On May 7, 1985, Tim Hennis, a twenty-seven-year-old Army sergeant in Fayetteville, North Carolina, responded to a classified ad from a local woman trying to sell an English setter. The posting appeared in the Beeline Grab Bragg, a newspaper serving the military community in the area surrounding Pope Air Force Base and Fort Bragg. After talking it over with his wife, Angela, Hennis drove across town to see the dog. According to his later account, shortly before 9 P.M. he parked his white Chevette in front of 367 Summer Hill Road, a ranch house with a brick façade and black shutters. He walked up the driveway, holding a leash.
Hennis knocked on the door, and Katie Eastburn, the woman who had placed the ad, invited him inside. She was petite, with short dark hair, a bright smile, and a pale complexion. At six feet six, Hennis towered over her; he was sturdily handsome, with heavy eyelids, a light mustache, and thin blond hair parted on the right. Eastburn told him that she had just put her three young daughters to bed.
Her husband, Gary, an Air Force captain, was away at squadron officers’ school in Alabama. The family planned to move, later that year, to England, where Gary was slated for a job as a liaison to the Royal Air Force. The couple worried that Dixie, the English setter, wouldn’t tolerate quarantine; as Hennis later recalled, Eastburn told him that they were just seeking a good home for Dixie and had included a nominal price in the ad, ten dollars, to “keep the cranks away.” Hennis liked the dog and wanted to take it home, to make sure that it got along with his spitz. Eastburn watched from the driveway as Hennis led Dixie into his Chevette and drove off.
Four days later, Gary Eastburn phoned his wife for their regular Saturday-morning conversation. She didn’t answer. He tried again and again, without success.
Sunday was Mother’s Day, and the Eastburns’ neighbor, Bob Seefeldt, noticed three uncollected newspapers in their driveway, suggesting that Katie and the girls were away. But their Toyota station wagon hadn’t moved in days. Seefeldt went next door and rang the doorbell several times. He heard a crying baby inside and told his wife to call the sheriff’s office.
An officer arrived at the Eastburns’ house. He cut a window screen and climbed into a bedroom, as Seefeldt stood by. Inside, twenty-two-month-old Jana was wailing in her crib. The officer passed Jana back through the window to Seefeldt. There was a strong odor in the house. When the officer stepped into the hallway, he saw dead bodies at the end of the hall. He radioed the homicide unit.
Robert Bittle and Jack Watts, detectives from the Cumberland County Sheriff’s Department, came to the scene a few minutes after 1 P.M. Watts headed the homicide unit; Bittle had previously run a racehorse farm. They entered the house through the carport door. It was a warm spring day and the windows were shut. “Death has a smell, its own aroma,” Bittle told me. “I’ll never forget the smell in there.” The detectives proceeded into the home, inspecting each room along the way. In the living room, they saw a pair of jeans, two buttons that had been ripped off a blouse, and a pair of torn ladies’ underpants. Then they found five-year-old Kara, curled under a Star Wars blanket, stabbed repeatedly in the chest. Next, they entered the master bedroom. Erin, a three-year-old, lay on one side of the bed, bludgeoned in the chest and back. On the other side lay Katie, naked from the waist down. She had been stabbed fifteen times and had apparently been raped; semen was found inside her body. All three Eastburns’ throats had been slit.
Not long afterward, at the base in Alabama, the phone rang in the hallway outside Gary Eastburn’s room. “It’s for you!” one of his colleagues hollered. Gary leaped up and asked who was calling. “Some detective,” the colleague said.
Watts was on the line. “There’s been a death in the family,” he told Gary. “You need to come home.” Watts refused to elaborate.
Gary flew to Fayetteville, accompanied by another officer, and went directly to the police station. The detectives pressed Gary for leads. He told them that Katie had recently given away Dixie, but said that he didn’t know anything about the man who took the dog.
Later that night, Bittle and Watts returned to the house, which was cordoned off with police tape. Crime-scene technicians had found fingerprints and hair. A Luminol test, which produces a glow when the chemical reacts with the iron in hemoglobin, showed faint smears of blood on the walls and in the master bathroom, as if someone had tried to clean the place up.
Shortly after midnight, a young African-American named Patrick Cone sought out investigators. He told Bittle that on Friday morning, at around three-thirty, he had seen a tall white man, wearing jeans, a knit cap, and a black Members Only jacket, leaving the Eastburns’ driveway with a garbage bag slung over his shoulder. Cone, a janitor whose shift started that day at dawn, was walking along Summer Hill Road. “Leaving a little early this morning,” the man in the Members Only jacket said, as he headed in the opposite direction. When Cone stopped and turned around, he saw the tail-lights of a white Chevette glow before the car pulled away.
That Tuesday, Cone worked with an agent from North Carolina’s State Bureau of Investigation to create a composite sketch of the man. Across town, Gary walked through his home with Bittle and Watts, looking for any missing items. An envelope of cash, Katie’s A.T.M. card, and a piece of paper with the A.T.M. password were gone.
On Wednesday, Tim Hennis was at home having lunch with Angela when they saw a special news broadcast on television. It announced investigators’ interest in a man who drove a white Chevette and had picked up an English setter from 367 Summer Hill Road the previous week. “My wife and I were shocked,” Hennis said later. “It was the first time we realized that the lady who had been murdered was the one that I had picked up the dog from.” Hennis, Angela, and their newborn daughter, Kristina, drove to the Law Enforcement Center in downtown Fayetteville. An officer led Hennis into a room for questioning. When Watts saw Hennis, he paused: Hennis’s face and the composite sketch were nearly identical. “I knew we needed to talk to this man,” Watts told me.
