyzed by its own experts wh ich were not previously tested by government experts are necessarily exculpatory for the accused without any further testing because the trial counsel are precluded from ar guing those non-tested items
incriminate the accused in a nyway. The defense has not shown how testing of thos e items which are already exculpatory for the accused is material to the preparation
of the defense.

The defense cites no authority for the position that the accused is entitled to governm ent funded expert assistance to analyze items which ar e already established as exculpatory. The defense has not met its burden to show why it is necessary for the court to order the government to fund DNA analysis on the requested items. Accordingly, the defense motion is denied. (Internal paragraph markings omitted).

“We review a military judge’s decisions on requests for expe rt assistance for
abuse of discretion.” McAllister , 55 M.J. at 275 (citing United States v. Short , 50 M.J. 370, 373 (C .A.A.F. 1999), cert. denied , 528 U.S. 1105 (2000)). In McAllister

, DNA analysis of genetic mate rial taken from a victim’s fingernails became the government’s “linchpin” evidence, but the accused was denied the opportunity to subject it to renewed test ing by a competent defense expert. Relying on the principle that an accused “m ust demonstrate the necessity for” expert assistance, our superior court concluded the trial judg e abused his discretion by denying the requested testing. Id. at 275 (quoting United States v. Garries , 22 M.J. 288, 291 (C.M.A. 1986), cert. denied , 479 U.S. 985 (1986)).

We distinguish appe llant’s case from McAllister , for the military judge here granted the defense re quest to facilitate renewed testing on the only forensic evidence which linked appell ant to the murder scene. In other words, his decision

was McAllister -compliant. Appellant urged at trial and renews the argument on appeal that McAllister is not limited to an accused’s oppo rtunity to examine and test inculpatory evidence; instead, appellant insists McAllister reinforces the right to do
so with all evidence when it will aid the preparation of the defe nse. We agree in principle, but appellant’s ca se causes us to recall the fundamental showing he mustHENNIS—ARMY 20100304

34 make in requesting expert as sistance: “that a reasonable probability exists that (1) an expert would be of assistance to th e defense and (2) that denial of expert
assistance would result in a fundamentally unfair trial.” United States v. Lloyd , 69 M.J. 95, 99 (C.A.A .F. 2010) (quoting United States v. Freeman , 65 M.J. 451, 458 (C.A.A.F. 2008)). 15

Appellant’s case is more analogous to Lloyd , where defense counsel requested expert assistance in blood spatter analysis, in order to defend a service member charged in connection with a bar fight involv ing four other people. By fight’s end,
three of them had stab wou nds, and Lloyd, whos e shirt bore multiple blood stains, was charged as the culprit. After the conv ening authority denied the defense request for expert assistance, the defense renewe d the request with the military judge, writing, inter alia :

Depending on a number of f actors which the defense intends to pursue th rough an expert, bl ood may spatter a significant distance from a st ab wound. For this reason, presence of an alleged victim ’s blood on the clothing may be far less significant than intuition, or even theories the government intends to explore, suggests. To mount an effective defense, th e defense must understand the physics of bloodstain patterns to either rule out or present such a theory. This is crucial to testing the government’s theory of the case and for the presen tation of evid ence on behalf of SrA Lloyd.

Id . at 98.

Affirming the service appellate court’ s decision, our supe rior court observed, “[d]ue to the different factual circumstances, particular ly the fact that the evidence at issue implicated the ‘linchpi n’ of the government’s case, McAllister I lends little support for Lloyd’s position.” Id . at 100.

Considering the defense’s decision here not to proffer specific alternate theories in this case—contrast the defense approach in Lloyd , including specifically naming another person as the one potentia lly responsible for the stab wounds—we
conclude McAllister lends even less support. Ap pellant only offered the general

15 The first factor involves a more specific three-part analysis: (1) why the expert is needed; (2) what the expert would accomplish for the ac cused; and, (3) why defense counsel is unable to gather and present the ev idence that the expert would be able to develop. United States v. Gonzalez , 39 M.J. 459, 461 (C .M.A. 1994).HENNIS—ARMY 20100304

35 hypothesis that ad ditional forensic testing could potentially disclose a DNA profile, an investigative lead which could again potentially lead to iden tifying another person who was perhaps in the E family home at so me unknown point in time. We share the position which our superior court described under the unique factual
circumstances in Gray : “In our view, appellant has confused his right to necessary investigative assistance with an unrestricted right to search for any evidence which might be relevant in his case.” Gray , 51 M.J. at 31 (Emphasis in orginal.). We conclude the military judge was well within the bounds of reason able discretion in denying the defense request to examine and test items of evidence beyond those
described in his 11 May 2009 order.

V. THE MILITARY J UDGE ABUSED HIS
DISCRETION WHEN HE DENIED PRODUCTION OF
NECESSARY AND RELEVANT WITNESSES WHO
WERE CRITICAL TO A THIRD PARTY
CULPABILITY DEFENSE.

On 13 January 2010, the defense moved the trial co urt to compel production of Mr. WHH, Mr. GS, and Ms. MK. The motion proffered the following:

[Mr. WHH] - Will testify he lived on Hawfie ld Drive with [Mr. GS], near the [KE] resi dence. Stated in previous
interview that scratches on his face around the time of the
murders were as a result of a single black male trying to steal his bicycle, which diffe rs from what he told his girlfriend. Moved from Faye tteville shortly after the murders. Refused to give hair, fingerprint, and handwriting samples in 198 9. Written summaries of
witness interviews from Mr. [WHH] are attached as
Enclosure 9. 16

[Ms. MK] - Will testify to the following: She was a Winn-Dixie employee and she dated [M r. WHH] in 1985 and, around the time of the [E family] murders, [Mr. WHH] had scratches on his face. He told her that “two or three black guys jumped him a nd beat him up.” He later denied ever having the scratches. [Mr. WHH] had financial problems at the time of the mu rders and asked to

16 The enclosure is comprised of multiple summaries of conver sations between law enforcement investigators and Mr . WHH in the summer of 1989.HENNIS—ARMY 20100304

36 be transferred to Raleigh, NC shortly after th e murders. A written summary of a witness interview from Ms. [MK] is
attached as Enclosure 5. 17

[Mr. GS] - Roommate of [Mr. WHH] and owner of a lightcolored work va n that resembled one seen outside of the [E family] home on the ni ght of the murders.

On 20 January 2010, the mi litary judge held an Artic le 39(a), UCMJ, session to address, inter alia , this defense motion. Asked to explain the need for Ms. MK’s testimony, the defense indicated she would “emphasize the inconsistency over time that [Mr. WHH has] said different things.” The military judge and defense counsel had the following exchange:

MJ: I assume that your position is that Mr. [WHH] is a suspect?

IMC: It is.

MJ: And that’s why you want Ms. [MK] to testify about Mr. [WHH] because you th ink he’s a suspect?

IMC: Yes, Your Honor. And you asked me my reply regarding the DNA-exc lusion argument? I would note that the DNA is just one pi ece of forensic evid ence and that, in the defense’s view, it does not identify who the killer was
in this case.

MJ: OK. And how do you co me to the conclusion that Mr. [WHH] is a suspect?

IMC: It again, sir, is because of proximity--

MJ: What, what’s the prox imity? You say around the
time. I don’t know what that means.

17 The enclosure is comprise d of a single summary of a conversation between law enforcement investigators an d Ms. MK in the summer of 1989. The summary does not indicate, as suggested in the motion, that Mr. WHH denied having scratches; however, the defense did state at the motion hearing that the defense team had also spoken with her.HENNIS—ARMY 20100304

37 IMC: With--okay--I was go ing proximity in terms of
location.

MJ: Okay.

IMC: Okay. Let me give you both, Yo ur Honor.

MJ: But you said around the times Mr. [WHH] had
scratches on his fa ce. I don’t know what around the time
means. That could be weeks or it could be months. I
don’t know what that means.

IMC: Well, the statement from [Ms. MK] is that she recalls it happenin g around that time, and I don’t have days or weeks. But that’s what her recollection is, that she
recalls the time of the [E family] murder s and that at that
time or around that time that he had sc ratches. He had various explan ations and then later denied that the scratches ever took place.

MJ: Well, how does that ma ke him a suspect of three
murders?

IMC: Because the defense anti cipates there will be some conversation and testimony in the government’s case regarding the violen ce at the murder scene and that wounds to your face ce rtainly are relevant in contrast to Master Sergeant Hennis who th e next day is at a PT run and has no scratches, no signs of distress, no physical signs whatsoever.

MJ: So anybody in or around May 1985 who had scratches on his face would be a suspect?

IMC: Well, there’s more, Your Honor.

[. . .]

IMC: [I]t’s in the proffer re garding the van. It’s in the proffer of Mr. [GS] that he was the owne r of such a van. Mr. [GS] was [Mr. WHH’s] roommate.

[. . .]HENNIS—ARMY 20100304

38 MJ: How does that make Ms. [MK] a necess ary witness?

IMC: . . . Ms. [MK] is a witn ess as to the scratches she observed and what [Mr. WHH] told her regarding those
scratches and how th at story changed.

Regarding the defe nse request to compel prod uction of Mr. WHH, the following exchange occurred:

MJ: Okay. Mr. [WHH]? Anyt hing to add there, Defense?

IMC: Not beyond what we’ve already discussed, Your

Honor.

MJ: It’s your theory that he’s a suspect?

IMC: Yes, sir.

[. . .]

MJ: What about the governme nt’s proffer that the DNA evidence or the DNA sample from Mr. [WHH] excludes
him as the donor of the semen?

IMC: Your Honor, there is--again, the defense would argue that that is not the on ly bit of relevant forensic
evidence in this case. There is forensic ev idence at the
crime scene--at the crime scen e, but has never been linked
and indeed the accused has been excluded as a link.

MJ: Does it li nk to Mr. [WHH]?

IMC: Mr. [WHH] to my knowle dge has never been tested on fingerprints.

MJ: So it doesn’t link to Mr. [WHH]?

IMC: I don’t know, Your Honor.

MJ: And you say he moved from Fayetteville, shortly
after the murders. What does that mean?

IMC: I beg--HENNIS—ARMY 20100304

39 MJ: Last time you said shortly was mo nths. So I don’t
know what this means.

IMC: Let me double check, Your Honor. I believe its months again.

Regarding the defens e request to compel producti on of Mr. GS, the following exchange occurred:

MJ: Mr. [GS]?

IMC: We’ve addressed, Your Honor, the defense’ belief that Mr. [GS] is re levant because, as a neighbor of the [E family] and a roommate of Mr. [WHH], he owned a lightcolored van that matches the description that was seen close to outside the [E family] residence.

MJ: What do you expe ct him to say? You haven’t given a synopsis of what you expect hi m to say, just that you say
he’s a roommate.

IMC: . . . He will testify that he was a roommate of [Mr. WHH] and that he was the ow ner of a light-colored van.

MJ: And you expect--becaus e you think Mr. [GS] is a suspect?

IMC: I don’t know whether we believe him to be a
suspect.

MJ: Well, didn’t--what about the government’s DNA testing that excludes Mr. [WHH] as a do nor of the semen?

IMC: Well, again, Your Honor, we’re rehashing old ground but the DNA test, in the defense’s view, is not dispositive. In its attempt to put on a defense for Master Sergeant Hennis, it’s going to introduce relevant evidence and argue all reasonable inferences regarding that
evidence. Whethe r or not Mr. [GS’ s] DNA evidence
matches that--

MJ: Well, not Mr. [GS’s]--Mr. [WHH’s].

IMC: I apologize. Are we going back to Mr. [WHH], sir?HENNIS—ARMY 20100304

40 MJ: No, but you said that Mr. [GS] is not a suspect. You
said that he was a ro ommate of Mr. [WHH]?

IMC: Yes, sir.

MJ: And that he owned a light-colore d van that apparently resembled one se en outside the [E family]
residence. You have indicated that Mr . [WHH] perhaps is a suspect?

IMC: Yes, sir.

MJ: The government proffers that the DNA sample from Mr. [WHH] excludes him as a donor of the semen.

IMC: And as we discussed with the disc ussion of Mr. [WHH], there’s other forensic evidence to the defense’s knowledge -- including fingerpr ints, hair analysis--that has not excluded Mr. [WHH]. And again, Your Honor, the
relevance is that the de fense does not buy the government’s version that ev en if there is a DNA match with Master Sergeant Hennis, that is di spositive of who is
the murderer.

On 26 January 2010, the military judge denied the portions of the defense motion regarding Ms. MK, Mr. WHH, an d Mr. GS, and ruled as follows:

[Mrs. MK]: She will testify that she dated Mr. [WHH] in
1985 and he had scratches on hi s face around the time of the [KE] murders. While the defense theory is that Mr. [WHH] is a suspect in the [KE] murders, the defense proffered no evidence to suppor t that theory or that Mr. [WHH] in any way resembles th e person seen near the [E family] residence at the time of the murder s. The DNA sample provided by Mr. [WHH ] excludes hi m as the donor
of the semen found at the crime scene. The defense made no proffer that the DNA testing is inaccurate. The defense has failed to show that Ms. [MK] is a relevant and necessary witness. The motion to orde r the production of Ms. [MK] is denied.

[Mr. WHH]: His testimony is related to Ms. [MK’s] testimony. Mr. [WHH] had sc ratches on his face around the time of the [E family] murders. While the defenseHENNIS—ARMY 20100304

41 theory is that Mr. [WHH] is a suspect in the [E family] murders, the defense proffered no evidence to support that theory or that Mr. [WHH] in any way resembles the person seen near the [E family] re sidence at the time of the murders. The DNA sample provided by Mr. [WHH]
excludes him as the donor of the semen found at the crime
scene. The defense made no proffer that the DNA testing
is inaccurate. The defense has failed to show that Mr. [WHH] is a relevant and necessa ry witness. The motion to order the production of Mr. [WHH] is denied.

[Mr. GS]: Mr. [GS] was the roommate of Mr. [WHH]. He will testify that Mr. [WHH] owned a light- colored work
van similar to one seen outsid e the [E family] home on the night of the murders. While the defense theory is that Mr. [WHH] is a suspect in the [E family] murders, the defense proffered no evidence to suppor t that theory or that Mr. [WHH] in any way resembles th e person seen near the [E family] residence at the time of the murder s. The DNA sample provided by Mr. [WHH ] excludes hi m as the donor
of the semen found at the crime scene. The defense has made no proffer that the DNA te sting is inaccurate. Since
there is no evidence connec ting Mr. [WHH] to the crime scene, the relevance of the colo r of his van is not the least
bit clear. The moti on to order the produ ction of Mr. [GS]
is denied.

In United States v. McElhaney , our superior court su ccinctly re-stated the standards regarding produc tion of witnesses:

Article 46, UCMJ, 10 [U.S.C.] § 846, provides all parties to a court-martial with “equ al opportunity to obtain
witnesses and other evidence in accordance with such regulations as the Presiden t may prescribe.” Under [R.C.M.] 703(b)(1), Manual, supra , “each party is entitled to the production of any wi tness whose testimony on a matter in issue on the merits or on an interlocutory question would be releva nt and necessary.” See also [Military Rule of Evidence] 401. A military judge’s ruling on a request for a witness is revi ewed for abuse of
discretion. United States v. Rockwood , 52 [M.J.] 98, 104 ([C.A.A.F.] 1999). The deci sion on a request for a witness should only be reversed if, “on the whole,” denial
of the defense witn ess was improper. United States v.HENNIS—ARMY 20100304

42 Ruth , 46 [M.J.] 1, 3 ([C.A.A.F. ] 1997). We will not set aside a judicial denial of a witness request “unless [we have] a definite and firm convic tion that the [trial court] committed a clear error of judgment in the conclusion it reached upon a weig hing of the relevant factors.” United

States v. Houser , 36 [M.J.] 392, 397 ([C.M.A.] 1993), quoting Judge Magrud er in The New York Law Journal at 4, col. 2 (March 1, 1962).

Factors to be weighed to determine whether personal production of a witness is ne cessary include: the issues involved in the case and the importance of the requested
witness to those is sues; whether the wi tness is desired on the merits or the sentencing portion of the case; whether the witness’s testimony would be merely cumulative; and the availability of alternatives to the person al appearance of the witness, such as depositions, interrogatories, or previous testimony. United States v. Tangpuz , 5 [M.J.] 426, 429 ([C.M.A.] 1978); Ruth, supra at 4. Timeliness of the request may also be a co nsideration when determining whether production of a witn ess is necessary. R.C.M. 703(c)(2)(C); United States v. Reveles , 41 [M.J.] 388, 394 ([C.A.A.F.] 1995).

