exactly in the hole that he's in. and to just suffer and suffer and think about what he did. let him rot. xx. on this episode of "death row stories" a triple murder of un-i imaginable brutality. >> this is the one case that truly screams out for the death penalty. >> a soldier who can't convince his own lawyer until the prosecution's case falls apart. >> the state's primary witness said, i feel like i'm sending an innocent man to prison. >> and a shocking twist makes legal history. >> take a deep seat. they've got something to tell you. >> there's a body in the water. >> he was butchered and murdered. many people proclaim their innocence.

>> in this case there are a number of things that stink. >> this man is remorseless. >> he needs to pay for it with his life. >> the electric chair flashed in front of my eyes. >> get a conviction at all costs. let the truth fall where it may. >> mother's day 1985, it was a beautiful morning in fayetteville, north carolina. >> the dogwoods are blooming. rolling hills. neighbors know each other. of course, they're all military families. it's within a mile of the ft. bragg base itself. >> but on summer hill road something seemed amiss at the home of the eastburn family. >> neighbor noticed that the newspapers in their driveway were piling up. he knew that her husband was out of town, so that naturally raises curiosity. he went and peeped in the window and heard the baby crying.

and then he called the authorities. >> i received a call from the dispatch of homicide on summer hill road. when i got there there was one deputy who had been in the building. he was kind of holding his hat down and shaking his head. he said, i don't understand this. >> the baby was taken to safety, and detective bittle and his partner entered the house. >> as we went down the hallway on the bedroom on the left-hand side the first daughter was in there and she was in the first grade. she was still in bed, and she had a "star wars" blanket pulled up around her neck. and she was stabbed ten times. you could see the stab wounds through the blanket. we went further to the master bedroom. the youngest child was laying there. she was on her back. her throat had been cut, almost decapitated. and on the right-hand side

facing the bed was the mother. the bra was up around her neck. her panties had been cut off her. she had 14 stab wounds. >> the victims were katie eastburn, age 32, kara, age 5, and erin, age 3. >> for so long after that homicide i could close my eyes at night and i could see those children. >> katie eastburn's husband gary was an air force captain. he rushed back from training in alabama. >> it's hard to explain. the world stops. >> you look in his eyes, there was a void there. tears your heart out. but you have to gather yourself because you have a job to do. we're going to find out who did this.

>> there was evidence all over that house. they found a head hair in mrs. eastburn's bed, head hair on kara's chest, pubic hair at the scene of the rape, fingerprints all over the house, bloody footprints, a semen sample. they were certain that physical evidence would lead to whoever killed this family. >> after walking through the house, gary eastburn also provided a tantalizing -- >> they were going to move to england when captain eastburn got done training in alabama. the family decided to sell their dog. so they put an ad out in their local ft. bragg beat and katie eastburn wrote a letter saying a nice man came out tuesday night and got the dog. >> we had no idea who it was but anybody we knew were in the house we wanted to talk to. >> outside the crime scene someone approached investigators with critical information from

the night of the murders. >> there was a young black male named patrick cone. he had been at his girlfriend's house thursday night about 2:00 in the morning. he saw a big white dude walking down the driveway. he had blond hair, about 6'2", 6'3", and he had on a members only black jacket, a stocking cap, and he had a mustache. >> they passed on the road. this person said, i'm getting an early start this morning me got into a white chevette and drove off. >> i took pat down to the lab and they did a composite. i said, are you sure he looked like this? this guy has a black man's nose and droopy, lazy eye. he said, that's what i saw. >> six days after the murders police put out a call for the man who adopted the eastburn's dog. army sergeant timothy hennis, home for lunch with his wife,

daughter and new dog, heard it on the news. >> hey, buddy, that's you. they immediately packed up and went to the sheriff's department. >> as i walk into the office, hennis is sitting there. i stopped right in my tracks and i look at him and i look at that composite and i said, oh, my goodness, this is our man right here. >> go find patrick and they put together a photo lineup and he eventually settled on number two, which that was tim hennis. i said, are you sure? i'm sure. he also in the parking lot picked hennis' white chevette out and he said that's the car i saw. hennis was still in the sheriff's department. he was being cooperative. they wanted samples of his hair, his blood, saliva, which he gave. midway through he realized he was becoming a suspect and he was getting madder and madder and madder. >> get that thing out of my face. >> he is the most arrogant human being i've ever seen in my life.

