>> he is certainly right. there are so many good stories in the nfl. let's hope that next week, there are fewer bad ones. all right. that's going to be our show for tonight. follow me on twitter and facebook, and of course find us right back here next friday night on "unguarded" where the end of the game is just the start of the story. good night. i'm susan hendricks at cnn center following breaking news out of rural pennsylvania the hunt for eric frein, the cold war re-enactor who allegedly shot and killed a state trooper. jason carroll from the scene. what have you heard? what's the latest from your sources snr. >> well, what a tense night for the people here in this community. this all starting susan at 7:00. when the first report started coming in of shots being fired in the area, the small town where eric frein grew up. in a wooded area, that's where this activity was coming from.

then came word there was an exchange of gunfire. and eric frein was cornered by police, who were out there searching for him. and then, silenced. remember, this is a man who was a survivalist. he knows these woods. he knows this area very, very well. easy for him to slip in and out. especially at night. so now once again it is a waiting game not just for him but for the people in the community. waiting to hear word what police will do next and where is eric frein. susan. >> the officer saying "look, who ever did this, you are a coward. we are coming for you." considering the resources. i heard 200 officers a day looking for this guy. seems as if they're following through here? >> yes, susan. absolutely. there has been a huge number of officers out here. huge task force. people looking. fbi u.s. marshals. state police. obviously out here at, out here as well. people who are experts at searching for this type of,

fugitive who is out there. once again, they're dealing with a man who is once again a survivalist. he knows the woods just as well as the they do. >> jason carroll. thank you. stay with cnn for any developments. now "death row stories." on this episode, a triple-murder of unimaginable brutality. >> a case that screamed out for the death penalty. >> a soldier who can't convince his own lawyer. >> thought he was guilty. >> until the prosecution's case falls apart. >> the state witness said i feel like i'm sending an innocent man to prison. >> a shocking twist makes legal history. >> they have got something to tell you. >> there is a bedden water.

>> butchered and murdered. >> in this case there are a number of thing that stink. >> this man is remorseless. >> the electric chair, flashed in front of my eyes. >> get a convict, 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. little rolling hills. neighbors know each other. of course all military families. within a mile of the, fort bragg base itself. >> but on summerhill road something seemed amiss at the home of the eastburn family. >> the neighbor noticed the newspapers in the driveway were piling up. her husband was out of town. that naturally raised curiosity. >> he went and peeked in the

window and heard the baby crying. then he called the authorities. >> i received a call from, the dispatch, it was a homicide on -- on summerhill road. when i got there, there was one deputy who had been in the building. his eyes had teared up. pulling his hat down. shaking his head. he said, i don't understand this. >> the baby was taken to safety. and detective biddle and his partner entered the house. >> as we went down the hallway, the bedroom on the left-hand side. the first daughter was in there. 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 wound through the blanket. we went further to the master bedroom. the youngest child, was laying there, on her back, her throat had been cut, all most decapitated. and on the right-hand side,

facing the bed, was the mother. the bra was up around her neck. her panties had ben cut off of her. she had 14 stab wound. >> 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 heard to explain. you just stop. the world stops. >> 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 are going to find out who did this. >> there was aefs all over that

house. they found a head hair in miss eastburn's head. they found a head hair on kara's chest, found a pubic hair at the scene of the rain. they found finger prints all over the house. they had bloody footprints. they had a semen sample. they were certain that physical evidence would lead them to who ever killed this family. >> after walking through the house, gar eastburn also appropriate vieded a tantalizing lead. >> they were going to move off to england, when captain eastburn got done with training in alabama. the family had decided to sell their dog. so they put an ad out. in their local fort bragg bee. and katie wrote a letter saying a nice man came out tuesday night about the dog. we had no idea who've it was. but any body in and out of the house we wanted to talk to. >> outside the crime scene, some one approached investigators with critical information from

