UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before the Court Sitting En Banc1

UNITED STATES, Appellee 

v. 

Master Sergeant TIMOTHY B. HENNIS, 

United States Army, Appellant 

ARMY 20100304 

Headquarters, XVIII Airborne Corps and Fort Bragg 

Patrick J. Parrish, Military Judge 

Colonel Thomas E. Ayres, Staff Judge Advocate (pretrial) 

Colonel Lorianne M. Campanella, Acting Staff Judge Advocate (recommendation) 

Colonel Paul S. Wilson, Staff Judge Advocate (addendum) 

For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Captain Ryan T. Yoder, 

JA (argued)2; Lieutenant Colonel Jonathan F. Potter, JA; Captain Michael J. Millios, 

JA (on brief); Lieutenant Colonel Jonathan F. Potter, JA; Captain Ryan T. Yoder, JA 

(on brief in response to specified issues and on reply brief in response to specified 

issues); Lieutenant Colonel Jonathan F. Potter, 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 brief 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 CELTNIEKS, and Judge WOLFE are taking no part in this 

case as a result of their disqualifications. 

2

 The court heard oral argument on 5 May 2016. At that time, Chief Judge WILSON 

and Senior Judge HAIGHT were members of this court; however, they took no part 

in this case as a result of their disqualifications. 
HENNIS—ARMY 20100304 

2

A general court-martial with enlisted representation found appellant guilty, 

contrary to his pleas, of three specifications of premeditated murder, in violation of 

Article 118, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 918 

(1956). The panel sentenced appellant to death, a dishonorable discharge, forfeiture 

of all pay and allowances, and reduction to E-1. We review this case under Article 

66, UCMJ. 

 Appellant has assigned 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 homicide in Fayetteville, North Carolina, 

occurring during the hours of darkness between 9 and 10 May 1985. The oldest 

victim, Mrs. KE, was married to Air Force Captain GE, who was assigned to nearby 

Pope Air Force Base, but, at the time of the murders, was away on temporary duty at 

Maxwell Air Force Base, Alabama. Their five-year-old daughter, Miss KE, and 

three-year-old daughter, Miss EE, were also murdered. Their sole surviving 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 report of hearing Miss JE’s cries 

from within the house. Mrs. KE’s body was partially naked and her wrists bore 

ligature marks; her underwear had been cut from her body and was discovered along 

with her jeans on the 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 sentenced him to death for the murders in a 

1986 North Carolina state trial. On appeal, the Supreme Court of North Carolina 

ordered a new trial, concluding the prosecution had used excessively “gruesome” 

photos of the victims 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 service credit for his civilian 

confinement, and retired as a Master Sergeant (MSG) from the Regular Army in 

2004. 

 Post-1989 advances in deoxyribonucleic acid (DNA) analysis enabled state 

and military law enforcement agencies to subsequently test the recovered 

spermatozoa for the presence of DNA. Multiple tests, results of which were 

ultimately admitted into evidence at appellant’s court-martial, established the near-
HENNIS—ARMY 20100304 

3

statistical certainty that appellant produced the sperm recovered from Mrs. KE’s 

body. 

 With this new discovery, the convening authority sent a 29 June 2006 

memorandum to the Assistant Secretary of the Army (Manpower and Reserve 

Affairs) (ASA (M&RA)), requesting “approval to order [appellant] to active duty in 

order to facilitate courts-martial action.” In response, the acting ASA (M&RA) 

issued a memorandum, with the subject “Involuntary Order to Active Duty.” In 

pertinent part, it stated: “Under the provisions of Article 2(a)(4), Uniform Code of 

Military Justice, 10 U.S.C. § 688, and Army Regulation (AR) 27-10, [Legal 

Services: Military Justice] paragraph 5-2(b)(3), I hereby order Master Sergeant 

(Ret.) Timothy B. Hennis to active duty.” 

 Implementing the ASA (M&RA)’s decision and order, the Army’s Human 

Resources Command issued a 14 September 2006 order, noting appellant’s retention 

on active duty and directing him to report to Headquarters, XVIII Airborne Corps, in 

October 2006. Appellant complied and remained on active duty with that unit 

through his court-martial. 

ASSIGNMENTS OF ERROR3 AND SPECIFIED ISSUES 

I. WHETHER THE ARMY’S PROSECUTION OF 

MASTER SERGEANT HENNIS AT THE STATE OF 

NORTH CAROLINA’S REQUEST 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 POSSE COMITATUS. 

 Appellant asserts Army officials “engineered” his court-martial as a “sham,” 

prosecuting him on North Carolina’s behalf and creating 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 for 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 accused 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 assignment of error numbers appellant used in his brief. 
HENNIS—ARMY 20100304 

4

 Appellant also argues his court-martial violated the Posse Comitatus Act 

(PCA), 18 U.S.C. § 1385 (2000), which states: 

Whoever, except in cases and under circumstances 

expressly authorized by the Constitution or Act of 

Congress, willfully uses any part of the Army or the Air 

Force as a posse comitatus or otherwise to execute the 

laws shall be fined under this title or imprisoned 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 Defense’s (DoD) implementation of the PCA, 

which prohibited DoD law enforcement activities that were primarily motivated by a 

desire to assist civilian law enforcement 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 subversion of the PCA, but rather a lawful exercise 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, THEREFORE, PERSONAL 

JURISDICTION DID NOT ATTACH TO MASTER 

SERGEANT HENNIS’ COURT-MARTIAL 

RENDERING THE COURT-MARTIAL VOID. 

 To more fully consider this assigned error, we specified and received briefs 

regarding a closely-related issue of personal jurisdiction: 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 did 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 burden of proof and standard of review 

that transcend each. “When challenged, the Government must prove 

jurisdiction by a preponderance 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)). “When an accused contests personal jurisdiction on 
HENNIS—ARMY 20100304 

5

appeal, we review that question of law de novo, accepting the military judge’s 

findings of historical facts 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 dismiss for lack of jurisdiction, arguing he 

retired from the Army, entered a reserve component status, and was not lawfully 

called to active duty therefrom (App. Ex. VIII). On 28 April 2008, the military 

judge denied appellant’s motion (App. Ex. LXIX) and found: 

1. In June 2006 the General Court-Martial Convening 

authority submitted a request through the Criminal Law 

Division, Office of the Judge Advocate General, to the 

Office of the Assistant Secretary 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 accused to active duty 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 ordered the accused to active 

duty. AE IX, encl. 2. 

3. The Government has shown that it properly ordered the 

accused to active duty for the purpose of prosecuting him 

under the provisions of the [UCMJ]. 

4. Under the authority of Article 2, UCMJ, the accused, a 

retiree, is subject to the UCMJ and may be prosecuted for 

offenses committed while on active duty or in a retired 

status. 

5. Accordingly, the motion to dismiss for loss of 

jurisdiction or, in the alternative, to dismiss because the 

Government failed to follow Army regulations in recalling 

the accused is DENIED. 

Article 2(a)(1), UCMJ, which 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 authority to the service secretaries: 
HENNIS—ARMY 20100304 

6

(a) Authority. Under regulations prescribed by the 

Secretary of Defense, a member described in subsection 

(b) may be ordered to active duty by the Secretary of the 

military department concerned at any time. 

(b) Covered members. Except as provided 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 Marine 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 ordered to active duty. The 

Secretary concerned may, to the extent consistent with 

other provisions of law, assign a member ordered to active 

duty under this section to such 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 authorities and responsibilities, specifically 

authorizes the Secretary to delegate authorities to subordinate Army officials: 

The Secretary of the Army may assign such of his 

functions, powers, and duties as he considers appropriate 

to the Under Secretary of the Army and to the Assistant 

Secretaries of the Army. Officers of the Army shall, as 

directed by the Secretary, report 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 authorities, we address whether the ASA 

(M&RA) was empowered to order appellant’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, 90 
HENNIS—ARMY 20100304 

7

(C.A.A.F. 2000), we take judicial notice of Department of the Army General Order 

(DAGO) 2002-03, Assignment of Functions 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 principal responsibility for 

setting the strategic direction and providing the overall 

supervision for manpower, personnel, and Reserve affairs 

across all the Army components (Active, Guard, Reserve, 

civilian and contractor). Among the responsibilities of the 

ASA (M&RA) are: . . . [o]verseeing the 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 asserts it does not 

grant the ASA (M&RA) the required authority to recall appellant: “[DAGO 2002-

03] did not delegate authority specifically over retirees. A retiree is not ‘Active,’ a 

member of the ‘Guard’ or ‘Reserve,’ and is not considered 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 tacit corollary that 

his retirement removed him completely therefrom. (Emphasis added). We conclude 

the opposite, noting his retirement order placed appellant in a control group 

administered by the reserve component. Second and finally, with his mandate to the 

ASA (M&RA) to oversee military justice matters, we conclude the Secretary enabled 

that assistant official to take all actions otherwise reserved to the Secretary under 

the UCMJ. 

 We also note the ASA (M&RA)’s citation to AR 27-10, para. 5-2(b)(3). This 

regulation was issued in 2005 “By Order of the Secretary of the Army,” over the 

signature block of the Chief of Staff of the Army, and signed as “Official” by the 

Administrative Assistant to the Secretary of the Army. Paragraph 5-2(b)(3) states in 

pertinent part: 

If necessary to facilitate courts-martial action, retired 

soldiers may be ordered to active duty. Requests for 

active duty will be forwarded by electronic message 

through the Criminal Law Division, ATTN: DAJA-CL, 

Office of The Judge Advocate General, HQDA to the 
HENNIS—ARMY 20100304 

8

Office of the Assistant Secretary of the Army (Manpower 

and Reserve Affairs) for approval. 

 

 Appellant argues the passage’s use of the word “approval” means something 

less than the ASA (M&RA)’s authority to actually order appellant to active duty. 

Instead, appellant argues the regulation gives the assistant secretary the authority to 

make a recall recommendation to the Secretary of the Army. As with DAGO 2002-

03, we do not share this narrow view of the regulation. Considering the two 

documents together, we find the Secretary of the Army authorized the ASA (M&RA) 

to call retirees to active duty, therefore rendering him a competent authority to recall 

appellant under 10 U.S.C. § 688 and Article 2(a)(1), UCMJ. 

 Beyond his argument regarding the limits of DAGO 2002-03 and AR 27-10, 

appellant asserts his recall from retirement under 10 U.S.C. § 688 was defective as 

not “necessary in the interests of national defense.” Congress empowered the 

Secretary of Defense to implement the statute, and appellant draws our attention to a 

contrast between previous DoD implementation guidance, which enumerated UCMJ 

proceedings as a permissible recall purpose, and its implementation guidance in 

effect at the time of appellant’s recall, which is silent on the topic.4

 

Appellant argues this contrast evinces the judgment of the Secretary of 

Defense that UCMJ proceedings fall short in justifying a conclusion that such 

proceedings are “necessary in the interests of national defense.” We disagree and 

instead find nothing in the DoD guidance which prevented the ASA (M&RA), acting 

as the designee of the Secretary of the Army, from recalling appellant 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 appellant’s recall. 

 Based on the foregoing, we conclude the government proved personal 

jurisdiction under Article 2(a)(1), UCMJ, by a preponderance of the evidence. 

 

4 See Dep’t of Def. Dir. [hereinafter DOD Dir.] 1352.1, Management and 

Mobilization of Regular and 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 break in service occurred between his 12 

June 1989 discharge and 13 June 1989 reenlistment, depriving the court-martial of 

subject matter jurisdiction. The military judge denied appellant’s similar motion to 

dismiss without specifically concluding whether a break in service occurred, but he 

wrote, “[a]ssuming arguendo there was a break in service based on the discharge 

certificate issued on 12 June 1989, Article 3(a), UCMJ, addresses the issue of 

revived jurisdiction as it applies to offenses committed prior to 1992.” Reviewing 

the four statutory requirements, which we ultimately address below, the military 

judge ruled “if there was a break in service based on the discharge issued to the 

accused on 12 June 1989, jurisdiction is revived under Article 3(a), UCMJ.” 

 Appellant initially enlisted in the Regular Army on 29 January 1981, agreeing 

to a four-year active duty commitment. On 1 February 1984, he extended his 

Regular Army enlistment obligation for one year in order to attend warrant officer 

training and flight school; 28 January 1986 became the new date for his expiration 

of term of service (ETS). 

 On 16 May 1985, appellant was arrested by civilian authorities for murder and 

rape, and remained in custody until 15 December 1985, when he was released on 

bail. In July 1986, appellant was convicted of murder and rape and sentenced to 

death in North Carolina state court. On 6 October 1988, the Supreme Court of North 

Carolina set aside his conviction and authorized a new trial. Hennis, 323 N.C. at 

287, 372 S.E.2d at 528. His retrial ended in acquittal on 19 April 1989. 