he just felt like you can't touch me. well, yes, we will touch you. we reached out and touched him. >> at 1:00 a.m. sheriffs arrested timothy hennis. they charged him with rape and capital murder. he would face the death penalty. the arrest of a sergeant from the nation's largest army base sent shockwaves through the tight knit community around ft. bragg. >> most patriotic city in the country. if someone is murdered out of the blue, that stir it is blood in fayetteville. >> do you have any idea who would do this? >> well, she was getting some strange phone calls. >> don't be giving no ideas about who did something. >> i ain't giving no ideas about -- would just -- >> they get outraged. justice must be done. >> to defend their son tim hennis' parents hired two young lawyers, jerry beaver and billy richardson. >> i thought tim was guilty as

all get out. i didn't particularly care for tim, but the law school i went to stressed the importance of taking unpopular cases. >> in the days immediately afterwards the news got worse for tim hennis. he had no alibi. angela hennis was out of town all weekend. on saturday morning he dragged a barrel out in the middle of the backyard and started burning stuff. something his neighbors had never seen him do before. >> i don't know what it was but it was something he burned. >> the lady who owns the cleanerers called us. she said, that man that you all have arrested brought a black members only jacket into my cleaner friday. look suspicious to you. >> katie eastburn's stolen bank card, used twice, on the friday night and saturday morning, $150 each time. they found tim hennis was late on his rent to the tune of about $300 which he paid on monday. >> we really thought he was guilty. and there was a lot of physical evidence that was being tested

and if some physical evidence came back to him he was dead. so we wanted to come in ahead of time and get him to plea before that came out. >> but to richardson's surprise, hennis refused to consider plea deal. >> tim said something that haunted me. he looked at us and said they can test whatever they want, i was not in that house, i did not do it. it's just that simple. >> when the lab reports with blood type footprints and fingerprints came back they corroborated hennis' account. >> physical evidence had not matched tim hennis, none of it had. >> inconclusive or negative, inconclusive or negative. there wasn't a shred of physical evidence that was linking tim to the crime. >> billy's viewpoint then became he must get this man exonerated because i believed him. >> someone other than my client committed this crime. >> from that point on i was totally convinced he was innocent. >> but even without physical evidence linking him to the

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before he adopted the eastburn's dog in may 1985 sergeant tim hennis had a steady job in the military and a growing daughter he was devoted to. then hennis was arrested for the brutal murder of katie eastburn and her two little girls, aged 5 and 3. hennis' lawyer had come to believe in his innocence. >> i was totally convinced

watching him interact with angela because they do have a beautiful marriage. and watching him with his daughter, tim is extremely good with children. i remember, with my children, how good he was. >> of the fingerprints, blood, and semen found at the crime scene, none of it linked to hennis. >> down here we didn't have the equipment and facilities that they had up north. we had no dna down here when the crime occurred. i would like to have had a fingerprint. he left a shoe or dropped something that we could tie him to it but we thought we had enough to justify the case and the trial. the trial began on may 27th, 1986. >> everybody wanted in that courtroom. the bailiffs a couple times had to break up fistfights. >> the prosecutors called it the show. they wanted to emphasize how gruesome the murder was so they built a screen that took up the whole wall and they took slides of kara and erin eastburn, 5 and 3-year-old little girls on an

autopsy table, displayed out, no clothes. >> tim was sitting there going, what do i do if he acts like it's not bothering him, he looks like he's cold-blooded killer and if he gets emotionally upset, he looks like he's expressing guilt. what can he do? >> this went on for two days. slide after slide after slide. >> felt like i was in a slam dunk competition with michael jordan. >> prosecutor william vanstory also told the jury that hennis' motive had been sex. >> tim hennis' wife was out of town, new baby, so he decided to make a pass at the married mother of three from whom he had gotten the dog. that didn't go well. >> hennis thinks he's a player, so mrs. eastburn said, no, he read this wrong, i'm just a friendly person. with that temper of his, he lost it. >> billy richardson showed the lack of evidence to the jury but