54 M.J. 120, 126-27 (C.A.A.F. 2000).

We understand a person accused of a crime may obta in production of relevant evidence tending to show th at another person may have committed the charged crime instead. The right to obtain and present such “third party culpability” evidence is an important component of an ac cused’s right to pr esent a defense. The military judge determined the proffe red testimony was not relevant a nd necessary. Relying heavily on the treatment of third part y culpability evidence in Holmes vs. South Carolina

, 547 U.S. 319, 327 (2 006), appellant now as serts the military ju dge’s determination was unsound. We disagree.

In Holmes , the defendant wa s convicted of, inter alia , murder and sentenced to death. At trial, the defendant was prohibited from offering evidence from multiple witnesses who would have testifie d about seeing anothe r named person in the victim’s neighborhood on the morning she was attacked. Th e defendant also sought to call four additional witnesses wh o would either: testify that the same third person admitted the defendant was actually innocent; or, testify that the same third person admitted he was the actual culpri t. Arrayed against the defendant, however, were several items of inculp atory forensic evidence, buttressed in multiple respects by DNA analysis.HENNIS—ARMY 20100304

43 Affirming the trial court’s decision to exclude the third party culpability evidence, South Carolina’s Supreme Court he ld “where there is strong evidence of an appellant’s guilt, es pecially where there is strong forensic evidence , the proffered evidence about a third party’s alleged guilt does not raise a reasonable inference as to the appellant’s own innocence.” Holmes , 547 U.S. at 324 (citing State v. Holmes

, 361 S.C. 333, 342-43, 605 S. E.2d 19, 23-24 (2004)).

Reversing in a unanimous opinion, the Supreme Cour t provided examples of unconstitutional evidentiary ru les, stricken because of their arbitrary nature and
effect. The court continued to describe the balanced approach which trial judges must use in ruling on ad missibility of third party culpability evidence:

A specific application of this principle is found in rules regulating the admission of ev idence proffered by criminal
defendants to show that some one else committed the crime with which they are charged. See, e.g., 41 C.J.S., Homicide § 216, pp 56-58 (1991) (“Evidence tending to show the commission by an other person of the crime charged may be introduced by accused when it is inconsistent with, and raises a reason able doubt of, his own guilt; but frequen tly matters offere d in evidence for this purpose are so remote a nd lack such c onnection with the crime that they are ex cluded”); 40A Am. Jur. 2d, Homicide § 286, pp 136-138 (1999) (“[T]he accused may introduce any legal evidence tending to prove that another person may have committed the crime with which the defendant is charged . . . . [Such evidence] may be
excluded where it does not su fficiently connect the other person to the crime, as, for example, where the evidence is speculative or remote, or do es not tend to prove or disprove a material fact in is sue at the defendant’s trial” (footnotes omitt ed)). Such rules are widely accepted, and neither petitioner nor his amici challenge them here.

Id . at 327.

Finding the state supreme court’s approach arbitrary, illogical and, therefore, unconstitutional, the court wrote:

The rule applied in this case is no more logical than its converse would be, i.e. , a rule barring the prosecution from introducing ev idence of a defenda nt’s guilt if the
defendant is able to proffer, at a pretri al hearing, evidence that, if believed, strongly suppor ts a verdict of not guilty. In the present case , for example, pe titioner proffered evidence that, if believed, squa rely proved that [a namedHENNIS—ARMY 20100304

44 third person], not petitioner, wa s the perpetrato r. It would make no sense, however, to hold that this proffer precluded the prosec ution from introduc ing its evidence, including the forensic evidence that, if cred ited, provided strong proof of petitioner’s guilt.

Id . at 330.

Appellant now describes the military judge as falling “i nto the same trap [as]
in Holmes , excluding the introduc tion of evidence simply because it did not necessarily square on all fours with a piece of the fore nsic evidence in the case.”
Our assessment is different . The military judge cons idered that DNA analysis
excluded Mr. WHH as the sour ce of sperm obtained from on e of the murder victims,
but this consideration was one of several. Had the military ju dge considered only this DNA result, he w ould have erred under Holmes . However, he went beyond the government’s evidence, pressi ng defense counse l for any information that could fairly be described as surpassing speculat ion and constituting pr obative evidence to support a theory that Mr. WHH, worthy of suspicion as a culpable third party in the defense’s estimation, 18 was responsible for the murders. Holmes is an important
reminder of what should be a self-evident principle—the admissibility of defense evidence cannot depend on th e admissibility of government evidence. However, it leaves intact an appellant’s burden to establish the relevance and necessity of a requested witness’s testimony. The military judge’s conclu sion that the defense did
not fulfill this burden wa s reasonable and not an abuse of discretion.

VI. THE MILITARY JUDGE ERRED IN DENYING
THE DEFENSE A NEW TRIAL PREDICATED ON
THE GOVERNMENT’S FAILURE TO DISCLOSE
THE NORTH CAROLINA “SWECKER/WOLF” REPORT, IMPEACHMENT EVIDENCE REQUESTED
PURSUANT TO A SPECIFIC DEFENSE DISCOVERY REQUEST THAT WOULD HAVE LIKELY CAST
DOUBT ON THE PROCEEDINGS.

The panel sentenced appe llant to death on 15 Apri l 2010. On 15 October 2010, the defense filed a “Motion for Appropriate Relief - Motion for a

18 Interestingly, the defense team suggested a named near by neighbor, not Mr. WHH, possessed motive and opp ortunity to commit the murd ers. According to another theory, a named person, who was involved in illegal drugs wi th one of th e E family’s babysitters, could ha ve exacted veng eance upon the E family in retaliation for a botched drug deal invo lving the babysitter. The defense attributed neither of these motives, or any, to Mr. WHH.HENNIS—ARMY 20100304

45 Mistrial/Motion for a New Trial and Request for Post-Trial 39(A ).” The basis for the motion was a report rele ased on 18 August 2010 by the North Ca rolina Attorney General, entitled “An Inde pendent Review of the SB I Forensic Laboratory” (“Swecker/Wolf report”). The motion c ited the report’s fi nding that Ms. BBD “misidentified or incompletely discussed blood evidence in twenty-four (24) cases.” It also states that “[t]his information wa s not provided to the Defense prior to, or during, trial in U.S. v. Hennis .”

The military judge held a post-trial Article 39( a), UCMJ, session on 21 January 2011 and hear d the parties’ arguments on the motion. He ruled on 27 January 2011, finding:

a. Ms. [BBD] worked in th e Forensic Biology Section of the State Bureau of Investigation (SBI) Crime Laboratory where she analyzed certain evid ence in the course of the investigation in this case. Ms. [BBD] was qualified at trial as a Government expert in forensic serology. Ms. [BBD’s] testimony included such matters as blood evidence, blood samples, vaginal swabs, luminol testing, and luminol photographs.

b. The North Carolina Attorn ey General commissioned an independent review of the activities and performance of the Forensic Biology Section of the SBI Crime Laboratory in March, 2010, by Mr. Chri s Swecker and Mr. Michael Wolf, hereinafter referred to as the Swecker/Wolf report. The North Carolina Attorney General commissioned the independent review based on a case completely unrelated
to the Hennis case. The Sw ecker/Wolf report focused on the policies, procedures, and practices of the Forensic Biology Section of the SBI Crime Laboratory between January 1987 and January 2003. The completed Swecker/Wolf report was rel eased on 18 August 2010. While Ms. [BBD] and her work product were not the basis for commissioning the independent review, Ms. [BBD’s] work was reviewed by the commission because she had been an employee at the SB I Crime Laboratory during a portion of the time on whic h the Swecker/Wolf report focused its review of the SBI Crime Laboratory.

c. The Swecker/Wolf repo rt, attached to AE 531, reviewed cases unrelated to the Hennis investigation. The report speaks for itself so th ere is no need to summarize its findings or recommendations. However, it is importantHENNIS—ARMY 20100304

46 to note paragraph 9 in its Summary Findings: “No
evidence was found that labora tory files or reports were concealed or evidence deliberately suppressed. Anyone
with access to the lab notes could discover the discrepancies and omi ssions in this repo rt.” The Defense
had full access to all of the lab files and reports done by Ms. [BBD] in her evaluation of evidence in the Hennis investigation.

d. Ms. [BBD] testif ied that her analys is of the blood evidence and blood samp les obtained during the investigation did not connect MSG Hennis to the crime scene. Ms. [BBD] testified she did not detect any blood on any evidence seized from MSG Hennis’ car or from his quarters. Ms. [BBD] testifie d she detected a blood smear on a wall at approximately her shoulder height in the hallway of the crime scene. Ms. [BBD] is considerably shorter than MSG Hennis. Ms. [BBD] testified she detected a partial print at the crime scene using luminol testing. It was be yond her expertise to determine the shoe size of the print. A Defense expert testified, in his opinion, the shoe prin t was smaller than the shoe size of MSG Hennis. Ms. [BBD’s ] testimony was actually exculpatory for MSG Hennis. A defense counsel, in effect, conceded this during closing argument when he said that, concerni ng blood evidence , “[Ms. BBD] could
have been a witness for th e defense.” ROT at 6564.

e. The Defense had evidence av ailable at trial to use in an attempt to impeach Ms. [BBD ] based on her work in an
unrelated case. See AE 119. The Defe nse chose not to use that potential impeachm ent evidence. The court reasonably infers the Defense made a tactical decision not to attempt to impeach Ms. [BBD] because doing so would likely have undermined the Defense argument that she
“could have been a witness for the defense” because of the exculpatory nature of her expert testimony.

f. There is no alle gation the Defense was denied access to any of the laboratory files, re ports, or test results done by Ms. [BBD] in the Hennis case. Unlike some of the files
reviewed in the Swecker/Wolf report, it is important to
note that the defense had acc ess to all of Ms. [BBD’s] laboratory files and notes concerning the testing sheHENNIS—ARMY 20100304

47 conducted in the Hennis inves tigation. Ms. [BBD] did not testify concerning any of the DNA analysis done in this case as she is not a DNA expert. While Ms. [BBD] did testify that a vaginal slide co ntained sperm, the presence of sperm was corroborated by several ot her expert
witnesses. The Defens e had its own forensic experts. It is significant that the Defense has not alleged that Ms. [BBD’s] analysis of the eviden ce in this case was wrong or misleading.

g. The evidence concerning Ms . [BBD’s] work product in
other unrelated cases discove red after the trial is not substantive evidence addressing the guilt or innocence of MSG Hennis. This recently ob tained evidence may have
been used for what value it may have served as potential impeachment of Ms. [BBD]. Assuming, wit hout deciding,
the matter contained in th e Swecker/Wolf report was subject to discovery, the value of the recently obtained potential impeachment evidence is, at best, de minimus by itself, and even less valu able when considered in connection with the exculpat ory nature of Ms. [BBD’s] testimony and all other pertinent evidence.

h. A military judge may declar e a mistrial, as a matter of discretion, when such action is manifestly ne cessary in the interest of justice because circumstances cast substantial doubt on the fairness of the pr oceedings. See R.C.M. 915(a). The de minimus value of the recently obtained potential impeachment evidence does not cast substantial doubt on the fairness of the proc eedings. A mistrial is viewed as a drastic remedy re served for those cases in which it is necessary to avoid a miscarriage of justice.

See United States v. Garces , 32 M.J. 345 (C.M.A. 1991); [ United States ] v. Fisiorek , 43 M.J. 244 (C.A.A.F. 1995). The court specifically finds th e lack of this recently obtained potential impe achment evidence of de minimus
value for use at trial was ha rmless beyond a reasonable
doubt and did not cause a mi scarriage of justice. Accordingly, the mo tion for a mistrial is denied.

i. The defense moves for a new trial in the event the court
denies the motion for a mistrial. There is a three part test
to be used to determine if a request for a new trial should be granted. See United States v. Bacon , 12 M.J. 489HENNIS—ARMY 20100304

48 (C.M.A. 1982); United States v. Williams , 37 M.J. 352[,] 356 (C.M.A. 1993). Assumi ng, without de ciding, the
defense meets the firs t two prongs of the test that is, the files from Ms. [BBD’s] unrela ted cases “were discovered since the trial” and they “could not have been discovered by the [accused] at the time of trial by the exercise of due diligence,” the defense fails to meet the thir d prong of the test which is this “newly discovered evidence, if considered by the court-martial in light of all other pertinent evidence, w ould probably produce a substantially more favorable result for” the accused. See
United States v. Williams

, supra at 356.

j. The Defense cites United States v. Webb , 66 M.J. 89 (C.A.A.F. 2008) in support of its motion. The potential impeachment evidence of the ob server for th e urinalysis
test in Webb , whose testimony was in culpatory, was much more significant than poten tial impeachment evidence for Ms. [BBD] whose testimony was exculpatory for the accused. It is important to note that while the court in
Webb found that the trial judge did not abuse her discretion in ordering a new trial, the court in Webb did
not find that a new trial was act ually required. This court specifically finds the de minimis value of the recently obtained potential impeachmen t evidence concerning Ms. [BBD’s] work product in cases unrelated to the accused would not have probably pro duced a substantially more
favorable result fo r the accused in lig ht of all other pertinent evidence presented at trial which in cludes, but is not limited to, th e results of the DNA testing done by experts other than Ms. [BBD], and particularly in light of the exculpatory na ture of Ms. [ BBD’s] testimony. Furthermore, lack of this recently obtained potential impeachment evidence for use at trial did not prejudice MSG Hennis. If anyone concludes there was any prejudice to MSG Hennis, any alleged prejudice was harmless beyond a reasonable doubt. Accordingly, the
motion for a new trial is denied.

We review a military judg e’s ruling on a petition fo r a new trial for an abuse
of discretion. United States v. Rios , 48 M.J. 261, 268 (C .A.A.F. 1998). In United
States v. Johnson

, our superior court restated the standards for evaluating petitions
for new trial:HENNIS—ARMY 20100304

49 Article 73, UCMJ, 10 U.S.C. § 873 (2000), allows petitions for new trials “on the ground s of newly
discovered evidence or fraud on th e court.” Implementing this UCMJ provision, Rule fo r Courts-Martial (R.C.M.) 1210(f)(2) [] provide[s] . . . :

(2) Newly discovered evidence . A new trial shall not be granted on the groun ds of newly disc overed evidence unless the petition shows that:

(A) The evidence was discov ered after the trial;

(B) The evidence is not such that it would have been discovered by the petitioner at the time of trial in the exercise of due diligence; and

(C) The newly discov ered evidence, if considered by a court-martial in the light of all other pertinent evidence, would probably produce a s ubstantially more favorable
result for the accused.

61 M.J. 195, 198 (C.A.A.F. 2005).

The military judge’s findi ngs of fact were well supported by the evidence and the parties’ submissions on the motion, including the Swecker/Wolf report. We consider Ms. BBD’s testimony predominantl y exculpatory; as the main witness regarding the presence or ab sence of blood, she testified about the lack of such evidence linking appellant to the crime. Though her testimony included a description of intact spermato zoa on forensic slides derive d from Mrs. KE’s autopsy, hers was only one of multipl e similar findings regardi ng that evidence. Assuming arguendo the Swecker/Wolf re port would have achieved ap pellant’s desired effect of impeaching Ms. BBD, we consid er the implications: the exculpatory nature of her testimony diminished, to appellant’s detrim ent; and, the inculp atory nature of her testimony perhaps somewhat diminished, given the multipl e witness accounts of the presence of spermatozoa a nd resultant DN A analysis. The milita ry judge remained
well within the bounds of reasonable discretion in de nying appellant’s motion for a new trial, for the newly disc overed evidence did not bring with it the “[probability to] produce a substantially more fa vorable result for the accused.” Id.HENNIS—ARMY 20100304

50 VII – A. THE MILIT ARY JUDGE’S DENIAL OF
DEFENSE COUNSEL’S PROPOSED VOIR DIRE AND THE SUBSEQUENT LIMITA TION OF THE SCOPE
AND NATURE OF VOIR DIRE DEPRIVED MSG
HENNIS OF HIS CONSTITU TIONAL RIGHT IN A
DEATH PENALTY CASE TO EXERCISE HIS RIGHT
TO CHALLENGE FOR CAUSE PROSPECTIVE AND
BIASED PANEL MEMBERS AND EXERCISE
PEREMPTORY CHALLENGES.

In his brief, a ppellant asserts:

Throughout the individual voir dire of the prospective panel members, defense coun sel attempted to use the
Colorado Method of Capital Voir Dire (Colorado Method), the most widely accepted meth od of voir dire in a capital case, but was repeatedly undercut by the military judge’s frequent interruption s, inconsistencies in his rulings on the “appropriateness” of voir dire questions, attempted rehabilitation of panel memb ers, and ultimately, the
truncation of the defense voir dire. (Footno te omitted).