 Appellant’s civilian pretrial confinement and post-trial incarceration tolled 

the fulfillment of his enlistment obligation; and, after his acquittal he returned to 

duty at Fort Knox on 21 April 1989, where he was previously assigned to the 

installation’s Personnel Control Facility (PCF) after his first civilian trial. On 22 

May 1989, acting under AR 630-10 (Update 13, dated 16 March 1988), Absence 

Without Leave and Desertion, paragraph 1-8, appellant’s commanding general 

approved the PCF commander’s recommendation to “reclassify . . . as unavoidable” 

his absences from 16 May to 15 December 1985 (initial arrest until release on bail) 

and from 4 July 1986 to 19 April 1989 (post-trial incarceration until release on 
HENNIS—ARMY 20100304 

10

acquittal).5 Under paragraph 1-8c, “[a] period of unauthorized 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 Extension. Block 2c of this document contained 17 June 1989 as 

the date of his then-current ETS, apparently adjusted in response to his civilian 

confinement. Block 2d reflects two enlistment extensions. The first, effective 1 

February 1984 for twelve additional months, corresponds with an extension 

document signed by appellant on that date. The second extension, effective 6 

January 1986 for seven additional months, has no corresponding extension request in 

the record of trial and was apparently made in response to the seven months 

appellant spent in civilian pretrial confinement. 

 On 12 June 1989, the Army honorably discharged appellant. On 13 June 

1989, using Department of Defense Form 4, Enlisted/Reenlistment Document, 

Armed Forces of the United States (which bore the typewritten words, “Immediate 

Reenlistment,” in the top margin), appellant reenlisted for four more years. 

Appellant remained on active duty in the Regular Army until his retirement on 31 

July 2004.6

 Before we can reasonably apply the law to this issue, we must accurately 

determine the necessary facts; and, to some extent, one of them is not self-evident. 

This court “is required to conduct a de novo review of the 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 ETS date in light of the 

commanding general’s 22 May 1989 decision? One could perhaps conclude it was 

 

5

 Paragraph 1-8b states, in pertinent part: “[B]efore an unauthorized absence 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 prudently and responsibly as could be expected to avoid the 

absence. (3) Representatives of the Army also acted as prudently and responsibly as 

could be expected to avoid the absence.” 

6

 Appellant later requested the Army Board for Correction of Military Records 

(ABCMR) correct certain aspects of his service record, and on 7 August 1991, the 

ABCMR decided to direct the following corrections: showing his promotion to Staff 

Sergeant was effective 1 December 1988 with a date of rank of 4 November 1988; 

and, restoring an “appropriate amount of leave as determined by DFAS and by 

allowing a 3 year period in which to use the restored leave.” The ABCMR 

promulgated its decision 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 reenlist. Alternatively, the documented 

ETS date was simply incorrect, in light of the plain and, in our judgment, selfexecuting “creditable for all purposes” language in AR 630-10, paragraph 1-8b. We 

conclude the latter, for the first view would effectively enable a soldier and his 

chain of command to incorrectly establish a term of service inconsistent with 

controlling Army policy. For these reasons, we find that, immediately before the 

reenlistment in question, appellant’s correct ETS date was—at the latest, applying 

both enlistment extensions—27 August 1986. 

 These facts lead us to examine the impact of our superior court’s decisions 

and legislative changes to the UCMJ as they relate to two issues: whether 

appellant’s military status was terminated before his June 1989 reenlistment, 

resulting in a break in service; and, if terminated, whether the Army lost authority to 

subject him to court-martial. 

 Considering appellant’s ETS was 27 August 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 honorable discharge, followed the next day by 

reenlistment, divested the United States of court-martial 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 where a service member was prosecuted for 

offenses “committed shortly before [he] had been discharged 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 Article 3(a), UCMJ.” 13 

M.J. 308, 309, 311 (C.M.A. 1982). 

 Focusing on whether Clardy had shed his 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 which 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 offences, 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 servicemember 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 committed in the 

earlier enlistment. 

Id. at 310 (Emphasis added.). 

In an explanatory footnote, 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 servicemember and the Government in 

order to allow him to reenlist immediately and thus remain 

on active duty. 

Id. at n4. 

 Affirming this court’s decision to set aside the findings of guilty 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 exception 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 obligated term of service even 

though the servicemember immediately reenters the 

service. This break in “status,” irrespective of the length 

of time between discharge and 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 military service 

was pursuant to his contractual enlistment, the fulfillment of which had been tolled 

during his civilian confinement. However, once his confinement-related absence 
HENNIS—ARMY 20100304 

13

was excused on 22 May 1989, appellant’s ETS date reverted to 27 August 1986 (at 

the latest). Therefore, from 22 May until 12 June 1989, appellant 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 immediate reenlistment; however, as a matter of law under Clardy, we 

cannot characterize appellant’s discharge as “short-term,” where it occurred after his 

contractual service obligation 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 jurisdiction was nonetheless preserved under the 

version of Article 3(a), UCMJ, applicable to the case. In response to Hirshberg,

8

Congress passed legislation codified at 10 U.S.C. § 803(a) (1950): 9

Subject to section 843 of this title (article 43) [statute of 

limitations], no person charged with having committed, 

while in a status in which he was subject to this chapter, 

an offense against this chapter, punishable by confinement 

for five years or more and for which the person cannot be 

tried in the courts of the United States or of a State, a 

Territory, or the District of Columbia, may be relieved 

from amenability to trial by court-martial 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, territory, or the District of Columbia. In fact, 

he was tried twice by North Carolina.” According to appellant, the “more logical 

and appropriate definition of ‘cannot be tried’ is ‘could not have been tried.’” 

Appellant writes, “the CAAF in Willenbring also reiterated that Congress’ intent 

 

7

 Considering this finding, it is unnecessary to consider the effect of any statutory 

time limit, under 10 U.S.C. § 651 (1976), on appellant’s initial enlistment 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 doubt but what 

Congress passed this statute for the principal purpose of covering the situation 

brought about by the decision in [Hirshberg].” In support of this observation, the 

court provided detailed excerpts from the associated legislative history. 

9

 Congress amended the statute in 1992, removing the five-year confinement and 

“cannot be tried” in civilian courts provisions. Pub. L. 102–484, div. A, title X, § 

1067, Oct. 23, 1992. 
HENNIS—ARMY 20100304 

14

behind Article 3(a) was meant to only confer ‘jurisdiction to serious offenses that 

could not otherwise be tried.’” (internal quote from Willenbring v. Neurauter, 48 

M.J. 152, 161 (C.A.A.F. 1998)) (Emphasis added by appellant). 

 Essentially, appellant argues we should 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) defines the present tense 

verb “can” as, inter alia, “possession of a specified power, right, or privilege.” The 

same dictionary describes “could” as the “[p]ast tense of can . . . [u]sed to indicate 

ability, possibility, or permission in the past.”10 

 When analyzing the jurisdictional disputes in this case, we recognize “[a] 

court-martial organized under the laws of the United States is a court of special and 

limited jurisdiction.” Runkle v. United States, 122 U.S. 543, 555 (1887). Had 

Congress intended for Article 3(a), UCMJ, to be applied 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 statute is worded in a manner which requires us to evaluate 

whether such courts “cannot.” 

 We return to the Willenbring decision in resolving this question 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 following 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 indictment is found or the information 

is instituted within five years 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 because that time has expired, now it 

cannot.” Similarly, at the time of appellant’s court-martial—and today, for that 

matter—one might have said of the prospects of a North Carolina trial, “The state 

could have, and did, prosecute appellant previously; the state cannot do so today, 

because of the constitutional protection against double jeopardy.” These 

hypothetical statements illustrate the fundamentally different meanings of “could 

not” and “cannot.” 
HENNIS—ARMY 20100304 

15

Willenbring, 48 M.J. at 176 (quoting 18 U.S.C. § 3282 (1994)) (Emphasis in 

original). 

 Focusing on the effect of a statute of limitations, our superior court wrote, “a 

statute of limitations 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 discussing the practically, if not legalistically, jurisdictional 

effect of a statute of limitations, the court noted the absence of the word 

“jurisdiction” from the law now in question: 

[E]ven though Congress specifically used the word 

“jurisdiction” at several points in the drafting of other 

aspects of Articles 2 and 3, it did not use that word in the 

Article 3 criteria limiting court-martial jurisdiction over 

prior-service offenses, which it could have done by 

restricting military trials to cases outside the 

“jurisdiction” of civilian courts. 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-martial jurisdiction where a state or federal court lacks its 

own jurisdiction to adjudicate the case. The statute is not so limited. Of course the 

bar to Willenbring’s civilian prosecution was different from the one here, but any 

distinction between the two works to appellant’s detriment, because his 

constitutional double jeopardy protection against further state prosecution is at least 

as powerful as, and perhaps more 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 discharge and reenlistment, the version of 

 

11 On remand, the trial judge determined no break in Willenbring’s service occurred. 

On appeal of his subsequent conviction and sentence, our court found jurisdiction 

was based on his continuous military service, further determining “we need not 

consider whether the criteria of the applicable version of Article 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-martial 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 service-connection requirement for courtmartial jurisdiction in Solorio v. United States, 483 U.S. 435 (1987). Citing Justice 

Stevens’s concurring opinion in Loving v. United States, 517 U.S. 748, 774 (1996), 

appellant asserts Solorio was limited to non-capital cases: “Solorio’s review of the 

historical materials would seem to undermine any contention that a military 

tribunal’s power to try capital offenses must be as broad as its 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 decide 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 separate concurrence in Loving does not control the result 

here. We perceive nothing in the Solorio majority opinion which limits its holding 

to non-capital cases. Considering the holding therein—that court-martial 

jurisdiction depends on whether the accused “was a member of the Armed Services 

at the time of the offense charged,” Solorio, 483 U.S. at 451—we 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 jurisdiction would be appropriate for Armed 

Forces of colossal size, stationed on bases that in many 

instances were small societies unto themselves. Congress, 

confident in the procedural protections of the UCMJ, gave 

to courts-martial jurisdiction of the crime of murder. Cf. 

Solorio, supra, at 450-451 (Congress may extend courtmartial jurisdiction to any criminal offense committed by 

a service member during his period of service). It further 

declared the law that service members who commit 
HENNIS—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 proper implementation of the 

capital murder statute to the President acting as 

Commander in Chief. 

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

 While recognizing the passage is dicta, we note the Supreme Court in Loving

cited Solorio but did not take the opportunity to qualify a service member’s 

jurisdictional eligibility for capital punishment 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 subject matter jurisdiction 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 similarly grounded motion before trial, the military judge 

found, inter alia, the following facts: 

There is no evidence that the Government, intentionally or 

otherwise, used the time from the acquittal in state court 

in 1989 to the preferral of these offenses on 10 November 

2006 to gain some sort of tactical 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 discharge for a civilian conviction in 1986 

pending appellate review. That appellate review ended in 

a reversal and the accused’s subsequent acquittal in state 

court. The Army acted reasonably in accepting the results 

of the civilian justice 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 acquittal in 1989 until after 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 that new evidence. 
HENNIS—ARMY 20100304 

18

 To obtain relief for pre-preferral delay under the Fifth Amendment Due 

Process Clause, which grants protections beyond an applicable statute of limitations, 

an accused must show the “prosecutor 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), the military judge concluded appellant had not met his 

burden to establish a due process violation and denied the motion to dismiss. 

Appellant does not argue the military judge abused his discretion, which is the 

correct standard for our review of this issue. Reed, 41 M.J. at 453 (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 erroneous, and his application of the applicable law was 

correct. We hold the military judge did not abuse his discretion in denying 

appellant’s motion to dismiss. 

IV. THE MILITARY JUDGE’S DENIAL OF EXPERT 

ASSISTANCE IN TESTING EVIDENCE POSSESSED 

BY THE GOVERNMENT DENIED 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 evidence to which appellant sought access by 

two requested experts, Dr. EB and Mr. PB. Appellant did specifically mention in 

Appellate Exhibit 154 his desire to gain access to anonymous “Mr. X” letters, in 

which the writer suggested another person committed the crimes: 

These letters were analyzed by government experts using 

DNA and non-DNA analysis. The results do not connect 

MSG Hennis as the author. Yet, the government is denying 

access by the defense experts to these potentially 

exculpatory letters. 

Despite the motion’s vagueness, multiple enclosures thereto provided a 

clearer picture of what appellant wanted to analyze.12 For example, in his 25 March 

 

12 Defense-requested items, 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 nail clippings from [Miss KE’s] left hand 

25 - Plastic bag of nail clippings from [Miss KE’s] right hand 

26 - Plastic bag of fibers from [Miss KE’s] mouth 

28 - Plastic bag of nail clippings from [Miss EE’s] left hand 

29 - Plastic bag of nail clippings from [Miss EE’s] right hand 

30 - Plastic bag from [Miss EE] containing hair from body and clothing 

33 - Brown bag containing pubic hair from [Mrs. KE] 

36 - Cardboard container containing vaginal smears of [Mrs. KE] by 

medical examiner’s office 

37 - Cardboard container containing anal and oral smear from [Mrs. 

KE] by medical examiner’s office 

38 - Yellow envelope containing vaginal swabs of [Mrs. KE] 

39 - Small box of oral swabs from [Mrs. KE] 

40 - Clear plastic bag containing left hand fingernail and fibers from 

[Mrs. KE] 

41 - Clear plastic bag containing right hand fingernail and fibers from 

[Mrs. KE] 

42 - Clear plastic bag containing hair and fibers from back of [Mrs. 

