episode 4: Faced with death three times

                  THE TRIALS OF TIMOTHY HENNIS

Hello and Welcome to AlitaDogma’s Shades of Murder, a podcast where I will share and discuss tales of true crime, mysteries, and all things dark and macabre. If you eat, play, and dream in shades of murder like me, then welcome my kindred spirits to your new podcast home. 

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Please be forewarned that each episode contains specific, and at times very graphic and disturbing details of the case, and may not be intended for all audiences. 

There are cases in the history of criminal law which have deep and genuine impacts on the legal process, and which reflect our complicated, and not always so transparent and clear-cut judicial system. The prosecution of this brutal triple murder would have a powerful influence on what is permitted in a court of law. This case affected how prosecutors present evidence and heightened awareness to issues of eyewitness reliability. It also put into the spotlight the controversial loophole within the double jeopardy clause of our constitution which our system ignores when it comes to the military. The case of Timothy Hennis is one of these rare legal gems.

Fayetteville, N.C. is infamous for being the home of Fort Bragg, the largest U.S. Army base. Unfortunately, it also well known for its extensive string of homicides, rapes, suicides, domestic violence, drug overdoses, and missing soldiers which too often go unsolved. This case took more than two decades to stake its claim at truth and justice, or did it?

On May 10th, 1985, in Fayetteville, North Carolina., a young mother would be raped and killed, and her two small daughters brutally stabbed to death while her infant lay screaming alone in a crib thankfully unharmed. Two days would pass when neighbors became concerned and found it alarming that neither Kathryn Eastburn, nor her three young girls, had been seen since Thursday evening. They knocked and rang the doorbell repeatedly, but no one answered the door. One of them believed that they heard the sounds of an infant crying inside which led them to calling the Sheriff’s Department who came around to conduct a wellness check. When the deputy sheriff arrived on the scene, he also tried incessantly to reach the dwellers inside the home, but there was no response. Upon walking around the house in hopes of spotting an open door or window, the officer saw a baby inside standing upwards screaming in her crib. Immediately, the officer cut the screen and pulled the child to safety handing her off to a neighbor standing by. 

Upon entering the house, the deputy discovered in the parent’s bedroom, the deceased nude body of Kathryn Eastburn with her jeans and underwear on the floor which had been cut off of her body. Her three-year-old daughter Erin was lying next to her, both of them dead on the carpet. The victims’ chests had been slashed several times with a knife. Part of the little girl’s face and chest had been covered up with pillows, and so was her mother’s face. Entering the second bedroom, the officer discovered the body of five-year-old Kara lying upon her bed. Her chest and side had been stabbed multiple times, and there was a blanket and pillow that had been placed over her face. Kathryn Eastburn and her young daughters, Erin and Kara, had died from numerous stab wounds, in addition to a large gash that had been made across each of their necks. It was painfully obvious that they had tried to thwart their attacker with wounds indicative of defense. Kathryn Eastburn’s wrists had been tied with some kind of ligature, and tests showed that she had been sexually active within hours of dying. 
Kathryn Eastburn’s husband, Captain Gary Eastburn, was on an Army base in Alabama at the time of the murders. He would later tell investigators that when he called his wife and kids on Saturday morning, as was their routine to chat every Saturday morning, he was immediately concerned when he could not reach them. Prior to the neighbors who called the police that Sunday when the bodies were discovered, Gary Eastburn had made calls to the police and to military personnel who checked on the home multiple times without any response. Several witnesses gave testimony as to their seeing a White Chevy Chevette, or a similar model of vehicle on that Thursday evening when the family had last been seen. This was the same vehicle that would later be discovered to have been driven by the defendant. The defendant of his own accord, willingly shared how he had visited the Eastburn family’s home a few days earlier in an answer to an ad for someone to care for their elderly dog. They had decided to find a new home for him since the family was relocating soon to an army base in England, and they felt that the required quarantine period would be too much for him to endure. Timothy Hennis told the investigators how he met Kathryn Eastburn at her house and adopted their dog. 
Another eye witness claimed that they saw the defendant burning things inside a barrel in his backyard. Other neighbors corroborated that they had seen the defendant burn things in the barrel at other times prior to the murders. Analysis of the debris found in the barrel would indicate several types of material found including a t-shirt, towels, sheets, and small amounts of paper. At the crime scene, it was discovered that towels, sheets, and the like were missing from the residence.
The evidence in the case against Timothy Hennis was strictly circumstantial. None of the physical evidence gathered at the crime scene including fingerprints, a solo Caucasian pubic hair, bloodstains, nor the sperm that had been collected had any definitive match to the defendant. Of course, this era was pre-DNA so some of it was not capable of being tested, at least not with any level of accuracy. The prosecution based their case upon the eyewitness testimony of a neighbor who claimed to have spotted a tall White man in jeans wearing a knit cap on his head, and a Members Only jacket. This man was spotted walking down the victim’s driveway at 3:30 am that Friday morning holding a large plastic garbage sack. This fit the description of Timothy Hennis.

Eyewitness testimony is the number one reason wrongful convictions occur. A 2008 study conducted on the reliability of such testimony revealed that more than 40% of wrongful convictions have resulted from mistaken identity. Let us ponder upon this for a moment. Of all the innocent people who are wrongfully sent to prison and have their lives, and the lives of their loved ones ultimately destroyed by the criminal justice system, are there because they were mistaken for someone else. Yet juries place more weight upon eyewitness testimony than any other source of evidence. For some reason, people believe that their eyes and others' eyes do not lie to them.

Further, it was found that most of these wrongful convictions via eyewitness testimony are from the direct experience with showup identifications. Studies show that the procedures and some individuals within law enforcement have been known to help paint an image of a suspect and provide the witness with feedback during a suspect lineup, or photo array. It is not legally enforced but is highly recommended that police departments show an eyewitness one potential suspect at a time with individual photos of the person instead of them all in a group. It is also suggested to prevent misidentifications, that police officers stress the fact that the perpetrator may or may not be included in these photographs or lineups. Most citizens just assume that it has to be one of the individuals they are being shown whether in a photo array or lineup and due to this misunderstanding, there are many innocent people who are pointed out for committing a crime because they resemble the suspect more than the others do. On a personal note, I have had such an experience. The local police officers who handled my photo array conducted it in the way that is misleading, and potentially disastrous which I have just described. I was handed a printout of around eight similar-looking perpetrators all put together on the same piece of paper. Never once was I told that the person may or may not be included in this group. 

Composite sketches are also prone to unintentionally direct the eyewitness. All of these which are known as system variables can cause the eyewitness to mutate their own memories to fit the narrative. Studies on memory have shown that they are highly unreliable, and often shift and decay with time. Issues such as trauma and stress, the character of the witness, such as their age and emotional state, and the distance and lighting of the environment, are used as examples of estimator variables. These all can impact the reliability of eyewitness testimony. Suffice it to say that for those of us who have been witnesses to trauma, to ourselves, or to others, these elements all impact how we remember the event. It is easy for memories to become intertwined with other events, become warped over time with extra details, or become vague and blurry to us. Yet again I reiterate that for some reason, eyewitness testimony is often the strongest evidence presented by a prosecution used against a defendant, and that which a jury, too often places their final decision upon. 

In this case, the prosecution’s key eyewitness later revised the man’s build to better fit within the description of Timothy Hennis, who was taller and larger than the original description he had offered police. Another critical eyewitness to the prosecution alleged that she saw someone who looked like the defendant near the bank. On the Saturday after the murders, it was later discovered that the victim’s card had been used at an ATM and that the person had withdrawn $150 each on two separate occasions. Prosecutors used Timothy Hennis’s financial situation, being that he was behind about $300 on his rent, to create a connection to this use of the ATM card. However, when initially asked by investigators in late June or early July after the murders, whether she saw anyone near the bank that morning, the woman claimed she had not. The next April she suddenly remembered having seen someone, and when she saw Timothy Hennis in a photo lineup, she even admitted to the police that she wasn’t 100% sure whether she remembered him from the bank, or because she had seen his photo in the newspaper.

In July 1986 the trial of Timothy Hennis for triple capital murder would begin. The legal system of North Carolina would be forever impacted by the gratuitous usage of photographs presented as evidence by the prosecution. (11:24-11:32_These images displayed at the trial of Timothy Hennis included the crime scene and the condition of the victims’ bodies by the forensic pathologist. The prosecution had initially attempted to introduce into trial a total of ninety-nine photographs, which were requested to be prohibited by the defense, or that only one photo per victim be permitted. Upon close review of the photographic evidence, the trial court decided to allow thirty-five of the photographs to be made into slides. The state was then permitted, per authority of the trial court, to project these disturbing and graphic images. These photographs were 3 ft and 10 in by 5 ft and 6 inches on a screen that was specially created for its purpose. Placed side by side, they were presented to the jury projected directly above the defendant’s head. These photographs were used to support and paint a scene by the deputy sheriff, the paramedic, and by forensic pathologists in testimony for the prosecution. These thirty-five images were also printed in 8x10 gloss and passed around one by one to each member of the jury. This stage of the state’s case depicted gruesome, very vivid, and extreme details of the wounds, and of the victims’ protruding organs from the process of decomposition. These images of the young wife and mother, and her two daughters who were butchered in their home, included pictures of one of the victims whose neck was slit from ear to ear so severely that she was almost decapitated. This process took well over an hour. Although the trial judge did address the jury to only consider this evidence as a tool to illustrate the different witness testimony that was offered, the prosecution’s slideshow had successfully completed its act. In July 1986, the jury unanimously returned after only three hours of deliberation with a verdict of guilty. They recommended the death penalty, which the judge would later agree, and sentence the defendant to death.
This extreme use of visually emotive, and manipulative portrayal of evidence is what later would lead an appellate court to rule in favor of Timothy Hennis in 1988. The Supreme Court of North Carolina would concur that his constitutional rights had been violated as the use of these images deprived the defendant of a fair trial.
Rule 403 of the North Carolina Rules of Evidence, which governs the admissibility of evidence in a criminal court states: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
As addressed by the Supreme Court of North Carolina in the case of State v. Robinson photographs which are repulsive, grotesque, and downright hideous are all allowed to be admitted as evidence so long as they are used for their intended purpose. Such a purpose would be to illustrate testimony, the circumstances surrounding the homicide, and the elements of the degree of murder. They are not utilized to induce emotions of the jury. 
The Court acknowledged that when such photographic evidence is excessive, and/or repetitious, the evidence does not hold the same value because of its potential to prejudice the jury. This can prevent the jury from being able to fairly and rationally interpret the facts of the case because their judgment is emotionally entangled with the inflammatory evidence. This of course is up to the discretion of the individual trial court. The amount and type of photographic evidence can vary wildly as to what may be deemed acceptable within the bounds of illustration versus evidence which is considered excessive, extreme, and not fulfilling its purpose. In the case of Timothy Hennis, the Court found that of the thirty-five photographs, twenty-six of them did not fulfill any purpose by the state except to ignite emotion in the jury. They also declared that their repetition and macabreness was highlighted by the presentation in which they were shown. Since they were projected above the head of the defendant, this most likely exacerbated the already present prejudice that was felt by the jury towards the defendant. The Court also further declared that the manner and time it took the state to hand out each photograph one by one to the jury members was also redundant and prejudicial. To this decision held by the majority, Timothy Hennis was granted a new trial. 
At his new trial, the defense counsel obliterated the prosecution by exposing the gaping holes the first trial had successfully concealed. The neighbor, the state’s star witness, had claimed he saw the defendant walking down the street in the early hours of that Friday morning after the murders would have taken place. He had testified that the skies were clear that night which supported how he could clearly see the man later identified by him as Timothy Hennis. However, another witness stated that it was overcast that night. Then another witness came forward, John Raupaugh, whose physical appearance was eerily similar to that of the defendant. He shared how he dealt with insomnia, and would frequently walk around the neighborhood at 3 am in a beanie, and a Members Only jacket which fit the exact physical description, including the clothing, of the person the neighbor reportedly had seen. In April 1989, a jury this time found Timothy Hennis to be innocent. He was acquitted of the three murders he had been previously convicted and sentenced to death for. 
In 2006, more than twenty years after Timothy Hennis was initially convicted on three counts of murder in the first degree, and then was later acquitted, yet another twist of his fate would surface. DNA, which had not been available as an investigative tool in the 1980s, had greatly advanced by 2006, and results now showed a direct connection with him to the murders. The sperm collected from Timothy Hennis was found to be “near statistical certainty” to the specimen collected from the body of Katherine Eastburn. You may be wondering well either way, you can’t be brought back to court and charged with murders when you have already been acquitted, or can you? Enter the U.S. Military, the official loophole of the double jeopardy clause in our constitution, which was designed to protect its citizens from being tried subsequently for the same crime. 

Double Jeopardy is covered under the Fifth Amendment of our U.S. Constitution. The amendment defines how an individual cannot be re-sent to a criminal trial for the same offense once jeopardy has been attached, and that they cannot receive multiple punishments for the same offense. Jeopardy is attached in several ways. It can be attached once a person has been sworn in during a jury trial, or when the first witness has been sworn in at a bench trial, which is a type of trial that is decided solely by a judge. It can also be attached during delinquency cases once the proceedings have begun. 

The same offense or crime is defined as having the same course of conduct, and the same elements. Of course, there are exceptions to the rule. These include hung juries, when a jury cannot come to a unanimous verdict, a mistrial, which is always at the request of the defense, or a reversal of a conviction, such as when Timothy Hennis’s conviction was overturned on appeal to which he was granted a new trial. Breaches of Plea Agreements, whether from the defense or prosecution, can also be an exception to the rule of Double Jeopardy. This is described as what can be considered a breach of contract. This is when the defense and the prosecution have entered into an agreement where the plea of the defendant has already been established with set terms. If either side goes against this and does not honor their contract with the other party, this can result in an exception being made. 

The last exception are separate sovereigns, or different municipalities, which hold that criminal prosecutions can be held by both the federal government and the state in which the crime occurred against the same individual for the same conduct. For example, if a serial killer has victims across different states, each state can charge them with the crimes that occurred within their jurisdiction, in addition to their being charged by the federal criminal system. So hypothetically, a defendant could face and go to trial with the exact same charges for the same offenses in California, New Mexico, and Georgia, in addition to a federal court. However, it is rarely followed suit in this matter and most of the time, one state or more will defer to another. The same rules regarding jurisdiction also apply to the military court versus civilian court. The military court is viewed and treated as being a totally separate legal system from civilian criminal court, each with their own rules, regulations, and codes of conduct.

Timothy Hennis had re-enlisted in the US Army after being acquitted in 1989 and had retired after a long successful military career in 2004 as a Master Sergeant. However, once the DNA revealed a direct link to Timothy Hennis, the US Army recalled him to active duty so that the Military tribunal could charge him, under their own jurisdiction, for the murders of Katherine, Erin, and Kara.
 
Timothy Hennis attempted to explain the presence of his DNA found on the victim’s body by confessing that he and Katherine had consensual sex that same night of the murder. This newly confessed information did not assist Timothy Hennis in his defense. In 2007, the court-martial and its members decided to uphold his original conviction. They sentenced Timothy Hennis to a dishonorable discharge, inflicted the forfeiture of his pay and allowances, reduced him to the grade of E-1, and sentenced him to death to which the convening authority of the Military Tribunal approved, and the CCA, which is the Court of Criminal Appeals, affirmed. 

Timothy Hennis did everything imaginable to fight this sentence with more than forty alleged violations against his rights filed. Of the more pronounced and relevant to this discussion, was that there was a lack of jurisdiction. He argued that since he was not enlisted during his acquittal, his forced reenlistment by the Army negated the rights of the court martial of subject-matter jurisdiction. The Court-martial denied that there was ever a break in service because he had to be initially discharged in order to re-enlist. On March 6th, 2020, The United States Court of Military Appeals upheld his conviction. Timothy Hennis currently sits on death row in solitary confinement at Fort Leavenworth, Kansas, but his defense council remains invested in his one last chance at an appeal.
Here is where some of the evidence that was never presented becomes interesting. To me, the purpose of its exclusion at either military trial is very bizarre and troubling. Timothy Hennis asserted that the military judge denied him to present a defense when he was not permitted to call upon three witnesses. The first one, someone with the initials WHH, was a neighbor of the victims. The defendant alleged that this person had scratches on their face within the same time frame of the murders, and fit the same description of the man who was seen leaving the Eastburn residence. This man also refused to help law enforcement at the time of the investigation. He would not provide any hair samples, fingerprints, nor his handwriting when it was requested. The 2nd witness was a woman named Mary Krings, who was willing to testify that this aforementioned man, whom she worked with, and had briefly dated, had scratches on his face within the time frame of the triple homicide. She also said that he had inconsistent statements regarding these scratches, and even more alarming, he abruptly asked for a transfer from their shared employer to a different town soon after the murders. 
The 3rd witness was this potential suspect’s roommate, Gary Staley. If he had been allowed to provide his testimony, he would have attested to the fact that he owned a light-colored van, similar to the one parked near the Eastburns’ home on the night the family was killed. His roommate, WWH, had access and keys to this van. The CCA however declared that the appellant did not establish his burden of proof to show the relevance and necessity of these eyewitnesses, and the testimony they could offer. How would the exact description of their available testimony not establish the appellant’s burden of proof when it provided a strong alternative suspect and two reliable witnesses to support this theory? Timothy Hennis also argued that he was wrongly denied the assistance of a forensic serologist and crime scene analyst to review the totality of the evidence that was collected at the crime scene. If the analysis would have been conducted, there was a possibility that the presence of a third party, someone other than the appellant, was present at the location of the murders, and any related items could have been tested. 
Timothy Hennis also claimed that there were senior members of the military, who comprised the court, whose participation had led to him not having a fair trial. One member, he claimed, was openly prejudiced against him, and another member who only considered the death penalty as a viable sentence for the crimes committed. There was also the baffling matter of a letter from an unknown and mysterious source that was sent to Timothy Hennis while he sat on death row. The letter claimed that they were the person who committed the crime. The person confessed that they had murdered the Eastburn wife and her two daughters and that they were sorry he was doing the time for it.