the prosecutors argued the absence of blood on his jacket was the guilt. >> there was no blood because he took the jacket to the dry-cleaners. >> the jacket was a damning piece of evidence. >> richardson also undercut eyewitness pat cone who id'd hennis leaving the home. they videotaped pat cone during the tour of the crime scene. >> when you start listening to his story he's all over the place. >> bought my girlfriend some roses. >> you bought her some rose on sunday? >> no, it wasn't roses candy. candy. not roses. >> we started asking are you sure about this? he said, now i'm out here looking at it, you're right, i probably couldn't see all this. >> no, no, no, no, no, i can't say that. >> on the witness stand cone cast aside any doubts. >> cone said these lawyers have been tricking me, they've been pressuring me. i know i picked out the right guy. >> finally prosecutors presented

a surprise witness, a woman who said that two days after the murder she had seen the killer using katie eastburn's stolen bank card. >> all of a sudden the state introduced lucille cook, little old lady. used a card on saturday morning after the killer did. >> she had told us she couldn't remember. she said, i didn't tell you the truth the first time. >> there was a big tall white man, mustache, blond headed guy and he got in that tiny car. >> that was the man that used the car right before i did. pointed to tim hennis. the jury is sitting there looking at her. after she testified, i went into the bathroom and just threw up. >> the jury deliberated for three days. >> it was a quarter of 5:00 on a friday afternoon and the jury

knocked. he was guilty on three counts. he would get death penalty, times three. tim hennis could hear his father sobbing in the courtroom. he had never heard that before. >> when that jury said he's guilty, you still had faith that he was telling the truth? >> always. never once. >> not a doubt in your mind? >> no. never. >> that time i felt like i did what for god, i got our man and it felt good. this is the one case that truly screamed out for the death penalty. >> tim hennis had spent his entire career serving the military. now he was serving time on death row. but not long after his arrival hennis received a mysterious

letter. >> said, mr. hennis, i did the crime. you're doing the time. mr. x. >> the letter provided no concrete leads, only adding to hennis' torment. >> he got visits from his family and his daughter is now 2 1/2 years old. and she would bang her hands on the plexiglas and say, open it, daddy, open it. why won't it open? >> billy richardson felt responsible for his client's predicament. >> we did not do as good a job as we were capable of doing. i made up my mind then and there i was going to become the lawyer i was supposed to be. i got off my butt and went to work. >> richardson and his partner quickly filed an appeal to the north carolina supreme court. they had to decide what to emphasize, from mishandling evidence to possible perjury. >> they quickly settled on the photographs. >> that presentation was thought to have riled up the jury and it was pointed at him over and over. see this picture? he did it. see this picture?

he did it. >> our state supreme court didn't just read the appeal briefs, they got a slide projector and saw the show for themselves. and within 22 days, they said, let's give him another trial. >> it just broke all of our hearts because we had to calgary, say, you've got to go through this one more time. >> billy richardson reinvestigated every aspect of the case. >> we were so much better prepared for the second trial. when i started digging, we found how many things we didn't know at the first trial. >> richardson began with hennis' alibi for the night after the murder. when someone used eastburn's bank card. >> he had 24-hour duty with ft. bragg for his duty, he couldn't leave. >> people in his division remembered him gluing shingles on a doll house for his infant

daughter. >> army paperwork would have confirmed hennis' whereabouts had gone missing before the first trial. >> army, paperwork is everything. they have paperwork for paperwork. we look for it and look for it. there was a checkout sheet for every day but that day. the prosecutor had a field day. >> but before the second trial, richardson discovered why the paperwork had gone missing. >> the reason they couldn't find it is because the prosecutors had it. they didn't make a copy of it and leave it, they just took it. so this piece of evidence that probably would have exonerated him in 1986 was kept in the prosecutor's custody all that time. >> richardson also uncovered information that would undermine eyewitness pat cone. >> pat cone had helped them out in between trials. he was arrested using a stolen bank card. on another occasion, patrick cone was drinking and disruptive and the state dropped the case. he was known to tell people that

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as defense attorney billy richardson prepared for the retrial of tim hennis new evidence turned up on a fayetteville sidewalk. >> the deputy picked up the wallet noted that it had a letter in it. and we kept hearing that the letter said tim didn't do it.