KE] 

60 - Yellow envelope containing hair 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 hair from outside door of master 

bedroom 

66 - Yellow envelope containing hair from leg of [Mrs. KE] 

67 - Yellow envelope containing hair on carpet beside [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 containing four envelopes of drain pipe parts and 

a glass jar of sink contents 

83 - Brown paper bag containing five envelopes of drain parts and hair 

with one glass jar of water from drain 

(continued . . .) 
HENNIS—ARMY 20100304 

20

2009 letter requesting appointment and funding of Dr. EB, a DNA expert, civilian 

defense counsel wrote: 

A complete list of items to be forensically analyzed, 

whether by DNA analysis or other 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 whether other suspects 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 attached and similarly referred to this list of items in 

a 6 April 2009 letter requesting appointment and funding of Mr. PB, a criminalistics 

expert, “mean[ing] fiber, hair, fingerprint and document analysis.” 

 

(. . . continued) 

84 - Brown bag containing three envelopes of drain 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 containing vacuum particles 

from master bedroom carpet 

100 - Yellow envelope containing hair from master bedroom sink’s 

countertop 

101 - Yellow envelope containing white bath sponge with hair on same 

102 - Yellow envelope containing bar of soap with hair on same 

103 - Yellow envelope containing paper tissue from trash can in master 

bedroom with hair on same 

111 - Yellow envelope containing eight latent lift cards lifted at crime 

scene 5/29/85 

112 - Yellow envelope containing three latent lift cards lifted at crime 

scene 5/22/85 

114 - Brown paper bag containing hair collected from [family] living 

room and known head hair samples of Mr. JR, Ms. JC, and Mr. BW 

115 - Clear plastic bag containing sixty-four latent lifts and eight photo 

copies of Mr. X letters 

[104] - Original Mr. X letters and envelopes 
HENNIS—ARMY 20100304 

21

 In an Article 39(a), UCMJ, session on 8 May 2009, the military judge heard 

parties’ arguments on the motion; no witnesses testified. In response to the military 

judge’s observation that the defense had apparently not used the experts after the 

convening authority appointed them, civilian defense counsel explained, “we were 

basically waiting for the 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 the 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 him for the purpose of analyzing any evidence.” Defense counsel 

then stated: “Dr. [EB] . . . is the one who is actually going to do an analysis on the 

evidence. So they are not duplicating their efforts. They’re working in completely 

different areas.” 

The military judge and civilian defense counsel had the following exchange: 

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

CDC: Right. And there are no issues about Dr. [DK]. 

Now, with Dr. [DK], though, where 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 wanted Dr. [DK’s] input after 

looking at the lab results by [United States Army Criminal 

Investigation Laboratory] USACIL 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] suggests that you do? 

CDC: Dr. [DK] or one of our other experts. He was one 

person who provided input to us, and he did not complete 

his work until January of this year. 

MJ: So Dr. [DK] has examined all of the evidence, and he 

completed his work in January? 

CDC: Yes, Your Honor. 
HENNIS—ARMY 20100304 

22

MJ: And he has made certain recommendations as to 

items which he believes should be retested or tested--

either tested anew or tested which wasn’t tested 

originally? 

CDC: Yes, Your Honor. We also--we have been provided 

a number of--we’ve been provided 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 expertise 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 defense theory is that someone 

else raped and murdered these individuals? 

CDC: Exactly, Your Honor. 

MJ: And it’s not a case of there was any consensual sex at 

all; there was never any sex and so someone 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 defense was not utilizing their 

expert services. The government later re-appointed Dr. 

[EB] as an expert consultant; however, the government 

limited Dr. [EB’s] access only 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 court order the government to 

provide access to the evidence set out in enclosure 1 to AE 

154. The defense has had access to inspect the requested 

evidence located in the law enforcement evidence locker. 

The defense is essentially requesting the court to order the 

evidence be sent to the defense experts for inspection and 

testing at the defense expert’s lab. The evidence consists 

of essentially three groups. 

[1] Evidence which was tested and inculpates the 

accused. The defense has shown 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 not link the accused to the 

crime scene. Those test results allow the defense to 

argue to the court members the exculpatory nature of 

that evidence. The defense 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 crime 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 and 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 the defense team with the same 

confidentiality as any other member of the defense 

team. 
HENNIS—ARMY 20100304 

24

[2] The government will arrange 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 the 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 case, the court is willing to 

reconsider its ruling. 

 On 10 July 2009, the defense filed a motion to continue the court-martial until 

11 January 2010, “in order to allow the defense sufficient time to conduct DNA 

analysis of evidence now in the possession of the government and engage in trial 

preparation.” The defense also wrote that the evidence regarding which the military 

judge granted testing in his 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 and analysis, the defense is 

unable to proceed at this time on three motions: due 

process, former jeopardy and third party exculpatory 

evidence, not to mention an anticipated motion for 

additional laboratory analysis. 

 On 28 July 2009, the military judge ordered the court-martial continued until 

February 2010. On 3 September 2009, civilian defense counsel filed a motion 

requesting additional expert funding for Dr. EB, writing, inter alia: he had been 

unable to complete the testing and consultation services previously ordered by the 

military judge; and, the convening authority denied additional funding to facilitate 

consultation. Civilian defense counsel also wrote that Dr. EB had not been able to 

forensically examine the Mr. X letters before exhausting the previously ordered 

funding. 

 The military judge held an Article 39(a), UCMJ, session on 9 September 2009 

to address, inter alia, the defense’s request for additional funding. Defense counsel 

explained he was working with Dr. [EB] to not only examine the evidentiary items 

which he had received, but also to develop one of multiple “affidavits from several 
HENNIS—ARMY 20100304 

25

experts supporting . . . additional testing.” Referring to a future Article 39(a), 

UCMJ, session scheduled for 29 September 2009, defense counsel continued: 

Those 10 [additional] hours are for consultation with Dr. 

[EB] to fully understand what he’s done so far, 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 experience should be tested, and here’s how 

they will help the case. Here’s how they are material to 

the preparation of the case,” which is what the court at 

least alluded to in its order and its statement regarding 

potential reconsideration. That’s what the defense is 

trying to do was to give the court, as promptly as possible, 

that material so that it could rule. 

 On 10 September 2009, the military judge ordered, inter alia, additional 

funding for Dr. EB’s DNA expert consultation. As foreshadowed by the previous 

day’s motion session, the defense filed another motion, dated 25 September 2009, 

seeking the military judge “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 reconstructionist, the 

defense hereby renews the motion for equal access to 

evidence and funding in the amount of $20,000 for 

examination of evidence and additional DNA testing. 

 The motion included subsequent declarations signed by Mr. LR and Dr. EB 

and requested the military judge to allow ex parte defense submissions, “if the 

proffered declarations are found to be inadequate . . . .” 

 Mr. LR’s declaration contained, inter alia,

13 the following: 

 

13 The declaration included “a three level priority list of evidence . . . and type of 

significant findings to be examined . . . .” The list contained 147 line items, ranging 

from the vaginal swab obtained from the autopsy of [Mrs. KE’s] body to four 

toboggans and duffle bag fibers obtained from appellant’s residence. At the 

subsequent Article 39(a) session, civilian defense counsel informed the military 

judge that the defense sought access to examine and test this broader list. 
HENNIS—ARMY 20100304 

26

A Crime Scene Analyst, when 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 government experts. The analyst 

consults with defense counsel as part of the investigative 

team, with the goal of locating, identifying, and sampling 

items of evidence to determine whether bloodstains, hair, 

fibers, fingerprints, shoeprints, handwriting, or other 

physical evidence exists that can be used to identify 

individuals involved in the crime or present at the crime 

scene and patterns of activity at the crime scene or at 

other locations relevant to the commission of the crime.... 

Thus, these services are more comprehensive than simply 

performing a laboratory analysis. 

Based on my experience, it is not unusual for government 

analysts to mishandle or miss sources of relevant evidence 

seized at a crime scene 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 confidentiality is important. Using 

information from defense counsel or other 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 theory that is not held by the 

government. Additionally, in the course of consulting 

with the defense team, it has not been uncommon that in 

the course of performing 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 witness and, while the contents of 

his testimony were unknown to the military judge when he ruled on the motion, it is 

not irrelevant to our appellate review. Called by the defense and recognized as an 

expert in forensic crime scene analysis, Mr. LR said he focused on the blood, fiber, 

hair and fingerprint analyses—not DNA. He further testified that the law 

enforcement agencies “processing this reportedly did a good job. I haven’t seen all 

the paperwork that would have been involved.” He responded, “No,” 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 have independently analyzed certain items 

of evidence already analyzed by government experts. My 

confidential report of this work is dated July 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 affidavit justifies my 

access to other items of evidence deemed relevant for 

examination and potential DNA analysis by defense 

counsel. 

[. . .] 

It is my understanding that the government does not 

challenge my credentials or expertise, they simply seek to 

deny the defense access to certain 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 government experts. The serologist consults 

with defense counsel, with the goal of locating, 

identifying and sampling items of evidence to determine 

whether biological material exists that can be used to 

identify individuals involved in the crime or present at the 

crime scene or at other locations 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 scene, the association of one 

individual with another at the crime scene or to develop a 

more comprehensive understanding 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 scene 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 information 
HENNIS—ARMY 20100304 

28

not known by the government. Using information from 

defense counsel, I often examine or sample items of 

evidence that are not analyzed by government experts, 

because they may be relevant 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 understanding that MSG Hennis was 

previously tried twice for the same offenses for which he 

is currently charged. Furthermore, over the years multiple 

experts have investigated 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 evidence has established that 

MSG Hennis was ever physically present in any of the 

rooms where the murders occurred. Finally, defense 

counsel state that no physical evidence from the crime 

scene was ever located in or on property possessed by 

MSG Hennis. Given this context 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 [sic] physical evidence. This 

investigation includes the confidential investigation of 

biological evidence from the crime scene and perhaps 

other locations that defense counsel believe may reveal the 

identity of perpetrators not revealed or considered by the 

government’s investigation. 

In my judgment defense counsel should be given access to 

appropriate items of physical evidence for examination 

and potential DNA testing. The evidence defense counsel 

deems necessary to provide effective assistance to their 

client has apparently already been specified. Defense 

counsel is in the best position to identify such evidence 

because they are the ones with the most complete 

knowledge of the case history . . . . 

 On 1 October 2009, the military judge heard argument in an Article 39(a), 

UCMJ, session, which began with civilian defense counsel indicating that the motion 

constituted a request to reconsider his 11 May 2009 ruling, supra. Civilian defense 

counsel also stated he was now seeking access to additional items, listed in an 

attachment to Mr. LR’s declaration. After the military judge confirmed with 
HENNIS—ARMY 20100304 

29

government counsel that its DNA analysis of the vaginal swabs was “[t]he only 

forensic evidence” linking appellant to the crime scene and that fingerprints, 

footprints, hair, fibers and blood excluded him, civilian 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 its burden of proof and to say 

that--and argue just those points that were made through 

the questioning with the trial counsel. Another way to 

defend a case is to prove that someone else could have 

committed the crime--for the defense to put on affirmative 

evidence to show that someone else was present 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 room 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 exculpatory evidence at that point. 

But as it sits right now, without our experts being able--

either of our experts--both our DNA expert and our nonDNA expert being able to look 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 judge and civilian defense counsel later had the following 

exchange: 

MJ: Let’s assume for the moment that they analyze the 

hair and determine they can do the DNA testing. If the 

testing that’s been done already excludes the accused as 

the contributor of that hair, how does further testing make 

that even more exculpatory? 

CDC: Further examination, Your Honor, may lead to 

DNA analysis, which may lead to a DNA profile, which 

through CODIS [Combined DNA Index System] and other 

databases, may point to someone else who committed the 

crime . . . . 

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

30

CDC: That’s correct, Your Honor. And, furthermore, if 

you test a hair and you can get a DNA reading on it and 

then you test a towel and you get the same DNA reading 

on the towel, and now you have two items of evidence that 

connect another person to the crime scene. And if the 

towel is a towel that has the blood of the victims 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 together some pretty 

strong and powerful circumstantial 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 issue. First of all, we have been limited 

in how we can connect that information with other 

information from the crime scene and in consultation with 

our experts. And so one aspect of this is that semen was 

found in these vaginal swabs inside [Mrs. KE’s] body, but 

you don’t know where you go with that information. 

MJ: Well, if for instance, the experts who analyzed the 

DNA evidence came to opposite conclusions as to who 

contributed the DNA sample that might put things in a 

different context. 

[. . .] 

MJ: My concern is, Mr. Spinner, that the evidence is--or 

lack of--either there is evidence 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 develop 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 cases don’t say the defense does not 

have a right to test other items; but they 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 opposition, government counsel expressed its view that the 

defense conceded Mrs. KE had been raped and murdered. This argument prompted 

civilian defense counsel to respond that whether she had been raped, an alleged 

aggravating factor, was a matter “in contest.” Government counsel continued, later 

indicating that four other persons of interest, Mr. WHH, Mr. PC, Mr. BWW, and Mr. 

JR, had provided buccal swabs, DNA analysis of which excluded them as 

contributors of the semen on the vaginal smear. Ultimately, government counsel 

concluded his argument by agreeing with the defense motion 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 defense counsel referred to the 

earlier state proceedings in which the trial court granting defense expert access to 

evidence obtained during the original investigation but not otherwise tested. The 

defense did not argue for permission to submit matters ex parte, instead relying on 

its brief. Aside from the declarations described above, the defense offered no 

matters with its motion indicating the government’s forensic 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 May 2009 ruling] which, in part, denied 

expert assistance to analyze and test certain items. This 

defense motion also expands upon the prior defense 
HENNIS—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 defense is more specifically 

requesting is for the 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 persons who were the contributors 

of biological matter on the evidence in an effort to 

identify the actual perpetrator(s). It is unclear how a 

specific person could be identified without comparing the 

results to a known DNA sample. There is no proffer that 

the test results would indicate 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 Court 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 obtained from or belong to the 

accused.” 