the night of the murders. >> there was a young black male had come. coming from his girl friend any 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, a members only black jacket. stocking cap, had a mustache. they passed on the road. this person said i am gemming an early start this morning frpt he got into a white chevette, and drove off. i took pat down to the sbi lab. and they did a come potz it. and, i said, are you sure? this guy has got, a black man's nose and droopy lazy eye. he said, that's what i saw. six days after the murders, police put ow a call for the man who adopted the eastburn's dog. army are gent timothy hennis home for lunch, his wife, daughter, new dog, heard it on

the news. >> his wife angela said, buddy that's you. so 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. i look at hip. and i look at that composite. and i said, oh, my goodness. this is our man right here. >> they put together a photo lineup. he eventually settled on number two. which was tim hennis. i said are you sure? he said i am sure. >> he also in the parking lot picked tim henni''s white chevette, and said that is the car. hennis was in the sheriff's department. he was being cooperative. they wanted samples of his hair, blood, saliva, which he gave. about midway through he realized he was becoming a suspect. getting madder, madder, madder. >> he is the most arrogant human being i have ever seen in my

life. he just felt look you can't touch me. well, yes, we will touch you. we reached out and touched him. >> at 1:00 a.m., shave riffs arrested timothy hennis. they charged him with rape and capital murder. he was face the death penalty. the arrest of a sergeant from the nation's largest army base sent shock waves through the tight-knit community around ft. bragg. the most patriotic city in the country. if somebody is murdered out of the blue. that stirs the blood in fayetteville. >> any idea who would do this? >> well she was getting sochl strange phone calls. >> skrully. don't be giving no idea who did something. >> i am not giving no idea. would you, just look. >> they get outraged. justice must be done. >> to defend their son, tim hennis' parents hired two lawyers, jerry beaver, and billy richardson. >> i thought tim was guilty as all get out. so i didn't particularly care

for tim. but of the law school i went to strelsed the importance of taking unpopular cases. >> in the days afterwards. the news got worse for tim hennis. angel la hennis was gone. in the middle of the morning he dragged a barrel out, and started burning stuff. something his neighbors had never seen him do before. >> i don't know what it was. it was something he burned. >> later on the cleaners called us, and said that man you all have arrested. brought the black members only jacket into my cleaners. friday. doesn't it look suspicious to you. katie eastburn's stolen bank card used twice on friday night, and saturday morning. $150. found tim hennis was late on his rent for the tune of $300. he paid on monday. we really thought he was guilty. there was a lot of physical evidence that was being tested.

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

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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 brutal murder of katie eastburn and two little girls age 5 and 3. hennis' lawyer had come to believe in his innocence. >> i was totally convinced watching him interact with angela, 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. >> done here we didn't have the, the equipment and the facilities that they have up north. we had no dna done here. when this crime occurred. i would have looked to have a finger print. left a shoe. thought we could tie him to it. i 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, couple of times nu had to break up fist fights. >> the prosecutors called it the show. they wanted to emphasize how gruesome the murder was. so they built a screen that took up the wall. they took slides of karen and erin eastburn, 5 and 3, on an autopsy table, splay out with no clothes. >> tim is sitting there going what do i do sni? if he acts like it is not bothering him, a cold-blooded killer. emotionally upset. looks like he is expressing guilt. what can you do? >> want on for two days. slide after slide after slide. >> felt like i was in a slam dunk competition with michael jr. dan. >> prosecutor william vanstory

told the jury the motive had been sex. >> tim hennis' wife was out of town. had a new baby. decided to make a passion at the married mother of three from whom he had gotten the dog. that didn't go well. >> hennis thinks he is playing. no, you read this wrong. just a friendly person. then with that temper of his, he lost it. >> billy richardson emphasized the lack of physical evidence to the jury. but prosecutors are gud the absence of blood on hennis' members only jacket was in evidence of his guilt. >> kept saying there was no blood. he took his jacket to the dry cleaners. >> the jacket was a damning piece of evidence. >> richardson also undercut, eyewitness, pat comb, who ided hennis leaving the home. and, he videotaped pat comb, at

