Posted on Mar 6, 2015
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Timothy Hennis was tried and convicted won appeal and returned to Active Duty and then retired. Over 20 years later DNA linked him to the case. The Army recalled him and he was convicted at courts martial. We all know double jeopardy but the first trial was in state courts and of course the courts martial is federal.
http://www.fayobserver.com/military/timothy-hennis-seeks-relief-in-federal-court-former-fort-bragg/article_b57f3ef0-f7b6-57a3-8095-78734f397b3f.html
http://www.fayobserver.com/military/timothy-hennis-seeks-relief-in-federal-court-former-fort-bragg/article_b57f3ef0-f7b6-57a3-8095-78734f397b3f.html
Crime
Court Martial
UCMJ
Law
Posted >1 y ago
Responses: 20
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I have to wonder looking at some of the responses how many people read the article before commenting?
Under usual circumstances I would say yes to recalling someone to Active Duty to be tried for a crime that was committed on Active Duty.
However this particular case has some specific issues. He was tried and convicted by a civilian court in 1986, that conviction was overturned on appeal in 1989. After the conviction was overturned he returned to Active Duty until retiring in 2004. In 2006 he was recalled to Active Duty to stand trial based on new DNA evidence.
Does the military still have jurisdiction after allowing the initial trial to be done by a civilian court (keeping in mind the military allowed him to return to Active Duty after the conviction was overturned on appeal)?
The law that allowed the military to recall him to Active Duty was passed after the initial trial but before he returned to Active Duty (part of the defense is the law can only be applied to charges after the date the law went into affect and since he had broken service it doesn't apply, another part is that the law is written as to allow the recall of reservists to face criminal charges where a separate statute only allows the recall of retiree's in the interest of national defense).
Now I'm not arguing whether or not he is guilty, but I do question whether or not the law was circumvented/liberally interpreted to allow the military to re-try this man.
Under usual circumstances I would say yes to recalling someone to Active Duty to be tried for a crime that was committed on Active Duty.
However this particular case has some specific issues. He was tried and convicted by a civilian court in 1986, that conviction was overturned on appeal in 1989. After the conviction was overturned he returned to Active Duty until retiring in 2004. In 2006 he was recalled to Active Duty to stand trial based on new DNA evidence.
Does the military still have jurisdiction after allowing the initial trial to be done by a civilian court (keeping in mind the military allowed him to return to Active Duty after the conviction was overturned on appeal)?
The law that allowed the military to recall him to Active Duty was passed after the initial trial but before he returned to Active Duty (part of the defense is the law can only be applied to charges after the date the law went into affect and since he had broken service it doesn't apply, another part is that the law is written as to allow the recall of reservists to face criminal charges where a separate statute only allows the recall of retiree's in the interest of national defense).
Now I'm not arguing whether or not he is guilty, but I do question whether or not the law was circumvented/liberally interpreted to allow the military to re-try this man.
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Sgt Aaron Kennedy, MS
That was my problem with this case. I think they circumvented the law to do this.
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GySgt Joe Strong
I don't know about circumvented but they are, by all appearances, running on the edge of the envelope.
The missing information I need is was he on Active Duty on the date of the crime?
The missing information I need is was he on Active Duty on the date of the crime?
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Having read the article:
1) He was convicted by a civilian court.
2) He appealed, and had his conviction overturned.
3) He rejoined the Army, retired as a MSgt
4) "new evidence" was found, and the military recalled him
5) He stood CM, and was convicted.
So... Should murderers pay for their actions? Absolutely.
Should the government pervert the system to go after the individual. Oh hell no.
The Double Jeopardy clause is there so they can't do this. They get one chance. Make your case, and if there is enough evidence, they can throw you behind bars. The military had their chance at the same time the civilian courts did. They chose not to exercise it.
CW5 (Join to see) I agree with the intent & spirit of your post, but the law which allows them to recall service members is not for the purpose of answering crimes. It's for national defense (mentioned in the article). As a retiree, imagine they recalled you on a charge, which you did not commit, 20 years after the fact. Your ability to fight the allegations are extremely hampered.
1) He was convicted by a civilian court.
2) He appealed, and had his conviction overturned.
3) He rejoined the Army, retired as a MSgt
4) "new evidence" was found, and the military recalled him
5) He stood CM, and was convicted.
So... Should murderers pay for their actions? Absolutely.
Should the government pervert the system to go after the individual. Oh hell no.
The Double Jeopardy clause is there so they can't do this. They get one chance. Make your case, and if there is enough evidence, they can throw you behind bars. The military had their chance at the same time the civilian courts did. They chose not to exercise it.
CW5 (Join to see) I agree with the intent & spirit of your post, but the law which allows them to recall service members is not for the purpose of answering crimes. It's for national defense (mentioned in the article). As a retiree, imagine they recalled you on a charge, which you did not commit, 20 years after the fact. Your ability to fight the allegations are extremely hampered.
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Sgt Aaron Kennedy, MS
Cpl Mark McMiller I saw that as well. But Legal/Illegal, and Right/Wrong aren't mutually exclusive concepts. I think the recall "skirts" the intent of Double Jeopardy, and the Military exemption.
Just because the military can recall someone doesn't mean they should recall someone.
Just because the military can recall someone doesn't mean they should recall someone.
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Cpl Mark McMiller
Sgt Kennedy, I totally agree. However, I can understand them wanting to get this guy with the new DNA evidence.
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Sgt Aaron Kennedy, MS
Cpl Mark McMiller Likewise. I understand the desire. I disagree with the method. I want to nail him to. It sucks knowing that someone slipped through your fingers, because you didn't have the evidence the first time.
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Yes. Absolutely. Double jeopardy only applies when the case is tried again with the same evidence in the same court. If it is a different court, say civil vs criminal court, it can be tried again. If it is in the same court, it must have brand new evidence that ties him to the crime. In this case, he has both a new court and new evidence. Double jeopardy does NOT apply. He should be tried again.
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Yes I agree, when we retire we continue to be paid by DOD budget. It is retention pay of sorts. If he would have been innocent we would not be talking about this. Thank you for your service.
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So the real issue in your post is the double jeopardy incurred when tried at court martial after being found innocent in a state court. The link didn't work, so I don't have all the information. But since civil law and the UCMJ are two different legal codes I'd say double jeopardy would probably only apply if tried again under the same set of legal codes. I'm sure his lawyer brought this up, and apparently it was ruled it can be done. Do I agree with doing it?
Yes.
Yes.
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We had a Soldier that was tried and convicted at courts martial, then discharged. He was recalled because the judge somehow forgot that he had already passed sentence in the case or some such nonsense. The Soldier was recalled to active duty, tried for the same crime again, then discharged again. The dumbest goat rope I've ever seen. No one in the CoC could believe what was going on with this poor guy.
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Yes, anyone who commits a crime no matter how long age should NOT get away with it.
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SSG William Patton
It all depends on the crime and the statute of limitations for that crime. Major crimes like homicide do not have statutes of limitation. Therefore, if evidence is uncovered that connects an accused of the crime, then they can be prosecuted for that crime regardless of how much time has elapsed. If that crime occurred while in the military, then that person could be recalled a courtmartialed under the UCMJ. The same holds true if it were a civilian committing the crime of homicide. If it is a lesser crime and the statute has expired for the offense, then the charging jurisdiction cannot recall that individual and prosecute them, even the military.
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