you keep hearing rumors like that. >> billy goes to the sheriff's department and has to pretend he's investigating another case because if he let on he was investigating this case it would have set off all kinds of bells and whistles. >> sure enough the lost wallet belonged to a fellow named shawn buckner. >> shawn buckner was a close friend of pat cone. the prosecutor's star witness. the letter and buckner's lost wallet called cone's testimony into question. >> that letter talks about pat's doubts. pat kind of hoped shawn buckner and his fiance about his doubts to the point where they wrote each other a letter about it. >> richardson flew to louisiana where buckner was training in the air force when he got there buckner closed the door on his face. >> he didn't want to get involved. >> shawn buckner didn't know whether to betray his friend or help free someone who may be wrongly accused of triple murder. it was a tough one. shawn buckner had no reason to help tim hennis. >> richardson came home empty

handed, hoping buckner would eventually change his mind. the retrial of timothy hennis began on february 27th, 1989. almost four years after the brutal murders of gary eastburn's wife and daughters. >> the state went into a replay of trial one. meanwhile the defense had an entirely different case. >> this time hennis would testify. >> we just really drill him. filmed him and let him watch it. >> did you kill these three people? >> no, i did not kill these people. i have a daughter of my own and i could not hurt any children at all. >> did you do this crime? >> no, i did not. >> we felt if tim showed rage or emotion the jury would say, look, there you can see he can get to this point. >> how does all of this make you feel. >> extremely upset and angry. >> on cross-examination the prosecutor confronted hennis with the alleged motive for the murder.

>> the prosecutor says, you lost your cool. and went in there and tried to have sex with her and when she refused, you snapped and killed her. >> they were trying to provoke tim hennis on the stand and he had to calmly say, no, i did not. no, i did not. he said, i never had sex with that woman. that never happened. >> when it was over they had not got the reaction they wanted to. see him in a different light than first jury had seen him. made a huge difference. >> at the first trial the absence of blood on hennis' jacket had helped convict him as the state's expert insisted dry-cleaning had removed any blood stains. but richardson saw it differently. >> i talked to the dry-cleaner and he said you have to use a special chemical to remove blood. i said, well, did you use it in this case? he said, no. i just used ordinary dry-cleaning. >> when the prosecution challenged the dry-cleaner's knowledge, richardson was ready with his own expert. >> the chemist got a members only jacket. put some blood on it and took

the jacket to a dry-cleaner and ran a luminol test on the jacket and it glowed as bright as can be, still there. >> hennis' members only jacket on the other hand had no signs of blood. richardson had turned the prosecution's evidence against them. richardson was also prepared for lucille cook who swore she saw hennis at an atm two days after the murder. >> lucille cook had made dozens and dozens of atm transactions around the time of this one. i asked her, can you remember any of those? of course she could not. >> bank logs also showed a 3 1/2 minute gap between the victim's card being used and lucille cook's transaction. >> that doesn't seem like a lot of time until you sit there and time it. we had the jury sit there to see how long it was. >> it was the longest 3 1/2 minutes. >> why would the killer wait

3 1/2 minutes until someone sees him? one of the jurors said they got in the jury room and laughed at her. >> now it was time for richardson to go after the state's star witness, pat cone. after some soul searching, shawn buckner agreed to testify against his old friend. >> he testified that pat cone was extremely drunk that night, that in addition to that he had doubts about what he saw. >> patrick had told shawn buckner, i feel like i'm sending an innocent man to prison. >> but richardson knew he had to answer one last question. >> in the back of their mind, the jury still saying, well, the kids saw something. if it wasn't your client, who was it? >> so richardson called his next witness. >> the back doors burst open and everyone in the courtroom turned and looked around. the prosecutor says, who is that? >> that was as close to a perry mason moment as i've ever had. >> the lead detective says, we're in trouble. your baby will feel like dancing

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defense attorney billy richardson had always wondered

if it wasn't tim hennis, who did eyewitness pat cone see near the home on the night of the murders. >> billy was going door to door, every neighbor. why don't you talk to that kid across the street. >> i see that fella all the time. he walks the neighborhood all the time. >> they didn't know who he was. so billy did a vigil, became this quest for this myth call figure of the walker. >> you cannot win your case sitting in your office so i sat out there for six weeks. >> richardson even hoped he might find the real perpetrator but he came up empty handed. then before the second trial richardson hired an investigator to renew the search. and finally, they found their mystery man. no murderer but a high school senior who worked at the local supermarket.

