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Not So Innocent?


Almost every time I debate the death penalty, someone will bring up the DPIC's notorious "innocence list" as a list of people sentenced to death who actually did not commit the crime. We and others have tried for years to educate the public and especially the press that it is nothing of the sort, but the message doesn't seem to penetrate, despite Ward Campbell's thorough refutations here and here. Justice Scalia hammered the point in Kansas v. Marsh, but it's too early to tell if that has had any effect.

Sometimes a single dramatic case can have more impact than a stack of scholarly work. That case may be coming, according to this article by Paul Woolverton in the Fayetteville (NC) Observer (hat tip: federalist). "Innocent" number 39, Timothy Hennis, may soon be convicted of the very murders for which he was "exonerated."

According to the article, in 1985 Hennis was an Army sergeant stationed at Fort Bragg. Capt. Gary Eastburn was permanently stationed at Pope Air Force Base, also in North Carolina, but away on temporary duty. Someone entered the Eastburn home, raped and murdered Kathryn Eastburn, and stabbed to death two of the Eastburn's children, Kara Sue, 5, and Erin Nicole, 3, but left 22-month-old Jana unharmed.

Hennis was tried for the crimes, convicted, and sentenced to death. The North Carolina Supreme Court reversed and ordered a new trial, and Hennis was acquitted on retrial in 1989.

Fast-forward to 2005. A homicide detective in the Cumberland County Sheriff's Office has evidence from the crime retested with modern DNA technology not available at the time of the retrial. It points to Hennis.

The Double Jeopardy Clause protects Hennis from retrial for this crime by the State of North Carolina, but not by the United States. Because he is retired military, he can be recalled to active duty to face court-martial.

In 1985, O'Callahan v. Parker, 395 U.S. 258 (1969) was the law, and a service member could be court-martialed only for offenses that were service connected. I would think that the slaughter of another service member's family is service connected. In the Solorio case, the Court of Military Appeals held that sexual abuse of another member's daughters was. On certiorari, though, the Supreme Court simply decided to overrule O'Callahan. See Solorio v. United States, 483 U.S. 435 (1987). Hennis may argue that it would be unfair to apply that ruling retroactively to a 1985 crime, but since it applied to Solorio, it should apply to everyone similarly situated. Even if it doesn't apply, on the CMA's theory this case is service connected. I doubt he will get out of it that way.

Of course, it is too early to judge how strong the prosecution case is. But if the DNA does positively identify Hennis as the killer, and if he is convicted of the very murders for which he was "exonerated," this could be the perfect example to show what bunk the "innocence list" really is.


Hennis was always an example of a case that should never have been placed on the DPIC List at all. His sentence was reversed because the trial court at his first trial abused its discretion by admitting autopsy photos of the victim as evidence. He was acquitted on retrial. Hennis's case is an example of the ordinarly working of our system of appellate review and an acquittal based on reasonable doubt--this is not a showing of "actual innocence." This was a case that has simply been used to artifically inflate the number of so-called "innocent" defendants on Death Row. Obviously, our system has always carried the inherent risk of a mistake since the "reasonable doubt" standard does not mean "absolute certainty." This risk is no mystery to the public. It is important to note that despite this risk of occasional error(which has been realized in a bare handful of the 7000+ death sentences imposed since 1973), the public continues to support capital punishment.
Ward Campbell

Cogent analysis will persuade those without an agenda, but the anti-death penalty crowd don't fit that category. If Hennis goes from death row exoneree to unequivocally guilty, DPIC should be forced to remove his name from their list of the railroaded, and that should warrant at least a blurb by national media outlets. Thereafter, when the anti crowd whines with generalities about all those doe-eyed innocents whacked by the state, folks like Kent could play the "Hennis card."

Keep in mind that criticiam of the DPIC list can run both ways.

Retentionists argue that some people included on the list are, in fact, guilty. But abolitionists note that because of the criteria employed when DPIC assumed ownership of the list, some innocent people sentenced to death were not included, which would make that magic number even higher than 123.

And we're not even talking about arguably innocent people who have been executed. For example, only recently have we learned of the cases of Ruben Cantu, Carlos De Luna, Larry Griffin and Cameron Todd Willingham. Three newspapers -- the Chicago Tribune, the Houston Chronicle and the St. Louis Post-Dispatch have published investigative series strongly suggesting these people were wrongly executed. (Were they? There's no golden DNA evidence here. But the Cantu and De Luna cases seem remarkably persuasive.)

Of course, this entire line of argument misses an essential point. One innocent person sent to death row is too many. One innocent person executed is too many. We need to look at improvements that present this from happening. And if sufficient improvements cannot be made, we need to scrap the system of capital punishment.

In regards to the previous comment, the argument about the relative accuracy of the DPIC List "missed an essential point" only if you believe that absolute perfection is essential to capital punishment. If that is your position, you are rightly opposed to it--there is no guarantee of such perfection. However, public sentiment for capital punishment has never been premised on that sentiment. Furthermore, to say "one innocent person sent to death row is too many" is really no different from saying "one innocent person sent to prison is too many." The system, any system, has that risk. Given the added protections in the capital punishment system, the chances of "sending an innocent person to Death Row" are less than sending a non-capital defendant to prison. Inherent in all of this is the risk of executing an innocent person. We have seen many claims that an innocent person has been executed. We have also seen many claims that an innocent person was executed later disproved including the Coleman case in Virginia and the Hanratty case in England. It remains to be seen how these current claims will be proven, if they can be. It is also speculation how the public will ultimately react to such information in terms of its attitude about capital punishment.

Shouldn't the title be "Not That Innocent" a la Britney Spears?

A little levity for a serious subject--namely how propaganda is obscuring the death penalty debate. Unfortunately, many on the abolitionist side think that anything goes so long as the goal is abolition.

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