We appreciate appellate defense counsel ’s citation to Matt hew Rubenstein’s, Overview of the Colorado Method of Capital Voir Dire

, 19 for it offers an excellent survey of the technique. However, when we compare roughly 2,000 pages of voir dire transcript in this case to the meth od’s principles, appe llant’s argument is unpersuasive, for it is difficul t to imagine a defense voir di re more strictly adherent
to the Colorado Method. We recognize the Co lorado Method is no t the standard for assessing the sufficiency of voir dire; we briefly focus on it, however, to illustrate our conclusion after reviewing this record that the military judge’s involvement did not prevent the defe nse from using it.

The right to voir dire is a component of the consti tutional right an impartial jury, which the Supreme Court announced in Wainwright v. Witt : “the proper standard for determining wh en a prospective juror ma y be excluded for cause
because of his or her views on capital punishment . . . is whether the juror’s views would ‘prevent or substantia lly impair the performance of his duties as a juror in
accordance with his instructions and his oath.’” 469 U.S. 412, 424 (1985) (quoting

19 34-Nov Champion 18, Capita l Resource Center (2010).HENNIS—ARMY 20100304

51 Adams v. Texas , 448 U.S. 38

, 45 (1980)). In Morgan v. Illinois , our nation’s highest Court wrote of the intertwined nature of the right to jury trial and voir dire:

The Constitution, after all, does not dictate a catechism
for voir dire , but only that the defe ndant be afforded an impartial jury. Even so, pa rt of the guarantee of a defendant’s right to an impartial jury is an adequate voir
dire to identify unqua lified jurors.

504 U.S. 719, 729 (1992) (citing Dennis v. United States , 339 U.S. 162, 171-72 (1950) and Morford v. United States , 339 U.S. 2 58, 259 (1950)).

Appellant now asserts the mi litary judge arbitrar ily intervened in voir dire and constrained the defense from asking constitutionally-required questions. 20 We

20 The military judge allowed, inter alia , the following questi ons during voir dire:

If evidence shows the accused committed the premeditated murders of a mother and two of her daughters, would you automatic ally vote to impose the death penalty?

If the accused--if you find the accu sed guilty of prem editated murders
of a mother and two of her daughters, would you automatically vote to impose the death penalty?

Can you fairly consider a life sentence if th e evidence shows the accused committed the premeditated murders of a mother and two of her daughters?

Would you automatically reject a lif e sentence if the evidence shows the accused committed the premeditat ed murders of a mother and two of her daughters?

If you find the accused guilty, w ould you automatica lly impose a death
sentence no matter what th e facts of this case were?

Have you given much thou ght to the death penalt y before being notified as a court member? Can you fairly co nsider all of the evidence before reaching your determin ation of a sentence?

Can you fairly consider al l of the sentencing alte rnatives, if the accused were convicted of premeditated mu rder, to include life and death?

(continued . . .)HENNIS—ARMY 20100304

52 understand voir dire is importa nt in any panel case, particularly so in one with the possibility of capital punishmen t. However, we do not shar e appellant’s criticism of the military judge’s involv ement, mindful of his “r esponsibility to remove prospective jurors who will not be able impar tially to follow the court’s instructions
and evaluate the evidence . . . .” Morgan , 504 U.S. at 730 (quoting Rosalez-Lopez v.
United States , 451 U.S. 182, 188 (1981) (plurality opinion)). Further considering
the discretion with which tr ial judges are entrusted in supervising vo ir dire, we conclude the military judge’s regulation th ereof was appropriate and not an abuse of
discretion.

VII – B. THE MILITARY JUDGE, BY FAILING TO
DISMISS THREE PANEL MEMBERS FOR CAUSE
BASED ON ACTUAL BIAS AND IMPLIED BIAS
MANIFESTED BY A PREDISPOSITION TO ADJUDGE DEATH, AN INELASTIC OPINION
AGAINST CONSIDERING MI TIGATING EVIDENCE ON SENTENCING, VISCE RAL REACTIONS TO THE CHARGED ACTS, PRECONCEIVED NOTIONS OF GUILT, AND A BIAS TOWARD DEFENSE COUNSEL
DENIED MSG HENNIS A FAIR TRIAL.

Appellant asserts the military judge er red in denying his causal challenges against Lieutenant Colonel (LTC) B, Majo r (MAJ) W and LTC W. Before analyzing appellant’s arguments regarding each, wh ich analyses include rather lengthy excerpts from their individual voir dire, we restate the relevant legal principles associated with the right to an impartial fa ctfinder, “the sine qua non for a fair
court-martial.” United States v. Wiesen , 56 M.J. 172, 174 (C.A .A.F. 2001) (quoting
United States v. Modesto , 43 M.J. 315, 318 (C.A.A.F. 1995)).

(. . . continued) What types of extenuation and mitiga tion evidence w ould you want to
see from the defense?

Would you automatically reject a life sentence for a premeditated
murder?

Do you believe the death sentence or death penalty must be imposed for all premeditated murders? Would you automatically reject a life sentence for premeditated murder regardless of the facts a nd circumstances in a case?HENNIS—ARMY 20100304

53 “The proper standard for determinin g when a prospective juror may be
excluded for cause because of his or her views on capital pu nishment . . . is whether the juror’s views would ‘pre vent or substantially impa ir the performance of his duties as a juror in accor dance with his instructions and his oath.’” Morgan, 504 U.S. at 728 (quoting Wainwright , 469 U.S at 424).

“Actual bias is personal bias that will not yield to the military judge’s
instructions and the eviden ce presented at trial.” United States v. Woods

, 74 M.J. 238, 243 (C.A.A.F . 2015) (quoting United States v. Nash

, 71 M.J. 83, 88 (C.A.A.F. 2012)). Our evaluation of imp lied bias has a slig htly different focu s, based on an “objective test” and “the consideration of the public’s percepti on of fairness in having a particular member as pa rt of the court- martial panel.” Woods

, 74 M.J. at 243 (quoting United States v. Peters

, 74 M.J. 31, 34 (C.A.A.F. 2015)).

“A military judge’s ruling on a challenge for cause is reviewed for an abuse of discretion. Military judges are afforded a high degree of deference on rulings involving actual bias. This reflects, among other things, the importance of demeanor in evaluating the credibility of a member’s answers during voir dire. By contrast, issues of implied bias are reviewed under a standard less deferential than abuse of discretion, but more deferential than de novo.” Woods, 74 M.J. at 243 (quoting United States v. Downing

, 56 M.J. 419, 422 (C.A .A.F. 2002)).

“[T]he burden of establ ishing grounds for a challeng e for cause re sts upon the party making the challenge.” United States v. Wiesen , 57 M.J. 48, 49 (C.A.A.F. 2002) (citing R.C.M. 912(f)(3), United States v. New , 55 M.J. 95, 99 (C.A.A.F. 2001); United States v. Rolle , 53 M.J. 187, 191 (C.A.A.F. 2000); United States v.
Warden , 51 M.J. 78, 81 (C .A.A.F. 1999); and United States v. Giles , 48 M.J. 60, 63 (C.A.A.F. 1998)). However, “military judges must follow the liberal-grant mandate in ruling on challenges for cause . . . .” Wiesen , 56 M.J. at 174 (quoting United
States v. Daulton , 45 M.J. 212, 217 (C.A.A.F. 1996) and United States v. White , 36 M.J. 284, 287 (C .M.A. 1993)).

We now address seriatim the individual voir dire and cau sal challenges of LTC B, MAJ W and LTC W.HENNIS—ARMY 20100304

54 A. LIEUTENANT COLONEL B 21

DC: One of the things that we had talked about yesterday was, of course, a si tuation where if you were to consider the case of a premeditated murd er of children and, in the case where there is a premedit ated murder that has been proven beyond a reasonable dou bt of childr en, that you indicated that you would not co nsider life im prisonment to be an appropriate punishment for the premeditated murder
of children . . . .

LTC B: Okay.

[. . .]

DC: . . . My understanding of your answer yesterday was that in the case of premed itated murder of innocent children, you believe that life imprisonment was not an appropriate punishment for that crime, is that--am I misstating what you said?

LTC B: No. You are not miss tating me. That is correct.

DC: Okay. And so I want ed to make sure that I
understood what was it about that situation that caused you to have that belief?

LTC B: Well, I am a father first and foremo st; and I love my kids like most of us do.

DC: Certainly.

LTC B: And because kids brin g a great deal of innocence to their being, to ta ke- to premeditate an d to actually take
a child’s life is unfor giveable in my mind.

21 In group voir dire , LTC B responded nega tively when the de fense asked, “[D]o you agree with this statement if someone is conv icted of premedit ated murder of children they should be given the death penalty?” He then responded positively when asked by defense counsel, “Do you agree with the statemen t that life in prison is not really punishment for premeditated murd er of children?”HENNIS—ARMY 20100304

55 DC: Certainly. And again, that ’s all we are asking for is what your personal beliefs are; an d again, nobody is criticizing that obviousl y. So, with regard to that, the fact
that it was--an innocent chil d has been murdered and it was done by premeditated murder, that just simply overrides anything el se with regards to the appropriateness of punishment for children- -appropriateness of the punishment of death?

LTC B: I would be willing to listen to any other type of feedback. I have my person al belief, but that doesn’t mean that I would necessarily strongly stand on it from the standpoint of no t listening to anything else, but I would be willing to take other types of information in the event that
I am selected and there are ot her panelists th at have other opinions that differ from mine.

DC: Okay. And I certainl y respect that; but as I understand you though it is th at your belief is--as you sit here, is that that is just--that life im prisonment would not be an appropriate punishment for someone who had with premeditation killed innocent children, meant to do it, did do it, killed innocent children, that ju st simply wouldn’t be an appropriate punishment.

LTC B: As I sit he re and I thin k about it, to be honest with you, for someone who f its that category to actually execute them or however way that they are terminated--
their life is termin ated, it kind of fr ees them from not having to think about it fo r the rest of their lives--

DC: Okay

LTC B: --as I th ink about it.

[. . .]

TC: . . . Sir, as has been discussed already and as I said yesterday when I was talking to the group, the law in this case that will be given to you for consideration at the end
of the case will come from the military judge. Do you understand that, sir?

LTC B: Yes.HENNIS—ARMY 20100304

56 [. . .]

TC: And so the milita ry judge is going to tell you at the
end of this case that if a person is convicted of premeditated murder, under the circumstances that are presented in this case--if convicted of premeditated murder by a unanimous vote, then there are two possible sentences that you co uld adjudge: one is confin ement for life and the other is the death penalty.

So with that unde rstanding, sir, do y ou understand that
there are two choices that you would have?

LTC B: Yes.

TC: Sir, will you be able to fairly an d fully consider both
of those choices?

LTC B: Yes.

TC: Sir, and in that consid eration, will you be able to consider not only the aggr avating evidence that is presented -- the facts of the case, the crimes--but also any mitigation, extenuating circumstances, anything else that may be presented by the defens e? Will you be able to consider all of that, sir?

LTC B: Absolutely.

TC: And give full and fair consideration to all of that?

LTC B: Yes.

TC: And, sir, you understand that, as far as the timing of it, that you are not allowed to decide until you have heard all of that evidence, to include the mitigation and
extenuation?

LTC B: I understand.

[. . .]

MJ: [Lieutenant Colonel B], you indicated that you had
learned of some--had learne d of some things from theHENNIS—ARMY 20100304

57 media but had not paid much a ttention to it. Can you set-- will you be able to set that aside and base your decisions based solely on what you hear in the courtroom and the law as I instruct you and the argument that you hear from
counsel?

LTC B: Yes, sir.

MJ: Okay. Now, with rega rds to some questions by counsel, you indicated that--as the scenario put forth to you by counsel with the premed itated murder of young children, you indicate d that life is no t appropriate. You also indicated that, sitting here today, that imposing the death penalty may free that person from having to think
about that for the rest of his life.

With those two statements, sir, if you believe that life is not appropriate, does that mean that you automatically
have to vote for th e death penalty if you were to sit on a panel where two little girl s were the victims of premeditated murder?

LTC B: Sir, let me clarify. My initial--the emotional portion within me as a father, I initially said life wouldn’t be appropriate. Now, as I sat here and I was thinking about it, I had also indicated th at to take someone’s life as a result of premeditation in the murder would free them from having to be re minded of it for the re st of their lives. So, simply what I am saying, si r, is that I would be openminded. I know what my view s are, but I w ould be openminded to listen to other panelists.

MJ: Are you open-minded to be persuaded by other panel members to what an appropri ate sentence should be if you were required to decide on an appropriate sent ence in this
case?

LTC B: In terms of persuaded, sir?

MJ: Well, there will be a--you will be instructed, if we get to sentencing, that you should discuss appropriate-- discuss sentencing and some people during that may have differences of opinions. Those with differences of opinions will likely discuss the individual opinion.HENNIS—ARMY 20100304

58 LTC B: Right, sir.

MJ: And likely, you know, try to tell other people why they believe his particular opinion is corr ect, not using any coercion at all--

LTC B: Right, sir.

MJ: --but just trying to explain, “Well, this is why I think it’s right.” But ar e you willing to list en to what others have to say on that matter, if we get to sentencing, before you draw any conclusions to what you believe an appropriate sentence is?

LTC B: Yes, si r. I would.

MJ: Now, when you have th ese two divergent statements
with the understand able, emotional response, I have two children, two little girls ar e dead at the hands of premeditated murder; and then you say, well also executing that person may th en free that person from having to think about that the rest of his li fe. So can you envision then that, not knowing what the evidence is--but can you consid er and envision that life might be appropriate depending on what ever the evidence is that
comes out?

LTC B: Yes, sir.

MJ: So, when you say that life is not appropr iate for this type of offense, please agai n explain to me whether that was your initial reaction or whet her that is so mething that you concluded after giving some thought to it?

LTC B: That was the initial reaction, sir, because I am a
father.

Defense counsel challeng ed LTC B for cause, citi ng implied bias and the liberal grant mandate. The military judge and the defense ha d the following exchange:

DC: . . . With regards to his views on the de ath penalty, again, he was another panel member who in general voir dire indicated that life in pr ison was not an appropriateHENNIS—ARMY 20100304

59 punishment for a premeditated murder of children. When questioned about that, he had very firm opinions that said it was based up on his reaction, stating that he is a father, and that killing a child--t aking a child’s life is unforgiveable. That this was an emotiona l issue with him; that it is his personal belief; that it is one that, while he would listen to others, he is not really open to persuasion; that this is the appropriate punishment. Further, and I believe most critically, he would believe that the imposition of the death penalt y would be the appropriate punishment because it would “free the person to think about”–“free the person from ha ving to think about it for
the rest of their life.”

Obviously an imposit ion of a death pena lty essentially-- and not to be glib about it--b ecause it would be good, it
would release them fr om having that burden for the rest of their lives is an inappropriate reason to impose the death penalty. And we believe it wo uld be an illegal reason to impose the death penalty, i. e., making a moral decision that it’s going to be good for them.

MJ: Well, I got the impressi on from [LTC B] when he said, “The death penalty may fr ee that person to have to
think about it the rest of thei r life,” as a reason not to impose the death pena lty--that is the wa y I interpreted his

response.

DC: Your Honor, I read that as being that it was the reason to impose the death penalt y is that it would--and in either event, it wo uld still be an inap propriate sentencing
consideration. But the way that it wa s--the context in which the question wa s asked, it was aske d as to why he believed the death penalty was appropriate for the premeditated murder of children ; and he said it would free that person. I believe that’s an inappropriate sentencing determination on the death penalty--the application of the death penalty in the premedit ated murder of children.

And further, quite frankly, it comes down to the fact that he obviously had and expressed very strong personal beliefs that he simply--while he would consider as far as listening--and he put it in terms of list ening to other panel members--he made it very clear that he was not open toHENNIS—ARMY 20100304

60 persuasion, that this was something that he believed and
that there was no--un like another--there was no wavering
in that decision.

So we believe that because of that deeply held personal belief, that [LTC B] should be excused.

Denying the challenge, the military judge reasoned:

MJ: [Lieutenant Colonel B], he is clearly willing--excuse me--his initial reaction to the nature of the charged
offenses was an un derstandable visc eral reaction. Members are not expected or re quired to react in a robotic manner. He is clearly willing to give his decisions a lot of thought. He does not have a kneejerk reacti on to impose a certain sentence. [L TC B] made it clea r, in an extremely credible manner, that he is willing to listen to all of the
evidence and will consider th e full range of punishments.

[Lieutenant Colonel B] does not believe the death penalty must be imposed. In fact, in response to a defense question in comparing a life se ntence to the death penalty, [LTC B] believes a life sentence may in some ways be more of a punishment than the death penalty because a
death sentence will then free the person from having to
think about it for th e rest of his life. [Lieutenant Colonel B] is not unaltera bly in favor of imposing the death penalty.