>> a kid by the name of john ropa lived down street from the eastburns. he was an uneasy sleeper and he had a habit of walking the neighborhood on summerhill road at 3:00 in the morning. he was a big blond kid with a blond mustache. >> it just fit. it just fit like a glove. >> during the retrial richardson kept his discovery from the prosecution. timing the mystery walker's entrance for maximum impact. >> the back doors burst open, defense calls john ropa and at 3:30 in the morning you couldn't help but think, could that be who patrick cone saw on the road. >> here's another tall white guy, blond, walking down the street. it was effective. >> it was just one of those magical moments in the courtroom. the jury them a reason to have reasonable doubt. it gave them a reason to say it wasn't tim.

>> when walker took the stand richardson asked him what he wore on his walks down summerhill road. >> he often wore a beanie hat and he had a members only jacket, black members only jacket. >> after the walker's testimony the defense moved to have the case thrown out. >> defense accused the prosecution of just out right cheating because it turns out the prosecutors knew exactly who john ropa was. >> the state had found the guy and it basically hid him from us. >> as the jury began deliberating richardson told the judge what he discovered about the prosecution's conduct. >> deputy sheriff went to john rop, a and they brought him in and had him bring his jacket and his hat and they took it from him and put it in the trunk of one of the detective's cars. and they returned it to john ropa after tim hennis was on death row. that's exactly the kind of evidence in a death case that could have tilted it their way in the first trial. >> we just got plain mad at this point. get slapped enough, you say, all right, i've had enough of this. >> it just got more incredible to sit in the courtroom and watch this thing unfold. i went from thinking he's guilty to i'm not sure a jury is going to be able to find him guilty to, he didn't do it and they have to let him go. then the jury knocked. >> after deliberating less than three hours the jury announced its verdict. not guilty on all counts. >> we all just broke down and

started crying because i knew what they had been through. next to marrying my wife, next to the birth of my children, that was probably the happiest day of my life. >> we've lived with the family and felt what they've been through and it's just a tremendous, tremendous load taken off our shoulders. >> the jurors came out and hugged tim hennis. they were adamant they needed to reinvestigate this case and quit picking on this guy. >> somebody said, why are they bothering this poor man. talking about the hennis. why are they bothering this poor plan? hasn't he suffered enough? a man that killed two children and a woman. how much did gary suffer the

rest of his life? >> whether you like it or not tim is our client and if he dies, we live with it. >> in the years that followed, the hennis case became a textbook example of wrongful prosecution. scott was even adapted into a tv movie. >> this case put people on notice that not everybody who is sitting in prison is guilty. >> north carolina now as a commission that actually has released a number of innocent people. >> despite all the attention to hennis' acquittal to eastburn murders would go unsolved for another 16 years. until 2005 when scott spoke about a case at a criminology seminar. fayetteville detective larry trotter was in the audience. >> the premise was that there were a lot of unknowns out

there. people that potentially may not have been interviewed, other forms of evidence. >> if he's innocent then who is guilty? the state of north carolina didn't pursue this for 17 years. why isn't trying to find who is guilty? >> somebody was stalking that woman for weeks. eastburn was writing his woman saying there is a fool out there following many we, i don't like it. what do i do about it? why isn't that being looked at? who does it lead to? >> after witnesses discussed the evidence detective trotter approached him privately. he said, i just want you to know that the way they investigated this case 20 years ago, we're not like that anymore. i said, somebody should reinvestigate this case. i think it can be solved now. technology has improved. that's how we left it. >> in fact, trotter had been assigned by the sheriff's office to review cold cases.