The defense has had the opportunity to examine and 

conduct independent DNA testing 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 previously tested some of the 

requested items. The results 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, therefore, exculpatory for the 

accused. While the government indicates that it does not 
HENNIS—ARMY 20100304 

33

intend to use those items in its case-in-chief, the defense 

may use those items and test results in its case. The 

defense has not shown how further 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 which were not previously tested by 

government experts are necessarily exculpatory for the 

accused without any further testing because the trial 

counsel are precluded from arguing those non-tested items 

incriminate the accused in anyway. The defense has not 

shown how testing of those 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 government funded expert assistance 

to analyze items which are 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 expert 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 material taken from a victim’s fingernails became the 

government’s “linchpin” evidence, but the accused was denied the opportunity to 

subject it to renewed testing by a competent defense expert. Relying on the 

principle that an accused “must demonstrate the necessity for” expert assistance, our 

superior court concluded the trial judge 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 appellant’s case from McAllister, for the military judge here 

granted the defense request to facilitate renewed testing on the only forensic 

evidence which linked appellant 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 opportunity 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 defense. We agree in 

principle, but appellant’s case causes us to recall the fundamental showing he must 
HENNIS—ARMY 20100304 

34

make in requesting expert assistance: “that a reasonable probability exists that (1) 

an expert would be of assistance to the 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 involving four other people. By fight’s end, 

three of them had stab wounds, and Lloyd, whose shirt bore multiple blood stains, 

was charged as the culprit. After the convening authority denied the defense request 

for expert assistance, the defense renewed the request with the military judge, 

writing, inter alia: 

Depending on a number of factors which the defense 

intends to pursue through an expert, blood may spatter a 

significant distance from a stab 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, the 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 presentation of evidence on behalf 

of SrA Lloyd. 

Id. at 98. 

 Affirming the service appellate court’s decision, our superior court observed, 

“[d]ue to the different factual circumstances, particularly the fact that the evidence 

at issue implicated the ‘linchpin’ 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 potentially responsible for the stab wounds—we 

conclude McAllister lends even less support. Appellant 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 accused; and, (3) why defense 

counsel is unable to gather and present the evidence 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 additional forensic testing could potentially disclose a DNA profile, 

an investigative lead which could again potentially lead to identifying another 

person who was perhaps in the E family home at some 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 reasonable 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 JUDGE 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 court to compel production 

of Mr. WHH, Mr. GS, and Ms. MK. The motion proffered the following: 

[Mr. WHH] - Will testify he lived on Hawfield Drive with 

[Mr. GS], near the [KE] residence. 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 differs from what he told his 

girlfriend. Moved from Fayetteville shortly after the 

murders. Refused to give hair, fingerprint, and 

handwriting samples in 1989. 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 [Mr. 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 and beat him up.” He later 

denied ever having the scratches. [Mr. WHH] had 

financial problems at the time of the murders and asked to 

 

16 The enclosure is comprised of multiple summaries of conversations between law 

enforcement investigators and Mr. WHH in the summer of 1989. 
HENNIS—ARMY 20100304 

36

be transferred to Raleigh, NC shortly after the 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 van that resembled one seen outside of the 

[E family] home on the night of the murders. 

On 20 January 2010, the military judge held an Article 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 think he’s a suspect? 

IMC: Yes, Your Honor. And you asked me my reply 

regarding the DNA-exclusion argument? I would note that 

the DNA is just one piece of forensic evidence and that, in 

the defense’s view, it does not identify who the killer was 

in this case. 

MJ: OK. And how do you come to the conclusion that 

Mr. [WHH] is a suspect? 

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

MJ: What, what’s the proximity? You say around the 

time. I don’t know what that means. 

 

17 The enclosure is comprised of a single summary of a conversation between law 

enforcement investigators and 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 going proximity in terms of 

location. 

MJ: Okay. 

IMC: Okay. Let me give you both, Your Honor. 

MJ: But you said around the times Mr. [WHH] had 

scratches on his face. 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 happening 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] murders and that at that 

time or around that time that he had scratches. He had 

various explanations and then later denied that the 

scratches ever took place. 

MJ: Well, how does that make him a suspect of three 

murders? 

IMC: Because the defense anticipates there will be some 

conversation and testimony in the government’s case 

regarding the violence at the murder scene and that 

wounds to your face certainly are relevant in contrast to 

Master Sergeant Hennis who the 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 regarding the van. It’s in the 

proffer of Mr. [GS] that he was the owner of such a van. 

Mr. [GS] was [Mr. WHH’s] roommate. 

[. . .] 
HENNIS—ARMY 20100304 

38

MJ: How does that make Ms. [MK] a necessary witness? 

IMC: . . . Ms. [MK] is a witness as to the scratches she 

observed and what [Mr. WHH] told her regarding those 

scratches and how that story changed. 

 Regarding the defense request to compel production of Mr. WHH, the 

following exchange occurred: 

MJ: Okay. Mr. [WHH]? Anything 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 government’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 only bit of relevant forensic 

evidence in this case. There is forensic evidence at the 

crime scene--at the crime scene, but has never been linked 

and indeed the accused has been excluded as a link. 

MJ: Does it link to Mr. [WHH]? 

IMC: Mr. [WHH] to my knowledge 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 months. So I don’t 

know what this means. 

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

months again. 

 Regarding the defense request to compel production of Mr. GS, the following 

exchange occurred: 

MJ: Mr. [GS]? 

IMC: We’ve addressed, Your Honor, the defense’ belief 

that Mr. [GS] is relevant 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 expect him to say? You haven’t given a 

synopsis of what you expect him 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 owner of a light-colored van. 

MJ: And you expect--because 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 donor 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. Whether 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 roommate of Mr. [WHH]? 

IMC: Yes, sir. 

MJ: And that he owned a light-colored van that 

apparently resembled one seen 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 discussion of Mr. 

[WHH], there’s other forensic evidence to the defense’s 

knowledge -- including fingerprints, hair analysis--that 

has not excluded Mr. [WHH]. And again, Your Honor, the 

relevance is that the defense does not buy the 

government’s version that even if there is a DNA match 

with Master Sergeant Hennis, that is dispositive of who is 

the murderer. 

 On 26 January 2010, the military judge denied the portions of the defense 

motion regarding Ms. MK, Mr. WHH, and Mr. GS, and ruled as follows: 

[Mrs. MK]: She will testify that she dated Mr. [WHH] in 

1985 and he had scratches on his 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 support that theory or that Mr. 

[WHH] in any way resembles the person seen near the [E 

family] residence 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 Ms. [MK] is a relevant and 

necessary witness. The motion to order the production of 

Ms. [MK] is denied. 

[Mr. WHH]: His testimony is related to Ms. [MK’s] 

testimony. Mr. [WHH] had scratches on his face around 

the time of the [E family] murders. While the defense 
HENNIS—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] residence 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 necessary 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 outside 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 support that theory or that Mr. 

[WHH] in any way resembles the person seen near the [E 

family] residence 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 has 

made no proffer that the DNA testing is inaccurate. Since 

there is no evidence connecting Mr. [WHH] to the crime 

scene, the relevance of the color of his van is not the least 

bit clear. The motion to order the production of Mr. [GS] 

is denied. 

 In United States v. McElhaney, our superior court succinctly re-stated the 

standards regarding production of witnesses: 

 

Article 46, UCMJ, 10 [U.S.C.] § 846, provides all parties 

to a court-martial with “equal opportunity to obtain 

witnesses and other evidence in accordance with such 

regulations as the President may prescribe.” Under 

[R.C.M.] 703(b)(1), Manual, supra, “each party is entitled 

to the production of any witness whose testimony on a 

matter in issue on the merits or on an interlocutory 

question would be relevant and necessary.” See also 

[Military Rule of Evidence] 401. A military judge’s 

ruling on a request for a witness is reviewed for abuse of 

discretion. United States v. Rockwood, 52 [M.J.] 98, 104 

([C.A.A.F.] 1999). The decision on a request for a 

witness should only be reversed if, “on the whole,” denial 

of the defense witness 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 conviction that the [trial court] 

committed a clear error of judgment in the conclusion it 

reached upon a weighing of the relevant factors.” United 

States v. Houser, 36 [M.J.] 392, 397 ([C.M.A.] 1993), 

quoting Judge Magruder 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 necessary include: the issues 

involved in the case and the importance of the requested 

witness to those issues; whether the witness 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 personal 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 consideration when determining 

whether production of a witness 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 obtain production of relevant 

evidence tending to show that 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 accused’s right to present a defense. The military judge 

determined the proffered testimony was not relevant and necessary. Relying heavily 

on the treatment of third party culpability evidence in Holmes vs. South Carolina, 

547 U.S. 319, 327 (2006), appellant now asserts the military judge’s determination 

was unsound. We disagree. 

 In Holmes, the defendant was convicted of, inter alia, murder and sentenced 

to death. At trial, the defendant was prohibited from offering evidence from 

multiple witnesses who would have testified about seeing another named person in 

the victim’s neighborhood on the morning she was attacked. The defendant also 

sought to call four additional witnesses who 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 culprit. Arrayed against the defendant, however, 

were several items of inculpatory 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 held “where there is strong evidence of 

an appellant’s guilt, especially 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 Court provided examples of 

unconstitutional evidentiary rules, stricken because of their arbitrary nature and 

effect. The court continued to describe the balanced approach which trial judges 

must use in ruling on admissibility of third party culpability evidence: 

A specific application of this principle is found in rules 

regulating the admission of evidence proffered by criminal 

defendants to show that someone 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 another person of the crime 

charged may be introduced by accused when it is 

inconsistent with, and raises a reasonable doubt of, his 

own guilt; but frequently matters offered in evidence for 

this purpose are so remote and lack such connection with 

the crime that they are excluded”); 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 sufficiently connect the other 

person to the crime, as, for example, where the evidence is 

speculative or remote, or does not tend to prove or 

disprove a material fact in issue at the defendant’s trial” 

(footnotes omitted)). 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 evidence of a defendant’s guilt if the 

defendant is able to proffer, at a pretrial hearing, evidence 

that, if believed, strongly supports a verdict of not guilty. 

In the present case, for example, petitioner proffered 

evidence that, if believed, squarely proved that [a named 
HENNIS—ARMY 20100304 

44

third person], not petitioner, was the perpetrator. It would 

make no sense, however, to hold that this proffer 

precluded the prosecution from introducing its evidence, 

including the forensic evidence that, if credited, provided 

strong proof of petitioner’s guilt. 

Id. at 330. 

Appellant now describes the military judge as falling “into the same trap [as] 

in Holmes, excluding the introduction of evidence simply because it did not 

necessarily square on all fours with a piece of the forensic evidence in the case.” 

Our assessment is different. The military judge considered that DNA analysis 

excluded Mr. WHH as the source of sperm obtained from one of the murder victims, 

but this consideration was one of several. Had the military judge considered only 

this DNA result, he would have erred under Holmes. However, he went beyond the 

government’s evidence, pressing defense counsel for any information that could 

fairly be described as surpassing speculation and constituting probative 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 the 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 conclusion that the defense did 

not fulfill this burden was 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 appellant to death on 15 April 2010. On 15 October 

2010, the defense filed a “Motion for Appropriate Relief - Motion for a 

 

18 Interestingly, the defense team suggested a named nearby neighbor, not Mr. WHH, 

possessed motive and opportunity to commit the murders. According to another 

theory, a named person, who was involved in illegal drugs with one of the E family’s 

babysitters, could have exacted vengeance upon the E family in retaliation for a 

botched drug deal involving 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 released on 18 August 2010 by the North Carolina Attorney 

General, entitled “An Independent Review of the SBI Forensic Laboratory” 

(“Swecker/Wolf report”). The motion cited the report’s finding that Ms. BBD 

“misidentified or incompletely discussed blood evidence in twenty-four (24) cases.” 

It also states that “[t]his information was 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 heard the parties’ arguments on the motion. He ruled on 27 

January 2011, finding: 

a. Ms. [BBD] worked in the Forensic Biology Section of 

the State Bureau of Investigation (SBI) Crime Laboratory 

where she analyzed certain evidence 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 Attorney 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. Chris 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 Swecker/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 released 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 SBI Crime Laboratory during a 

portion of the time on which the Swecker/Wolf report 

focused its review of the SBI Crime Laboratory. 

c. The Swecker/Wolf report, attached to AE 531, 

reviewed cases unrelated to the Hennis investigation. The 

report speaks for itself so there is no need to summarize 

its findings or recommendations. However, it is important 
HENNIS—ARMY 20100304 

46

to note paragraph 9 in its Summary Findings: “No 

evidence was found that laboratory files or reports were 

concealed or evidence deliberately suppressed. Anyone 

with access to the lab notes could discover the 

discrepancies and omissions in this report.” 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] testified that her analysis of the blood 

evidence and blood samples 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] testified 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 beyond her expertise to determine the shoe 

size of the print. A Defense expert testified, in his 

opinion, the shoe print 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, concerning blood evidence, “[Ms. BBD] could 

have been a witness for the defense.” ROT at 6564. 

e. The Defense had evidence available at trial to use in an 

attempt to impeach Ms. [BBD] based on her work in an 

unrelated case. See AE 119. The Defense chose not to 

use that potential impeachment 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 allegation the Defense was denied access to 

any of the laboratory files, reports, 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 access to all of Ms. [BBD’s] 

laboratory files and notes concerning the testing she 
HENNIS—ARMY 20100304 

47

conducted in the Hennis investigation. 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 contained sperm, the presence 

of sperm was corroborated by several other expert 

witnesses. The Defense had its own forensic experts. It is 

significant that the Defense has not alleged that Ms. 