Viewing all of [LTC B’s] responses as a whole, a reasonable pers on would not conclude that he is biased under the implied bias standard. The liberal grant
standard does no t warrant granting the challenge; therefore, the challenge for cause is denied.

We shall not second-gue ss the military judge’s assessment of LTC B as credible; nothing in the record of trial undermines it. The m ilitary judge considered the liberal grant mandat e. In light of LTC B’s multip le commitments to consider allHENNIS—ARMY 20100304

61 evidence in mitigatio n, any lawful senten ce and the views of fellow members, we conclude the military judge did not er r in denying the ch allenge against him. 22

B. MAJOR W 23

TC: . . . Could you tell us wh at your views are of the death penalty?

MAJ W: I do believe that the death penalty is a viable option for anyone wh o’s committed and fo und guilty of an egregious crime. I think the question was asked yesterday about children and my views towards that.

TC: Right.

MAJ W: And I think it would be a little more difficult for me to, you know being the fath er of four small children under the age of 10--t o have their lives cut short, I think
that would--it would be hard. I mean, I could be fair and objective; but I think that it would be some thing that I
would consider.

TC: Yes, sir. Bu t you said that y ou believe that you could be fair and objective?

MAJ W: Yes.

22 Our superior court recently empha sized that a member ’s incorrect—and uncorrected—belief regarding a relevant legal principle is a basis for exclusion. United States v. Rogers , 75 M.J. 270, 271 (C.A.A.F. 2016). Appellant’s case is distinguishable, for LTC B’s statement that execution would “fre e [a murderer] from having to be reminded of it” does not consti tute an opinion that a life sentence is
more severe than the deat h penalty. Lieutenant Co lonel B’s voir dire fully demonstrated his understanding that the death penalty is the most severe sentence
under the law.

23 In group voir dire, MAJ W responded ne gatively when the de fense asked, “[D]o you agree with this statement if someone is conv icted of premedit ated murder of children they should be given the death penalty?” He respon ded positively when asked by defense counsel, “Do you agree with the statement th at life in prison is not really punishment for premeditated murder of children?”HENNIS—ARMY 20100304

62 TC: Sir, is ther e any crime that you could think of--to include the premeditated murder of children, is there any crime that you can think of for which you would automatically vote for the death penalty with no other
considerations?

MAJ W: Automatically with no other considerations? You know, I would have to hear the evidence and hear
what the circumstances were. You know, I understand in our nation we have the option of life in prison or the death penalty, but I think the decisi on on that would have to be
made based on all the evidence at hand. Again, now I
think it is a viab le option; but it wo uld be dependent on, you know, what the circumst ances were--intent, and premeditation and thos e sorts of things.

So, I mean, I tr y, you know being a commander for 7 years, I have tried very hard to be fair when I administer UCMJ; hear both side s of every story. I understand that there are extenuating circumst ances in some cases. So I try to be very objective and very fair and open about those sorts of things. But I can’t thin k of absolutely automatically death penalty, I would have to hear all of
the evidence.

[. . .]

TC: If the defens e presents--if they do--they have no burden to present an ything of course.

MAJ W: Right.

TC: But if they were to present any extenuation or mitigation, would you be able to also consider that in determining a punishment?

MAJ W: Oh, absolutely.

[. . .]

TC: --you will be instructed that if the accused has been found guilty of premeditated murder by a unanimous vote of all of the members of the panel--HENNIS—ARMY 20100304

63 MAJ W: Right.

TC: --by a unanimous vote, and the convic tion is for premeditated murder, you will then be instru cted that you
have two choices as to punishment: one is for confinement for life, the ot her is the death penalty.

MAJ W: Uhm-hmm [indicatin g an affirmative response.]

TC: Do you unders tand that you woul d have those two
choices?

MAJ W: Yes.

TC: And, sir, do you also understand that there is no presumption in fa vor of either of those two?

MAJ W: Correct.

TC: So with that understa nding, would you be able to fairly and completely consider the possib ility of either of
those?

MAJ W: Yeah, absolu tely. I mean, that would be in the second phase, and I would wo rry about that when I got
there.

TC: Right.

MAJ W: But once I get into the second phase, then I
know that we will be briefe d by the military judge on what our options are.

[. . .]

TC: And now can you assure us that you will be able to
follow those instructions?

MAJ W: Absolutely.

TC: So, if the military j udge tells you that you must consider all mitigation and extenuation evidence in addition to everything else, you will be able to follow
that?HENNIS—ARMY 20100304

64 MAJ W: Absolutely.

[. . .]

DC: One of the things that I just want to cover is to put you in a perspective of a case involving --that you have been selected for a panel, as a military court-martial panel. This hypothet ical case--it’s not th is case. It’s not any particular case, but it’s a hypothetical ca se where you have the responsibility to sentence an accused who has been convicted by proof beyo nd a reasonable doubt, by a unanimous decision, of premeditated murder.

MAJ W: Uhm-hmm [indicatin g an affirmative response.]

DC: Specifically premeditated murder of a mother and two children, okay?

MAJ W: Yes.

DC: Now, in that situation we have also, as a panel in this case, found that the case di d not involve--t here weren’t any facts involving, for example, self-defense. There was
no self-defense. There wa s no heat of passion, no provocation. These were innocent people that were
murdered--the victims that were murdered. There wasn’t any mistaken identity. Ther e’s no accident. There’s no
defense of others. None of those things are present. All that was present was a clea r finding of proof beyond a
reasonable doubt of premeditated murder, i.e., there’s a specific intent to kill. There’ s an opportunit y to consider that act and it was premedit ation--premeditated murder and that was proved bey ond a reasonable doubt.

Now, sitting in a panel wher e there’s been a finding of premeditated murder of a moth er and two children, what is your feeling of the death penalty as the appropriate penalty for that guilty murderer?

MAJ W: Again, it is an option. It is a legal option. It is, at that point in the game , when we move into the sentencing phase and we receiv e the instructions from the military judge, that I think it would certainly be an option.HENNIS—ARMY 20100304

65 DC: Okay, now you understand that the military judge is not going to give you any in structions as to how you
should consider whether de ath is appropriate or not?

MAJ W: Uhm-hmm [indicatin g an affirmative response.]

DC: That is entirely up to a panel member and their own personal moral judgment. Th e judge will never give you a checklist or never give you law that says that you must or
must not vote for death. Okay. That is a personal judgment. Now, in the contex t of that personal judgment,
what is it that--and reme mber there’s no provocation, intent is proven--it’ s beyond a reasonable doubt, that there
was an intent to kill and ther e was the actual killing of a
mother and two innocent chil dren. What else would be important to you in ma king that decision?

MAJ W: As far as the death penalty--

DC: Yes.

MAJ W: --what else?

DC: Yes, as far as the death penalty being important?

MAJ W: Well, again, it’s like what I mentioned earlier,
it’s the circumstances that lead up to it. I mean, certainly murder is probably in my mind one of the most heinous crimes there is and life in pr ison versus th e death penalty is--that both are viable option s for sentence. However, I think what would sway me on e way or the other are the
circumstances around it.

DC: Okay.

MAJ W: The premeditation wo uld be part of it; perhaps the ferocity of it or what not, you know ; and for me personally, I mean having, you know, four children of my own under the age of 10, you kn ow, the killing of children would be difficult, would ma ke me think of the death penalty; but at the end, it would depend on all of the
evidence and the circumstances behind it.HENNIS—ARMY 20100304

66 DC: Okay. And by circumst ances behind it, just so I understand what you are talkin g about, you talked about premeditation--obvio usly you would want to know that it was a premeditated killing?

MAJ W: Yes.

[. . .]

DC: . . . [Y]ou believe that th e finding or pa rt of that
consideration that would be important would be the premeditation, the finding of premeditation?

MAJ W: Part of it would be the premeditation, part of it
would be the eviden ce that’s presente d. I mean, you know, if it’s beyond a reasonable doubt, they ar e found guilty, and there’s a unanimous jury that says, yes, absolutely this person did this--

DC: Right.

MAJ W: --I would definitely look personall y I would look
at all of the evid ence and try to keep it as--to be as objective as possible.

DC: Okay.

MAJ W: But I certainly th ink premeditation and the ferocity and those sorts of things would play into my
mind.

DC: Okay. And when we talk about the circ umstances, I understood you were talking a bout, like, the acts of the
violence in the offense itse lf; is that what you are referring to or is there something else?

MAJ W: No, that is wh at I am referring to.

DC: And so the events th at lead up to the act of violence
and the nature of that violence and whether it was accompanied by the necessary premeditated intent, that is what you are talking about as to the factors you would
consider as to whether you determine death is the appropriate punishment?HENNIS—ARMY 20100304

67 MAJ W: I believe so, yes.

DC: Is there anything else th at would be im portant to you personally?

MAJ W: To consider death as an option?

DC: Yes.

MAJ W: I think, I mean, those are the major things. I mean, it is a viable option of the death penalty; and I think what would probably sway me more towards that is the premeditation part and the fe rocity of it. You know, I
think that would be one of the things that I would
consider.

DC: Okay. So as I u nderstand and just so I can get it clear in my mind is that if you we re to find beyond a reasonable doubt--you and a panel unanim ously determine beyond a
reasonable doubt , that there was prem editated murder of
children--

MAJ W: Uhm-hmm [indicatin g an affirmative response.]

DC: --and that it was done in a violent way, with just great disregard for all human life. And it was done in a violent way that was upon thos e children, that that would be a case where you are incl ined to view death as the appropriate punishment for that crime?

MAJ W: That is correct.

[. . .]

DC: . . . [W]hen we had the di scussion about--first of all, in a case obviously not everybody as I indicated yesterday, not everybody has the same vi ews, and we would expect that of panel members.

MAJ W: Right.

DC: And some people have different views, based upon their own personal backgrou nd and their own personal situation; and of co urse, you indicated ear lier that this isHENNIS—ARMY 20100304

68 an especially difficult thing, when we are talking about the death penalty, for you because of the fact that you have
children--

MAJ W: Uhm-hmm [indicatin g an affirmative response.]

DC: --and that is something that’s on your mind. And so
that is a different case, obviously, than a murder of an adult which I believe you indi cated would not present as much of a moral difficulty for you as it does with
children?

MAJ W: I think that’s a true statement.

DC: Okay.

MAJ W: I don’t think that the murder of children automatically would make it a death-penalty offense, but it would definitely sway me to consider it more.

DC: Okay. And one of the othe r aspects of th at, of course, is the discussion about--you sa id considering the nature of the offense, the premeditation, and so forth. Now, again, you understand that even be fore a panel would be permitted to even consider d eath as a possible punishment,
there would have to be a finding of guilty beyond a
reasonable doubt of premeditated murder?

MAJ W: Right.

DC: Okay. And that if there was no finding of premeditated murder, then there would never be a
consideration of death as a potential sentence. Do you
understand that?

MAJ W: Yes.

DC: And within the contex t of that th ough, you had indicated that not only th at the premeditation was important but also the ci rcumstances surrounding the
offense itself?

MAJ W: Uhm-hmm [indicatin g an affirmative response.]HENNIS—ARMY 20100304

69 DC: And correct me if I am wrong, but I understood you to say that that’s your--that ’s the important factors to you
in consideration of de ath as an approp riate punishment?

MAJ W: Yeah, if-- hypothetically, if it was a unanimous decision that there was gu ilt beyond a reasonable doubt and the death penalty was an option, yes, I would weigh many factors into it and one of them is the premeditation. As I said, one of them would be the ferocity of the crime; and you know those would be pr imarily, you know, what I would be looking at.

DC: Okay. And in order to explain or to make sure we understand your views, what other things might be of importance to you?

MAJ W: For?

DC: In making a consideratio n, along with those factors, what other things might be im portant to you with regards to the imposition or decision as to whet her death or life in prison is the appropriate punishment?

MAJ W: I think one thing that would be important to me is remorse. You know, in pa rt of my job when I, you know, see patients, I have seen people have--you know, do things and, you know, have affairs or whatnot that they have admitted to and they ha ve no remorse over it. Other people are devastated, and I know that there are different personalities of people in the world. I know there’s different ways people think and act and do, but I think
remorse would be one of those factors too. DC: And if you were--are th ere any other factors that come to mind that you wo uld consider important?

MAJ W: Well, I mean, it was mentioned earlier, the background of the person. If a person would have--I mean, I would consider the b ackground of a person. You know, we mentioned that, you k now, perhaps if they have had a long crime re cord of, you know, se rious crimes and
stuff like that and then mu rder was brought on there. Would that play a factor? Po ssibly, but it would really depend on the circum stances behind it.HENNIS—ARMY 20100304

70 DC: Okay. And in that respect , if you were to--you know again, in the case of premedit ated murder of children done in a violent way, if you were to receiv e information about the person’s backgr ound that wasn’t ne cessarily negative
but was favorable , i.e., they lived life without committing any crime or violent crimes up to the point of the offenses
themselves. Would that be something that you would consider important?

MAJ W: I would consider it , but it would really depend on--you know, it would depend on th e circumstances honestly in my mind. Good people can sometimes snap and do horrible things; but if people, you know, got out with an honorable discharge a lo t of people ge t out with an honorable discharge. If someon e was a, you kn ow, hero or whatever, you know, that might pl ay into it; but really it’s
the facts at hand of the case that is impo rtant to me. You know, so I would consider it, but I don’t think the background would sway me one way or another towards or against the death penalty. But again, it would really depend in my mind what background information is presented.

DC: Okay. In my hypothetical situation and I would draw you back to it again--

MAJ W: Uhm-hmm [indicatin g an affirmative response.]

DC: --I had told you that, you know, it was premeditated murder, a finding beyond a re asonable doubt of children was done without any finding of--there wasn’t any mental health issues, there’s no defe nses, there’s no raising of insanity, and there’ s no alcohol or drug involvement. All of those things were elimin ated prior to a finding of premeditated murder. Okay?

MAJ W: Okay.

DC: With that un derstanding, is th at what you were talking about with regards to the background that you know, absent that ki nd of background, that your starting point or your inclination is that death would be the appropriate punishment for the murder of a child?HENNIS—ARMY 20100304

71 [. . .]

MJ: Before we get to that question, let me ask you a question, [MAJ W].

MAJ W: Yes, sir.

MJ: Based on the scenario by defense counsel that you, in fact, found someone guilty in a unanimous decision of this
murder he has described includ ing two little ch ildren. Are you going to make up your mi nd as to what is an appropriate sentence that shou ld be imposed before you
hear all of the evidence th at would be presented on sentencing?

MAJ W: No, sir. I would wait to hear all of the evidence before I would make up my mind on anything.

MJ: Okay. With that in mi nd, [DC], you may continue.

DC: [MAJ W], without making up your mind, would you,
under those circumstances wh ere there’s a finding beyond a reasonable doubt, et cetera , and none of those defenses are present and it’s a heinous crime, and the murder of two
children---

MAJ W: Uhm-hmm [indicatin g an affirmative response.]

DC: --would you be in a pos ition, just in your processing of starting at a po sition where you are inclined to say death is the right answer and then look for mitigation factors, is that how you would a pproach it?

MAJ W: Most likely, yes.

DC: One of the things that we had touched a little bit on yesterday, but I want to just cover it a little more in depth with you personally--

MAJ W: Okay.

DC: --one is that--and I think that you understand that the law never requires an yone, any particular panel member to
vote for death.HENNIS—ARMY 20100304

72 MAJ W: Uhm-hmm [indicatin g an affirmative response.]

DC: And you would agree with that?

MAJ W: I would.

DC: And that the judge nor any law that he would read you or any requirement of anyt hing that you would receive in this court would ever requ ire you or any other member
to vote for death.

MAJ W: Okay.

DC: And that the decision as to whether the appropriate punishment for a qualified offe nse is life or death is a personal one, one that is individual to each juror. Do you
understand that?

MAJ W: I do.

DC: And that the decision to extend mercy or to find or not find a mitigation factor is sufficient to give a vote of life, is personal to each individual panel member?

MAJ W: Correct.

DC: Okay. And that a panel member coul d decide to vote for life based upon somethi ng that they heard in the courtroom or something that they brought in with them.
Does that make sense?

MAJ W: It does.

DC: Their own personal sense of what is right, what is moral, what is merciful, what is just can be anything that is either presented in a courtroom or brought in by that person. Does that make sense also?

MAJ W: Yeah, it does.

DC: And that once a person makes that decision, that panel member or that person is entitled to have that decision respected. Woul d you agree with that?HENNIS—ARMY 20100304

73 MAJ W: I would.

DC: So that when you woul d make a decision about your own personal moral judgment, you would exp ect that your opinion would be re spected by others , would you not?

MAJ W: I would.

DC: And if somebody else expr essed an opinion or didn’t

express any opinion at all but vo ted in that regard, you would respect their opinion, correct?

MAJ W: Absolutely, sir.

