There has been much in the media about "wrongful convictions," but what should happen when someone is wrongfully acquitted?

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Soldier's DNA matches semen from 1985 victim, expert testifies

Timothy B. Hennis was acquitted in 1989 of killing Kathryn Eastburn and two of her young daughters. A military court is looking into the case.

By Maura Dolan
Times Staff Writer
May 18, 2007

FT. BRAGG, N.C. � A government analyst testified Thursday that semen recovered from a woman who was killed with two of her young daughters matched the DNA of a soldier acquitted of the decades-old crime.

Jennifer Lehn, a forensic analyst for the North Carolina State Bureau of Investigation, told a military court that there was virtually no chance someone other than Master Sgt. Timothy B. Hennis matched the semen sample. She described the odds as 1 in 12.1 thousand trillion among white men, and even more remote odds for other races. There are 6.5 billion people in the world, she noted.

Hennis, 49, was recalled into the Army in October so he could be charged with the triple slaying in a military court. Double-jeopardy rules prevent the state from retrying him in a crime for which he has been acquitted.

Hennis was convicted of the 1985 slayings and spent 2 1/2 years on death row before winning a second trial. After he was acquitted in 1989, he became a symbol of wrongful conviction, and his fight to prove his innocence was portrayed in a book and movie. The crime evidence was not tested for DNA until last year.

The 6-foot, 4-inch soldier, heavier now than in his previous trials, and in need of reading glasses, appeared relaxed and confident during the hearing. He left the defense table during recesses to chat with his wife and mother-in-law, who sat in the front row of a courtroom filled mostly with reporters.

Lehn testified that most of the DNA in the semen sample "came from one person � Timothy Hennis," and the rest was that of the victim, Kathryn Eastburn, 31, who was raped. Eastburn and her daughters Erin, 3, and Kara, 5, were stabbed and left with their throats slashed at their brick ranch-style home near the base.

Former Air Force Capt. Gary Eastburn, the husband and father of the victims, was out of town training at the time.

Hennis met Kathryn Eastburn two days before the slayings when he went to her house to adopt the family's dog. After the killings, he reported to the sheriff's office with his wife and baby girl in response to a television bulletin saying that authorities wanted to speak to the man who was involved in the dog adoption.

Hennis told police he never saw Eastburn again after the first meeting.

The court hearing, called an Article 32 investigation, is similar to a preliminary hearing in a civilian courtroom. The investigating officer, who is like a judge, is Col. William Lee Deneke, a reservist who works as a federal prosecutor in Tennessee. He can recommend that a court-martial should proceed, or that the charges should be dismissed or modified. The final decision rests with Lt. Gen. Lloyd J. Austin III, commanding general of the 18th Airborne Corps. It could be weeks before a decision.

If tried and convicted in military court, Hennis again could face the death penalty.

During cross-examination, defense lawyer Frank Spinner sought to show that authorities had been lax in storing the evidence over the decades. He also focused on what he said were flaws in the testing. He elicited testimony that Lehn had failed to determine whether she was in fact testing a semen sample, even though the sheriff's office had asked that she verify the substance as well as run its DNA profile.

Lehn said the swab she tested, one of two that had been stored in a cardboard box, had been identified as semen in 1985, and she did not want to waste part of it reconfirming that it was semen.

Cumberland County Sheriff's Sgt. Larry J. Trotter said there were neither inventories of what was in the cardboard boxes of evidence nor logs showing who had handled it. Trotter, who said he had decided to test the evidence as part of a cold-case investigation, told the court that when he went to inspect the boxes, he found that some bags had been "torn open" through "wear and tear." He said the "compromised" evidence included bedding, and he repackaged it.

Asked whether he had photographed or videotaped the evidence before he repackaged it, Trotter said: "No, sir. That's a technique I have learned since."

The defense called one witness, a former county crime technician, who testified that the evidence was inventoried when it was first collected and that one of the custodians of the evidence was later prosecuted for stealing hundreds of guns from evidence lockers.

The defense also sought to show that sheriff's investigators never doubted Hennis' guilt and were stunned by his acquittal.

Former Cumberland County Sheriff's Det. Robert Bittle testified that a composite drawing of a man seen leaving the Eastburn home the morning after the killings matched Hennis so closely that Bittle stopped in his tracks when he first encountered Hennis a few days later. Bittle now works as an investigator for the district attorney in Cumberland County.

Bittle, who investigated the Eastburn slayings, testified that he was "extremely disappointed" and felt "empty" after Hennis was acquitted. When Spinner asked Bittle why he did not focus on other suspects, Bittle put his hands together and pointed at Hennis, clad in Army fatigues at the defense table.

"Always, all the evidence pointed to Tim Hennis," Bittle said firmly in his Southern drawl. "It didn't go in any other direction. It all pointed to Tim Hennis."

When Bittle left the stand, he glared at Hennis, and the defendant appeared to look directly at the investigator.

Military prosecutors refused to discuss the case. Spinner spoke briefly to reporters after the hearing, saying he'd challenge the military's authority to try Hennis if the case proceeded.

"We firmly and completely stand behind [Hennis'] innocence, and we will defend him with every resource we have available," said Spinner, a prominent civilian lawyer with experience in defending clients in military settings.

Spinner suggested that the defense would show the government could not "connect the evidence tested to the crime." Asked whether the defense would hire an expert to retest the crime samples, Spinner said he would seek "funding for all kinds of experts."