[BBD’s] analysis of the evidence in this case was wrong 

or misleading. 

g. The evidence concerning Ms. [BBD’s] work product in 

other unrelated cases discovered after the trial is not 

substantive evidence addressing the guilt or innocence of 

MSG Hennis. This recently obtained evidence may have 

been used for what value it may have served as potential 

impeachment of Ms. [BBD]. Assuming, without deciding, 

the matter contained in the 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 valuable when considered in 

connection with the exculpatory nature of Ms. [BBD’s] 

testimony and all other pertinent evidence. 

h. A military judge may declare a mistrial, as a matter of 

discretion, when such action is manifestly necessary in the 

interest of justice because circumstances cast substantial 

doubt on the fairness of the proceedings. 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 proceedings. A mistrial is 

viewed as a drastic remedy reserved 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 the lack of this recently 

obtained potential impeachment evidence of de minimus

value for use at trial was harmless beyond a reasonable 

doubt and did not cause a miscarriage of justice. 

Accordingly, the motion 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. 489 
HENNIS—ARMY 20100304 

48

(C.M.A. 1982); United States v. Williams, 37 M.J. 352[,] 

356 (C.M.A. 1993). Assuming, without deciding, the 

defense meets the first two prongs of the test that is, the 

files from Ms. [BBD’s] unrelated 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 third prong of the 

test which is this “newly discovered evidence, if 

considered by the court-martial in light of all other 

pertinent evidence, would 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 observer for the urinalysis 

test in Webb, whose testimony was inculpatory, was much 

more significant than potential 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 actually required. This court 

specifically finds the de minimis value of the recently 

obtained potential impeachment evidence concerning Ms. 

[BBD’s] work product in cases unrelated to the accused 

would not have probably produced a substantially more 

favorable result for the accused in light of all other 

pertinent evidence presented at trial which includes, but is 

not limited to, the results of the DNA testing done by 

experts other than Ms. [BBD], and particularly in light of 

the exculpatory nature 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 judge’s ruling on a petition for 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 grounds of newly 

discovered evidence or fraud on the court.” Implementing 

this UCMJ provision, Rule for Courts-Martial (R.C.M.) 

1210(f)(2) [] provide[s] . . . : 

(2) Newly discovered evidence. A new trial shall not be 

granted on the grounds of newly discovered evidence 

unless the petition shows that: 

(A) The evidence was discovered 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 discovered evidence, if considered by a 

court-martial in the light of all other pertinent evidence, 

would probably produce a substantially more favorable 

result for the accused. 

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

 The military judge’s findings 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 predominantly exculpatory; as the main witness 

regarding the presence or absence of blood, she testified about the lack of such 

evidence linking appellant to the crime. Though her testimony included a 

description of intact spermatozoa on forensic slides derived from Mrs. KE’s autopsy, 

hers was only one of multiple similar findings regarding that evidence. Assuming 

arguendo the Swecker/Wolf report would have achieved appellant’s desired effect of 

impeaching Ms. BBD, we consider the implications: the exculpatory nature of her 

testimony diminished, to appellant’s detriment; and, the inculpatory nature of her 

testimony perhaps somewhat diminished, given the multiple witness accounts of the 

presence of spermatozoa and resultant DNA analysis. The military judge remained 

well within the bounds of reasonable discretion in denying appellant’s motion for a 

new trial, for the newly discovered evidence did not bring with it the “[probability 

to] produce a substantially more favorable result for the accused.” Id.
HENNIS—ARMY 20100304 

50

VII – A. THE MILITARY JUDGE’S DENIAL OF 

DEFENSE COUNSEL’S PROPOSED VOIR DIRE AND 

THE SUBSEQUENT LIMITATION OF THE SCOPE 

AND NATURE OF VOIR DIRE DEPRIVED MSG 

HENNIS OF HIS CONSTITUTIONAL 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, appellant asserts: 

Throughout the individual voir dire of the prospective 

panel members, defense counsel attempted to use the 

Colorado Method of Capital Voir Dire (Colorado Method), 

the most widely accepted method of voir dire in a capital 

case, but was repeatedly undercut by the military judge’s 

frequent interruptions, inconsistencies in his rulings on the 

“appropriateness” of voir dire questions, attempted 

rehabilitation of panel members, and ultimately, the 

truncation of the defense voir dire. (Footnote omitted). 

 We appreciate appellate defense counsel’s citation to Matthew 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 method’s principles, appellant’s argument is 

unpersuasive, for it is difficult to imagine a defense voir dire more strictly adherent 

to the Colorado Method. We recognize the Colorado Method is not 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 defense from using it. 

 The right to voir dire is a component of the constitutional right an impartial 

jury, which the Supreme Court announced in Wainwright v. Witt: “the proper 

standard for determining when a prospective juror may be excluded for cause 

because of his or her views on capital punishment . . . is whether the juror’s views 

would ‘prevent or substantially 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, Capital 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 defendant be afforded an 

impartial jury. Even so, part of the guarantee of a 

defendant’s right to an impartial jury is an adequate voir 

dire to identify unqualified 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. 258, 259 (1950)). 

 Appellant now asserts the military judge arbitrarily intervened in voir dire and 

constrained the defense from asking constitutionally-required questions.20 We 

 

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

If evidence shows the accused committed the premeditated murders of a 

mother and two of her daughters, would you automatically vote to 

impose the death penalty? 

If the accused--if you find the accused guilty of premeditated 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 the evidence shows the 

accused committed the premeditated murders of a mother and two of 

her daughters? 

Would you automatically reject a life sentence if the evidence shows 

the accused committed the premeditated murders of a mother and two 

of her daughters? 

If you find the accused guilty, would you automatically impose a death 

sentence no matter what the facts of this case were? 

Have you given much thought to the death penalty before being notified 

as a court member? Can you fairly consider all of the evidence before 

reaching your determination of a sentence? 

Can you fairly consider all of the sentencing alternatives, if the accused 

were convicted of premeditated murder, to include life and death? 

(continued . . .) 
HENNIS—ARMY 20100304 

52

understand voir dire is important in any panel case, particularly so in one with the 

possibility of capital punishment. However, we do not share appellant’s criticism of 

the military judge’s involvement, mindful of his “responsibility to remove 

prospective jurors who will not be able impartially 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 trial judges are entrusted in supervising voir dire, we 

conclude the military judge’s regulation thereof 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 MITIGATING EVIDENCE 

ON SENTENCING, VISCERAL 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 erred in denying his causal challenges 

against Lieutenant Colonel (LTC) B, Major (MAJ) W and LTC W. Before analyzing 

appellant’s arguments regarding each, which analyses include rather lengthy 

excerpts from their individual voir dire, we restate the relevant legal principles 

associated with the right to an impartial factfinder, “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 mitigation evidence would 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 and circumstances in a case? 
HENNIS—ARMY 20100304 

53

“The proper standard for determining when a prospective juror may be 

excluded for cause because of his or her views on capital punishment . . . is whether 

the juror’s views would ‘prevent or substantially impair the performance of his 

duties as a juror in accordance 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 evidence 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 implied bias has a slightly different focus, based on an 

“objective test” and “the consideration of the public’s perception of fairness in 

having a particular member as part 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 establishing grounds for a challenge for cause rests 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 causal challenges of 

LTC B, MAJ W and LTC W. 
HENNIS—ARMY 20100304 

54

A. LIEUTENANT COLONEL B21

DC: One of the things that we had talked about yesterday 

was, of course, a situation where if you were to consider 

the case of a premeditated murder of children and, in the 

case where there is a premeditated murder that has been 

proven beyond a reasonable doubt of children, that you 

indicated that you would not consider life imprisonment 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 premeditated 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 misstating me. That is correct. 

DC: Okay. And so I wanted 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 foremost; and I love 

my kids like most of us do. 

DC: Certainly. 

LTC B: And because kids bring a great deal of innocence 

to their being, to take- to premeditate and to actually take 

a child’s life is unforgiveable in my mind. 

 

 

21 In group voir dire, LTC B responded negatively when the defense asked, “[D]o 

you agree with this statement if someone is convicted of premeditated murder of 

children they should be given the death penalty?” He then responded positively 

when asked by defense counsel, “Do you agree with the statement that life in prison 

is not really punishment for premeditated murder of children?” 
HENNIS—ARMY 20100304 

55

DC: Certainly. And again, that’s all we are asking for is 

what your personal beliefs are; and again, nobody is 

criticizing that obviously. So, with regard to that, the fact 

that it was--an innocent child has been murdered and it 

was done by premeditated murder, that just simply 

overrides anything else 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 personal belief, but that doesn’t 

mean that I would necessarily strongly stand on it from the 

standpoint of not 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 other panelists that have other 

opinions that differ from mine. 

DC: Okay. And I certainly respect that; but as I 

understand you though it is that your belief is--as you sit 

here, is that that is just--that life imprisonment 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 just simply wouldn’t 

be an appropriate punishment. 

LTC B: As I sit here and I think about it, to be honest 

with you, for someone who fits that category to actually 

execute them or however way that they are terminated--

their life is terminated, it kind of frees them from not 

having to think about it for the rest of their lives-- 

DC: Okay 

LTC B: --as I think 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 military 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 could adjudge: one is confinement for 

life and the other is the death penalty. 

So with that understanding, sir, do you understand that 

there are two choices that you would have? 

LTC B: Yes. 

TC: Sir, will you be able to fairly and fully consider both 

of those choices? 

LTC B: Yes. 

TC: Sir, and in that consideration, will you be able to 

consider not only the aggravating 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 defense? 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 learned of some things from the 
HENNIS—ARMY 20100304 

57

media but had not paid much attention 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 regards to some questions by 

counsel, you indicated that--as the scenario put forth to 

you by counsel with the premeditated murder of young 

children, you indicated that life is not 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 the death penalty if you were to sit on a 

panel where two little girls 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 that to take someone’s life as 

a result of premeditation in the murder would free them 

from having to be reminded of it for the rest of their lives. 

So, simply what I am saying, sir, is that I would be openminded. I know what my views are, but I would be openminded to listen to other panelists. 

MJ: Are you open-minded to be persuaded by other panel 

members to what an appropriate sentence should be if you 

were required to decide on an appropriate sentence 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 correct, 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 are you willing to listen 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, sir. I would. 

MJ: Now, when you have these two divergent statements 

with the understandable, emotional response, I have two 

children, two little girls are dead at the hands of 

premeditated murder; and then you say, well also 

executing that person may then free that person from 

having to think about that the rest of his life. So can you 

envision then that, not knowing what the evidence is--but 

can you consider and envision that life might be 

appropriate depending on whatever the evidence is that 

comes out? 

LTC B: Yes, sir. 

MJ: So, when you say that life is not appropriate for this 

type of offense, please again explain to me whether that 

was your initial reaction or whether that is something that 

you concluded after giving some thought to it? 

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

father. 

 Defense counsel challenged LTC B for cause, citing implied bias and the 

liberal grant mandate. The military judge and the defense had the following 

exchange: 

DC: . . . With regards to his views on the death penalty, 

again, he was another panel member who in general voir 

dire indicated that life in prison was not an appropriate 
HENNIS—ARMY 20100304 

59

punishment for a premeditated murder of children. When 

questioned about that, he had very firm opinions that said 

it was based upon his reaction, stating that he is a father, 

and that killing a child--taking a child’s life is 

unforgiveable. That this was an emotional 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 penalty would be the appropriate 

punishment because it would “free the person to think 

about”–“free the person from having to think about it for 

the rest of their life.” 

Obviously an imposition of a death penalty essentially--

and not to be glib about it--because it would be good, it 

would release them from having that burden for the rest of 

their lives is an inappropriate reason to impose the death 

penalty. And we believe it would 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 impression from [LTC B] when he 

said, “The death penalty may free that person to have to 

think about it the rest of their life,” as a reason not to 

impose the death penalty--that is the way I interpreted his 

response. 

DC: Your Honor, I read that as being that it was the 

reason to impose the death penalty is that it would--and in 

either event, it would still be an inappropriate sentencing 

consideration. But the way that it was--the context in 

which the question was asked, it was asked 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 premeditated 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 listening to other panel 

members--he made it very clear that he was not open to 
HENNIS—ARMY 20100304 

60

persuasion, that this was something that he believed and 

that there was no--unlike 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 understandable visceral reaction. 

Members are not expected or required to react in a robotic 

manner. He is clearly willing to give his decisions a lot of 

thought. He does not have a kneejerk reaction to impose a 

certain sentence. [LTC B] made it clear, in an extremely 

credible manner, that he is willing to listen to all of the 

evidence and will consider the 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 sentence 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 the rest of his life. [Lieutenant Colonel 

B] is not unalterably in favor of imposing the death 

penalty. 