>> we had well over 100 unsolved cases at this time. as i went through it, the docket, i realized that they had a vaginal swab. it had never been sent out for testing. when it happened dna was in infancy so the thing to do was to send it off for testing. >> for over two decades gary eastburn had lived without closure of the devastating murder of his wife and two daughters. >> we've done a great injustice for this man. how he stood up or with stood, i don't know. you just want to do something for him. you want to make sure you get this solved. >> in may 2006 the state crime lab contacted the sheriff's department. they had found a positive match for the dna. detective bittle called gary eastburn to tell him the news. i said, are you sitting down? he said, yeah. why? i said, take a deep seat, i've got something to tell you. life-changing decision. at university of phoenix, we know going back to school is a big decision.

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after tim hennis was freed from death row in 1989 he didn't know where to turn. >> are you feel very diminished, very worn out, dragged down, you don't have the self confidence and reliability you once had. >> his lawyers told him, get out of the army.

it's just a bad place to be. but you've been on death row, there weren't a lot of employers who would take that on. the army had to take him back, so he stayed in. >> after readjusting to army life, tim hennis built a successful 25-year career in the military. >> tim hennis served in somalia, he served in desert storm. tim's supervising colonel told me he was without a doubt the best nco he ever worked with. >> retired at 2004. he was good at being a husband and father. he and angela had a son, who he never would have had had he not gotten his life back together. >> but tim hennis had no idea the eastburn murder case was about to break wide open. in 2006, a 21-year-old rape kit yielded new dna results. detective bittle called the victim's husband and father gary eastburn to tell them the news. >> i said, we got a hit on the dna. he said, well, who is it? i said, hennis.

>> you could have knocked me over with a feather when i got that call. just hit with this wave of emotion. like, i don't believe it. >> i was so happy. i mean, i was walking on cloud nine. >> defense lawyer billy richardson was driving through mississippi when he heard the news. >> i said, stop the car. and it was just like somebody had taken a 2 x 4 and hit me up the side of the head with it. >> i was convinced that if anybody could ever run an actual dna on that sample they would find someone other than tim hennis. i believed it with every fiber of my being. >> but the shocking dna results led to a pragmatic question -- >> what the heck do you do now? >> timothy hennis had been adjudicated, not guilty, therefore the state of north carolina was not going to try him again. >> we fought a revolutionary war because the king of england could try somebody over and over

for the same offense. our founders put in the constitution that there will be no double jeopardy in this country. >> i understand that, but i think there might be certain cases like this that there's dna now that says there's a man who raped this woman and killed her. i think you should be able to. somehow the judicial system is going to have to work around that. >> it was the da's office who decided to see if the army was interested in bringing him back off of retirement and trying him for the murders. >> a team of lawyers from the ranks helped evaluate the case for the army. >> my personal opinion about why this is important to the military is that the military sent gary eastburn for duty in alabama and his family was left behind and they were murdered. >> i'm sure there was debate with the military. it's high profile, it's controversial, but you had an enlisted person killing an

officer's wife. how do you let that go? >> two years after he retired, timothy hennis was recalled to active duty. as soon as he returned to ft. bragg, hennis was charge with three counts of murder. >> tim hennis is the only person in the united states history who has been tried for his life three times after guilty and not guilty verdicts. >> i can't comment as to why it has not happened before. however, illegal analysis of it was actually pretty simple. >> it is actually well is itled law. nothing the state does affects what the government can do. >> they can claim it's under a different jurisdiction all they want. this was the state of north carolina using the army to get to what they wanted to do. plain and simple. >> with billy richardson now on the sidelines, the court-martial of timothy hennis commenced on march 17, 2010. the prosecutor's case hinged on the dna results.

>> the sperm found in the vagina of kathryn eastburn was the person who raped and slaughtered her and her children, and that is timothy hennis'. >> when a scandal erupted at the state lab the dna evidence against timothy hennis would be thrown into question. >> they were mixing up dna samples and almost putting an innocent guy in prison. man: [ laughs ] those look like baby steps now. but they were some pretty good moves. and the best move of all? having the right partner at my side. it's so much better that way. [ male announcer ] have the right partner at your side. consider an aarp medicare supplement insurance plan, insured by unitedhealthcare insurance company. go long. that would be my daughter -- hi dad. she's a dietitian. and back when i wasn't eating right, she got me drinking boost.