The authorities had determined that the murders likely took place on Thursday night, as Katie had been seen by the neighbors earlier that evening and the newspapers had begun piling up on Friday morning. So Watts asked Hennis to recount his activities that night. Hennis said that he had driven his wife and daughter to his in-laws’ and then returned home, after stopping for gas. He answered many questions impatiently, and Watts found him arrogant. Nonetheless, Hennis stayed for almost seven hours and provided blood, saliva, and hair samples, as well as fingerprints and palm prints. When Watts asked him about Katie Eastburn, Hennis acknowledged picking up the dog on Tuesday, but said that he never saw the woman again; he had not even got her name. Hennis claimed that Katie had called him on Thursday night to see how Dixie was getting along with the spitz. That was it.
Hennis was a challenge to interrogate. “Tim Hennis is not a dumb man,” Watts told me. Indeed, Hennis had scored 128 on an Army general-aptitude test, placing him in the ninety-seventh percentile. If he was hiding something, he wasn’t likely to slip up.
Watts wanted Cone, the janitor, to review a photo lineup while Hennis was still in custody. A photograph was taken of Hennis, and the image was pasted onto a manila folder, alongside five other photos of blond, mustachioed men. Bittle tracked down Cone, showed him the folder, and asked him if he recognized any of the men. “No. 5 has his nose, but it’s definitely No. 2,” Cone said. No. 2 was Hennis. Bittle returned to the station and told Watts. But they didn’t have a warrant, so Hennis went home.
Late that evening, a warrant was obtained, and law-enforcement officials descended on Hennis’s house. When Hennis came to the door, detectives and agents from the State Bureau of Investigation streamed past him, in search of clues. “I hope you guys know what you’re doing,” Hennis said. He was handcuffed and charged with three counts of murder and one count of rape. “Looks like I’m going to get to wear one of those little orange jumpsuits,” he sneered at Watts.
Fayetteville, a city of two hundred thousand people, was once notorious for another crime. In 1979, Jeffrey MacDonald, an Army surgeon posted at Fort Bragg, was convicted of murdering his pregnant wife and two daughters with an ice pick and a knife. MacDonald, who maintained his innocence, argued that drug-crazed hippies had invaded his home, saying “Acid is groovy” and “Kill the pigs” before slaughtering his family. When military police arrived at the crime scene, they found the word “pig” scrawled in blood on the headboard in the master bedroom. Though the Army initially brought charges against MacDonald, they were dropped. Years later, he was arrested, charged, and convicted in federal court.
The Army, which had jurisdiction over Hennis, could have court-martialled him on murder charges, but crimes committed off base were generally prosecuted by Cumberland County. Hennis’s father, a retired I.B.M. executive, hired two prominent Fayetteville lawyers, Gerald Beaver and Billy Richardson, to defend his son. They faced a tough task. Several eyewitnesses recalled seeing a white Chevette on Summer Hill Road the evening of the murders. And Hennis’s alibi—that he returned home immediately after dropping off his wife and daughter at his in-laws’—was rendered dubious when Nancy Maeser, a former girlfriend, told detectives a different story.
Hennis and Maeser had met years earlier at the Dragon Club, a honky-tonk bar at Fort Bragg, and dated for a while. Even after they broke up, Hennis still occasionally stopped by her house. On May 9th, Hennis, knowing that Maeser’s husband was deployed in Germany, made an unannounced visit. Maeser let him in, and they talked. She tapped Hennis’s wedding band and asked him how his marriage was going. “She left me,” Hennis said—a misleading reference to his wife’s visit with her parents. If he was looking for romance, he got no encouragement, and he left.
Bittle began discerning a motive, based on Hennis’s visit to Maeser and the fact that he lied about it to the police. “This was a boy looking for love in all the wrong places,” Bittle told me. He surmised that Hennis, after being rejected by Maeser, had gone to see another attractive woman who he knew was home alone: Katie Eastburn. He met with frustration again, perhaps, and things got out of control. Investigators picked up on a potential violent streak in Hennis: they learned that he had recently stormed out of the local Bennigan’s, where he worked kitchen shifts to supplement his income, after a scuffle with a fellow-employee.
What’s more, the Friday morning after the murders, Hennis had taken a single item of clothing to the dry cleaner’s: a black Members Only jacket. That Saturday, Hennis’s neighbors recalled, he had poured lighter fluid into a fifty-five-gallon barrel and stoked a bonfire for at least five hours. Had he burned evidence? Hennis did go voluntarily to the police station, but Bittle told me that this was a tactic regularly employed by a certain class of criminal. “Why do people rob banks? They think that others didn’t know how to do it right. That was Tim Hennis’s attitude: ‘You can’t get me. I am smarter than you are.’ ”
In 1985, forensic science in the United States was inexact, and DNA technology wasn’t yet being used in law enforcement. Bittle knew that Scotland Yard had begun experimenting with DNA testing, and an office mate wrote a letter to London requesting assistance on the Hennis case. Scotland Yard declined to intercede. Nevertheless, Bittle was confident that he and Watts had the right man. “My God, every corner we turned, there was Tim Hennis,” he said.
A month before the trial, another eyewitness emerged. Investigators had discovered that the A.T.M. card stolen from Katie Eastburn was used on May 10th, at 10:54 P.M., and on May 11th, at 8:56 A.M. Both times, the maximum amount allowed, a hundred and fifty dollars, was withdrawn. Hennis paid a monthly rent of three hundred and ten dollars, and he was late that month. He had a history of financial problems, including three prior convictions for writing bad checks. In 1984, he was kicked out of flight school for bouncing checks and lying to an officer about it. After the murder, investigators tracked down a woman who visited the A.T.M. three minutes after Eastburn’s stolen card had been used on Saturday morning. When the woman recalled seeing a tall man with blond hair wearing camouflage trousers and getting into a small, light-colored car, the case seemed close to airtight.