Viewing all of [LTC B’s] responses as a whole, a 

reasonable person would not conclude that he is biased 

under the implied bias standard. The liberal grant 

standard does not warrant granting the challenge; 

therefore, the challenge for cause is denied. 

 We shall not second-guess the military judge’s assessment of LTC B as 

credible; nothing in the record of trial undermines it. The military judge considered 

the liberal grant mandate. In light of LTC B’s multiple commitments to consider all 
HENNIS—ARMY 20100304 

61

evidence in mitigation, any lawful sentence and the views of fellow members, we 

conclude the military judge did not err in denying the challenge against him.22

B. MAJOR W23

TC: . . . Could you tell us what your views are of the death 

penalty? 

MAJ W: I do believe that the death penalty is a viable 

option for anyone who’s committed and found 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 father of four small children 

under the age of 10--to 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 something that I 

would consider. 

TC: Yes, sir. But you said that you believe that you 

could be fair and objective? 

MAJ W: Yes. 

 

22 Our superior court recently emphasized 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 “free [a murderer] from 

having to be reminded of it” does not constitute an opinion that a life sentence is 

more severe than the death penalty. Lieutenant Colonel 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 negatively when the defense asked, “[D]o 

you agree with this statement if someone is convicted of premeditated murder of 

children they should be given the death penalty?” He responded positively when 

asked by defense counsel, “Do you agree with the statement that life in prison is not 

really punishment for premeditated murder of children?” 
HENNIS—ARMY 20100304 

62

TC: Sir, is there 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 decision on that would have to be 

made based on all the evidence at hand. Again, now I 

think it is a viable option; but it would be dependent on, 

you know, what the circumstances were--intent, and 

premeditation and those sorts of things. 

So, I mean, I try, you know being a commander for 7 

years, I have tried very hard to be fair when I administer 

UCMJ; hear both sides of every story. I understand that 

there are extenuating circumstances in some cases. So I 

try to be very objective and very fair and open about those 

sorts of things. But I can’t think of absolutely 

automatically death penalty, I would have to hear all of 

the evidence. 

[. . .] 

TC: If the defense presents--if they do--they have no 

burden to present anything 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 conviction is for 

premeditated murder, you will then be instructed that you 

have two choices as to punishment: one is for 

confinement for life, the other is the death penalty. 

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

TC: Do you understand that you would have those two 

choices? 

MAJ W: Yes. 

TC: And, sir, do you also understand that there is no 

presumption in favor of either of those two? 

MAJ W: Correct. 

TC: So with that understanding, would you be able to 

fairly and completely consider the possibility of either of 

those? 

MAJ W: Yeah, absolutely. I mean, that would be in the 

second phase, and I would worry 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 briefed 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 judge 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 hypothetical case--it’s not this case. It’s not 

any particular case, but it’s a hypothetical case where you 

have the responsibility to sentence an accused who has 

been convicted by proof beyond a reasonable doubt, by a 

unanimous decision, of premeditated murder. 

MAJ W: Uhm-hmm [indicating 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 did not involve--there weren’t 

any facts involving, for example, self-defense. There was 

no self-defense. There was no heat of passion, no 

provocation. These were innocent people that were 

murdered--the victims that were murdered. There wasn’t 

any mistaken identity. There’s no accident. There’s no 

defense of others. None of those things are present. All 

that was present was a clear finding of proof beyond a 

reasonable doubt of premeditated murder, i.e., there’s a 

specific intent to kill. There’s an opportunity to consider 

that act and it was premeditation--premeditated murder 

and that was proved beyond a reasonable doubt. 

Now, sitting in a panel where there’s been a finding of 

premeditated murder of a mother 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 receive 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 instructions as to how you 

should consider whether death is appropriate or not? 

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

DC: That is entirely up to a panel member and their own 

personal moral judgment. The 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 context of that personal judgment, 

what is it that--and remember there’s no provocation, 

intent is proven--it’s beyond a reasonable doubt, that there 

was an intent to kill and there was the actual killing of a 

mother and two innocent children. What else would be 

important to you in making 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 prison versus the death penalty 

is--that both are viable options for sentence. However, I 

think what would sway me one way or the other are the 

circumstances around it. 

DC: Okay. 

MAJ W: The premeditation would be part of it; perhaps 

the ferocity of it or whatnot, you know; and for me 

personally, I mean having, you know, four children of my 

own under the age of 10, you know, the killing of children 

would be difficult, would make 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 circumstances behind it, just so I 

understand what you are talking about, you talked about 

premeditation--obviously you would want to know that it 

was a premeditated killing? 

MAJ W: Yes. 

[. . .] 

DC: . . . [Y]ou believe that the finding or part 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 evidence that’s presented. I mean, you know, 

if it’s beyond a reasonable doubt, they are found guilty, 

and there’s a unanimous jury that says, yes, absolutely this 

person did this-- 

DC: Right. 

MAJ W: --I would definitely look personally I would look 

at all of the evidence and try to keep it as--to be as 

objective as possible. 

DC: Okay. 

MAJ W: But I certainly think premeditation and the 

ferocity and those sorts of things would play into my 

mind. 

DC: Okay. And when we talk about the circumstances, I 

understood you were talking about, like, the acts of the 

violence in the offense itself; is that what you are 

referring to or is there something else? 

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

DC: And so the events that 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 that would be important 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 ferocity of it. You know, I 

think that would be one of the things that I would 

consider. 

DC: Okay. So as I understand and just so I can get it clear 

in my mind is that if you were to find beyond a reasonable 

doubt--you and a panel unanimously determine beyond a 

reasonable doubt, that there was premeditated murder of 

children-- 

MAJ W: Uhm-hmm [indicating 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 those children, that that would 

be a case where you are inclined to view death as the 

appropriate punishment for that crime? 

MAJ W: That is correct. 

[. . .] 

 

DC: . . . [W]hen we had the discussion about--first of all, 

in a case obviously not everybody as I indicated yesterday, 

not everybody has the same views, and we would expect 

that of panel members. 

MAJ W: Right. 

DC: And some people have different views, based upon 

their own personal background and their own personal 

situation; and of course, you indicated earlier that this is 
HENNIS—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 [indicating 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 indicated 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 other aspects of that, of course, 

is the discussion about--you said considering the nature of 

the offense, the premeditation, and so forth. Now, again, 

you understand that even before a panel would be 

permitted to even consider death 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 context of that though, you had 

indicated that not only that the premeditation was 

important but also the circumstances surrounding the 

offense itself? 

MAJ W: Uhm-hmm [indicating 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 death as an appropriate punishment? 

MAJ W: Yeah, if--hypothetically, if it was a unanimous 

decision that there was guilt 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 primarily, 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 consideration, along with those factors, 

what other things might be important to you with regards 

to the imposition or decision as to whether 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 part 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 have 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 there any other factors that 

come to mind that you would 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 background of a person. You 

know, we mentioned that, you know, perhaps if they have 

had a long crime record of, you know, serious crimes and 

stuff like that and then murder was brought on there. 

Would that play a factor? Possibly, but it would really 

depend on the circumstances behind it. 
HENNIS—ARMY 20100304 

70

DC: Okay. And in that respect, if you were to--you know 

again, in the case of premeditated murder of children done 

in a violent way, if you were to receive information about 

the person’s background that wasn’t necessarily 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 the 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 lot of people get out with an 

honorable discharge. If someone was a, you know, hero or 

whatever, you know, that might play into it; but really it’s 

the facts at hand of the case that is important 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 [indicating an affirmative response.] 

DC: --I had told you that, you know, it was premeditated 

murder, a finding beyond a reasonable doubt of children 

was done without any finding of--there wasn’t any mental 

health issues, there’s no defenses, there’s no raising of 

insanity, and there’s no alcohol or drug involvement. All 

of those things were eliminated prior to a finding of 

premeditated murder. Okay? 

MAJ W: Okay. 

DC: With that understanding, is that what you were 

talking about with regards to the background that you 

know, absent that kind 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 including two little children. Are 

you going to make up your mind as to what is an 

appropriate sentence that should be imposed before you 

hear all of the evidence that 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 mind, [DC], you may continue. 

DC: [MAJ W], without making up your mind, would you, 

under those circumstances where 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 [indicating an affirmative response.] 

DC: --would you be in a position, just in your processing 

of starting at a position where you are inclined to say 

death is the right answer and then look for mitigation 

factors, is that how you would approach 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 anyone, any particular panel member to 

vote for death. 
HENNIS—ARMY 20100304 

72

MAJ W: Uhm-hmm [indicating 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 anything that you would receive 

in this court would ever require 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 offense 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 could decide to vote 

for life based upon something 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. Would you agree with that? 
HENNIS—ARMY 20100304 

73

MAJ W: I would. 

DC: So that when you would make a decision about your 

own personal moral judgment, you would expect that your 

opinion would be respected by others, would you not? 

MAJ W: I would. 

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

express any opinion at all but voted 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 bullying 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. But you wouldn’t 

expect that they would. In fact, 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 personal moral view? 

MAJ W: No, sir. 

DC: Likewise the understanding that 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 counsel 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 presented in court? 

MAJ W: Correct. 

TC: And you agreed earlier when I was asking you 

questions that you would, in fact, wait until everything is 

presented? 

MAJ W: Yeah, absolutely. 

TC: And that you would follow the instructions from the 

military judge in determining an appropriate sentence? 

MAJ W: Absolutely. 

TC: And that you would be able to--in fact, let me ask 

you again, can you 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 questions about good stuff and bad 

stuff that may be presented as to the background of the 

accused. You don’t know, at this point, what those facts 

are? 

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

75

TC: So is it possible for you to evaluate how much weight 

you would give to the accused’s background at this point? 

MAJ W: I mean at this point I can’t hypothesize 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 but 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 here is what 

I’ll base all of my judgment and my deliberation on. 

TC: Okay. And you will keep an open mind until the 

end? 

MAJ W: Absolutely. 

 The defense challenged MAJ W for cause, “based upon 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 crime” in considering 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 some sort of mitigation to convince him 

otherwise. That is a clear statement of a burden-shifting requirement . . .” 

 Describing MAJ W as “very credible,” the military judge denied the 

challenge, reasoning: 

MJ: . . . While he believes the 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, before making a decision. He 

could not think of a case in which he would automatically 

impose the death penalty. While he is willing to consider 

all the evidence, he cannot say at this point, 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 graphic scenario presented by the 

defense counsel, [MAJ W] said he may start with the death 
HENNIS—ARMY 20100304 

76

penalty; however, he is not unalterably in favor of the 

death penalty. And, as he said, he could 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 sentence. And, 

based on all of his responses, a reasonable person would 

not conclude that he is biased. 

The liberal grant mandate does not warrant a challenge for 

cause and, therefore the challenge for cause is denied. 

 We shall not second-guess the military judge’s assessment of MAJ W as 

credible; nothing in the record of trial undermines it. The military judge considered 

the liberal grant mandate. Where a panel member demonstrates an “inelastic 

disposition concerning an appropriate sentence,” 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” disposition “regarding” punishment. 

In light of MAJ W’s multiple commitments to consider all evidence in mitigation, 

any lawful sentence and the views of fellow members, we conclude the military 

judge did not err in denying the challenge against him.24

C. LIEUTENANT COLONEL W25

 Lieutenant Colonel W described his previous experience as a civilian law 

enforcement officer, and the defense asked him about his assessment of defense 

attorneys: 

 

24 Considering Walton v. Arizona, 497 U.S. 639, 650 (1990), we find unpersuasive 

appellant’s argument that MAJ W’s views inappropriately shifted the burden to 

present mitigation evidence. (“So long as a State’s method of allocating the burdens 

of proof does not lessen the State’s burden to prove every element of the offense 

charged, or in this case to prove the existence of aggravating circumstances, a 

defendant’s constitutional rights are not violated by placing on him the burden of 

proving mitigating circumstances sufficiently substantial 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 with 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 your career, meaning the 

help and assisting and processing of a crime scene, do you 

ever recall being called as a witness 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; but on the major 

crime scenes, no, I wasn’t called as a witness. 

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

some sort of suppression hearing 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, obviously, 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 contact with defense attorneys? 

LTC W: Yes. 

DC: In general, what was your impression over the years 

of prosecuting attorneys in general? 

LTC W: Good. 

DC: Okay. And what was your opinion or what kind of 

impression was left to you of the defense attorneys 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 you in your mind? 

LTC W: When I was an arresting officer and I was the 

one that was sitting on the stand, the defense--mainly on 

DUI cases just the way the defense handled 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 cases, I saw a handful of 

times that I had made arrests and maybe the Intoxilyzer 

results weren’t admissible at the time. So the jury 

couldn’t see the results of the Intoxilyzer. So, as 

somebody that was trained by the state on DUI detection, 

there was a lot of questions that were brought up about my 

expertise as somebody that can make decisions on DUI 

detection. So it would bring a lot of doubt into the jury on 

my abilities as an officer and other officers, the same 

thing. 

