United States v. Hennis, 17-0263/AR

Background

In 1985 three members of an Air Force family were murdered; Hennis was tried twice in North Carolina (convicted then convictions overturned; acquitted at second trial) and later linked by DNA after retirement. The Army recalled him to active duty and court-martialed him in 2006; he was convicted and sentenced to death.
Hennis appealed through the military courts; the Army Court of Criminal Appeals affirmed the findings and death sentence, and the case is now before the U.S. Court of Appeals for the Armed Forces under Article 67(a)(1), UCMJ.
Hennis moved for appointment of an appellate capital defense team under the Army’s capital litigation regulation and for funding for a “learned counsel,” a mitigation specialist, and a fact investigator.
Present appellate defense consists of two Army attorneys (a supervising LTC and lead CPT) without prior capital defense experience; no mitigation specialist or investigator has been provided despite requests.
The Court evaluated statutory, regulatory, and constitutional bases for mandating appointment/funding and denied the motion, concluding it lacked authority to grant the requested relief at this stage.

Issues

Issue	Hennis's Argument	Government's Argument	Held
Whether the Army capital litigation regulation mandates appointment of an appellate capital team	Regulation requires suggested capital litigation team; Hennis seeks court order to appoint such a team	Regulation is hortatory and intended for trial teams, not binding on this Court	Denied — regulation is nonmandatory and not a basis to compel an appellate team
Whether the Court can require funding/appointment of "learned counsel" now	Hennis seeks a learned counsel funded for his appeal under fairness and parity with future cases	No statutory requirement for learned counsel in his case; the 2016 Military Justice Act provision is not retroactive to cases referred before its effective date	Denied — no authority to mandate learned counsel; MJA 2016 does not apply to his case
Whether Fifth Amendment equal protection entitles Hennis to learned counsel like future defendants	Claims unequal treatment versus future capital appellants who may get learned counsel under MJA 2016	Distinction is not a suspect classification nor does it infringe a fundamental right; rational basis exists for staggered implementation	Denied — rational basis for treating current and future cases differently
Whether the Court should order funding for expert assistance (mitigation specialist, investigator)	Hennis contends experts are necessary and Army/regulation contemplates such team members	No showing that experts are reasonably necessary now; regulation is permissive and directed to trial teams; no mandatory right established	Denied — Hennis failed to meet reasonable-necessity standard at this stage

Key Cases Cited

United States v. Sloan, 35 M.J. 4 (C.M.A. 1992) (agency/regulatory language that is hortatory does not create a binding right)
United States v. Akbar, 74 M.J. 364 (C.A.A.F. 2015) (discussing "learned counsel" in military capital context)
United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999) (treatment of expert requests and court's role in reviewing denials)
United States v. Brooks, 66 M.J. 221 (C.A.A.F. 2008) (right to effective assistance of appellate counsel)
United States v. Cronic, 466 U.S. 648 (1984) (circumstances may permit presumption of prejudice for ineffective assistance)
United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994) (limited counsel experience does not presumptively equal ineffectiveness)
United States v. Marshall, 45 M.J. 268 (C.A.A.F. 1996) (ripeness of ineffective-assistance claims on appeal)
Maryland v. Kulbicki, 136 S. Ct. 2 (2015) (procedural posture on ineffective-assistance review)
United States v. Tharpe, 38 M.J. 8 (C.M.A. 1993) (reasonable-necessity standard for expert assistance)
United States v. Kreutzer, 61 M.J. 293 (C.A.A.F. 2005) (review of denial of mitigation-expert assistance)
United States v. McAllister, 55 M.J. 270 (C.A.A.F. 2001) (review of competence of government-provided expert assistance)