DC: And when the individual who is making that personal
moral judgment you would expect that they wouldn’t be subjected to any bull ying or intimidation to try and change their personal moral views, would you?

MAJ W: No, sir. I wouldn’t have trouble with anybody
here.

DC: Well, I’m not talking about you. Bu t you wouldn’t expect that they would. In fa ct, you wouldn’t tolerate it, would you?

MAJ W: No, sir.

DC: And you wouldn’t allow anybody to attempt to bully or intimate you to change your own pe rsonal moral view?

MAJ W: No, sir.

DC: Likewise th e understanding th at you wouldn’t necessarily be required or wouldn’t feel required to explain your personal moral judgment to anybody, would you?

MAJ W: No, sir.

DC: And you wouldn’t expect anybody to explain their own personal judgment once they make that moral decision themselves, would you?HENNIS—ARMY 20100304

74 MAJ W: Correct.

[. . .]

TC: [Major W], just a very quick follow-up. With regard to the questions about the hypothetical that was posed
earlier when the defense coun sel was talking to you, you understand that that is just a hypothetical?

MAJ W: Yes.

TC: And you understand, as we discussed earlier when I was up here talking to you, that you are to wait and weigh the facts that are pr esented in court?

MAJ W: Correct.

TC: And you agre ed earlier when I was asking you questions that you wo uld, in fact, wait until everything is presented?

MAJ W: Yeah, absolutely.

TC: And that you would follow the instructions from the military judge in determini ng an appropri ate sentence?

MAJ W: Absolutely.

TC: And that you would be able to--in fact, let me ask you again, can yo u assure the court that you will be able to consider everything that’s presented by both sides in reaching a conclusion?

MAJ W: Yes, I can.

TC: And with regard to the background of the accused, I think there were some questi ons about good stuff and bad stuff that may be pr esented as to the background of the
accused. You don’t k now, at this point, what those facts
are?

MAJ W: No, I do not.HENNIS—ARMY 20100304

75 TC: So is it possib le for you to evalua te how much weight you would give to the accused’ s background at this point?

MAJ W: I mean at this poin t I can’t hypoth esize what I
don’t know. So I don’t know. I mean, I know a little bit about this case from, you know , the paper bu t not enough to go into any kind of intelligent discussion.

TC: So it’s impossible for you to do that at this point?

MAJ W: Right. You know, what happens in he re is what I’ll base all of my judgme nt and my deliberation on.

TC: Okay. And you will ke ep an open mind until the
end?

MAJ W: Absolutely.

The defense challenged MA J W for cause, “based upo n implied bias standard
as well as the baseline of the liberal grant mandate.” The defense emphasized MAJ
W was the father of four children, and his statement that he would consider, inter
alia , the “ferocity of the crim e” in consideri ng the appropriate punishment for premeditated murder. The defense also emphasized MAJ W’s statement that in a case involving the premeditated murder of children, he would “start at the death penalty and would need to be presented so me sort of mitigation to convince him
otherwise. That is a cl ear statement of a burden-s hifting requirement . . .”

Describing MAJ W as “v ery credible,” the military judge denied the challenge, reasoning:

MJ: . . . While he believes th e death penalty is an option for an egregious crime, and the decision becomes more
difficult when children are the victims, he is clearly willing to hear all of the evidence, to include the background of the accused, be fore making a decision. He
could not think of a case in which he would automatically impose the death penalt y. While he is w illing to consider all the evidence, he cannot sa y at this poin t, and is not expected to be able to say, how much weight he would give to any particular evidence. As he said, he cannot hypothesize what he does not know.

Now, in response to the grap hic scenario presented by the defense counsel, [MAJ W] said he may start with the deathHENNIS—ARMY 20100304

76 penalty; however, he is not unalterably in favor of the death penalty. And, as he said, he co uld not think of any
case in which he would impose the death penalty.

In light of all of his answers, it is clear that [MAJ W] has not made up his mind as to an appropriate se ntence. And, based on all of his response s, a reasonable person would
not conclude that he is biased.

The liberal grant mandate does not warrant a challenge for cause and, therefore the cha llenge for caus e is denied.

We shall not second-gue ss the military judge’s assessment of MAJ W as credible; nothing in the record of trial undermines it. The m ilitary judge considered the liberal grant mandate. Where a panel member demonstrates an “inelastic disposition concerning an appropriate senten ce,” the military judge should grant that challenge. United States v. Clay , 64 M.J. 274, 276 (C.A.A.F . 2007). However, MAJ
W’s voir dire revealed no fixed or “inelastic” dispositi on “regarding” punishment. In light of MAJ W’s multiple commitments to consider all evidence in mitigation, any lawful sentence and the views of fell ow members, we conc lude the military judge did not err in denyin g the challenge against him. 24

C. LIEUTENANT COLONEL W 25

Lieutenant Colonel W described his pr evious experience as a civilian law enforcement officer, and the defense aske d him about his asse ssment of defense
attorneys:

24 Considering Walton v. Arizona , 497 U.S. 639, 65 0 (1990), we find unpersuasive appellant’s argument that MAJ W’s views inappropriately shif ted the burden to present mitigation evidence. (“ So long as a State’s method of allocating the burdens of proof does not lessen th e State’s burden to prove ev ery element of the offense charged, or in this case to prove the existence of aggravat ing circumstances, a
defendant’s constituti onal rights are not vi olated by placing on him the burden of proving mitigating circumst ances sufficiently substantia l to call for leniency.”) ( rev’d on other grounds

, Ring v. Arizona , 536 U.S. 584 (2002)).

25 In group voir dire, LTC W responded negatively when defense counsel asked, “[D]o you agree wi th this statement if someone is convicted of premeditated murder of children they should be given the death penalty?”HENNIS—ARMY 20100304

77 DC: As a result of that aspect of you r career, meaning the help and assisting and proces sing of a crime scene, do you
ever recall being called as a witnes s with regards to a crime scene that you had processed or evidence that you had helped process?

LTC W: Yes. I’ve been to hearings; bu t on the major crime scenes, no, I wasn’t calle d as a witness.

DC: So you’ve been--with re gard to, for example, maybe

some sort of suppression hearin g or some other type of evidentiary hearing, prior to a trial you may have been
called?

LTC W: Yes.

[. . .]

DC: . . . In your time as a law enforcement officer, did

you have regular contact with prosecuting attorneys?

LTC W: Yes, on occasion.

DC: And it would be, obvio usly, on cases that you had worked, made an arrest or made some other type of evidence that they needed to talk with you?

LTC W: That’s it.

DC: Did you come in contac t with defense attorneys?

LTC W: Yes. DC: In general, what was your impression over the years of prosecuting atto rneys in general?

LTC W: Good.

DC: Okay. And what was you r opinion or what kind of impression was left to you of the defense atto rneys that you came in contact with?

LTC W: The ones I came in contact with, some good, some not so good.HENNIS—ARMY 20100304

78 DC: Okay. What was it about that that left you with an impression of some of them that wasn’t so good? What kind of things were left with yo u in your mind?

LTC W: When I was an arre sting officer and I was the one that was sitting on the stand, the defense--mainly on DUI cases just the way the defense ha ndled officers as
witnesses.

DC: And what was it about--I know it’s been a long time,
but what was it about the way the officers were treated that struck you as leaving a negative impression in your
mind about defense attorneys?

LTC W: I think the defense had a lot of latitude--were
allowed a lot of latitude in some of the cases.

DC: By latitude, I’m not sure I understand what you mean
in that context.

LTC W: I guess, maybe with the line of questioning or
the inferences that they were making toward the officer. I’ll use my experiences. On DUI ca ses, I saw a handful of
times that I had made arrests and maybe the Intoxilyzer
results weren’t ad missible at the time. So the jury
couldn’t see the results of the Intoxilyzer. So, as somebody that was tr ained by the state on DUI detection, there was a lot of questions th at were brought up about my expertise as somebody that can ma ke decisions on DUI detection. So it would bring a lot of doubt in to the jury on my abilities as an officer an d other officers, the same thing.

DC: And so I understand, be cause of your knowledge of the case, you felt there was some unfairness in the system as far as what they allowed the defense a ttorney to ask and didn’t allow the prosecutor to ask?

LTC W: I think that what they were allowed to ask was fine, it was just the way it was shaped with the jury and
what was not allowed as evidence was some of the things
that didn’t sit well with me at that time.HENNIS—ARMY 20100304

79 The defense challenged LT C W for cause, citing impl ied bias and the liberal grant mandate with respect to his experien ce as a law enforcement officer. Then, focusing on his voir dire answers regarding defense attorneys, the defense additionally asserted actual bias:

[Lieutenant Colonel W] stat ed that while he had an unfailingly good view of pros ecuting attorneys--he didn’t have anything negative to say about them--he had some negative comments about defense attorneys, specifically the way defense attorneys approached law enforcement
witnesses on the stand and th at when defense attorneys would ask questions that he viewed unfair, based upon his prior knowledge of the case, he held that agains t defense attorneys, specifically about evidence that may have not-- would be suppressed or otherwise not a part of the case,
that he viewed that it woul d be on. No su ch--obviously, no such negative views toward prosecutors.

Finding LTC W “very cand id and credible,” the military judge denied the challenge and addressed this point:

[Lieutenant Colonel W] may have thought that some
defense counsel were good and some we re not so good. There is absolutely no evidence he harbors any ill feelings against defense co unsel as a whole and absolutely no
evidence that he ha rbors any ill feelin gs against defense
counsel in this case.

We shall not second-guess the military judge’s cred ibility assess ment of LTC W; nothing in the record of trial undermines it. The m ilitary judge considered the liberal grant mandate. Additionally, not hing indicates that LTC W’s opinions of
individual defense a ttorneys in particular civilian proceedings somehow caused him to develop a stereotypical vi ew of defense coun sel, and we concl ude the military judge did not err in denying the challe nge against him.HENNIS—ARMY 20100304

80 VII – C. THE MILITARY JUDGE ERRED IN
FAILING TO SUA SPONTE VOIR DIRE AND REMOVE THE PANEL MEMBER WHO, BEFORE
THE CONCLUSION OF THE GOVERNMENT’S CASE ON FINDINGS, ASKED DETECTIVE [JW], A GOVERNMENT WITNESS, “WHAT DO YOU THINK SGT [SIC] HENNIS’S MOTIVE WAS?”

Detective JW, of the Cumber land County Sheriff’s Of fice, testified during the government’s case. Af ter his testimony, but before excu sing him from the stand, the military judge —as is customary and al lowed in military tria ls—asked the members whether they had any questions. Colo nel (COL) CT wrote the proposed question of which appellant complains.

The parties reviewed COL CT’s pr oposed written ques tion, and defense counsel wrote on the questi on form, “Obj[ection] calls for speculation.” The military judge did not allow the question, and the trial co ntinued. Appellant did not request voir dire or any other follow-up regarding this proposed que stion.

Now, appellant argues the military judge “erre d in failing to voir dire and ultimately remove” COL CT . Relying heavily on United States v. Nash

, 71 M.J. 83, (C.A.A.F. 2012), he argues COL CT’s question esta blished actual bias. Alternatively, appellant asserts the question constituted evidence of implied bias. Without restating the standa rds surrounding each basis for exclusion, described

supra, we reject bo th arguments.

We recognize the m ilitary judge’s author ity to question an d, if necessary, remove a panel member even without a party’s re quest to do so. Rule for CourtsMartial 912(f)(4) provides: “Notwithstanding the absence of a challenge or waiver of a challenge by the parties, the military judge may , in the intere st of justice , excuse a member against whom a challenge for cause would lie.” (Emphasis added); see also
United States v. Strand , 59 M.J. 455, 458 (C.A.A.F. 2004) (“It is clear that a military judge may excuse a member sua sponte.”).

The standard of review for a case under these facts is unclear. In Strand , our superior court stated that a “judge’s decision whether or not to excuse a member sua sponte is subsequently reviewed for an abus e of discretion,” but then held “[s]ince the judge did not abuse his discre tion, there was no plain error.” Id . at 458, 460. Applying the most rigorous sta ndard of review ap plicable to ques tions of member
bias—more deferential than de novo, but less deferential than abuse of discretion,
under Woods —we hold the military ju dge did not err by not qu estioning or removing
COL CT.HENNIS—ARMY 20100304

81 We regard COL CT’s question as an effort to probe th e strength of the government’s case, not a premature conclusion that appellant was gu ilty. Finding no
actual bias or a violation of R.C.M. 912(f)(1)(M), we addr ess whether COL CT
should have been excused fo r implied bias under R.C.M. 912(f)(1)(N). We review this issue through the eyes of the public and ask whether his question regarding motive undermined the public’s perception or appearance of fairne ss of the military justice system. See United States v. Townsend , 65 M.J. 460, 463 (C.A.A.F. 2008).

Noting the defense’s empha sis in its closing argument on appellant’s apparent lack of motive, we re turn to our observatio n that trial defense c ounsel did not object to COL CT’s continued service on the pane l after reading his pr oposed question. From these facts, we infer the trial defe nse team may have pe rceived COL CT as potentially receptive to that aspect of the defense case an d, therefore, wanted him to remain on the panel. In our view, no member of the publi c could reasonably conclude that COL CT’s question indicated a lack of fairness in the proceedings.

VII – D. THE VARIABLE SIZE OF THE COURTMARTIAL PANEL CONSTITUTED AN
UNCONSTITUTIONAL CONDITION ON MASTER
SERGEANT HENNIS’S FUNDAMENTAL RIGHT TO
CONDUCT VOIR DIRE AND PROMOTE AN
IMPARTIAL PANEL.

Considering the record of tr ial and matters asserted in the parties’ briefs, we conclude this assignment of error merits neither discussion nor relief.

VIII – A. TRIAL COUNSEL’S REPEATED AND
IMPROPER COMMENTS AND ARGUMENTS
PREJUDICED MASTER SERGEANT HENNIS’
RIGHT TO A FAIR TRIAL.

In his brief, appellant organizes hi s allegations rega rding government
counsel’s comments into four groups, which we address seriatim:

A. “Trial counsel ma de highly prejudic ial, belligerent remarks toward MSG Hennis’ defense counsel.”

Appellant focuses on several of gover nment counsel’s comments during his rebuttal findings argument, including remarks describing the defense’s closing argument as “monstrous” a nd “evil.” We do not condone them ; however, their
context is relevant. See Darden v. Wainwright , 477 U.S. 168, 179 (1986). In his closing argument, civilian defense co unsel said, inter alia , the following:HENNIS—ARMY 20100304

82 [I]n your deliberations, you ar e to rely on y our knowledge
of human nature and the ways of the wo rld. One of the ways of the world and one of th e things that we know
about human nature is that th ings can occur spontaneously and for no significant reason . A young Soldier [appellant] whose wife had just had a baby recently; a Captain’s wife [Mrs. KE] while the Captain has been away for a long time. All I’m asking is: Is it possible that something occurred independent of the murders, independent of the night of the 9th of May that can answer the unanswered questions?

[. . .]

I want you to consider that the government has created an inference by their own argument that . . . [a ppellant] went to the [E family] home, seeking sex wi th [Mrs. KE]. Listen to me close right now --what I’m about to say--and I’m going to repeat it. The evidence in this case--if he were charged with adultery--and let’s just ta ke away the murders. Let’s ju st focus on the DNA. That evidence could support an argument of adultery. Adul tery could be
--could have occurr ed in this case.

[. . .]

You have to ask yours elves, if you take that evidence and if the rational hypothesis is that some form of consensual sex occurred within 2 days or 3 days of the murders, then that explains how it [appel lant’s spermato zoa] was found
because there is no date/tim e stamp. Has the government disproven that beyond a reas onable doubt? Does the
evidence take you beyond adultery to murder?

After the defense’s closing argument, the military judge convened an Article 39(a), UCMJ, session at the go vernment’s request. Referring to a previous Article 39(a), UCMJ, session on 8 May 2009, discussed supra , regarding assignment of error IV, government counsel argued that civilian defense counsel ha d represented to the court that no sex, consensual or otherwise, had occurred. Relying on United

States v. McKeon , 738 F.2d 26 (2d Cir. 1984), the government th en asked to re-open its case and offer a portion of the previous Article 39(a), UCMJ, transcript against appellant as an adoptive ad mission. The military judg e denied the request and
recalled the members to hear government rebuttal, whic h included the following:HENNIS—ARMY 20100304

83 Now, you saw evil and you hear an evil argument this morning. It’s not enough that [Mrs. KE] was murdered. The defense wants you to believe she cheated on you, [GE]. She committed adulter y. That’s what the defense wants you to believe. That is a vile, disgusting, offensive argument. The defense said you don’t know [Mrs. KE]. There’s a reason for that, beca use [appellant] killed her 25 years ago. You can’t know her now, can you? Not unless you can pray and talk to her in your prayers. Unless you can hold a séance, you can’t know her because she’s been dead for 25 years.