DC: And so I understand, because of your knowledge of 

the case, you felt there was some unfairness in the system 

as far as what they allowed the defense attorney 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 LTC W for cause, citing implied bias and the liberal 

grant mandate with respect to his experience as a law enforcement officer. Then, 

focusing on his voir dire answers regarding defense attorneys, the defense 

additionally asserted actual bias: 

[Lieutenant Colonel W] stated that while he had an 

unfailingly good view of prosecuting 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 that when defense attorneys 

would ask questions that he viewed unfair, based upon his 

prior knowledge of the case, he held that against 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 would be on. No such--obviously, 

no such negative views toward prosecutors. 

 Finding LTC W “very candid 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 were not so good. 

There is absolutely no evidence he harbors any ill feelings 

against defense counsel as a whole and absolutely no 

evidence that he harbors any ill feelings against defense 

counsel in this case. 

 We shall not second-guess the military judge’s credibility assessment of LTC 

W; nothing in the record of trial undermines it. The military judge considered the 

liberal grant mandate. Additionally, nothing indicates that LTC W’s opinions of 

individual defense attorneys in particular civilian proceedings somehow caused him 

to develop a stereotypical view of defense counsel, and we conclude the military 

judge did not err in denying the challenge 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 Cumberland County Sheriff’s Office, testified during the 

government’s case. After his testimony, but before excusing him from the stand, the 

military judge—as is customary and allowed in military trials—asked the members 

whether they had any questions. Colonel (COL) CT wrote the proposed question of 

which appellant complains. 

 The parties reviewed COL CT’s proposed written question, and defense 

counsel wrote on the question form, “Obj[ection] calls for speculation.” The 

military judge did not allow the question, and the trial continued. Appellant did not 

request voir dire or any other follow-up regarding this proposed question. 

Now, appellant argues the military judge “erred 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 established actual bias. 

Alternatively, appellant asserts the question constituted evidence of implied bias. 

Without restating the standards surrounding each basis for exclusion, described 

supra, we reject both arguments.

We recognize the military judge’s authority to question and, if necessary, 

remove a panel member even without a party’s request 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 interest 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 abuse of discretion,” but then held “[s]ince 

the judge did not abuse his discretion, there was no plain error.” Id. at 458, 460. 

Applying the most rigorous standard of review applicable to questions of member 

bias—more deferential than de novo, but less deferential than abuse of discretion, 

under Woods—we hold the military judge did not err by not questioning or removing 

COL CT. 
HENNIS—ARMY 20100304 

81

 We regard COL CT’s question as an effort to probe the strength of the 

government’s case, not a premature conclusion that appellant was guilty. Finding no 

actual bias or a violation of R.C.M. 912(f)(1)(M), we address whether COL CT 

should have been excused for 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 fairness of the military 

justice system. See United States v. Townsend, 65 M.J. 460, 463 (C.A.A.F. 2008). 

 Noting the defense’s emphasis in its closing argument on appellant’s apparent 

lack of motive, we return to our observation that trial defense counsel did not object 

to COL CT’s continued service on the panel after reading his proposed question. 

From these facts, we infer the trial defense team may have perceived COL CT as 

potentially receptive to that aspect of the defense case and, therefore, wanted him to 

remain on the panel. In our view, no member of the public 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 trial 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 his allegations regarding government 

counsel’s comments into four groups, which we address seriatim: 

A. “Trial counsel made highly prejudicial, belligerent 

remarks toward MSG Hennis’ defense counsel.” 

 Appellant focuses on several of government counsel’s comments during his 

rebuttal findings argument, including remarks describing the defense’s closing 

argument as “monstrous” and “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 counsel said, inter alia, the following: 
HENNIS—ARMY 20100304 

82

[I]n your deliberations, you are to rely on your knowledge 

of human nature and the ways of the world. One of the 

ways of the world and one of the things that we know 

about human nature is that things 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 . . . [appellant] went 

to the [E family] home, seeking sex with [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 take away the 

murders. Let’s just focus on the DNA. That evidence 

could support an argument of adultery. Adultery could be 

--could have occurred in this case. 

[. . .] 

You have to ask yourselves, 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 [appellant’s spermatozoa] was found 

because there is no date/time stamp. Has the government 

disproven that beyond a reasonable 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 government’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 had 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 then asked to re-open 

its case and offer a portion of the previous Article 39(a), UCMJ, transcript against 

appellant as an adoptive admission. The military judge denied the request and 

recalled the members to hear government rebuttal, which 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 adultery. 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, because [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 evidence whatsoever before you 

that [appellant] had consensual sex with [Mrs. KE]. That 

is a vile, disgusting argument; and it is designed 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 some sort of doubt 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 not 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 plain 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 these remarks were a fair commentary 

on the defense argument and not an impermissible critique of defense counsel. 

Under the circumstances here, this distinction is unpersuasive. We note and do not 

condemn government counsel’s argument to the military judge during the Article 

39(a), UCMJ, session that civilian defense counsel’s argument, in light of his 

previous representation to the court, was an example of “sharp practices.” However, 

government counsel’s subsequent characterization of the defense argument as 

“monstrous,” “evil,” “vile,” and “disgusting” constituted plain and obvious error. 

 Despite these remarks, we conclude under 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 exists by examining and balancing three 

factors: (1) the severity of the misconduct, (2) the measures 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 objectionable statements were isolated 

and not a predominant part of government counsel’s argument. Under the second 

factor, while the military judge did not intervene sua sponte, he did instruct the 

members that counsel’s arguments were not evidence, instead 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 you.” Turning to the third factor, the evidence against 

appellant was strong: a witness identified him as the person parked near the E 

family home at midday on 9 May 1985; a witness identified him as the person he saw 

leaving the E family home in the early morning hours of 10 May 1985; another 

witness identified him as the person she saw at an automated teller machine (ATM), 

at the same time and place where the E family’s missing card was used after the 

murders; multiple witnesses described appellant burning a substantial fire in a barrel 

at his home for several hours on 11 May 1985; and, DNA analysis identified 

appellant as the source of the sperm obtained from Mrs. KE’s body. We are 

confident the weight of the government’s evidence “reduced the likelihood that the 

[panel’s] decision was influenced by argument.” Darden, 477 U.S. at 182. 

B. “Trial Counsel instructed the panel that they were the conscience 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 closing argument on appellant’s 

apparent lack of motive, government counsel 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 start firing it?” The defense 

did not object. Government counsel later said, “the Army believes in DNA.” The 

military judge sustained the defense’s objection to this statement. Then, saying 

“DNA is good enough” to verify the identity of a deceased person, government 

counsel rhetorically asked, “why is DNA not good enough to identify a murderer?” 

The defense did not object. Later, government counsel argued: 

[Civilian defense counsel] talked about the conscience of 

the Army. You are the conscience of the Army.26 Well, 

let me tell you something. Verdicts in courts-martial 

around the world send a message, and they reflect how our 

Army, our military values things. What is acceptable 

behavior and what is unacceptable behavior. 

 

26 In his closing argument, civilian defense counsel said to members, “[C]ollectively 

you represent . . . the conscience of the Army . . .” 
HENNIS—ARMY 20100304 

85

 The defense objected, citing “the appearance of unlawful command 

influence.” The military judge sustained the objection, instructing 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 find no plain or obvious 

error in government counsel’s reference to various purposes for DNA analysis. 

 We do, however, find plain and obvious error in government counsel’s 

comparison of this case to one in which a terrorist flies a plane into a building or an 

active shooter targets a military installation. Counsel may urge a factfinder to draw 

inferences based only on the evidence at hand and the law applicable to the case. In 

this instance, government counsel strayed from that basic principle, and the military 

judge should have intervened. Applying Fletcher again, we conclude these remarks 

of this type were isolated and note the military judge’s instruction regarding the 

limited purpose of counsels’ arguments. Finally, considering the strength of the 

evidence supporting the findings, we are confident these remarks did not sway the 

panel’s deliberations. 

 Assuming arguendo government counsel created an appearance of unlawful 

command influence by conflating the members’ verdict and “Army Values,” we find 

the military judge properly remedied it with his ruling on the defense objection. We 

also find sufficient the military judge’s sustaining the defense objection to 

government counsel’s argument that “the Army believes in DNA.” We further note, 

with respect to these two matters, the defense neither requested a curative 

instruction nor moved for a mistrial. 

C. “Trial counsel made derogatory comments concerning 

[appellant’s] fundamental right to present mitigation.” 

 During the sentencing case, the defense admitted multiple photographs of 

appellant and his family members. In sentencing argument, government 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 [appellant] 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 mitigation. You must give them due 

consideration. You may proceed. 

TC: How dare they ask you--they’re allowed and you can 

consider it and should give it its appropriate weight. How 

dare they ask you to look at pictures of [appellant] sitting 

on the couch reading a book to his kids? 

(Emphasis added.) 

 We held in United States v. Carr, “it is inappropriate that any party to a courtmartial should be allowed to profit, directly 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 his 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 phrase, “how dare they,” 

improperly derogated appellant’s right, guaranteed by the Sixth and Eighth 

Amendments to the Constitution, to present extenuation and mitigation evidence. 

Noting the defense did not object after government counsel’s second and third use of 

this phrase, we nonetheless find such use plainly and obviously improper. 

 Evaluating prejudice in the context of this constitutional error, we note the 

exacting standard announced by our superior court: 

“[B]efore a federal constitutional error can be held 

harmless, the court must be able to declare a belief that it 

was harmless beyond a reasonable doubt.” This will 

depend on “whether there is a reasonable possibility that 

the evidence [or error] complained 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 government counsel’s poor phraseology occurred during a 

brief portion of a nineteen-page sentencing argument which was otherwise proper, 

focusing on the relative weight which the government argued the panel should give 

the evidence in aggravation, extenuation and 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 members’ duty to consider it. Finally, the properly-admitted 
HENNIS—ARMY 20100304 

87

aggravation evidence in this case was exceptionally strong, depicting the calculated 

and brutal slaying of multiple victims, two of whom were defenseless young 

children. We are convinced beyond a reasonable doubt that government counsel’s 

erroneous argument was harmless. 

D. “Trial counsel asked the panel to place 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 place the factfinder in 

the position of a victim, appellant complains of additional lines of government 

argument on findings and sentencing. For example, government counsel said the 

following of Mrs. KE during rebuttal findings argument: 

You have to think, what’s going 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 will submit. I’ll do anything, 

but please save my children.” 

 Appellant now argues government counsel erred in asking the panel to 

“imagine” several aspects of the murder scene. For example, the following occurred 

during sentencing argument: 

TC: Imagine the mental anguish of [Mrs. KE]. There was 

no forced entry in the house but, at a certain point, once 

the accused was inside there, probably using the dog to 

gain entry--something about the dog somehow gaining 

entry into the house. At a certain point, [Mrs. KE] had to 

realize that she was in trouble. Imagine the mental 

anguish of this woman, 120 or so pounds, and this 6-foot-4 

man in her house now with her 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 eventually 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 place the members into the shoes of the 

victims. 
HENNIS—ARMY 20100304 

88

TC: Yes, Your Honor. The fear that [Mrs. KE] must have 

felt for her children, knowing that 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, the physical attacks on the 

children. 

You’ll have the autopsy reports. You have those in 

evidence, one each for the three victims. And 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 back. None of those wounds 

caused instant death. There was pain, and there was 

suffering by each of those victims. 

We don’t know in that master bedroom which--between 

[Miss EE] and [Mrs. KE]--which was killed first. We 

don’t know. But either scenario is almost too horrific to 

imagine. Either little [Miss EE] was murdered first while 

her mother was bound and forced to watch, or [Mrs. KE] 

was murdered first in front of her 3-year-old child. 

And little [Miss KE] in her bed down the hall under her 

blanket--age 5, at the age where your parents tell you 

monsters aren’t real. And when you’re 5 and you lay in 

bed and you close your 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 there 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” principle. We so conclude, noting our superior 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 simply asking the members to 
HENNIS—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 conceptually 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 mother or sisters, we conclude 

government counsel fairly and properly asked the members to consider and 

“imagine” the victims’ emotional and physical pain and suffering at appellant’s 

hands. We further find government counsel’s arguments regarding the impact on 

other surviving family members consistent with the cases cited supra. 

VIII – B. THE MILITARY JUDGE ABUSED HIS 

DISCRETION WHEN HE PERMITTED THE 

GOVERNMENT TO ADMIT AGGRAVATION 

EVIDENCE IN VIOLATION OF THE FIFTH AND 

EIGHTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION. 

Considering the record of trial 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 case was well within the constitutional 

safeguards described in Payne v. Tennessee, 501 U.S. 808 (1991). 

VIII – C. THE MILITARY JUDGE ERRED WHEN HE 

DENIED MASTER SERGEANT HENNIS’ MOTION 

TO SET ASIDE THE CAPITAL REFERRAL DUE TO 

THE DESTRUCTION OF OVER THREE YEARS OF 

INMATE RECORDS. 

Considering the record of trial and matters asserted in the parties’ briefs, we 

conclude this assignment of error merits neither discussion nor relief. 

VIII – D. THE MILITARY JUDGE ERRED WHEN HE 

INSTRUCTED THE PANEL THAT THEY NEEDED 

TO CONTINUE TO VOTE UNTIL THEY REACHED 

EITHER ELEVEN VOTES FOR LIFE OR FOURTEEN 

VOTES FOR DEATH. 