Before the trial, Hennis was offered a plea bargain: two counts of second-degree murder, with a likely penalty of two consecutive life sentences. He told his lawyer, “I’m not pleading guilty to something I didn’t do.”
At the trial, in the summer of 1986, the lead prosecutor, William VanStory, told the jurors, “What happened in that house was utter madness. It’s one of the most tragic things that ever happened in this country.” He showed dozens of gruesome photographs from the crime scene. Cone took the stand and identified Hennis as the man he saw on the morning of May 10th.
“Is there any doubt in your mind?” VanStory asked.
“No, sir.”
VanStory saved his most emotional language for the closing argument. “There’s your baby-killer!” he told the jury. “He’s the one responsible for the deaths of these kids and their mother. . . . The man responsible for taking their lives is sitting in this courtroom, breathing the same air as you are. And, hopefully, it won’t be for much longer.”
The jury deliberated for ten hours before returning guilty verdicts on all counts, three of first-degree murder and one of rape. Hennis pulled off his wedding band and said to Richardson, “Give this to Angela. Tell her I love her.” Hennis was led from the courtroom to a suicide-prevention cell. Three days later, he was sentenced to death.
While the defense lawyers prepared an appeal, Hennis was shifted upstate, to a prison in Raleigh. He was one of seventeen convicts on death row. Nine weeks after he arrived, an inmate was executed by lethal injection. At the facility, Hennis received a letter, postmarked July 8th, the day of his sentencing:
Dear Mr. Hennis,
I did the crime, I murdered the Eastburns. Sorry you’re doin the time. I’ll be safely out of North Carolina when you read this.
Thanks, Mr. X
Authorities never determined Mr. X’s identity. (The sheriff’s office also received a Mr. X letter.)
Gary Eastburn, meanwhile, was struggling to move on. He had met Katie twelve years earlier, at a softball game for singles, and he recalls that it was “like somebody hit me between the eyes with a ball-peen hammer. I was madly in love with her.” They were married in 1975, and Katie got pregnant three years later. In 1983, the Air Force sent Gary and his family to Pope Air Force Base, where Gary was a chief of air-traffic control. When Gary proposed moving to England, Katie was initially reluctant; she worried about being away from her parents, who lived in Kansas. But she was passionate about horses, and after Gary told her that she and the girls would have ample opportunities to ride in the English countryside she agreed to go. When Katie was murdered, Gary cancelled his plans to go abroad. He did finally accept the liaison job in 1988, taking Jana to England with him.
A few months later, Bittle called Gary, saying that he needed to come back to North Carolina. Hennis’s appeal had reached the state Supreme Court, where Gerald Beaver, Hennis’s lawyer, argued that the many graphic photographs shown by the prosecution had unduly inflamed jurors against his client. The judges ruled, 5–2, in Hennis’s favor and awarded him a retrial. The Hennis ruling is still invoked by defense attorneys seeking to limit the presentation of photographs that are redundant or that could unfairly prejudice jurors.
For almost three years, Hennis’s lawyers had been preparing ways to undermine the government’s case. At the retrial, in Wilmington, they focussed on discrediting Patrick Cone. In court, Beaver referred to him as “a thief and a liar.” Between the first and second trials, Cone had committed several criminal offenses: attempting to use a stolen A.T.M. card, being drunk in public and obstructing an officer, driving a car with an expired registration. During the drunkenness episode, he told a cop, “You can’t arrest me. I’m helping you guys out.” He went on, “You need to check with your district attorney, man. They know me and I’m their witness. . . . I’m a witness in the Hennis trial.” Those charges, like the others, were dismissed. Then, one night in February, 1989, Jack Watts, the detective, stopped a vehicle that Cone was driving, with a friend in the passenger seat. Cone failed a sobriety test. Instead of arresting him, Watts told Cone’s friend to drive him home. The friend later informed Hennis’s defense team that Cone had told him, “I can do anything I want.”
Hennis’s lawyers also suggested that Cone’s testimony at the first trial was inaccurate. Cone had said that the weather on the night of the murders was fair, with stars out, but a meteorologist called by the defense provided records that depicted it as a cloudy night. A local helicopter pilot, who had aborted a medevac mission that morning, remembered the weather being “very, very dark overcast.”
Watts told me that, despite this, he never doubted Cone’s account. “Mr. Cone had some problems,” he said. “He was a street kid and he drank. But he didn’t have to come forward. To this day, I believe every word he told us.” Enough uncertainty was cast on Cone’s testimony, however, to make it largely worthless.
Before the retrial, William VanStory, the original prosecutor, had left the district attorney’s office for private practice. The prosecutors assigned to the retrial, Calvin Colyer and John Dickson, seemed listless by comparison. “They just kind of mailed the case in,” Gary Eastburn told me.
The defense, meanwhile, scored one point after another. On the stand, Gary confirmed that, two months before Hennis picked up the dog, Katie had received threatening phone calls in the middle of the night from a man who knew her name and said that he was coming over. The unsettling letters from “Mr. X” were read aloud in the courtroom.
The defense also emphasized that, just weeks after the murders, the woman who testified to seeing a man resembling Hennis at the A.T.M. had told an investigator, “I don’t remember anything.” She apparently firmed up her story on the eve of the first trial, assuring prosecutors that she had seen a tall blond man getting into a compact white car. Beaver called this version of events “highly suspect.”
A pair of new witnesses testified on Hennis’s behalf. A woman who delivered the Raleigh News & Observer each morning revealed that, at 1:45 A.M., she had seen, in front of the Eastburn home, a long-haired man driving a light-colored van. The defense then called to the stand a tall, blond teen-age boy from the Eastburns’ neighborhood; he habitually walked along Summer Hill Road late at night and admitted doing so at around 3 A.M. on May 10, 1985. Maybe this was the person Cone saw? When the boy appeared in court, the room fell silent. “That guy was a spitting image of Hennis—they could have been brothers,” Charles Leighton, one of the jurors, said. “That was more or less the icing on the cake for me.”
The defense had still more. Footprints found outside the house were three sizes smaller than Hennis’s shoes. A spot of blood discovered on a bathroom towel did not match Hennis’s blood. Investigators had found in the Eastburns’ house several hairs—including a pubic hair—that belonged to neither Hennis nor the victims. The house was a rental, and the pubic hair had been found near a couch in the living room, not on Katie Eastburn’s body, but the prosecution did little to contest the defense’s presentation. As for the fire that Hennis set in his back yard after the murder, the defense asserted that nothing in the charred remains had been traced to the Eastburn home. And not only did Hennis’s Members Only jacket lack bloodstains: an analyst from the International Fabric Care Institute testified that Varsol, the chemical used in dry cleaning, could not remove all traces of blood.
On April 10, 1989, Hennis took the stand. Beaver and Richardson reasoned that their client had nothing to hide. Hennis had been rehearsing for weeks. He appeared in court wearing a dark suit. Even with courtroom sentiments leaning his way, Hennis responded brusquely to questioning. Answering a question from Dickson, the prosecutor, about dog breeds, he said, “A German short-haired pointer, sir, has very close-cropped hair, something like your beard. A long-haired spitz would have something of hair like your head hair, very long.”
At one point, Dickson asked him, “Kathryn Eastburn was an attractive woman, wasn’t she?”
“It depends on what you find attractive,” Hennis retorted.
“Did you think she was an attractive woman?”
Hennis admitted that he did.
When Hennis was asked about his initially undisclosed visit with Maeser, he said, “I forgot about it, sir. I just didn’t place that much emphasis on it. It is something that slipped my mind.” Some of the jurors took note of his irreverence. “Frankly, he looked like he could have been the kind of asshole who could have done it,” Ken Wells, another juror, told me. But he added that looks can be misleading: “The black guy who wears a bunch of gold chains and a do-rag—that doesn’t necessarily make him a thug.”
Both sides rested a week later. Richardson, one of the defense lawyers, had told the jury, “You have physical evidence crying to you, just absolutely crying to you, that he’s not the man. You’ve got a pubic hair in there that ain’t him. . . . They are putting a doggone square peg in a round hole, and it doesn’t fit, and it stinks.”
Two days later, the jury reached a verdict: not guilty on all counts. “I don’t see how we could have done anything different,” Charles Leighton told me. After more than eight hundred days on death row, Hennis left the courtroom a free man, raising Kristina, who was now four years old, into the air. Several jurors shook his hand.
Leaving the proceedings, Gary Eastburn told a juror that he still believed Hennis was guilty. He climbed into the passenger seat of Bittle’s Toyota and headed back to Fayetteville. Bittle told me, “That was the longest drive I have ever been on in my life. I felt sick, like someone had sucked the air out of me. . . . I felt like I let Gary down, like I let Jana down.” He wasn’t ready to give up, he said. “Somebody has to speak for the dead.”
Scott Whisnant, a twenty-seven-year-old reporter, covered the Hennis retrial for the Wilmington Morning Star. Tall and bespectacled, he had a baritone voice and the unassuming look of a grade-school principal. A graduate of the University of North Carolina at Chapel Hill, he had written about sports for years, but his girlfriend persuaded him to get a beat with better hours, and he landed at the courthouse. Watching the Hennis proceedings, Whisnant realized that he was witnessing something historic: a death-row defendant on the verge of winning a jury trial. “I went from ‘I don’t think a jury is going to convict this guy’ to ‘I don’t even think he did it,’ ” Whisnant told me. “I have never seen a government case get so thoroughly dismantled. That was a rout, that second trial.”
Whisnant took a leave from the Morning Star to write a book. He originally set out to find the Eastburns’ killer, though the prospect of an investigation made him apprehensive. “I was afraid that there was something out there that I didn’t want to find out,” he said. “I lived in fear of it.” What if he found evidence that Hennis had killed Katie, Kara, and Erin? “I did not want to have exonerated somebody who did this murder.”
Whisnant, accepting that he “had no subpoena power” and couldn’t compel people to talk, settled for writing a story of vindication. “Innocent Victims,” as the book was called, was published in 1993, and sold about a hundred and seventy-five thousand copies. Three years later, a television miniseries based on the book appeared on ABC. Robert Bittle, the detective, boasts of not having read the book or seen the movie. “I don’t read fiction,” he told me.
Hennis’s case eventually attracted the attention of the North Carolina Actual Innocence Commission. Troubled by a “very disturbing” string of wrongful convictions, and citing Hennis, North Carolina’s chief justice, I. Beverly Lake, established a commission to scrutinize law-enforcement and prosecutorial procedures. “We obviously had a problem in the North Carolina criminal-justice system,” Lake told me. New standards were adopted, for example, for eyewitness identification, creating, according to Lake, a “much more reliable process.”
After the acquittal, Hennis had to decide whether or not to reënlist in the Army. A 1987 Supreme Court decision had granted the military greater jurisdiction over civilian crimes, making it possible that he could be court-martialled. But Hennis reënlisted anyway, receiving three years of back pay, a good-conduct medal, and a promotion to staff sergeant. In September, 1990, he shipped off to Saudi Arabia, for Operation Desert Shield; according to Whisnant’s book, a thorough account of the first two trials, Hennis referred to the deployment as his “camping trip in Iraq.” He returned to the U.S. the following spring and then, a year later, went to Somalia; he flew home after the Black Hawk Down debacle.
Hennis received awards and accolades for his service. One superior described him as a “sterling example for all,” and a colleague called him an outstanding soldier. Jeff Schartiger, who served with Hennis at Fort Drum, in New York, told me, “Tim was a gentle giant. I would trust the guy with my family.”
In 1998, Hennis, along with Angela, Kristina, and Andrew, his six-year-old son, moved to Fort Lewis, Washington. That year, Gary Eastburn happened to move to a city fifteen miles away from Fort Lewis. “I had no idea,” Gary said. Following the second trial, Gary had returned to England, met and married a British nurse, left the Air Force, and remained abroad another few years before moving back. Despite the proximity of their new homes, the men never ran into each other.
By the time Hennis moved to Washington, he had lost his wiry physique and most of his hair. He became the scoutmaster of Andrew’s troop, leading the boys on a hiking trip to Mt. St. Helens and on a snow-caving expedition to Mt. Rainier. Kim Gorder, the assistant scoutmaster, remembers that Hennis exerted a “good influence.” She told me that she had “no inkling about anything in his past” and was shocked to learn about the trials: “That’s not something you expect to find out about somebody you camped with on a regular basis.”
Hennis retired from the Army in July, 2004, after twenty-three years of service, with the rank of master sergeant. He then took a job at a waste-treatment facility. Whisnant, who interviewed Hennis several times for his book, told me that he considered Hennis’s conduct after acquittal “compelling evidence” that he could not have committed the murders.
On May 12, 2005, twenty years after the Eastburn murders, Whisnant met with a group of North Carolina detectives who were discussing the case. A crime analyst who had worked with the Fayetteville Police Department, Billy Crawford, was teaching a seminar for homicide detectives on advanced criminal-intelligence techniques, and he was presenting the unsolved Eastburn murders as a case study. Crawford had used Whisnant’s book to help develop the course.
Whisnant was impressed when he entered the classroom. “They had big whiteboards up with time lines and other theories,” he told me. “They had really outdone themselves.” The people in the class treated Whisnant like a hero. “I posed for pictures and signed books,” he said. “It was quite the head rush.”
As Whisnant was preparing to leave, Crawford told him that Larry Trotter, a homicide detective from Cumberland County, wished to speak with him privately. Trotter, a retired Army staff sergeant, is short (“five foot six on a good leg”), with a bald head and a bushy red mustache. He values his instinct for seeing the world “in black and white.” Trotter followed Whisnant into the parking lot and introduced himself. “Is the government going to solve this case?” Whisnant asked him.
Whisnant told Trotter that at least one important investigative path had gone unexplored. Two sperm samples were taken from Katie Eastburn’s body with a vaginal swab. Although DNA testing had been unsophisticated in the late eighties, this was 2005, and Trotter could surely send the samples off for analysis. “This is a lab case now,” Whisnant said. That remark, he told me, is “something that haunts me to this day.”
Trotter discovered that the sperm samples were being kept by the Cumberland County sheriff’s office. He retrieved them and sent them off to the State Bureau of Investigation’s crime lab, in Raleigh. (Trotter told me that he had been planning to test the swabs all along, and that the seminar merely reminded him to “get off my butt and do something.”) The amount of sperm left on the swabs was sufficient to run a DNA test.
A year later, Trotter received the results. The DNA profile belonged to Tim Hennis.
According to the forensic biologist who conducted the test, the sample was 1.2 quadrillion times more likely to be from Hennis than from any other white person in North Carolina. “It’s hard for me to visualize numbers that large in my head,” the biologist later testified. For Trotter, the DNA result was unassailable proof that Hennis was guilty. “You have Hennis’s sperm in the vaginal vault of a dead woman,” he told me. “That kinda speaks volumes.”
Forensic DNA technology, increasingly used since the early nineties, has sparked a revolution in the criminal-justice system. A single drop of blood or semen can often upend even the most impressive cast of witnesses; since 1989, more than two hundred prisoners, including seventeen on death row, have been freed based on DNA evidence alone. “DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty,” U.S. Chief Justice John Roberts declared, in 2009. Years after Hennis had been acquitted on circumstantial evidence—Patrick Cone’s shaky credibility; the Mr. X letters; the “spitting image” of Hennis who roamed the Eastburns’ neighborhood; the newspaper-delivery woman who recalled seeing someone with a different car and physical appearance from Hennis’s—the government now held a trump card.
Trotter shared the lab results with Edward Grannis, the Cumberland County district attorney, and Robert Bittle, who had become Grannis’s lead investigator. Bittle immediately phoned Gary Eastburn. They hadn’t spoken in years. “Are you sitting down?” Bittle said. “We got a hit on the DNA.”
“Who?”
“Hennis.”
Gary fell silent. “You kind of think you got over it and all, but it’s just lying right below the surface,” Gary told me. Bittle explained that he wasn’t sure if anything could be done to bring Hennis to justice, but he wanted Gary to know that the government “had the right man all along.”
Trotter, Bittle, and Grannis understood that, as Trotter put it, “the State of North Carolina couldn’t do nothing to him.” The Fifth Amendment insures that no citizen can be “twice put in jeopardy of life or limb” for “the same offence.” But double jeopardy pertains only to a specific judicial realm. State courts and federal courts represent distinct sovereigns. Under the “dual sovereignty” doctrine, stipulated in the Constitution, a defendant can be tried and acquitted in state court—and then be tried again for the same crime in a federal court. Justice Department policy nevertheless recommends restraint when pursuing individuals after state judgments. Exceptions have tended to involve civil rights. In 1991, after four Los Angeles Police Department officers accused of beating Rodney King were acquitted of criminal charges in state courts, U.S. attorneys charged them for the same offense in federal court. Two of them were convicted.
Army regulations state that a person subject to the Uniform Code of Military Justice who has been tried in a civilian court “may, but ordinarily will not” be tried by court-martial. In 1987, a soldier named Ronald Gray appeared in a North Carolina court and pleaded guilty to two murders and multiple rapes, among other crimes. Despite the fact that he received consecutive life sentences, the Army court-martialled Gray, charging him with two additional murders and several rapes, and secured a death sentence. Colonel Mike Mulligan, the head of the Army’s appellate division, told me, “In the Army, justice does not have a price.”
Some legal scholars contend that the Army violates the spirit of the Constitution’s prohibition on double jeopardy. Critics say that it is particularly problematic when the U.C.M.J. is used to prosecute members of the military for crimes allegedly committed in the civilian world. “The Framers were clearly opposed to the idea,” David Glazier, an expert on military law and a professor at Loyola Law School, in Los Angeles, told me. “The Articles of War, which were adopted during the Revolution and continued for half our history, said that when a soldier committed an offense against the local civilian population it was an offense for the commanding officer to fail to turn over a soldier to the civilian authorities.”
Things began to change during the nineteenth century. After American troops invaded Mexico in 1846, General Winfield Scott expanded the military’s jurisdiction over its soldiers into the civilian world, in order to hold them accountable for alleged crimes in Mexican towns and villages. The military maintained this authority well into the twentieth century. Then, in 1969, the Supreme Court ruled that military jurisdiction must be confined to “service-connected” crimes. The precedent lasted just eighteen years. In 1987, the Court, newly under the leadership of William Rehnquist, expanded U.C.M.J.’s reach, restoring the military’s authority to prosecute all sorts of crimes committed by its personnel.
Grannis invited three Fort Bragg attorneys to his office, in downtown Fayetteville. At the meeting, Grannis, Bittle, and Trotter presented the DNA evidence. The military attorneys took the file to John Vines, the commanding general of Fort Bragg, who didn’t deliberate long. He asked the Secretary of the Army to approve recalling Hennis to active duty—as any retired soldier can be—and charging him with three counts of murder. (The U.C.M.J. statute of limitations had expired on the rape charge.) Within weeks, the request had been granted.
On the evening of September 26, 2006, a military lawyer and an agent from Fort Bragg’s Criminal Investigative Division, accompanied by two local policemen, drove up to Hennis’s home; he now lived in Lakewood, Washington. Heather Hilton, the C.I.D. agent, handed Hennis a letter with orders to report to Fort Bragg within thirty days. “This is bullshit,” Hennis exclaimed. He yelled inside to his wife, “Call Beaver!,” and ordered the visitors off his property.
Hennis reported for duty the next month, under unusual circumstances. Despite being charged with three counts of murder and facing the death penalty, he resumed collecting full military pay and benefits. He was not confined or restricted, and after working half days at a desk he was allowed to meet with his attorneys and a private investigator nearly every afternoon at Billy Richardson’s law office.
Whisnant, for his part, reacted to the DNA evidence with dismay. “I went into a tailspin,” he said. “I don’t want to have any part in exonerating somebody who has killed five- and three-year-old children and leaves a twenty-two-month-old in the crib to die.” Nevertheless, the military’s decision to take over the case struck Whisnant as “fundamentally wrong.” He wondered how the Army could allow itself “to be a pawn of the Cumberland County sheriff’s department.” He said, “I can’t believe that, in the United States of America, you can do a best-two-out-of-three for your life.”
Colonel Mulligan, of the military’s appellate division, emphasized to me that the Army’s decision wasn’t made lightly. “The Hennis case was unique,” he said—an outrageous injustice that required a special response. He added, “I’m pretty sure we haven’t gone to trial on something like Hennis before.” The Hennis case may well not be the last of its kind, however: the Army has filed charges against a soldier in Kentucky, accusing him of murdering his wife and her former mother-in-law, after state proceedings ended in hung juries and mistrials.
David Glazier, the law professor, believes that Hennis’s case raises “very, very critical” questions. “The Framers clearly intended that the military would not have authority to try soldiers for civilian offenses,” he says. “Even if it’s true that it doesn’t violate our current understanding of double jeopardy, it certainly violates the understanding of the Framers. And that is legally dubious.” Glazier said that there was also an issue of fairness: “Why does someone who dedicates their life to defending this country have less rights for a nonmilitary offense as compared to a run-of-the-mill civilian? The fact that he has completed his service and been recalled seems morally reprehensible.”
The Fort Bragg courthouse, which has an ochre façade, four white columns, and a pitched white roof, sits atop a sloping hill. Inside is a gallery with wood-panelled walls and butterscotch trim; three rows of benches offer seating for fifty or sixty people. The court-martial of Tim Hennis began on March 17, 2010, and the gallery was soon regularly full.
A stern-faced colonel named Patrick Parrish, who previously adjudicated military commissions in Guantánamo Bay, presided. Fourteen uniformed men and women took their seats in the jury box. The jurors, known in a court-martial as “members,” were equal to or greater in rank than Hennis. For a conviction, two-thirds of them would have to agree on Hennis’s guilt; a death sentence would require that the jurors be unanimous about both the conviction and the punishment.
Hennis hired a top military defense lawyer, Frank Spinner, to lead his team, which included two uniformed attorneys. Spinner, a short, partly bald sixty-two-year-old with a sharp nose, had defended many controversial figures, including Sabrina Harman, one of the soldiers convicted of prisoner abuse at Abu Ghraib, in Iraq, and Jeremy Morlock, a soldier found guilty for his participation in the murder of civilians in Afghanistan. “I want to do the most difficult, challenging cases that are in the military system—the facts of the case don’t have any impact on me,” Spinner said. At the trial, he declared, “We’re not going to slink up and go home because there is DNA evidence in this case. We will meet it head on with reason and logic and critical analysis.”
The government assigned a twenty-nine-year-old, Captain Matt Scott, to the case. Scott, a stocky, muscular North Carolinian, had joined the Army straight out of law school; after spending a year in Iraq, he returned, in 2005, to Fort Bragg, near where he grew up. He was handed the Hennis file less than two years after his arrival. It was to be his first murder trial.
The court-martial began twenty-one years after Hennis had been declared innocent in the Wilmington courthouse. Captain Nathan Huff, one of the prosecutors, noted, “The only difference between this trial and the previous trials is the discovery of this new DNA evidence.” Of course, the people involved in the case were at very different places in their lives. Hennis’s daughter, Kristina, was pregnant with her second child; on the stand, she recalled deer hunting and reading “James and the Giant Peach” with her father. His son, Andrew, was now an Eagle Scout. Hennis’s parents were dead.
For Gary Eastburn, being back in a courtroom brought a wave of unanticipated emotion. “I thought, third time, this would be easy,” he said. “It wasn’t.” The anger he felt toward Hennis rushed back, especially when, at one point, the defendant fell asleep at the table. “I thought, Rotten bastard—look at that,” Gary said.
Jana, Eastburn’s surviving daughter with Katie, was now twenty-six. She had her mother’s strong chin and expressive eyes. Her mother’s and sisters’ deaths had marked her life, but she didn’t remember them. “I don’t have that deep-rooted sadness that everyone else has,” she testified. “And it just makes me feel guilty and like a bad person that I don’t have that feeling for them.” She described visiting their graves and, while others cried, feeling nothing. “It makes me feel bad that I don’t remember.”
At the court-martial, Spinner and his team repeated many points made by the defense during the second trial. The shoe prints found outside the house didn’t match Hennis’s shoe size; the small spot of blood on the bathroom towel wasn’t his; the hairs and fingerprints weren’t his. Scott, the prosecutor, countered that Hennis could easily have had the foresight to clean the house that night, erasing his presence there. But, Scott went on, “in 1985, what he could not have known, what would come back to haunt him, is the evolution of science . . . DNA. He left one thing at that crime scene that he couldn’t have known to clean up: that’s his sperm.”
Spinner questioned the handling of the samples. “Where’s any document?” he asked. “Where’s any witness who saw or touched or handled or packaged or unpackaged that evidence, removed it, or repackaged it?” He informed jurors that the evidence custodian in Cumberland County from 1993 to 1994 was convicted of stealing guns from the evidence locker. Furthermore, Spinner contended, the crime scene at 367 Summer Hill Road had been “trampled” after the murders—technicians at the scene did not wear gloves. Had the evidence been contaminated? Scott characterized this argument as a conspiracy theory, adding, “It’s on par with those that believe that walking on the moon happened in a desert in Arizona.”
Spinner had one card left to play: the suggestion that Hennis and Katie Eastburn had consensual sex. Spinner declared in court that the DNA evidence “could support an argument of adultery.” But did it “take you beyond adultery to murder?” What if Hennis and Katie slept together on Tuesday night, when he picked up the dog? Or at some point between their first meeting and the murders? Spinner said, “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 whose wife just had a baby recently. A captain’s wife 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?”
The argument didn’t go over well. The jurors themselves were often deployed far from home, and were unlikely to embrace the implication that Army spouses regularly fool around when their loved ones are away. (Though there was no evidence that Katie was forcibly raped, two studies have found that seven out of ten rape victims suffer no physical injury.) Moreover, John Butts, the medical examiner who received the bodies, had determined that “abundant, intact” sperm had been deposited in Katie “shortly before her death.” Butts told me recently that he could not specify an exact time frame, but noted that, “after a day or two,” sperm diminish, lose their tails, and disintegrate. Unlike the fingerprints, blood, and hair found at the scene, another prosecutor contended, Hennis’s semen was “the only piece of evidence that . . . was found at that house that has a time stamp.”
Had Hennis admitted to a romantic interest in Katie, Spinner’s pitch might have been more persuasive. But Hennis had consistently denied it. During the second trial, Beaver had asked him, “After the conversation with Mrs. Eastburn, did you ever hear from or see Mrs. Eastburn again?” “No, sir,” Hennis had replied. He did not testify during the court-martial. A psychologist who was retained by the prosecution told me that he found Hennis “an enigma” and a “reticent individual in general.” The psychologist, who left the case before conducting a formal evaluation, said, “I think that he knew more about this young woman”—Katie Eastburn—“than he was saying, but not necessarily more about this crime.”
On April 8th, after three hours of deliberation, the jury reached a unanimous verdict: guilty. Now came the question of the death penalty. The matter was complicated by the life Hennis had led in the twenty-one years since his exoneration. Though his good conduct could hardly confirm his innocence, it did demonstrate his ability to become a productive member of society. Was the point of a death sentence to provide an extreme punishment for an extreme crime? Or to remove from society criminals who had no potential for reform?