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>> narrator: in 2010, timothy hennis went on trial a third time for the murder of katie eastburn and her daughters. a scandal rocked the state lab that identified his dna. the lab had been skewing results to help prosecutors. >> the woman who handled the sample back in the '80s got in trouble for mixing up some dna samples in another case. and almost put an innocent guy in prison. >> they didn't do a good job preserving the evidence. three people were arrested for evidence tampering. >> narrator: his lawyers asked for a postponement to investigate the lab.

the judge refused. meanwhile, military prosecutors found a second smear from the rape kit. they sent it to a new lab and the results also pointed to hennis. >> the medical examiner slide came back on every marker to the defendant. tested by army's crime lab. you had two chains of custody. the defense could not attack the slide. >> narrator: for prosecutors the dna results swept away all previous doubts. >> they went back and replayed the first two trials. some of the old discredited instances. patrick saw timothy coming down the driveway. the members only jacket to the cry cleaners. using the atm card. you had numerous pieces of evidence to tie him to the crime. >> narrator: for hennis's defenders prosecution's case had flaws. the top priority was getting their own evidence in front of the jury. >> there is a ton of physical evidence in that house they still can't explain. they found a head hair in the

bed. it's not tim hennis. there is a pubic hair where the rape took place. >> what is male dna doing under her finger nails? it's not tim's. there is male dna under the daughter's finger nails, not tim's. >> the prosecution and defense agreed. nothing else came back to timothy hennis. under the fingerer nails that's not his. but what is is the vaginal swab. >> to me male dna evidence under the finger nail of a woman who's raped is damaging evidence. who is it? >> narrator: the finger nail scrapings weren't enough for a full dna profile. so the defense asked to test all the crime scene evidence that might point to a different perpetrator, including a blood-soaked towel.

>> whoever had sex with her didn't necessarily kill her. you can't argue that whoever cleaned up the blood didn't have something to do with it. let's find out what happened. >> in the military, if you need a test done, you have to ask the judge to make the army do it for you. >> narrator: the judge denied the defense's request to test other items. >> i can't imagine a judge in a civilian court not allowing that. you had the evidence. why not test it? >> narrator: without dna results pointing to a different suspect, hennis's lawyers decided to offer an alternate explanation for the incriminating sperm. >> they threw out the theory that tim hennis had consensual sex with mrs. eastburn within a day or so of the homicide. >> you could feel the love leaving the room. everybody said, i don't think he said that. there are certain things you can do in front of a jury. certain things you are can't. it would not have been how i would have done it. >> narrator: the 14-person

court-martial jury declared unanimously that timothy the hennis was guilty of murdering katie eastburn and her children. the next task would be to decide whether hennis deserved the death penalty. >> when you have a man that for 25 years after this occurred did nothing but raise his family, serve in two wars, discharged and married to the same woman, why are you going to the look and say that's the monster? >> he gives cookies to kids. doesn't make a difference. >> we are not there to say how could he do it? we are not there to say why did he do it. we are there to say he did it. >> the prosecution ended their presentation with another slide show. >> eastman counted out that birthdays he's missed with his daughters.

anniversaries. baptism. one of my trial partners asked gary what do you miss the most? with tears in his eyes he said, i just miss them. >> on april 15, 2010, the jury sentenced timothy hennis to death. >> being vindicated for things when they got a not guilty. with the smiles and smirks you see from people. i do. yes, sir, i do. i feel vindicated. >> narrator: tim now sits in solitary confinement at fort levinworth, kansas. his appeals both in the military and federal courts could take decades. >> i still think tim is innocent. but i'm not his lawyer now. it would be improper for me to say, all right, tim. did you or didn't you? i'm dying to have that conversation with him. how can you put a man to death

based solely on one piece of evidence? our country was formed on the premise that one person wrongfully convicted is a grave injustice. >> i don't know what the outcome will be. this is a good case. >> i knew we were right. >> i think this is a good system. i want him dead. >> you didn't take the time to think their life was -- >> important to somebody else. i didn't have no association with them. to me their life wasn't nothing. >> in 1993, nathan dunlap killed four people at a chuck e. cheese's restaurant just outside of denver, colorado. he was sentenced to death. >> he is remorseless, as