During sentencing deliberations, the panel members submitted the following 

question to the military judge: 
HENNIS—ARMY 20100304 

90

If there is one person who votes against the death penalty 

does that mean that all other votes are for a life sentence? 

i.e. does this automatically fulfill a confinement for life 

sentence considering a 3/4 concurrence (understanding 

para. 3, pg 21)?27

After granting a recess in the panel’s deliberations, the military judge heard 

extensive argument28 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 noted 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: Military Judges’ Benchbook [hereinafter 

Benchbook] para. 2-7-18 n.1 (1 Jan. 2010). This Benchbook provision is incorrect 

as a matter of law. See R.C.M. 1006(d)(3)(A). 

29 Urging the military judge to ask the members whether they had voted on the 

death penalty so that he might then instruct them that only one vote thereon 

was allowed, the trial defense team relied heavily on the following passage 

from United States v. Simoy, 50 M.J. 1, 2 (C.A.A.F. 1998): 

In order for the death 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 findings beyond a reasonable doubt that an 

aggravating factor exists, R.C.M. 1004(b)(7); 

(3) Unanimous concurrence that aggravating factors 

substantially outweigh mitigating 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 the following instruction: 

You need a required concurrence for any proposed 

sentence; unanimous for death, three-quarters or 11 votes 

for a life sentence. If you vote on a proposed 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 erred 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 instructions to 

give but has a duty to provide an accurate, complete, and 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 sentenced to suffer 

death, except by the concurrence of all the members of the court-martial present at 

the time the vote is taken.” Under Article 52(b)(2), UCMJ, “No person may be 

sentenced to life imprisonment . . . except by the concurrence of three-fourths of the 

members present at the time the vote is taken.” R.C.M. 1006(d)(4)(A) and R.C.M. 

1006(d)(4)(B) essentially repeat these statutory provisions, and R.C.M. 1006(d)(5) 

further requires: “When a mandatory minimum is prescribed under Article 118 the 

members shall vote on a sentence in accordance with this rule.” Under R.C.M. 

1006(d)(3)(A): 

All members shall vote on each proposed sentence in its 

entirety beginning with the least severe and continuing, as 

necessary, with the next least severe, until a sentence is 

adopted by the concurrence of the number of members 

required under subsection (d)(4) of this rule. The process 

of proposing sentences 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 establishes that only one vote may be 

taken on the death penalty. 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 required 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 instructions were correct. We additionally 

conclude, contrary to appellant’s argument and brief, the military judge committed 

no error in denying the defense’s request to respond to the members’ question by 

asking whether they had voted on a sentence. 

VIII – E. THE PANEL PRESIDENT FAILED TO 

ANNOUNCE THE AGGRAVATING FACTORS THAT 

IT FOUND TO SUPPORT THE DEATH SENTENCE 

BEFORE THE COURT ADJOURNED. 

At approximately 1450 on 15 April 2010, the members returned from 

deliberations with their sentence. The military judge reviewed the sentence 

worksheet, which is Appellate Exhibit 515, and found, “[i]t appears to be in proper 

form.” After returning the worksheet to the members, the military judge asked the 

panel president to announce the sentence. The president did so, announcing that the 

members unanimously concurred in sentencing appellant to reduction to E-1, 

forfeiture of all pay and allowances, a dishonorable discharge, and death. The panel 

returned the sentencing worksheet to the military judge, who adjourned the courtmartial at 1452. 

 At 1701 on 15 April 2010, the military judge called the court to order; the 

members were present. The military judge informed the panel that he “neglected to 

have the President read certain matters that 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 addition 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 the 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), was 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 prolonged, substantial mental 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 and extenuation 

and all the matters in aggravation, this court-martial, in 

closed-session and upon secret, written ballot, 

unanimously finds that any extenuating or mitigating 

circumstances are substantially outweighed by the 

aggravating circumstances, including the aggravating 

factors specifically found by the 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 adjudged, the president shall, in 

addition to complying with R.C.M. 1007, announce 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 announcement made before the record 

of trial is authenticated and forwarded to the convening 

authority. This action shall not constitute reconsideration 

of the sentence. If the court-martial has been adjourned 
HENNIS—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), UCMJ, also provides: 

A proceeding in revision may be ordered if there is an 

apparent error or omission in the record or if the record 

shows improper or inconsistent action by a court-martial 

with respect to the findings or sentence that can be 

rectified without material prejudice to the substantial 

rights of the accused. In no case, however, may a 

proceeding in revision – 

[. . .] 

(C) increase the severity of some article of the sentence 

unless the sentence prescribed 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 “approximately two months later” to add the 

punishment of confinement for six months, explaining “he 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 panel president 

revealed that the panel had actually voted to sentence appellant to punitive 

discharge, the military judge allowed him to announce the omitted portion of the 

sentence in a subsequent Article 39(a), UCMJ, session. Id. Noting an inconsistency 

between R.C.M. 1007(b), which does not prohibit a subsequent announcement from 

increasing a sentence’s severity, and Article 60, UCMJ, which does contain such a 

prohibition while allowing subsequent announcement 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 sentence and adjourned, the 

sentence cannot be increased 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 sentences cannot be corrected, even upward, 

on the spot. The mere utterance of the sentence does not effect some magical 

transformation. Ordinarily, it will be only after the hearing has terminated that a 

charge of collective heart-changing can arise.” Id. at 293 n.6. 

 Appellant has made no “charge of collective heart-changing,” and we perceive 

no reasonable basis for such a charge. The sentencing worksheet remained 

unchanged after the original announcement. It reflected the following decisions at 

Simoy “gates” two, three and four: the signatures of each member, finding each 

aggravating factor proven; the signatures of each member finding any extenuating or 

mitigating circumstances substantially outweighed by the aggravating circumstances; 

and, the signatures of each member, sentencing appellant to death. 

 We understand the importance of announcing the aggravating factors in a 

death penalty case. United States v. Matthews, decided before the President 

promulgated the requirement in the Manual for Courts-Martial, teaches us that for a 

death penalty to be constitutionally reliable, the following must be present: 

1. A Bifurcated Sentencing Procedure Must Follow the 

Finding Of Guilt Of a Potential Capital Offense. 

2. Specific Aggravating Circumstances Must Be 

Identified To the Sentencing Authority. 

3. The Sentencing Authority Must Select and Make 

Findings On the Particular Aggravating Circumstances 

Used As a Basis For Imposing the Death Sentence. 

4. The Defendant Must Have Unrestricted Opportunity To 

Present Mitigating and Extenuating Evidence. 

5. Mandatory Appellate Review Must Be Required To 

Consider the Propriety Of the Sentence As To the 

Individual Offense and Individual 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 factors, we would be unable 

to determine compliance with the third requirement and, therefore, unable to fulfill 

our duty under the 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 circumstances of the crime,” and whether they have ‘adequately 

differentiate[d] this case in an objective, evenhanded, and substantively rational 

way’ from the other murder cases in which 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 aggravating factors in this case was 

less than perfect. However, we conclude appellant did receive and continues to 

receive the benefit of the fundamental protections described in Matthews. 

Considering Article 60, UCMJ, and our superior court’s interpretation thereof, we 

hold the panel president’s subsequent announcement of the previously-found 

aggravating factors in support of its previously-announced death 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 PRESIDENT THE POWER TO 

ENACT ELEMENTS OF CAPITAL MURDER, A 

PURELY LEGISLATIVE FUNCTION. 

Considering the record of trial and matters asserted in the parties’ briefs, we 

resolve this assignment of error against appellant consistent with our superior 

court’s treatment of the substantially 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 DECIDING WHETHER THE 

DEATH PENALTY SHOULD BE IMPOSED. 

Considering the record of trial 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 trial and matters asserted in the parties’ briefs, we 

resolve this assignment of error against appellant consistent with our superior 

court’s treatment of the substantially 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 TESTIMONY 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 trial 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 trial and matters asserted in the parties’ briefs, we 

resolve this assignment of error against appellant consistent with our superior 

court’s treatment of a substantially 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 our conclusion, supra, that appellant was lawfully called to 

active duty under Article 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 HENNIS’ HIS RIGHT TO BE 

PRESENT AT “EVERY STAGE OF THE TRIAL.” 

Appellant has assigned these two errors as headnote 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 ACTING 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 assigned this error as a headnote pleading without briefing; we 

resolve it against him consistent with our superior court’s treatment 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, AND 
HENNIS—ARMY 20100304 

99

EIGHTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION. 

Appellant has assigned this error as a headnote pleading without briefing; we 

resolve it against him consistent with our superior court’s treatment 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 VIOLATION 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 assigned this error as a headnote pleading without briefing; we 

resolve it against him consistent with our superior court’s treatment of the issue in 

Gray, 51 M.J. at 61. 

XX. THE SELECTION OF THE PANEL MEMBERS 

BY THE CONVENING AUTHORITY IN A CAPITAL 

CASE DIRECTLY VIOLATES MASTER SERGEANT 

HENNIS’ RIGHTS UNDER THE 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 assigned this error as a headnote pleading without briefing; we 

resolve it against him consistent with our superior court’s treatment of substantially 

similar issues involving a convening authority’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 AMENDMENTS 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 these two errors as headnote pleadings without 

briefing; we resolve them against him consistent with our superior court’s treatment 

of substantially similar issues in Curtis. Id. at 131-33. 

XXIII. THE DESIGNATION 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 assigned this error as a headnote pleading without briefing; we 

resolve it against him consistent with our superior court’s treatment of a 

substantially similar issue in Gray. 51 M.J. at 57. 

XXIV. THE DENIAL OF THE 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. CONSTITUTION AND ARTICLE 55, UCMJ. 

SEE APP. EX. 50. 

Appellant has assigned this error as a headnote pleading without briefing; we 

resolve it against him consistent with our superior court’s treatment of a 

substantially similar 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 assigned this error as a headnote pleading without briefing; we 

resolve it against him consistent with our superior court’s treatment of a 

substantially similar 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 HENNIS 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 these two errors as headnote pleadings without 

briefing; we resolve them against him consistent with our superior 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 FIXED 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 assigned this error as a headnote pleading without briefing; we 

resolve it against him consistent with our superior court’s treatment of a 

substantially similar issue in Loving. 41 M.J at 295. 
HENNIS—ARMY 20100304 

102

XXIX. THE ARMY COURT LACKED 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 assigned this error as a headnote pleading without briefing; we 

resolve it against him consistent with the Supreme Court’s treatment 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 LACKS 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 PROTECTION OF THE LAWS IN 

VIOLATION OF THE FIFTH AMENDMENT IN THAT 

ALL CIVILIANS IN THE UNITED STATES ARE 

AFFORDED THE OPPORTUNITY 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 these two errors as headnote pleadings without 

briefing; we resolve them against him consistent with our superior court’s treatment 

of substantially similar 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, PARA. 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 PENALTY PROVISION OF 

ARTICLE 118, UCMJ, IS UNCONSTITUTIONAL AS 

IT RELATES TO TRADITIONAL 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’ ARGUMENT IS PREDICATED 

ON THE EIGHTH AMENDMENT TO THE UNITED 

STATES CONSTITUTION. 

XXXV. THE DEATH SENTENCE IN THIS CASE 

VIOLATES THE FIFTH AND EIGHTH 
HENNIS—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 THAT 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 (1994) (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 IS 

TANTAMOUNT 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 these eight errors as headnote pleadings without 

briefing; they merit neither discussion nor relief. 
HENNIS—ARMY 20100304 

105

XL. THE MILITARY JUDGE ERRED IN 

ADMITTING THE GOVERNMENT’S CRIME SCENE 

PHOTOGRAPHS AND VICTIM FAMILY PHOTOS AS 

THEY WERE UNDULY PREJUDICIAL TO MASTER 

SERGEANT HENNIS’ DUE PROCESS RIGHTS 

UNDER THE FIFTH AND EIGHTH AMENDMENTS. 

SEE, E.G., APP. EX. 53, PROS. EXS. 149-151. 

Appellant has assigned this error as a headnote pleading without briefing; we 

resolve it against him consistent with our superior court’s treatment of a 

substantially similar issue in Akbar. 74 M.J. at 407 (“[I]t cannot be seriously argued 

that [the] . . . photographs 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 POWERS 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 SIXTH 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 EXECUTED. THIS VIOLATES 

THE EIGHTH AMENDMENT’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 these three errors as headnote pleadings without 

briefing; they merit neither discussion nor relief. 
HENNIS—ARMY 20100304 

106

PROPORTIONALITY REVIEW 

 We are required to assess the proportionality 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 Article 66(c), UCMJ, we conclude the approved sentence is 

correct in law and fact. Further, under the circumstances of this case, including 

appellant’s rape of one of the murder victims, the vulnerability inherent in the young 

ages of the other two murder victims, and appellant’s mutilation of all three murder 

victims, we conclude the adjudged and approved death sentence fits the crimes of 

which he was found guilty. We further find “the sentence is generally proportional 

to those imposed by other jurisdictions 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 (Miss. 2001); Commonwealth v. Eichinger, 108 A.3d 821, 849 (Pa. 

2014) (“multiple murders and murder of child weigh heavy in aggravation.”) (citing

Commonwealth v. Koehler, 36 A.3d 121, 151-52 (Pa. 2009)).

CONCLUSION 

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

Senior Judge TOZZI, Judge HERRING, and Judge BURTON concur. 

 FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: