Hennis update

Fay Observer reports that:

U.S. District Judge Terrence Boyle on Wednesday dismissed an effort by Army Master Sgt. Timothy Bailey Hennis to stop his court-martial for a 1985 triple homicide near Fort Bragg. A jury has been seated in the court-martial. Opening statements and testimony are scheduled to begin today.

It appears that the judge deferred to the court-martial process. It appears that the judge deferred to the court-martial process, Hennis v. Hemlick, 5:09-HC-2169-BO (E.D.N.C. 16 March 2010).

Hennis asserts the military lacks jurisdiction to court martial him because of a “break in service” which relieves Hennis from court martial for any crimes committed in a prior enlistment from which he has been discharged. Hirshberg v. Cooke, 336 U.S. 210 (1949) (holding military was not entitled to institute court-martial proceedings against a service member offenses committed during an earlier enlistment – which had expired and from which he had honorably discharged – even though he had re-enlisted the day after being discharged).

First Judge Boyle summarizes the procedure applicable to trials by court-martial and then dicusses writs of habeas corpus under 28 U. S. Code 2241. Citing to Schlesinger v. Councilman, 420 U.S. 738 (1975), Judge Boyle’s prudential decision is:

“when a serviceman charged with crimes by military authorities can show no harm other than that attendant to resolution of his case in the military court system, the federal district courts must refrain from intervention, by way of injunction or otherwise.” Id. at 758.

Judge Boyle uses Hamdan v. Rumsfeld, 548 U.S. 557, 586 (2006) to support his conclusion, because comity and abstention requires the military justice system act first: to protect good order and discipline and the integrated procedures created by the UCMJ system. In light of CAAF’s current move to change its rules, this was interesting.

a critical element of [military justice process] which is the Court of Military Appeals consisting of civilian judges completely removed from all military influence or persuasion ….”

Judge Boyle writes that the case is so “material fact mired” with complicated regulations and military distinct facts, that the court-martial is a better process to handle the case. Basically, Judge Boyle finds there is nothing unique to the case justifying his intervention. Rather, argues that a court-martial with its subject matter expertise is the best and correct forum to resolve the issues. And assuming conviction, Hennis will still get his day in federal court, albeit later.

Therefore, as the circumstances are set out, this court, like that in Councilman, “discerns nothing that outweighs the strong considerations favoring exhaustion of remedies or that warrants intruding on the integrity of the military court processes.” [Councilman, 420 U.S.] at 761.

Trial starts 17 March 2010, St. Patrick’s Day. I have no idea if Hennis is Irish.