the crime scene. >> when you start listening to his story, he is all over the place. >> you bought her roses on a sunday. >> that wasn't roses. that was candy. you know what that was roses. we started asking, are you sure about this. now i am out here looking at, i probably couldn't see what i said i saw. >> no, no, no. i can't say that. >> on the witness stand, cone cast aside any doubts. >> he said the lawyers have been tricking me. been pressuring mere. 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. >> the state introduced lucille cook. used the card after the killer did. >> she told us she didn't remember. >> she said i didn't tell you the truth. there was a big tall, white man, mustache, blond headed, got into

the tiny white card. >> the man who used the card right before i did. pointin ing ing at tim hennis, jury look right at her. i went into the bathroom and through up. >> the jury deliberated for three days. 5:15 friday afternoon. and the jury knocked. he was guilty on three counts. he would get the death penalty times three. tim hennis could hear his father sobbing in the courtroom. he had never heard that. >> when the jury said "he's guilty" you still had faith he was telling the truth. >> always. never once. >> not a doubt in your mind? >> no, never. >> that time i felt like i did work for god. we got him and it just felt good. this is the one case that truly screamed out for the death

penalty. >> tim hennis spent his career serving the military. now, he was serving time on death row. but not long after his arrival, hennis received a mysterious letter. >> it said, mr. hennis, i did the crime. you are doing the time. mr. x. >> the letter provided no concrete leads. only adding to hennis' torment. >> he got visits from his family. from his daughter, who is now 2 1/2 years old. and she would bang her hands on the plexiglas, she would say "open it, daddy. open it. why won't it etch oopen." >> richardson felt response bum f -- response bum for his client's predicament. >> i made up the mind right then and there.

i will 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 desticide what to emphasize, from mishandling evidence to possible perjury. >> they settled on the photographs. >> that presentation was thought to have riled up the jury. it was pointed out to 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. >> they just broke all of our hearts. we had to call gary and say you got to go through this one more type. >> billy richardson reinvestigated every aspect of the case. >> weep we were so much better prepared for the second trial. when weep 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. someone used katie eastburn's bank card. >> tim hennis had 24 hour duty with his unit. he didn't believe. people in the division remember him gluing shingles on a doll house. >> army paperwork that would have confirmed hennis' where abuts had gone missing. >> army pay earthquaperwork is . we looked for it. looked for it. a check out sheet for every day but that day. so the prosecutor had a field day. >> but for the second trial, richardson discovered why the paperwork had gone missing. >> the reason they couldn't fine it, because the prosecutors had it. they didn't make a kep copy and leave it. they 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. >> richards had uncovered information that would undermine eyewitness pat cone. >> pat ken hcone helped them ou between trials. he was arrested using a stolen bank card. patrick cone was drinking, disruptive. the state dropped the case. he was then to tell people that, that -- the state couldn't touch him. he was a prime witness. >> pat is not a strong willed person. nice guy. don't misunderstand me. but he got in a little trouble. >> still, richardson wasn't sure he could convince ape jury that cone had lied about seeing hennis. until a new piece of evidence was found. literally lying on the sidewalk.

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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. he goes to the sheriff avenue department. pretending he is investigating another case. if he let on he was investigating this case. it would set off bells and whistles. >> sure enough, the lost wallet belonged to a fellow. named sean buckner. >> a close friend of pat cone, the prosecutor's star witness. the letter in buckner's lost wallet called cone's testimony into question. >> it talked about pat's doubts. pat cone told sean buckner and fiancee about his doubts to the point where they wrote each other a letter about it. richardson flew to louisiana where buckner was in training with the air force. but when he got there, buckner closed the door in his face.

