The pit and the pendulum: why the military must change its policy regarding successive state-military prosecutions

Army Lawyer, Nov, 2007 by Charles L. Pritchard, Jr.

It will be a desirous thing to extinguish from the bosom of every member of the community any apprehensions, that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled. (2)

I. Introduction

In 1986, Timothy B. Hennis was convicted in a North Carolina state court of killing a woman and two of her daughters. (3) Hennis spent three years on death row pending his appeals, which resulted in a new trial where he was acquitted of the murders. (4) Seventeen years later, the Cumberland County, North Carolina District Attorney's Office opened Hennis's "cold case" and ran a DNA test which they believed implicated Hennis. (5) The Double Jeopardy Clause of the Fifth Amendment prohibited North Carolina from prosecuting Hennis again. (6) That constitutional protection did not stop the U.S. Army, however. The Army recalled Hennis to active duty--he was a sergeant at the time of the murders--to court-martial him for the same offenses. (7)

In 2002, David Tillery was acquitted by a North Carolina state court of a two year-old murder. (8) Six months later, the Cumberland County, North Carolina Sheriff's Office convinced Staff Sergeant Tillery's Army commander at Fort Benning, Georgia (9) to pursue the murder charge again. (10) With the North Carolina record of trial in hand (literally) (11) and without any additional evidence, (12) the Army obtained the court-martial conviction. (13) The difference? North Carolina has a unanimous jury verdict requirement; the military only has a two-thirds verdict requirement. (14)

In both cases, the Army was within the bounds of the law. The U.S. Supreme Court established the dual sovereignty doctrine in United States v. Lanza (15) as an exception to the Double Jeopardy Clause, thereby permitting federal and state governments to prosecute successively for the same crime. (16) The Hennis and Tillery cases are not aberrations either. The military has engaged in similar dual sovereign prosecutions many times. Eighteen published cases alone show the military's willingness to invoke the dual sovereignty doctrine. (17) But is this the right answer?

The Framers of the Constitution did not intend a dual sovereignty doctrine to undermine the fundamental protection against double jeopardy. (18) The Supreme Court erred to the significant detriment of generations of Americans when it created the doctrine based on faulty reasoning and no precedent, and it continued that error as it entrenched the doctrine in American jurisprudence. While the federal government and a majority of states have significantly limited the doctrine, the military has taken advantage of it. While each of the military services has instituted a policy governing successive state-military prosecutions, the policies are disparate and ineffective.

This article demonstrates that the military should change its practice with regard to successive prosecutions. The military's insistence on getting its pound of flesh has put servicemembers in the predicament of Edgar Allen Poe's protagonist in The Pit and the Pendulum (19)--surviving one fate only means being thrown into another, equally horrible one. The military should seek an amendment to the Uniform Code of Military Justice (UCMJ) that prohibits courts-martial after states have prosecuted servicemembers for the same act or transaction. At a minimum, the Department of Defense (DOD) should immediately consolidate the military services' disparate policies governing successive state-military prosecutions into one unified policy that makes those prosecutions the exception rather than the norm.

In this article, section II.A. analyzes the origins of the Double Jeopardy Clause, Section II.B. attempts to divine the intent of the Framers of the Constitution. Section II.C. analyzes the judicial precedent and reasoning that led to the dual sovereignty doctrine and reviews the doctrine's application and its limitations including the sham prosecution exception. Section II.D. discusses the military's treatment of dual sovereign prosecutions, and Section III compares that treatment to that of the states, the Department of Justice, and U.S. treaties. Finally, Section IV balances the competing needs of the military and its servicemembers to reach a conclusion about the military's policy regarding successive state-military prosecutions.

II. What We Can Do

This section of the article traces the origin and development of the Double Jeopardy Clause from its inception, through its permutations, including the dual sovereignty doctrine and the sham prosecution exception, to its present status in the military. This discussion will form the foundation to analyze what other jurisdictions are doing and, from this comparison, to discuss what the military should do.

A. Early References to Double Jeopardy

"No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb...." (20) So says the Bill of Rights. But how did the nation get there, and what did it do in the years between the ratification of the Constitution and the adoption of the Bill of Rights? (21) The Framers of the Constitution did not include any form of double jeopardy protection in the original document. They were primarily concerned with the creation and preservation of the United States as a federal entity. (22) The Declaration of Independence had indicted King George III for abuses of his citizen-subjects; (23) the Constitution was the mechanism that replaced the tyrant with a system of democratic self-governance--the key that opened the door to individual rights. (24)