Army recalls acquitted soldier

Military weighs '85 slayings case

FAYETTEVILLE -- A retired soldier acquitted 17 years ago of rape and a triple murder in Fayetteville has been called back into the service for possible trial in a military court on the same charges.

Master Sgt. Timothy B. Hennis, 48, faced execution for more than two years following his conviction in state court in 1986. The conviction was overturned on appeal and he was found not guilty in a retrial in 1989.

The Army reopened the case after receiving new information from the district attorney in Cumberland County, said Col. Billy J. Buckner, a Fort Bragg spokesman. He said the new evidence resulted from a "cold case" investigation but declined to discuss it in detail.

Military officials notified Hennis on Sept. 26 that he was being recalled to active duty as part of an investigation into the rape and murder of Kathryn Eastburn and the murder of her two daughters, Erin and Kara, in May 1985. The victims were stabbed in their home while Eastburn's husband, an Air Force captain, was away on training. Another child, 22-month old Jana Eastburn, was found crying but unharmed in the home.

Hennis, who had been living near Tacoma, Wash., arrived Monday at Fort Bragg, where he will serve with Special Troops Battalion, XVIII Airborne Corps.

Buckner said Hennis was subject to military jurisdiction because he was receiving retirement pay. Buckner also said Hennis could face court-martial even though he had been acquitted.

Constitutional protection against "double jeopardy" -- being charged again with a crime after an acquittal -- applies separately to different levels of government. Although Hennis cannot be tried for the Eastburn murders again in any state court, he can be tried in military court because he has not faced federal charges in the case.

Scott Silliman, a Duke University professor and retired military lawyer, said it was rare for a military retiree drawing retirement pay to be recalled to duty.

"Most situations like this are handled in the federal courts," Silliman said.

But in ordinary federal court, Silliman said, Hennis couldn't be charged with murder. Instead, federal prosecutors probably would pursue a civil rights violation. And if he were convicted, the penalty for that probably wouldn't have been as severe as for a murder conviction in military court.

If the Army files criminal charges against Hennis, the next step would be an Article 32 investigation, which would produce a recommendation to Fort Bragg's commanding general. The general would decide whether to put Hennis on trial in a court-martial.

An Army trial would look much like a federal civilian trial, Silliman said, with a jury of at least five and up to a dozen officers. But it would go faster, perhaps lasting a week or so, with immediate sentencing.

Robinson Everett, a Duke law professor and a senior military judge, said he thinks military prosecutors could pursue a trial based on new DNA evidence despite the passage of time.

"It's unusual, but until recently, they didn't have the scientific techniques to go back 10, 15 years," Everett said. "With new evidence, I think they could go forward."

If Hennis is convicted, his sentence could range from dishonorable discharge to forfeiture of retirement pay, prison or death, Everett said.

If acquitted, he could not be tried again in the Eastburn case in either federal or state court.

Buckner said Hennis was not in custody and would be assigned duties that fit his rank. He declined to say whether Hennis was living on the post or whether his family had accompanied him.

Hennis was a 27-year-old parachute rigger living in Fayetteville when he was charged. Defense attorneys argued that there was no physical evidence linking him to the crime. The N.C. Supreme Court overturned the conviction, ruling that graphic photos of the victims and autopsies should not have been shown to jurors.

The case became the subject of the book "Innocent Victims" and a television miniseries of the same name.

(News researcher Brooke Cain contributed to this report.)