>> he didn't want to get involved. sean buckner had a dilemma whether to betray his friends. and help free some one who may be wrongly accused of triple-murder. and, it was a tough one. sean buckner had no rooeason. >> richardson came home empty-handed hoping buckner would change his mind. >> the retrial of timothy hennis began february 27th, 1989. almost four years after the brutal murders of gary eastburn's wife and daughters. >> the state went into it thinking it would be a replay of trial one. meanwhile the defense had entirely different case. >> this time, hennis would testify. >> we just really drill him. filmed him. 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. >> did you do this crime? >> no, i did not. >> we felt if he showed rage or

emotion. the jury would say, look, he can get to that point. how does this make you feel? >> extremely upset. and angry. >> on cross-examination, the prosecution confronted hennis with athe alleged motive. >> the prosecutor said you lost your cool. went in there tried to have sex with her. when you failed. you snapped and killed her. >> trying to provoke hennis on the stand the he had to say, no i did not. >> he said i never had sex with that woman. that never happened. >> when it was over they had not gotten the reaction they wanted to see himmen ein a different l than the first jury made a huge difference. >> the first trial the absence of blood on hennis' jacket helped convict him as the expert insisted dry cleaning removed any bloodstains. richardson saw it differently. >> i talked to the dry cleaner. he said you have to use a special chem cical to remove

blood. i said did you use it in this case? he goes no, i use ordinary dry cleaning. >> when the prosecution challenged dry cleaner knowledge. richardson was ready with his own expert. >> the chemist got a members only jacket. put blood on it. took the jacket to a dry cleaner. ran a luminol test. glowed bright as can be. >> hennis' members only jacket had no signs of blood. richardson turned the prosecution's evidence against them. richardson was also prepared for lucille cook who swore she saw hennis at an atm. >> lucille cook made dozens of atm transactions could sunny remember any of those? she could not. bank logs show a 3:35 minute gap between the victim's card being used and cook's transaction. >> that doesn't seem like a lot

of time of until you sit there and time it. we had the jury sit there to see how long it was. >> it was the longest 3:30. >> why would the killer wait 3:30 until some one 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 soulsearching, sean buckner agreed to testify against his old friend. >> he testified that pat cone was extremely drunk that night. that in adiagnosis to that he had doubts about what he saw. >> patrick told sean buckner, i feel like i am sending an in know isn't man to prison. >> but richardson knew he had to answer one last question. >> in the back of their mind, the jury is still saying the kid saw something. if it wasn't your client, who was it?

>> so richardson called his next witness. >> the back doors burst open. in the courtroom, turned and looked around. prosecutor says, "who is that?" >> as clegs ose to a perry maso moment i ever had. >> lead detective goes "we're in trouble." an unprecedented program arting busithat partners businesses with universities across the state. for better access to talent, cutting edge research, and state of the art facilities. and you pay no taxes for ten years. from biotech in brooklyn, to next gen energy in binghamton,

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>> defense attorney billy

richardson always wondered if it wasn't tim hennis, who did eyewitness pat cone see near the eastburn home on the night of the murders. >> billy was going door to door. interviewing every neighbor. found one couple. why don't you talk to the kid who walks the street. >> she says, i have seen that fellow all the time. he walks the neighborhood all the time. didn't know who he was. billy did a vigil. it became this quest for this mythical 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. that 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, lived down the street from the eastburns. he was an easy sleeper.

and he had a habit of walking the neighborhood. on summer hill road. at 3:00:00 in the morning. he was a big blond kid with a blond mustache. >> it just fit. 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. the defense calls john, and at 3:30 in the morning. couldn't help but think could that have been who heap saw on the road. >> here is a noanother tall whi blond. walking down the street. >> just one of the magical moments. in the courtroom. the walker gave the jury a roone to have reasonable doubt. gave them of a roone to say it wasn't tim. gave them a reason to say it wasn't tim. >> when the walker took the stand. richardson asked what he wore down his nightly walks down summerhill road. >> he often wore a beanie hat. an he had a members only jacket.

