You need to upgrade your Flash Player Timothy Hennis case may hinge on DNA evidence By Paul Woolverton Staff writer At 10 a.m. today, exactly 22 years after his arrest in a brutal triple murder, Timothy Hennis will enter a military courtroom to face the charges for the third time. This time, investigators have said, there is DNA evidence that couldn?Äôt be tested before. They said it points to Hennis as the man who raped Kathryn Eastburn, then stabbed her to death and slashed the throats of two of her three daughters the night of May 9, 1985. Twice before, state courts have tried Hennis. He was convicted in 1986, but was acquitted three years later after the state Supreme Court ordered a new trial. He has been free ever since. Prosecutors appear to be counting on the DNA evidence to make a case against Hennis that sticks this time. A source familiar with the case said privately that the DNA is from semen. But military prosecutors aren?Äôt talking about the evidence. And defense lawyer Frank Spinner did not respond to repeated calls. The type of DNA evidence could be revealed today when military prosecutors present their case in an Article 32 hearing on Fort Bragg. An Article 32 hearing is where prosecutors try to persuade the presiding officer ?Äî he?Äôs not a judge; he?Äôs called an investigating officer ?Äî that the evidence is enough to warrant a court-martial. That could depend on the type of DNA evidence. While DNA testing has been an effective tool for solving crimes, simply finding DNA isn?Äôt always enough for a conviction, said Fayetteville criminal defense lawyer Paul Herzog. Herzog has no connection to the Hennis case, but he is familiar with capital trials. Sometimes there is a logical, innocent reason for someone?Äôs DNA to be present at the scene of a crime, Herzog said. Hennis had a good reason to visit the Eastburn home two days before the murders: He adopted the Eastburns?Äô dog, an English setter, which they were giving away because the family was moving overseas. ?ÄúWhere did they get the DNA from and where was it found??Äù Herzog asked. ?ÄúThat makes all the difference in the world.?Äù If it is from hair, or even blood, it could have an innocent explanation. People shed hair all the time. Hennis could have suffered a minor cut when he was picking up the dog. But if the DNA is semen, that could be hard to explain. ?ÄúIf it?Äôs found inside of her body and it?Äôs sperm, he?Äôs in bad trouble,?Äù Herzog said. Commander?Äôs decision After the Article 32 hearing, the investigating officer will make a recommendation to Lt. Gen. Lloyd J. Austin III, the commander of the 18th Airborne Corps. Austin will decide whether Hennis will be court-martialed. He also decides whether Hennis could face the death penalty again. Hennis first was sentenced to death in the summer of 1986 when a Cumberland County jury found him guilty of rape and murder in the deaths of 31-year-old Kathryn Eastburn, who was an Air Force wife, and her daughters Kara, 5, and Erin, 3. Kathryn Eastburn?Äôs husband, Gary, was out of town for military training when the murders happened. The killer did not harm the Eastburns?Äô youngest child, 22-month old Jana. In 1988, Hennis was awarded a new trial. The N.C. Supreme Court had decided that the prosecutor in the first trial overused gruesome crime scene and autopsy photos to rile up the jury?Äôs emotions and compensate for an otherwise weak case. The decision set a precedent that defense lawyers continue to cite when sparring with prosecutors over the presentation of photos in North Carolina murder trials. At the second Hennis trial, this one held in Wilmington, the pictures were limited. Two replacement prosecutors inherited a case built on shaky circumstances and little physical evidence to connect Hennis to the crime. Hennis?Äô lawyers knocked gaping holes in testimony from witnesses who thought they saw Hennis near the murder scene that night and using the Eastburns?Äô stolen bank card later. DNA testing, a new forensic technology, was of limited availability and accuracy in 1989. An investigator testified there was a problem with the samples collected from the Eastburn murders and they couldn?Äôt be tested. The jury found Hennis not guilty in April 1989. He went on with his life. The buck sergeant returned to the military, served in the Gulf War and retired in Washington state in 2004 as a master sergeant. In the 1990s, the Hennis case was the subject of a popular book and depicted in a television movie. He was portrayed as innocent, as a man railroaded by lawmen more interested in closing the case quickly than accurately and by a prosecutor more interested in winning than finding the truth. The Eastburn murder re-entered the public consciousness in 2006. Cumberland County Detective Larry Trotter had examined the file and had DNA tested. The U.S. Constitution?Äôs double jeopardy clause said that Hennis couldn?Äôt be tried again for the murders by North Carolina?Äôs court system. But because Hennis was in the Army at the time of the murders, the federal government remained free to prosecute. District Attorney Ed Grannis took the case to Fort Bragg. The Army pulled Hennis out of retirement in the fall, brought him back to Fort Bragg and charged him again with rape and murder.