Signing the letter as “Mr. X” they also acknowledged that they would be far away from North Carolina by the time he read it. 
Maj. Matt Scott, an Army JAG attorney, who worked for the prosecution conveyed to “Death Row Stories” that the DNA found on the body of Mrs. Kathryn Eastburn was without a doubt the individual who raped her and murdered her, and her two daughters. However, a head hair which did not belong to Timothy Hennis nor anyone else in the family was collected on the Eastburn’s bed, but it was never tested. DNA was also found underneath Kathryn Eastburn’s fingernails, but this evidence was also never tested to be analyzed. 
Although I cannot deny the analysis of the DNA that was found on Kathryn Eastburn’s body that belonged to Timothy Hennis, there are other elements of the case which should not be ignored if truth and justice are to prevail. First of all, for some reason the idea that Timothy Hennis and Mrs. Eastburn had a casual sexual encounter seems to be beyond preposterous to the prosecution, but why? There are countless military spouses who are lonely, sexually frustrated, and reach out to others for sexual gratification and company. It also is completely reasonable why at the time, Timothy Hennis had omitted this pertinent information from the investigation, due to the fact that he himself was married, and had a small child. Hypothetically, why would this scenario not have been in the realm of possibility? Is it because that would depict the victim in a poor light since women who are sexually proactive and independent are often labeled sluts and whores by the patriarchy, especially during the 1980s, and even still by some people in 2023? 

What about the potential suspect whose face was scratched which possibly indicated defensive wounds, and the DNA that was found underneath her fingernails? Why was this individual not more aggressively pursued to collect their fingerprints, hair, and DNA when they refused to provide them for elimination? To me, this is one of those cases where there are far too many questions left unanswered. Timothy Hennis seemed to fit the mold of the profile built around the perpetrator. The district attorney, and then later the military tribunal, were determined, almost hell-bent, to make Timothy Hennis pay for these crimes. Even with all of the damning evidence offered by his defense, which had acquitted him twenty years prior, and then later what he would attempt to present at his military trial, it still could not save him. While Timothy Hennis sits out his days and nights in solitary confinement on death row, I can not help but wonder what if there is someone out there who sits out their days and nights free, basking to themselves about how they got away with being the true murderer of the Eastburn family?
I am interested to know your thoughts on this case. Do you think there should be limitations on what visual evidence can be presented to a jury? Do you think the Military got it right and that the convicted Timothy Hennis is where he deserves to be? Is there a possibility that this became a Witch Hunt against him for unknown reasons and that all other motives and potential suspects were crossed off the list so that he would be punished no matter who actually committed the murders? There are countless stories of the wrongfully convicted in our country. With the discrepancies in eyewitness testimony, the evidence that was neglected and never tested, the strong potential leads of another perpetrator that were ultimately ignored…it is difficult to not wonder if justice was actually met with his conviction upheld. It will be fascinating to see if the US Supreme Court ever takes up his case or not, and if Timothy Hennis once again becomes an anomaly of the courts. 

Thank you so much for listening. Please feel free to reach out to me with any questions, comments, and suggestions you may have for the show. You can email me at AlitaDogmas_ShadesofMurder@gmail, find me on Instagram and Facebook at AlitaDogmas_ShadesofMurder, and on Twitter at ShadesofMurder. I appreciate each and every one of you for being here with me, and I am beyond thrilled to be your host. Until next time, be safe, and watch out for shades of murder that could be happening in the streets, next door, and especially inside your own home. 

AlitaDogma’s Shades of Murder was created, written, researched, and edited by AlitaDogma. Music composed by Danielyan Ashot courtesy of Pixabay.