black members only jacket. >> after the walker's testimony, the defense moved to have the case thrown out. >> the defense accused the prosecution of outright cheating. because it turned out the prosecutor's knew exactly who john was. >> the state, basically hidden from us. >> as the jury began deliberating. richardson toemd told the judge what he discovered about the prosecuti prosecution's conduct. >> they brought him in. took the jacket and hat. took it from him. put it in the trunk of one of detective's cars. they returned it to him after john hennis was on death row. that could have tilted this the other wayen the first trial. >> we just got plain mad at that point. all right, i have 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." 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. >> i just broke down and started crying. i knew what they had been through. next to mary and my wife -- next to marrying my wife, next to the birth of my children, that was probably the happiest day of my life. >> and live with the family and felt what they've been through. and it is just a tremendous, tremendous load taken off our shoulders. >> the jurors came out. they hugged tim hennis. they were adamant they ned to reinvestigate the case and quit picking this guy. >> talking about hennis, has he

not suffered enough? the man had 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. if he dies, we live with it. >> in the years that followed, the hennis case became a textbook example of wrongful prosecution. scott wisenut spoke about the case, even adapted into a tv movie. >> this case put people on notice that not everybody sitting in prison is guilty. north carolina, now has a commission that actually has released a number of innocent people. >> despite all the attention to hennis' acquittal, the eastburn murders would go unsolved for another 16 years. until 2805 when scott wisenut spoke about the case at a criminology seminar.

fayetteville detective, larry trotter was in the audience. >> the premise, there were unknowns out there. people that may not have been interviewed. or their friend or evidence. >> if he is innocent. who is guilty. the state didn't pursue it for 17 years. why isn't some body trying to find who is guilty. >> somebody was stalking that woman for weeks. ms. eastburn was write herring husband. saying there is a fool out there. following me. i don't like it. what do i do about it? why isn't that being looked at? who does it lead to. >> after wisenut discussed the evidence. detective trotter approached him privately. >> he said i just want you to know that the way they investigated the case 20 years age we are not like that anymore. i said, some body 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 off to review cold cases.

>> we had well over 100 unsolved cases at that time. i want through the docket. i realized they had a vaginal swab taken from ms. eastburn during autopsy. never sent out for testing. when the murdered happened. dna was in its infancy. best thing was send it for testing. >> for two decades. gary eastburn had lived without closure of the devastating murder of his wife and two daughters. >> he have done great injustice for this man. if he stood up would he have withstood >> you want to make sure you get this right. >> in may, 2006, the state crime lab contacted the sheriff's department. they found a positive match for the dna. detective bidle called gary eastburn to call him the news. >> i said, you sitting down? he said, yeah, why? >> i said. take a deep seat. i got something to tell you. they're custom made trains.

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after tim hennis was freed from do from death row he didn't know where to turn. >> i feel diminished. worn out, dragged down. don't have the self-confidence or reliability you once had. >> his lawyers told him, get out of the army. it's just a bad place to be. but he had 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,

desert storm. honorable. tim's supervising colonel told me he was without a doubt the best nco he ever worked with. >> retired in 2004. he is good at being a husband and father. he and angela had a son they never would have had if he hadn't gotten his life become 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. he called the victim's father to give him the news. they got a hit on the dna. i said, who is it? i said hennis. >> you could have knocked me over with a feather when i got the call. hit with a wave of emotion. i don't believe it. >> i was so happy. 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 upside the head with it. >> i was convinced that if anybody could ever run an actual dna on the sample they would find some one other than tim hennis. i believed it in 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, state is not going to try him again. >> we fought a war before the king could try some one over and over for the same offense. my founders put in the constitution, that there will be no double jeopardy in this country. >> i understand that. but of i think there might be certain cases like this, that the dna now, it says he was the

man who raipd thped this woman killed her. you should be able to. some how the judicial system is going to have to work around there. >> the da's office decided to see if the army was interested bringing him back off retirement and trying him for the murders. >> a team of lawyers from the ranks helped evaluate the case for the army. >> my personal yn oopinion why is important. the military sent gary eastburn for duty in alabama. his family was left behind. and they were murder. i'm sure there was debate within the military. it's high-profile. 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 fort bragg he was charged with three counts of murder.