[. . .]

And there is absolutely no evid ence whatsoever before you that [appellant] had consensual sex with [Mrs. KE]. That is a vile, disgusting argument; and it is design ed to try to plant doubt. It is designed to get you off the ball, to get you off the game. It gets you so shook up about the “should have, could have, would have” world that criminals live in to prey on so me sort of d oubt that’s not
reasonable but anything is possible so that you can get away from the main facts of this case . . . . When you’re desperate, you got to go for the Hail Mary.

Because the defense did no t object to this portion of government counsel’s argument, we review for plain error. “Plain error occurs when (1) there is error, (2) the error is plai n or obvious, and (3) the error results in material prejudice to a substantial right of the accused.” United States v. Fletcher , 62 M.J. 175, 179 (C.A.A.F. 2005) (citing United States v. Rodriguez , 60 M.J. 87, 88-89 (C.A.A.F. 2004)). The government urges in its brief that th ese remarks were a fair commentary
on the defense argument and not an impermissibl e critique of defense counsel

. Under the circumstance s here, this distinction is unper suasive. We note and do not condemn government counsel’ s argument to the military judge during the Article 39(a), UCMJ, session th at civilian defense counsel’ s argument, in light of his previous representation to th e court, was an example of “s harp practices.” However, government counsel’s subsequent charac terization of the defense argument as “monstrous,” “evil,” “vile,” and “disgustin g” constituted plain and obvious error.

Despite these remarks, we conclude unde r the circumstances of this case they did not materially prejudice appellant’s right to a fair trial. In cases of improper argument we assess whether prejudice ex ists by examining and balancing three factors: (1) the severity of the misconduct, (2) the m easures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction. Fletcher

,HENNIS—ARMY 20100304

84 62 M.J. at 184; see also United States v. Frey , 73 M.J. 245, 249 (C.A.A.F. 2014); United States v. Halpin , 71 M.J. 477, 480 (C.A.A.F. 2013) (applying the same).
Under the first Fletcher factor, we note the objectiona ble statements were isolated and not a predominant part of government counsel’s ar gument. Unde r the second factor, while the military judge did not intervene sua sponte , he did instruct the members that counsel’s argum ents were not evidence, in stead charging the panel to “base your determination of the issues in this case on the evidence as you heard it and the law as I instruct y ou.” Turning to the third factor, the evidence against appellant was strong: a witness identifie d him as the person parked near the E family home at midday on 9 Ma y 1985; a witness identified him as the person he saw leaving the E family home in the early morning h ours of 10 May 1985; another
witness identified hi m as the person she saw at an automated teller machine (ATM), at the same time and place where the E family’s missi ng card was used after the murders; multiple witnesses described appell ant burning a substantial fire in a barrel
at his home for several ho urs on 11 May 1985 ; and, DNA analysis identified appellant as the source of the sperm ob tained from Mrs. KE’s body. We are confident the weight of the government’s ev idence “reduced the likelihood that the [panel’s] decision was infl uenced by argument.” Darden , 477 U.S. at 182.

B. “Trial Counsel in structed the panel th at they were the conscien ce of the

Army and they needed to send the world a message, compared motive to terrorist attacks, and improperly vouched for the reliability of the DNA.”

Responding to the defense’s emphasis in closi ng argument on appellant’s apparent lack of motive, government c ounsel rebutted with several rhetorical questions, including: “Why would someone fly a plane into a building? Why would someone take a weapon in a military installation and st art firing it?” The defense did not object. Government counsel later said, “the Ar my believes in DNA.” The military judge sustained the defense’s objection to this statement. Then, saying “DNA is good enough” to veri fy the identity of a dece ased person, government counsel rhetorically asked, “why is DNA not good enough to identify a murderer?” The defense did not object. Late r, government counsel argued:

[Civilian defense counsel] talk ed about the co nscience of the Army. You are the conscience of the Army. 26 Well, let me tell you something. Ve rdicts in courts-martial around the world send a messag e, and they reflect how our Army, our military values th ings. What is acceptable behavior and what is unacceptable behavior.

26 In his closing argument, civilian defense counsel said to members, “[C]ollectively you represent . . . th e conscience of the Army . . .”HENNIS—ARMY 20100304

85 The defense objected, citing “the appearance of unlawful command influence.” The military ju dge sustained the objection, instru cting government counsel to refrain from mentioning “Army Values.”

We perceive no plain or obvious error in government counsel’s “conscience of the Army” remark; indeed, it appears trial counsel was merely restating the
defense’s innocuous characterization of the panel. We also fi nd no plain or obvious error in government counsel’ s reference to various pur poses for DNA an alysis.

We do, however, find plain and obvio us error in gove rnment counsel’s comparison of this case to one in which a te rrorist flies a plane into a building or an active shooter targets a milit ary installation. Counsel may urge a factfind er to draw
inferences based only on the evidence at hand and the law applicable to the case. In this instance, gove rnment counsel strayed from that basic principle, and the military judge should have in tervened. Applying Fletcher again, we conclu de these remarks of this type were isolated and note the milit ary judge’s instruc tion regarding the limited purpose of counsels’ arguments. Finally, consid ering the strength of the evidence supporting the find ings, we are confid ent these remarks did not sway the panel’s delibera tions.

Assuming arguendo government counse l created an appear ance of unlawful command influence by conflating the member s’ verdict and “Army Values,” we find the military judge properl y remedied it with his ruling on the defense objection. We also find sufficient the military judg e’s sustaining the de fense objection to government counsel’s argument that “the Army believes in DNA.” We further note, with respect to these tw o matters, the defense neith er requested a curative
instruction nor moved for a mistrial.

C. “Trial counsel ma de derogatory comme nts concerning

[appellant’s] fundamen tal right to pres ent mitigation.”

During the sentencing case, the defense admitted multiple photographs of appellant and his family members. In sentencing argument, gov ernment counsel, the following occurred:

TC: Consider the aggravation in this case up against the mitigation and extenuation. Consider what you heard yesterday. And I ask you this, how dare they ask you to look at pictures of [appellan t] opening presents with his
kids in front of a Christmas tree?

DC: Objection, Your Honor.HENNIS—ARMY 20100304

86 MJ: Members, the defense is allowed to present matters in
extenuation and miti gation. You must give them due consideration. You may proceed.

TC: How dare they ask you--they’re al lowed and you can consider it and should give it its appropriate weight. How dare they ask you to look at pictur es of [appel lant] sitting on the couch reading a book to his kids? (Emphasis added.)

We held in United States v. Carr , “it is inappropriate th at any party to a courtmartial should be allowed to profit, direct ly or indirectly, by argument on findings or sentence regarding an exercise of a constitutionally protected criminal due process right.” 25 M.J. 637, 639 (A.C.M.R. 1987) . “Whether there has been improper reference to an accused’s invocation of hi s constitutional rights is a question of law that we review de novo.” United States v. Moran , 65 M.J. 178, 181 (C.A.A.F. 2007) (citing United States v. Alameda , 57 M.J. 190, 198 (C.A.A.F. 2002)). We find government counsel’s use of the phra se, “how dare they,” improperly derogate d appellant’s right, guarante ed by the Sixth and Eighth Amendments to the Constitution, to presen t extenuation and miti gation evidence. Noting the defense did not ob ject after governme nt counsel’s second and third use of this phrase, we nonethel ess find such use plainly and obviously improper.

Evaluating prejudice in th e context of this constitutional error, we note the exacting standard announced by our superior court:

“[B]efore a federal constitutional er ror can be held harmless, the court must be able to declare a belief that it was harmless beyond a reason able doubt.” This will depend on “whether there is a reasonab le possibility that the evidence [or error] co mplained of might have
contributed to the conviction.”

Moran , 65 M.J. at 187, (quoting Chapman v. California , 386 U.S. 18, 24 (1967) (internal citation omitted) (emphasis added) ). This principle applies with equal force to a presentencing hearing.

First, we observe gov ernment counsel’s poor ph raseology occurred during a brief portion of a nineteen -page sentencing argument which was otherwise proper, focusing on the relative weig ht which the government argu ed the panel should give the evidence in aggrav ation, extenuation a nd mitigation. We also note the military judge’s multiple and clear instructions, including his sua sponte instruction
described supra , emphasizing appellant’ s right to present evidence in extenuation and mitigation and the member s’ duty to consider it. Finally, th e properly-admittedHENNIS—ARMY 20100304

87 aggravation evidence in this case was exce ptionally strong, depi cting the calculated and brutal slaying of multiple victims, two of whom were defenseless young
children. We are co nvinced beyond a reason able doubt that go vernment counsel’s erroneous argument was harmless.

D. “Trial counsel as ked the panel to pl ace themselves

in the shoes of the victims and victims’ relatives.”

Relying primarily on United States v. Shamberger , 1 M.J. 377 (C.M.A. 1976), and its prohibition of “Golden Rule” arguments which seek to plac e the factfinder in the position of a victim, appellant complains of addi tional lines of government argument on findings and sentencing. Fo r example, government counsel said the following of Mrs. KE during rebuttal findings argument:

You have to think, what’s go ing on in her mind? “Oh my God, my husband’s [sic] not here. Help is not on the way. I’ve got to protect my children. Do anything you want to me, but save my children. I w ill submit. I’l l do anything, but please save my children.”

Appellant now argues gove rnment counsel erred in asking the panel to “imagine” several aspects of the murder scen e. For example, the following occurred during sentencing argument:

TC: Imagine the mental anguis h of [Mrs. KE]. There was no forced entry in the house bu t, at a certain point, once the accused was inside there, probably usi ng the dog to gain entry--something ab out the dog somehow gaining entry into the house. At a certain po int, [Mrs. KE] had to
realize that she was in trou ble. Imagine the mental anguish of this woman, 120 or so pounds, and this 6-foot-4
man in her house now with he r three small daughters there and her husband definitely not coming home, away at school. Imagine the mental anguish as that situation develops. And she was ev entually bound and she was eventually raped. Imagine the fear--

DC: Objection, Your Honor. He is inappropriately attempting to place the panel in--it’s an improper
argument.

MJ: You may not pl ace the members into the shoes of the
victims.HENNIS—ARMY 20100304

88 TC: Yes, Your Honor. The f ear that [Mrs. KE] must have felt for her children, knowing th at they were just a room away is extreme mental anguish.

When you’re considering pain and suffering, remember the
defensive wounds that [Miss KE] had on her body and that [Mrs. KE] had on her body. Remember the details presented by the medical examiners about the injuries suffered by the children, th e physical attacks on the
children.

You’ll have the autopsy repo rts. You have those in evidence, one each for the thre e victims. A nd you had the testimony from the medical examiners. They talked extensively, as the reports do, about the wounds, the stabbings; each child stabbed 10 times, [Miss EE] with 5 of those stabbings in the ba ck. None of those wounds
caused instant death. Ther e was pain, and there was suffering by each of those victims.

We don’t know in that mast er bedroom wh ich--between [Miss EE] and [Mrs. KE]--which was killed first. We
don’t know. But either scenar io is almost too horrific to imagine. Either little [Miss EE] was mu rdered first while
her mother was bound and forc ed to watch, or [Mrs. KE]
was murdered first in fron t of her 3-year-old child.

And little [Miss KE] in her bed down th e hall under her blanket--age 5, at the age where your pare nts tell you
monsters aren’t re al. And when you’r e 5 and you lay in bed and you close yo ur eyes and hide under the blanket thinking I can’t see them so they can’t see me. Imagine
the screams.

There can be no doubt that ther e was pain and suffering by all three of these victims, emotional and physical.

Neither these arguments nor the others of which appellant now complains violated the “Golden Rule” pr inciple. We so conclude, noting our supe rior court’s
observation in United States v. Baer , 53 M.J. 235, 238 (C.A.A.F. 2000):

[W]e also recognize that an argument asking the members to imagine the victim’s fear, pain, terror, and anguish is permissible, since it is si mply asking the members toHENNIS—ARMY 20100304

89 consider victim impact evidence. See, e.g., United States
v. Holt , 33 M.J. 400, 408-409 ([C. M.A.] 1991). Logically speaking, asking the members to consider the fear and pain of the victim is concep tually different from asking them to put themselves in the victim’s place. See United
States v. Edmonds , 36 M.J. 791, 793 ([A.C.M.R.] 1993).

Under the circumstances of this case, including the lone surviving child’s testimony at trial that she had no memories of her mo ther or sisters, we conclude government counsel fairly and properly asked the me mbers to c onsider and “imagine” the victims’ emotional and phys ical pain and suffe ring at appellant’s hands. We further find government co unsel’s arguments regarding the impact on other surviving fa mily members consistent with the cases cited supra

.

VIII – B. THE MILITARY JUDGE ABUSED HIS
DISCRETION WHEN HE PERMITTED THE
GOVERNMENT TO AD MIT AGGRAVATION
EVIDENCE IN VIOLATION OF THE FIFTH AND
EIGHTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.

Considering the record of tr ial and matters asserted in the parties' briefs, we conclude this assignment of error merits neither detailed discussion nor relief. The aggravation evidence admitted in this ca se was well within the constitutional safeguards described in Payne v. Tennessee , 501 U.S. 808 (1991).

VIII – C. THE MILIT ARY JUDGE ERRED WHEN HE
DENIED MASTER SERGE ANT HENNIS’ MOTION
TO SET ASIDE THE CAPITAL REFERRAL DUE TO
THE DESTRUCTION OF OVER THREE YEARS OF
INMATE RECORDS.

Considering the record of tr ial and matters asserted in the parties’ briefs, we conclude this assignment of error merits neither discussion nor relief.

VIII – D. THE MILIT ARY JUDGE ERRED WHEN HE
INSTRUCTED THE PANEL THAT THEY NEEDED
TO CONTINUE TO VOTE UNTIL THEY REACHED
EITHER ELEVEN VOTES FO R LIFE OR FOURTEEN
VOTES FOR DEATH.

During sentencing deliberations, the panel members submit ted the following question to the mi litary judge:HENNIS—ARMY 20100304

90 If there is one pers on who votes agains t the death penalty
does that mean that all other vo tes are for a li fe sentence? i.e. does this automatically fulfill a confinement for life
sentence consider ing a 3/4 concurre nce (understanding para. 3, pg 21)? 27

After granting a recess in the panel’s deliberations, the mi litary judge heard extensive argument 28 from the parties regarding the correct response. 29

27 The parenthetical phrase referred to the portion of the written sentencing instructions, informing the panel that a three-fourths concurrence was required in order to sentence appellant to confinement for life.

28 The defense correctly no ted to the military judge that the Military Judge’s
Benchbook states that only one vote may be taken on the death penalty. Dep’t of Army, Pam 27-9, Legal Services: Milit ary Judges’ Benchbo ok [hereinafter Benchbook] para. 2-7-18 n.1 (1 Jan. 2010). This Benchbook pr ovision is incorrect
as a matter of law. See R.C.M. 1006(d)(3)(A).

29 Urging the military judg e to ask the members whether they had voted on the death penalty so that he mi ght then instruct them that only one vote thereon was allowed, the trial defense team re lied heavily on the following passage
from United States v. Simoy , 50 M.J. 1, 2 (C .A.A.F. 1998):

In order for the de ath penalty to be imposed in the military, four gates must be passed:

(1) Unanimous findings of guilty of an offense that authorizes the imposition of the death penalty, R.C.M. 1004(a)(2);

(2) Unanimous findi ngs beyond a reasonabl e doubt that an aggravating factor exis ts, R.C.M. 1004(b)(7);

(3) Unanimous concurrence that aggravating factors substantially outweigh mi tigating factors, R.C.M. 1004(b)(4)(C); and

(4) Unanimous vote by the members on the death penalty, RCM 1006(d)(4)(A). See Loving v. Hart , 47 M.J. 438, 442 (1998).

(continued . . .)HENNIS—ARMY 20100304

91 Ultimately, he provided th e following instruction:

You need a required concurrence for any proposed sentence; unanimous fo r death, three-quar ters or 11 votes
for a life sentence. If you vote on a pr oposed sentence or sentences without arriving or reaching the required concurrence, you should repeat the process of discussion, proposal of sentence or sentences, and then voting.