During the sentencing phase, Gary Eastburn took the stand once more. Scott asked him what he missed most about Katie, Kara, and Erin. “Them. I miss being with them,” Gary replied. He looked to the front row, where Liz, his wife, was sitting. “I’m sorry,” he said. “ I don’t know if there’s two better wives in the world that a person could have had. How, how she can sit there and listen to me talk about a woman I once loved and still do and not hold that against me . . .” His voice trailed off. He told me later, “I realized that was going to be a conundrum. You almost feel like you’re betraying your wife, like you’re unfaithful.”
A week later, the panel delivered its verdict to Hennis: “All of the members concur and sentence you to be reduced to the grade of E-1, to forfeit all pay and allowances, to be dishonorably discharged from the service, and to be put to death.”
Hennis met briefly in private with his lawyers and his family. Then he was handcuffed and placed in a van. He eventually arrived at the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas, where he joined five other men awaiting death. The last military execution took place in 1961.
“I still think Tim Hennis is innocent,” Scott Whisnant told me over lunch recently, in Wilmington. “I’m not as convinced as I was in 2005, when I was running my mouth about forensic testing. But something doesn’t add up. How does it happen that they got exactly the lab result they needed when all the physical evidence pointed elsewhere?”
Four months after the court-martial verdict, Whisnant noted, two former F.B.I. assistant directors released a report exposing problems at the serology unit of the North Carolina State Bureau of Investigation between 1987 and 2003. The report concluded that the unit had overstated, misreported, or withheld blood evidence in dozens of cases, including three that ended in executions. The investigation did not extend to the DNA unit, but it cast doubt upon the entire lab. Whisnant said, “They had to throw out cases and cases because the results were either doctored, wrong, or covered up. The S.B.I. lab was shown to be a total tool for the state’s prosecutors.”
Nevertheless, arguing for Hennis’s innocence is difficult. Some of the evidence presented by the defense at the second trial looks shaky: even Whisnant thinks that the Mr. X letters could be a hoax, and the newspaper-delivery woman who claimed to have seen someone other than Hennis outside the Eastburn home withered under cross-examination by a military prosecutor. The court-martial did not solve every mystery. The defense did not release the results of further forensic work that was done on the hair and blood samples, though it’s hard to see how such evidence could be deemed more crucial than the sperm found inside a victim of rape and murder.
Hennis has appealed his conviction, and his fate is not expected to be decided for years. Legal scholars consider the case extraordinary. Richard Dieter, the executive director of the Death Penalty Information Center, told me, “Certainly, no one has been exonerated and then returned to death row for the same crime except Hennis.” Hennis’s days at Fort Leavenworth are spent in strict confinement; his room has only a “small portal” for sunlight, and he goes outside for about an hour a day, usually alone, to a recreation area the size of a handball court. The Army denied my request to interview Hennis, and he did not respond to four letters sent to him at Fort Leavenworth.
Hennis’s wife, Angela, did not testify at the court-martial. She also deflected several attempts to reach her for comment. Last month, I arrived, unannounced, at her home, in a town in North Carolina. Angela’s mother answered the door. She said that she would call Angela on the phone, and went inside. Two minutes later, she returned and said, “You’ll have to talk to the attorneys.”
On October 26th, at the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia, Eric Allen, an attorney working for Hennis, argued that at the time of the court-martial the military’s jurisdiction over Hennis had expired, thus voiding the outcome. The appeal rests on a 1949 Supreme Court decision, United States ex rel. Hirshberg v. Cooke. In that case, the Court determined that the Navy possessed no jurisdiction over a sailor who was charged with mistreating prisoners of war, because the alleged crimes occurred during the sailor’s previous enlistment. Similarly, Hennis was honorably discharged in 1989, upon his acquittal, after which he promptly reënlisted. His attorneys claim that this “break in service” renders any alleged crimes from his first term of service immune from prosecution. “The law is so clear on jurisdiction that Tim should not have to go through five or ten years of the military appellate process to be set free,” Spinner told me. “Federal court can set him free today.” Whichever side loses will likely appeal to the Supreme Court. If the Court reviews the case based on this appeal, it will probably focus narrowly on the “break in service” question and not address whether court-martialling someone exonerated in civilian court is tantamount to double jeopardy.
In May, 2011, a little more than a year after the trial ended, Gary and Liz Eastburn sold their house in Washington, with the intention of going back to England. Before moving out of the house, Gary and his daughter, Jana, spent days sifting through boxes full of mementos. Jana kept pieces of her mother’s jewelry, including a charm bracelet. Gary held on to Katie’s silk nightgown and one of Erin’s dresses.
A couple of weeks later, I met Gary, in Pleasant Hill, Missouri. Before heading off to England, he was staying in the house of an old friend. The place was on a sprawling lot an hour southeast of Kansas City. Gary is now sixty-two, with square, chalky cheeks and thinning golden-blond hair. We sat on barstools around the kitchen counter, while lightning flashed outside and heavy rain soaked the overgrown fields out back. I asked him about the appellate process and how closely he planned to follow developments from abroad. He told me that, though he had almost put the murders behind him, he sensed that things weren’t over yet. “I would just like to see him rot away in jail,” he said of Hennis. “I don’t feel any burning desire to have him hanged or shot or whatever they do. I just want him in jail without a possibility of parole.” He paused. “If his appeal is granted, they might have to drag me back. I think three trials is probably enough for me. If there’s a fourth, I wouldn’t have much extra left.” ♦