>> tim hennis in 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 the not happened before. however, legal analysis of it actually was pretty simple. it is, obviously well-settled law. nothing the state does affects what the federal government can do. >> making claim that is under a 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 on the sidelines, the court martial of timothy hennis commenced march 17, 2010. the prosecutor's case hinged on the dna results. >> the sperm find in the vagina of ms. katherine eastburn, raped and slaughtered her and her children, that's timothy hennis'. >> when it erupted at the state lab, the dna evidence of timothy

hennichlt s would be thrown into question. >> they were mixing up dna samples and almost put an innocent guy in prison. performance with a conscience. this is volvo innovating for you.

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♪ >> in 2010, timothy hennis went on trial for a third time. for the murders of katie eastburn and her daughters. but a scandal rocked the state lab that identified hennis' dna. the lab had been skewing results to help prosecutors. awe off t >> 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 of preserving the evidence. three people had been arrested for evidence tampering. >> hennis' lawyers asked for 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's slide came back on every marker to the defendant, tested by army crime lab, you had two chains of custody. the defense could not attack the slide. >> for prosecutors the dna results swept away all previous doubts. >> they went back and replayed the first two trials. some of the old discredited inferences. >> patrick cone, seeing timothy hennis coming down the drive way. the fact that, hennis took a members only jacket to the dry cleaners. using the atm card. you had numerous pieces of evidence that tied him to this crime. >> for hennis' defenders the prosecution's case had serious flaws and their top priority was getting their own evidence in front of the jury. >> there is a ton of physical evidence in the house that they still can't explain. they found a head hair in miss

eastburn's bed. it is not tim hennis. there is a pubic hair where the crime took place. >> what is male dna under miss eastburn's that is not tim's. male dna that is under the daughter's fingernail that is not tim's. >> the defense and prosecution agreed on that. nothing else came back to timothy hennis. underneath the fingernails that a not timothy hennis. what is is the vaginal swab. >> to me, male dna evidence underneath the fingernail of a woman who is raped is pretty damaging evidence. who is it? >> the fingernail scrapings weren't enough for a full dna pre fi profile. so the defense asked to test all the crime scene evidence that might point to a different perpetrator. including a blood soaked towel. >> now who ever had sex with her didn't necessarily kill her. but you can't are gau thgue tha ever 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 need to ask a judge to make the army do it for you. >> the judge denied the defense's request to test other items. >> i can't imagine a judge in a civilian court not alug that. you had the evidence. why not test it? >> without dna results pointing to a ditfferent suspect, hennis lawyers decided to offer alternate information for the incriminating sperm. >> at the very end they threw out the theory that tim hennis had consensual sex with mrs. eastburg within a day or so of the homicides. >> when he said that, you could feel tit leaving the room. everybody "i don't believe he said that. ". >> certain things you can do in front of a jury. certain things you can't. it would not have been how i would have didn't. >> the 14-person court martial jury declared unanimously that timothy hennis was guilty of murdering katie eastburn and her

children. their next task would be to decide whether hennis deserved the death penalty. >> when you got a man that for 25 years after this occurred did nothing but raise his family, serve in two wars, honorably discharged, still married to the same woman, why are you just going to look and say that's the monster. >> he lead prayers in church. gives cookies to kids. doesn't make any difference. >> we're not there to say how, why did he do it? we are there to say "he did it." >> the prosecution presentation with another slide show. >> gary counted out the birthdays he missed with his daughters. anniversaries. baptism. >> one of my trial partners

asked gary, what do you miss the most? and just from his heart with tears in his eyes, just said, "i just miss them." >> on april 15th, 2010, the jury sentenced him thtimothy hennis death. >> i feel vindicated -- do i feel vindicated for some things you heard, when they got a not guilty, when the smiles and smirks you see from certain people you. are damn right i do, yes s. ir feel vindicated. >> tim hennis sits in solitary confinement at for the leavenworth, kansas. his appeals in the military and federal courts could take decades. >> i still think tim's innocent. but i am not his lawyer now. and it would be totally improper for me to sit down and say, "all right, tim, did you? didn't you?" i am dying to have that conversation with him. but 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 of this is going to be. but this is a good case. i know we were right. i think it is a good system. ♪ . >> 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 he talks about his murderous decision making. >> does it bother you that they're dead?