We review de novo an allegation that the military judge er red in instructing
the members. United States v. Behenna , 71 M.J. 228, 232 (C.A .A.F. 2012). “In regard to form, a military judge has wide discretion in choosing the instru ctions to give but has a duty to provi de an accurate, complete, an d intelligible statement of
the law.” Id . Indeed, the military judge’s instructions on voting procedure was correct. Under Article 52(b)(1), UCMJ, “No person may be se ntenced to suffer death, except by the concurre nce of all the members of th e court-martia l present at
the time the vote is taken.” Under Ar ticle 52(b)(2), UCMJ, “No person may be sentenced to life imprisonment . . . except by the concurre nce of three-fourths of the members present at the time the vote is ta ken.” R.C.M. 1006( d)(4)(A) and R.C.M. 1006(d)(4)(B) essentiall y repeat these stat utory provisions, an d R.C.M. 1006(d)(5) further requires: “When a mandatory mini mum is prescribed u nder Article 118 the
members shall vote on a sent ence in accordance with th is rule.” Under R.C.M. 1006(d)(3)(A):

All members shall vote on eac h proposed sentence in its entirety beginning with the le ast severe and continuing, as necessary, with the ne xt least severe, until a sentence is adopted by the conc urrence of the number of members required unde r subsection (d)(4) of this rule. The process of proposing sentence s and voting on them may be

(. . . continued) If at any step along the way there is not a unanimous finding, this eliminates the death penalty as an option.

The defense argued the last quoted sentence establishe s that only on e vote may be taken on the death pena lty. We disagree, for the appellate issue in Simoy was the
order in which members must vote on proposed sentences, not the members' authority to repeat the process in the absence of a requi red concurrence. We perceive no conflict between Simoy and R.C.M. 1006(d)(3)(A).HENNIS—ARMY 20100304

92 repeated as necessary until a sentence is adopted. (Emphasis added.).

We conclude the military judge’s instru ctions were correct. We additionally conclude, contrary to appellant’s argume nt and brief, the military judge committed no error in denying th e defense’s request to respond to the me mbers’ question by asking whether they had voted on a sentence.

VIII – E. THE PANEL PRESIDENT FAILED TO
ANNOUNCE THE AGGRAVAT ING FACTORS THAT
IT FOUND TO SUPPORT THE DEATH SENTENCE
BEFORE THE COURT ADJOURNED.

At approximately 1450 on 15 Apri l 2010, the members returned from
deliberations with their se ntence. The military judg e reviewed the sentence worksheet, which is Appellat e Exhibit 515, and found, “[i]t appears to be in proper form.” After returning the worksheet to the members, the military j udge asked the panel president to announce the sentence. The president did so, announcing that the members unanimously concurred in sent encing appellant to reduction to E-1, forfeiture of all pay and al lowances, a dishonora ble discharge, and death. The panel returned the sentencing worksheet to the military judge, who adjourned the courtmartial at 1452.

At 1701 on 15 Ap ril 2010, the military judge called the co urt to order; the members were present. The military judge informed the panel that he “neglected to
have the President read certain matters th at should have been read.” He then returned the sentencing worksheet to the panel president, with the following
instructions:

Sir, what actually must be read, in additi on to--you don’t need to reread the sentence, sir, but I need to have you
read:

On page 1, subparagraphs 1 and 2 under (a)(1);

On page 2, subparagraphs 1 and 2 under (a)(2);

On page 3, subparagraphs 1 and 2 under (a)(3); and

On page 4, subparagraph 1.

The panel president then announced the members’ unanimous findings “that the following aggravating factor[s] [have] been proven beyond a reasonable doubt:”HENNIS—ARMY 20100304

93 Having been found guilty of the premeditated murder of Mrs. [KE], a violation of the UCMJ, Article 118(1), you have been found guilty in th e same case of additional violations of the UCMJ, Article 118(1), in the premeditated murders of Miss [KE] and Miss [EE].

[. . .]

That the premeditated murder of Mrs. [KE], a violation of the UCMJ, Article 118(1), wa s committed while you were engaged in the commission of rape.

[. . .]

That the premeditated murders of Mrs. [KE], Miss [KE] and Miss [EE], violations of the UCMJ, Article 118(1), were preceded by the intentional infliction of substantial physical harm or prol onged, substantial me ntal or physical pain and suffering to the victims.

Master Sergeant Timothy B. Hennis, it is my duty as President of this court-martial to inform you that, having
considered all the matters in mitigation an d extenuation and all the matters in aggravation, this court-martial, in
closed-session an d upon secret, wr itten ballot, unanimously finds that any extenuating or mitigating
circumstances are substant ially outweighed by the aggravating circumstances, including the aggravating factors specifically found by th e court and listed above.

The president returned the sentencing worksheet to the bailiff, who handed it to the court reporter, and the military judge adjourned the court-martial at 1704.

Under R.C.M. 1004 (b)(8), “[i]f death is adjudg ed, the president shall, in addition to complying with R.C.M. 1007, annou nce which aggravating factors under subsection (c) of this rule were found by the members. ” R.C.M. 1007 (b) addresses
the erroneous announcement of a sentence, providing:

If the announced sentence is not the one actually determined by the court-martial, the error may be corrected by a new announcemen t made before the record
of trial is authenticated a nd forwarded to the convening authority. This ac tion shall not consti tute reconsideration
of the sentence. If the cour t-martial has been adjournedHENNIS—ARMY 20100304

94 before the error is discovered , the military judge may call
the court-martial into session to correct the announcement.

Article 60(e)(2), UC MJ, also provides:

A proceeding in revision may be ordered if there is an
apparent error or om ission in the record or if the record shows improper or in consistent action by a court-martial with respect to th e findings or senten ce that can be rectified without material pr ejudice to the substantial rights of the acc used. In no ca se, however, may a proceeding in revision –

[. . .]

(C) increase the severity of some article of the sentence unless the sentence prescr ibed for the offense is mandatory.

10 U.S.C. § 860(e)(2) (2006).

We agree with appellant’s argument on appeal , to the extent he points out that a “sentence cannot be upwardly corrected after adjournment of the court-martial,
even to correct clear errors in announcement of the sentence. ” For this argument he
cites United States v. Jones , 34 M.J. 270, 271-72 (C.M.A. 1992) (citing United
States v. Baker , 32 M.J. 290 (C.M.A. 1991) and Article 60, UCMJ). In Jones , the
court-martial did not announce a sentence to confinement; however, the military judge held a proceeding in revision “appro ximately two months later” to add the punishment of confinem ent for six months, explaining “h e had intended” to do so in his original announcement. Id . at 271,

In Baker , the court-martial did not announce a punitive discharge as part of appellant’s sentence. Baker , 32 M.J. at 291. However, after the pa nel president revealed that the panel had actually vote d to sentence appe llant to punitive discharge, the militar y judge allowed him to announce the omit ted portion of the sentence in a subsequent Ar ticle 39(a), UC MJ, session. Id . Noting an inconsistency between R.C.M. 1007(b), wh ich does not prohibit a subs equent announcement from increasing a sentence’s severity, and Ar ticle 60, UCMJ, which does contain such a prohibition while allowing s ubsequent announcem ent of a mandatory sentence, our superior court wrote:

In our view, [R.C.M.] 1007(b) is inconsistent with Article 60(e) to the extent it permits the possibility of command influence. For these reasons, we hold that, after a court-HENNIS—ARMY 20100304

95 martial has announced the se ntence and adjourned, the
sentence cannot be increase d upon reassembly , except for
the reason noted in Article 60(d)(2)(C).

Id . at 293. In the footnote to the first sentence regarding command influence, the court wrote: “We do not suggest that se ntences cannot be corre cted, even upward, on the spot. The mere utte rance of the sentence does not effect some magical transformation. Ordinarily, it will be only after the he aring has terminated that a charge of collective hear t-changing can arise.” Id. at 293 n.6.

Appellant has made no “c harge of collective heart-changing,” and we perceive
no reasonable basis for su ch a charge. The sentencing worksheet remained unchanged after the original announcement. It reflected the following decisions at Simoy “gates” two, three and four: the sign atures of each member, finding each aggravating factor proven; th e signatures of each member finding any extenuating or mitigating circumstances substantially outw eighed by the aggravating circumstances; and, the signatures of each member , sentencing appellant to death.

We understand the importa nce of announcing the ag gravating factors in a death penalty case. United States v. Matthews , decided before the President promulgated the requir ement in the Manual for Courts-M artial, teaches us that for a death penalty to be consti tutionally reliab le, the following must be present:

1. A Bifurcated Sentencing Procedure Must Follow the Finding Of Guilt Of a Po tential Capital Offense.

2. Specific Aggravating Circumstances Must Be Identified To the Sentencing Authority.

3. The Sentencing Authority Must Select and Make Findings On the Pa rticular Aggravating Circumstances Used As a Basis For Impos ing the Death Sentence.

4. The Defendant Must Have Unrestricted Opportunity To Present Mitigating and Extenuating Evidence.

5. Mandatory Appellate Revi ew Must Be Required To Consider the Propriety Of the Sentence As To the
Individual Offense and In dividual Defendant and To Compare the Sentence To Similar Cases Statewide.

16 M.J. 354, 377 (C.M.A. 1983).HENNIS—ARMY 20100304

96 Absent the requirement to announce aggravating factor s, we would be unable to determine compliance with the third requirem ent and, therefore, unable to fulfill our duty under th e fifth; we would be unable to assess whether the sentencing authority “made ‘an individualized determination on the basis of the character of the
individual and the circumstan ces of the crime,” and whet her they have ‘adequately differentiate[d] this case in an objective, evenhanded, and substantively rational way’ from the other murder cases in whic h the death penalty was not imposed.” Id

. at 379 (quoting Zant v. Stephens , 462 U.S. 862 , 879 (1983)).

The procedure involved in announcing the aggr avating factors in this case was less than perfect. Howeve r, we conclude appellant did receive and continues to
receive the benefit of the fundam ental protections described in Matthews

. Considering Article 60, UCMJ, and our superior court’s interpretation thereof, we hold the panel pr esident’s subsequent announcement of th e previously-found aggravating factors in support of its prev iously-announced deat h sentence did not increase the severity of the sentence itself.

IX. BASED ON THE SUPREME COURT’S
REASONING IN RING V. ARIZONA , 536 U.S. 584 (2002), CONGRESS UNCONSTITUTIONALLY
DELEGATED TO THE PRES IDENT THE POWER TO ENACT ELEMENTS OF CAPITAL MURDER, A
PURELY LEGISLATIVE FUNCTION.

Considering the record of tr ial and matters asserted in the parties’ briefs, we resolve this assignmen t of error against appellant c onsistent with our superior
court’s treatment of the subs tantially identical issue in United States v. Akbar , 74 M.J. 364, 404 (C .A.A.F. 2015).

X. DUE PROCESS REQUIRES THAT THE MEMBERS
FIND THAT AGGRAVATING CIRCUMSTANCES
OUTWEIGH MITIGATING AND EXTENUATING
CIRCUMSTANCES BEYOND A REASONABLE
DOUBT BEFORE DECIDI NG WHETHER THE
DEATH PENALTY SHOULD BE IMPOSED.

Considering the record of tr ial and matters asserted in the parties’ briefs, we conclude this assignment of error merits neither discussion nor relief.

XI. STANDARDS APPLICABLE TO FEDERAL AND
STATE CAPITAL DEFENSE COUNSEL HAVE
APPLICABILITY TO COURTS-MARTIAL AS
RELEVANT STANDARDS OF CARE.HENNIS—ARMY 20100304

97 Considering the record of tr ial and matters asserted in the parties’ briefs, we resolve this assignmen t of error against appellant c onsistent with our superior
court’s treatment of the subs tantially identical issue in Akbar

. Id . at 399-400.

XII. MASTER SERGEANT HENNIS’ CAPITAL
SENTENCE CANNOT STAND BECAUSE THE
MILITARY JUDGE ERRED IN ALLOWING INTO
EVIDENCE THE PRIOR TE STIMONY OF SEVERAL WITNESSES, TAKEN FROM AN EARLIER STATE TRIAL IN NORTH CAROLINA, VIOLATING ARTICLE 49(D), UCMJ, WHICH DOES NOT PERMIT
DEPOSITIONS TO BE PRESENTED INTO
EVIDENCE IN A CAPITAL COURT-MARTIAL.

Considering the record of tr ial and matters asserted in the parties’ briefs, we conclude this assignment of error merits neither discussion nor relief.

XIII. THE LACK OF A SYSTEM TO ENSURE
CONSISTENT AND EVENHANDED APPLICATION
OF THE DEATH PENALTY IN THE MILITARY
VIOLATES BOTH MASTER SERGEANT HENNIS’ EQUAL PROTECTION RIGHTS AND ARTICLE 36,
UCMJ.

Considering the record of tr ial and matters asserted in the parties’ briefs, we resolve this assignmen t of error against appellant c onsistent with our superior
court’s treatment of a subs tantially similar issue in Akbar

. Id . at 405-06, 411.

XIV. MASTER SERGEANT HENNIS WAS
SUBSTANTIALLY PREJUDICED BY A LEGALLY INSUFFICIENT PRETRIAL ADVICE, INCORRECT
POST-TRIAL RECOMMENDATION AND INCORRECT ADDENDUM WHEN THE STAFF JUDGE
ADVOCATE RECOMMENDED THAT MSG HENNIS
BE TRIED IN AN ACTIVE DUTY STATUS AND
RECEIVE ACTIVE DUTY PUNISHMENT WHEN
MSG HENNIS COULD ONLY BE TRIED IN A RETIREE STATUS, IF AT ALL. SEE 10 U.S.C. § 688 (2001) and Department of Defense Directive 1352.1 (2005).

Considering ou r conclusion, supra , that appellant was lawfully called to active duty under Ar ticle 2(a)(1), UCMJ, this assignment of error merits neither
discussion nor relief.HENNIS—ARMY 20100304

98 XV. THE DEATH SENTENCE IN THIS CASE VIOLATES THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS AND ARTICLE 55, UCMJ, BECAUSE
THE MILITARY SYSTEM DOES NOT GUARANTEE
A FIXED NUMBER OF MEMBERS. See IRVIN V.
DOWD , 366 U.S. 717, 722 (1961).

XVI. DISCUSSION OF FINDINGS AND SENTENCING
INSTRUCTIONS AND OTHER SUBSTANTIVE
ISSUES AT R.C.M. 802 CONFERENCES DENIED
MASTER SERGEANT HENN IS’ HIS RIGHT TO BE
PRESENT AT “EVERY STAGE OF THE TRIAL.”

Appellant has assigned th ese two errors as head note pleadings without briefing; they merit neither discussion nor relief.

XVII. THE ROLE OF THE CONVENING
AUTHORITY IN THE MILITARY JUSTICE SYSTEM DENIED MASTER SERGEANT HENNIS’ [SIC] A
FAIR AND IMPARTIAL TRIAL IN VIOLATION OF THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS AND ARTICLE 55, UCMJ, BY ALLOWING THE
CONVENING AUTHORITY TO ACT AS A GRAND
JURY IN REFERRING CAPITAL CRIMINAL CASES TO TRIAL, PERSONALLY APPOINTING MEMBERS OF HIS CHOICE, RATING THE MEMBERS,
HOLDING THE ULTIMATE LAW ENFORCEMENT FUNCTION WITHIN HIS COMMAND, RATING HIS LEGAL ADVISOR, AND ACTI NG AS THE FIRST LEVEL OF APPEAL, THUS CREATING AN
APPEARANCE OF IMPROPRIETY THROUGH A PERCEPTION THAT HE ACTS AS PROSECUTOR, JUDGE, AND JURY.

Appellant has assigne d this error as a headnote pleading without briefing; we resolve it against him consistent with our superior court’s treatme nt of the issue in United States v. Loving , 41 M.J. 213, 296-97 (C.A .A.F. 1994).

XVIII. ARTICLE 18, UCMJ, AND R.C.M. 201(F)(1)(C), WHICH REQUIRE TRIAL BY MEMBERS IN A CAPITAL CASE, VIOLATES THE
GUARANTEE OF DUE PROCESS AND A RELIABLE VERDICT UNDER THE FIFTH, SIXTH, ANDHENNIS—ARMY 20100304

99 EIGHTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.

Appellant has assigne d this error as a headnote pleading without briefing; we resolve it against him consistent with our superior court’s treatme nt of the issue in Gray , 51 M.J. at 49.

XIX. MASTER SERGEANT HENNIS WAS DENIED
HIS RIGHT TO A TRIAL BY AN IMPARTIAL JURY
COMPOSED OF A FAIR CROSS-SECTION OF THE
COMMUNITY IN VIOLAT ION OF THE SIXTH
AMENDMENT TO THE UNITED STATES
CONSTITUTION. DUREN V. MISSOURI , 439 U.S. 357 (1979). BUT SEE UNITED STATES V. CURTIS
, 44 M.J. 106, 130-33 (C.A .A.F. 1996).

Appellant has assigne d this error as a headnote pleading without briefing; we resolve it against him consistent with our superior court’s treatme nt of the issue in Gray , 51 M.J. at 61.

XX. THE SELECTION OF THE PANEL MEMBERS
BY THE CONVENING AUTHO RITY IN A CAPITAL
CASE DIRECTLY VIOLATES MASTER SERGEANT
HENNIS’ RIGHTS UNDER TH E FIFTH, SIXTH, AND
EIGHTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 55, UCMJ, BY IN
EFFECT GIVING THE GOVERNMENT UNLIMITED PEREMPTORY CHALLENGE[S].

Appellant has assigne d this error as a headnote pleading without briefing; we resolve it against him consistent with our superior court’s treatme nt of substantially similar issues involving a convening auth ority’s selection of panel members in
United States v. Curtis , 44 M.J. 106, 132 (C.A .A.F. 1996).

XXI. THE PRESIDENT EXCEEDED HIS ARTICLE
36 POWERS TO ESTABLISH PROCEDURES FOR
COURTS-MARTIAL WHEN HE GRANTED TRIAL
COUNSEL A PEREMPTORY CHALLENGE AND
THEREBY THE POWER TO NULLIFY THE CONVENING AUTHORITY’S ARTICLE 25(D)
AUTHORITY TO DETAIL MEMBERS OF THE
COURT.HENNIS—ARMY 20100304

100 XXII. THE PEREMPTORY CHALLENGE
PROCEDURE IN THE MILITARY JUSTICE SYSTEM, WHICH ALLOWS THE GOVERNMENT TO REMOVE ANY ONE MEMBER WITHOUT CAUSE, IS
AN UNCONSTITUTIONAL VIOLATION OF THE
FIFTH AND EIGHTH AM ENDMENTS TO THE
UNITED STATES CONSTITUTION IN CAPITAL CASES, WHERE THE PROSECUTOR IS FREE TO
REMOVE A MEMBER WHOSE MORAL BIAS
AGAINST THE DEATH PENALTY DOES NOT
JUSTIFY A CHALLENGE FOR CAUSE. BUT SEE
UNITED STATES V. CURTIS
, 44 M.J. 106, 131-33 (C.A.A.F. 1996); UNITED STATES V. LOVING
, 41 M.J. 213, 294-95 (C.A .A.F. 1994).

Appellant has assigned th ese two errors as head note pleadings without briefing; we resolve them against him consis tent with our superi or court’s treatment of substantially similar is sues in Curtis

. Id . at 131-33.

XXIII. THE DESIGNATIO N OF THE SENIOR
MEMBER AS THE PRESIDING OFFICER FOR
DELIBERATIONS DENIED MASTER SERGEANT
HENNIS A FAIR TRIAL BEFORE IMPARTIAL
MEMBERS IN VIOLATION OF THE FIFTH, SIXTH,
AND EIGHTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 55, UCMJ.

Appellant has assigne d this error as a headnote pleading without briefing; we resolve it against him consistent with our superior cour t’s treatment of a substantially si milar issue in Gray . 51 M.J. at 57.

XXIV. THE DENIAL OF TH E RIGHT TO POLL THE
MEMBERS REGARDING THEIR VERDICT AT
EACH STAGE IN THE TRIAL DENIED MASTER
SERGEANT HENNIS A FAIR TRIAL BEFORE
IMPARTIAL MEMBERS IN VIOLATION OF THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS TO
THE U.S. CONSTITUTI ON AND ARTICLE 55, UCMJ.
SEE APP. EX. 50.

Appellant has assigne d this error as a headnote pleading without briefing; we resolve it against him consistent with our superior cour t’s treatment of a substantially si milar issue in Gray

. Id . at 60-61.HENNIS—ARMY 20100304

101 XXV. THERE IS NO MEANINGFUL DISTINCTION
BETWEEN PREMEDITATED AND
UNPREMEDITATED MURDER ALLOWING
DIFFERENTIAL TREATMENT AND SENTENCING DISPARITY IN VIOLATION OF THE FIFTH, SIXTH,
AND EIGHTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 55, UCMJ.
SEE APP. EX. XXXIV (DEFENSE MOTION TO
DISMISS THE CAPITAL REFERRAL DUE TO
ARTICLE 118 OF THE UCMJ BEING UNCONSTITUTIONALLY VAGUE).

Appellant has assigne d this error as a headnote pleading without briefing; we resolve it against him consistent with our superior cour t’s treatment of a substantially si milar issue in Gray

. Id . at 56.

XXVI. MASTER SERGEANT HENNIS WAS DENIED
HIS RIGHT UNDER THE FIFTH AMENDMENT TO
THE UNITED STATES CONSTITUTION TO A
GRAND JURY PRESENTMENT OR INDICTMENT.

XXVII. COURT-MARTIAL PROCEDURES DENIED
MASTER SERGEANT HE NNIS HIS ARTICLE III
RIGHT TO A JURY TRIAL. SOLORIO V. UNITED
STATES , 103 U.S. 435, 453-54 (1987) (MARSHALL J., dissenting). BUT SEE UNITED STATES V. CURTIS
, 44 M.J. 106, 132 (C .A.A.F. 1996).

Appellant has assigned th ese two errors as headnote pleadings without briefing; we resolve them against him consis tent with our superi or court’s treatment
of the issues in Gray

. Id . at 48.

XXVIII. DUE PROCESS REQUIRES THAT TRIAL
AND INTERMEDIATE APPELLATE JUDGES IN A
MILITARY DEATH PENALTY CASE HAVE THE
PROTECTION OF A FIXE D TERM OF OFFICE, NOT
SUBJECT TO INFLUENCE AND CONTROL BY THE
JUDGE ADVOCATE GENERAL OF THE ARMY. BUT
SEE UNITED STATES V. LOVING , 41 M.J. 213, 295 (C.A.A.F. 1994).

Appellant has assigne d this error as a headnote pleading without briefing; we resolve it against him consistent with our superior cour t’s treatment of a substantially si milar issue in Loving . 41 M.J at 295.HENNIS—ARMY 20100304

102 XXIX. THE ARMY COURT L ACKED JURISDICTION
BECAUSE THE JUDGES ARE PRINCIPAL
OFFICERS WHOM THE PRESIDENT DID NOT APPOINT AS REQUIRED BY THE APPOINTMENTS
CLAUSE OF THE CONSTITUTION. SEE US CONST., ART. II, § 2. BUT SEE UNITED STATES V.
GRINDSTAFF
, 45 M.J. 634 (N.M . CT. CRIM. APP. 1997); BUT CF. EDMOND V. UNITED STATES , 115 U.S. 651 (1997).

Appellant has assigne d this error as a headnote pleading without briefing; we resolve it against him consistent with the Supreme Court’s treatme nt of substantially
similar issues in Edmond v. United States , 520 U.S. 651 (1997) and Weiss v. United

States , 510 U.S. 163, 167-76 (1994).

XXX. THIS COURT LACK S THE JURISDICTION
AND AUTHORITY TO REVIEW THE
CONSTITUTIONALITY OF THE RULES FOR
COURTS-MARTIAL AND THE UCMJ BECAUSE THIS COURT IS AN ARTICLE I COURT, NOT AN
ARTICLE III COURT WHICH HAS THE POWER OF
CHECKING CONGRESS AND THE EXECUTIVE
BRANCHES UNDER MARBURY V. MADISON
, 5 U.S. (1 CRANCH) 137 (1803). SEE ALSO COOPER V.
AARON
, 358 U.S. 1 (1958) (THE POWER TO STRIKE
DOWN UNCONSTITUTIONAL STATUTES OR
EXECUTIVE ORDERS IS THE EXCLUSIVE CHECK OF THE ARTICLE III JUDICIARY). BUT SEE
LOVING
, [41 M.J. at] 213, 296 (C.A.A.F. 1994).

XXXI. MASTER SERGEANT HENNIS HAS BEEN DENIED EQUAL PROTECTI ON OF THE LAWS IN
VIOLATION OF THE FIFTH AMENDMENT IN THAT
ALL CIVILIANS IN THE UNITED STATES ARE
AFFORDED THE OPPORTUNI TY TO HAVE THEIR CASES REVIEWED BY AN ARTICLE III COURT,
BUT MEMBERS OF THE UNITED STATES
MILITARY BY VIRTUE OF THEIR STATUS AS
SERVICE MEMBERS ARE NOT. BUT SEE UNITED
STATES V. LOVING
, 41 M.J. 213, 295 (C .A.A.F. 1994).

Appellant has assigned th ese two errors as headnote pleadings without briefing; we resolve them against him consis tent with our superi or court’s treatment of substantially si milar issues in Gray

. 51 M.J. at 55.HENNIS—ARMY 20100304

103 XXXII. MASTER SERGEANT HENNIS HAS BEEN DENIED EQUAL PROTECTION OF THE LAW
UNDER THE FIFTH AMENDMENT TO THE UNITED
STATES CONSTITUTION BECAUSE IAW ARMY REGULATION 15-130, P ARA. 3-1(d)(6), HIS
APPROVED DEATH SENTENCE RENDERS HIM
INELIGIBLE FOR CLEMENCY BY THE ARMY CLEMENCY AND PAROLE BOARD, WHILE ALL
OTHER CASES REVIEWED BY THIS COURT ARE
ELIGIBLE FOR SUCH CONSIDERATION. BUT SEE
UNITED STATES V. THOMAS
, 43 M.J. 550, 607 (N.M. CT. CRIM. APP. 1995).

XXXIII. MASTER SERGEANT HENNIS’ DEATH
SENTENCE VIOLATES THE EIGHTH
AMENDMENT’S PROHIBITION AGAINST CRUEL
AND UNUSUAL PUNISHMENT BECAUSE THE
CAPITAL REFERRAL SYSTEM OPERATES IN AN
ARBITRARY AND CAPRICIOUS MANNER. SEE APP. EX. XL (DEFENSE MOTION TO SET ASIDE
CAPITAL REFERRAL FOR LACK OF STATUTORY GUIDELINES).

XXXIV. THE DEATH PENA LTY PROVISION OF ARTICLE 118, UCMJ, IS UNCONSTITUTIONAL AS
IT RELATES TO TRADI TIONAL COMMON LAW
CRIMES THAT OCCUR IN THE UNITED STATES.
BUT SEE UNITED STATES V. LOVING
, 41 M.J. 213, 293 (C.A.A.F. 1994). THE COURT RESOLVED THE ISSUE AGAINST PRIVATE LOVING, ADOPTING
THE REASONING OF THE DECISION OF THE
ARMY COURT OF MILITARY REVIEW. SEE
UNITED STATES V. LOVING
, 34 M.J. 956, 967 (A.C.M.R. 1992). HOWEVER, PRIVATE LOVING’S
ARGUMENT BEFORE THE ARMY COURT WAS
PREDICATED ON THE TENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND THE
NECESSARY AND PROPER CLAUSE. ID. MASTER
SERGEANT HENNIS’ ARGU MENT IS PREDICATED
ON THE EIGHTH AME NDMENT TO THE UNITED
STATES CONSTITUTION.

XXXV. THE DEATH SENTENCE IN THIS CASE
VIOLATES THE FIFTH AND EIGHTHHENNIS—ARMY 20100304

104 AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 55, UCMJ,
BECAUSE THE CONVENING AUTHORITY HAS NOT
DEMONSTRATED HOW THE DEATH PENALTY
WOULD ENHANCE GOOD ORDER AND
DISCIPLINE IN THE ARMY.

XXXVI. THE CAPITAL SENTENCING PROCEDURE
IN THE MILITARY IS UNCONSTITUTIONAL
BECAUSE THE MILITARY JUDGE DOES NOT
HAVE THE POWER TO ADJUST OR SUSPEND A
SENTENCE OF DEATH TH AT IS IMPROPERLY
IMPOSED.

XXXVII. DUE TO INHERENT FLAWS IN THE MILITARY JUSTICE SYSTEM, THE DEATH
PENALTY VIOLATES THE PROHIBITION AGAINST
CRUEL AND UNUSUAL PUNISHMENT UNDER ALL
CIRCUMSTANCES.

XXXVIII. THE DEATH PENALTY CANNOT
CONSTITUTIONALLY BE IMPLEMENTED UNDER
CURRENT EIGHTH AMENDMENT
JURISPRUDENCE. SEE CALLINS V. COLLINS
, 510 U.S. 114, 1144-1159 (1 994) (BLACKMUN, J., dissenting) ( cert. denied ).

XXXIX. RULE FOR COURTS-MARTIAL 1209 AND
THE MILITARY DEATH PENALTY SYSTEM
DENIES DUE PROCESS AND CONSTITUTES CRUEL
AND UNUSUAL PUNISHMENT AND ISTANTAMOUNT TO FORESEEABLE, STATESPONSORED EXECUTION OF INNOCENT HUMAN
BEINGS BECAUSE THERE IS NO EXCEPTION FOR
ACTUAL INNOCENCE TO THE FINALITY OF
COURTS-MARTIAL REVIEW. CF. TRIESTMAN V.
UNITED STATES
, 124 F.3D 361, 378-79 (2D CIR. 1997).

Appellant has assigned thes e eight errors as head note pleadings without briefing; they merit neither discussion nor relief.HENNIS—ARMY 20100304

105 XL. THE MILITARY JUDGE ERRED IN
ADMITTING THE GOVERNM ENT’S CRIME SCENE
PHOTOGRAPHS AND VICTIM FAMILY PHOTOS AS
THEY WERE UNDULY PREJUDICIAL TO MASTER
SERGEANT HENNIS’ DUE PROCESS RIGHTS
UNDER THE FIFTH AND EI GHTH AMENDMENTS. SEE, E.G., APP. EX. 53, PROS. EXS. 149-151.

Appellant has assigne d this error as a headnote pleading without briefing; we resolve it against him consistent with our superior cour t’s treatment of a substantially si milar issue in Akbar . 74 M.J. at 407 (“[I]t ca nnot be seriously argued that [the] . . . photograph s were admitted only to inflame or shock this courtmartial.”) (quoting Gray , 51 M.J. at 35).

XLI. THE DEATH SENTENCE IN THIS CASE
VIOLATES THE EX POST FACTO CLAUSE, THE FIFTH AND EIGHTH AMENDMENTS, THE
SEPARATION OF POWE RS DOCTRINE, THE PREEMPTION DOCTRINE, AND ARTICLE 55, UCMJ, BECAUSE WHEN IT WAS ADJUDGED
NEITHER CONGRESS NOR THE ARMY HAD
SPECIFIED A MEANS OR PLACE OF EXECUTION.

XLII. THE ARTICLE 38, UCMJ, REQUIREMENT
THAT CIVILIAN COUNSEL SERVE AS LEAD
COUNSEL VIOLATED MASTER SERGEANT
HENNIS’ FIFTH AND SIXT H AMENDMENT RIGHTS
TO COUNSEL.

XLIII. THE DYSFUNCTIONAL ADMINISTRATION
OF THE MILITARY’S DEATH PENALTY SYSTEM
RESULTS IN AN INORDINATE AND
UNPREDICTABLE PERIOD OF DELAY PRECEDING
THE ACTUAL EXECUTION OF THE RANDOM FEW
FOR WHOM MAY BE EXECU TED. THIS VIOLATES
THE EIGHTH AMENDM ENT’S PROHIBITION
AGAINST CRUEL AND UNUSUAL PUNISHMENT.
SEE JONES V. CHAPPELL , 2014 U.S. DIST. LEXIS 97254, 1 (C.D. CAL. JULY 16, 2014).

Appellant has assigned thes e three errors as head note pleadings without briefing; they merit neither discussion no r relief.HENNIS—ARMY 20100304

106 PROPORTIONALITY REVIEW

We are required to assess the proportio nality of appellant’s death sentence.
Akbar , 74 M.J. at 408; Gray , 51 M.J. at 62; United States v. Curtis , 33 M.J. 101, 109 (C.M.A. 1991). Under Articl e 66(c), UCMJ, we conclude the approved sentence is
correct in law and fact. Fu rther, under the circumstance s of this case, including appellant’s rape of on e of the murder victim s, the vulnerability i nherent in the young ages of the other two murder victims, and appellant’s mutilation of all three murder victims, we conclude the adjudged and appr oved death sentence fits the crimes of which he was found guilt y. We further find “the sentence is generally proportional to those imposed by other jurisdic tions in similar situations.” Curtis , 33 M.J. at 109.
See Ladd v. State , 3 S.W.3d 547 (Tex. Crim. App. 1999

. ); Stevens v. State , 806 So. 2d 1031, 1064 (M iss. 2001); Commonwealth v. Eichinger , 108 A.3d 821, 849 (Pa. 2014) (“multiple murders and mu rder of child we igh heavy in aggravation.”) (citing
Commonwealth v. Koehler , 36 A.3d 121, 151-5 2 (Pa. 2009)).

CONCLUSION

The findings and sentence are correct in law and fact and are AFFIRMED.

Senior Judge TOZZI, Judge HERRI NG, and Judge BURTON concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: