everybody in the whole world. on this episode of "death row stories" a triple murder of unimaginable brutality. >> this is the one case that screamed out for the death penalty. >> an accused soldier who can't even convince his own attorney. >> i thought that tim was guilty of all get out. >> until the prosecution's case fell apart. >> i felt like i was sending an innocent man to prison. >> and then the state's case takes a shocking turn. >> he said, take to a seat, i have something to tell you. >> there is a body underwater. >> 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, and let the truth fall where it may. ♪ mother's day 1985, a beautiful morning in fayetteville, north carolina. >> the dogwoods were blooming, rolling hills. the neighbors know each other. and it is within a mile of the fort bragg base, itself. >> but there was something amiss at the home of the eastburn family. >> the neighbors noticed that the newspapers in the drive way were piling up, and they knew that the husband was out of town. so that naturally raised

curiosity. they went and peeked in the window and a heard the baby crying, and then he called the authorities. >> i received the call from the dispatch of a homicide on the somerville road. when i got there, there was one deputy who had been in the building. his eyes teared up and he had his hat down and shaking his head and 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, we looked this the bedroom to the left-hand side, and the daughter who was in the first grade was still in bed and had a star wars blanket pulled up around her neck. she was stabbed ten times. you could see the stab wounds through the blanket. we went further to the master bedroom, and the youngest child was laying there 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 of her, and she had 14 stab wounds. >> the victims were katy eastburn, age 32, kara, age 5, and erin age 3. >> after that homicide, at night, i could close my eyes and see the children. >> and her husband gary was an air force captain. he rushed back from training in alabama. >> it is hard to explain. you just stop. the world stops. >> when you looked into his eyes, there was a void there. it tears your heart out. but you have to gather yourself, because you have a job to do. we will find out who did this.

>> there was evidence all over that house. they found head hair in ms. eastburn's bed. and they found a pubic hair at the scene of the rape. they found fingerprints a all over the house. they had bloody footprints. they had a semen sample. they were certain that physical evidence would lead them to whoever killed this family. >> after walking through the house, gary eastburn also provided a tantalizing lead. they were going to move to england when he finished train ing in alabama. the family had decided to sell the dog, so they put an ad out in the local fort bragg bee and katy eastburn wrote a letter to her husband saying that a nice man came out to get the dog. >> we didn't know who it was, but anybody who had been out to that house, we wanted to talk to. >> outside of the crime scene someone approached investigators with critical information from

the night of the murders. >> there was a young male named patrick cone who said that he saw a big white dude walking down the driveway. he had blond hair about 6'2" or 6'3" and he had on a members only jack jacket and a stocking cap and a mustache. >> they passed on the road and the person said that he he was getting an early start that morning and got into the white chevette and drove off. >> i said this man has a black man's nose and a droopy eye. >> he said, that is what i saw. >> and six days after the murders, the police put out a call for the man who adopted the eastburn's dog. the sergeant who was home for lunch with his wife and new daughter said, hey, that is you. >> he said, hey, that is you.

so he packed up and went to the sheriff's office. >> i stopped in the track, and i looked at him and i said, this is the man right here after i looked at the composite. i said oh, my goodness, this is our main man. >> they put together a photo lineup, and settled on number two, and that is tim hennis. he said, are you sure? and he said, yes, i am sure. and he picked out the white chevette, and he said, yes, that is the car. he was being cooperative and they wanted samples of the hair and the blood and the saliva which he gave and midway through, he realized that he was the 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 ever saw 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., the sheriff's arrested timothy hennis and charged him with rape and capital murder. he was charged with capital murder and he will face the death penalty. the arrest sent shock waves through the nation. >> fort bragg is the most patriotic community, and when somebody is convicted of murder, that just stirs the community. >> any idea who this would be? >> well, she was getting some strange phone calls. >> don't you give any ideas who it might be. >> i ain't giving no ideas. >> and to defend their son they hired two young lawyers. >> i thought that tim was guilty as all get-out, so i didn't particularly care for tim.

but the law school i went to stressed the importance of taking unpopular cases. >> and then days immediately afterwards the news got worse for tim hennis, and he had no alibi and angela hennis was out of town, and in the middle of the night he drug a barrel out to burn stuff. something that his neighbors had never seen him do before. >> i don't know what it was, but something that he burned. >> the lady who owns the cleaners and he said that man that you all arrested brought that black members only jacket into my cleaners friday, and didn't look suspicious to me. >> the bank card of katy eastburn had been used twice. >> and there was a lot of physical evidence that was being tested and if any physical evidence came back to tim, he

was dead. so we wanted him to come in ahead of time to get him to plead before it came out. >> but to richardson's surprise, hennis refused to consider a plea deal. he said something that haunted me. he said, they can test whatever they want, i was not in that house, i did not do it, and it is just that simple. >> and when the lab reports with blood type, footprints and fingerprints came back, they corroborated hennis' account. >> the physical evidence had not matched tim hennis. none of it had. >> inconclusive or negative. inconclusive or negative. not a shred of physical evidence linked him to the crime. >> and so then the viewpoint was i must get this man exonerated, because i believe you. >> someone other than my client committed this crime. >> from that point on, i was totally convinced that he was innocent. >> but even without physical evidence to link him to the crime, tim hennis was about to go on trial for his life. (vo) dogs have evolved,

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fifteen minutes could save you fifteen percent or more. before he adopted the eastburn's dog in 1985, sergeant tim hennis had a steady job in the military and growing daughter he was devoted to. and then hennis was arrested for the brutal murder of katy 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 good 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, semen found at the crime scene none of it linked to hennis. >> down here, we didn't have the equipment and the facilities

that they have up north. we had no dna down here when this crime occurred. i would have liked to have had a fingerprint. he left a shoe or something that he dropped to tie him to it, but i thought that we had enough to justify the case in the trial. >> the trial began on may 27th, 1986. >> everybody wanted in that courtroom. the bailiffs a couple of 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 the slides of katy and jana eastburn on the autopsy table and spread it out with no clothes. >> and he said, what do i do if it is not bothering him, because he is looking like a cold-blooded killer, and if he

is looking upset, then he expresses guilt. what can he do? >> this went on two day, slide after slide after slide. >> i felt like i was in a slam dunk competition with michael jordan. >> prosecutor william van story also told the jury that hennis' motive was sex. >> his wife was out of town, and so his wife had just had a baby, and so he decided to make a pass at the the mother of the dog. >> and he said, no, i am a friendly person, and with that temper of his, he lost it. >> billy richardson emphasized the lack of physical evidence to the jury, but prosecutors argued that the absence of blood on hennis' members only jacket was evidence of guilt. >> they kept saying that there was no blood because he took the jacket to the dry cleaners. >> the jacket was a damning piece of evidence. >> and richardson also undercut

pat cohen who had i.d.'d him leaving the richardson home. and he videotaped him in a tour of the crime scene. >> when you start to listen to story, he is all over the place. >> and i brought my girlfriend some roses. >> you brought her some roses on sunday. >> no, it was candy. no, it was roses. >> we kept asking, are you sure about that? >> and he said, well, you are right, now that i am out here, i probably didn't see that. no, no, no i can't see that. >> but on the witness stand, cone cast aside doubt. >> he said that the lawyers have been tricking me and pressuring me, and i picked out the right

guy. >> finally, prosecutors presented a surprise witness. a woman who said that two days after the murder, she saw the killer using katy eastburn's stolen bank card. >> and then they produced a witness that said the killer used the bank card. >> and she said, i did not tell the truth the first time, because it was a tall white man with a mustache, a blond headed guy, and he got into the tiny white car. that is the guy who used it before i did. and pointed right to tim hennis, and that is who was sitting right there. >> after she testified, i went into the bathroom and just threw-up. >> the jury deliberated for three the days. >> it was a quarter of 5:00 on a friday afternoon when 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 before.

>> when that jury said that he is 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, because i felt that we got our man, and this is the one case that truly screamed out for the death penalty. >> tim hennis had spent his entire career serving the military, and 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, and you are 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 plexiglass and say, daddy, open it, open it. why won't it open? >> billy richardson felt responsible for the client's predicament. >> we did not do as good of a job as we were capable. so i made up my mind right then that i was going to be the lawyer that i was supposed to be. so i got off of my butt and i went to work. >> they quickly filed an appeal to the north carolina supreme court, and they had to the decide what to emphasize from the mishandling of evidence to possible perjury. >> they quickly settled on the photographs. that presentation was thought to have riled up the jury and pointed at him over and over again and you see that picture? he did it. you see that picture? he did it. >> our supreme court didn't just read the briefs but they got a projector and saw the show

themselves, and within 22 days, they said, give them another trial. >> it broke all of our hearts, because we had to call gary and say, you have to go through it 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 that we didn't know at the first trial. >> richardson began with hennis' alibi for the night after the murder when somebody used katy eastburn's bank card. >> tim hennis had 24-hour duty at fort bragg with his unit. he could not leave. the people in his division remember him gluing shingles on a dollhouse for the infant daughter. >> but army paperwork that would have confirmed it, went missing. >> the army paperworks everything, paperwork for paperwork. >> we looked for that and looked for that, and there was a checkout sheet for everything

but that day. so the prosecutor had a field day. >> but before the second trial, richardson discovered why the paperwork went missing. >> the reason why is because the prosecutors had it. they didn't take a copy and leave it, they just took it. so this piece of evidence that would have exonerated him in 1986 was kept in the prosecutor's custody all of that time. >> and richardson also uncovered information that would undermine eyewitness pat cone. >> pat cone had helped them out in between trials and he was arrested using a stolen bank card. on another occasion, he was drinking and being disruptive, and the state dropped the case. and he is known for telling people that the state couldn't touch him, because he was a prime witness. >> and pat is not a strong-willed person, a nice guy, and don't understand me, but he got into trouble there, but it was minor things. >> and still, richardson was not sure he could convince a jury

that cone had lied about seeing hennis, until a new piece of evidence was found. literally lying on the sidewalk. it takes a lot of work to run this business. but i really love it. i'm on the move all day long... and sometimes, i don't eat the way i should. so, i drink boost to get the nutrition i'm missing.

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as defense attorney billy richardson re-prepared for the retrial of tim hennis, new evidence turned up on the sidewalk in fayetteville. >> the deputy who picked it up

noted that there was a letter in it. and the letter said that tim didn't do it. and you were hearing rumors like that. >> and billy goes to the sheriff's department and he has to pretend that he is investigating another case, because if it was this case, it would have set off bells and whistles. and sure enough, the wallet belonged to a fellow named shawn buckner. >> it belonged to a friend of pat cone, the prosecution's star witness. the letter called his testimony into question. >> that letter called his testimony into doubts. it told his fiance about doubts, and to the point they wrote each other a letter about it. >> so richardson flew to louisiana where he was in training with the air force, but when he got there, buckner closed the door in his face. he did not want to get involved. >> he had to decide whether or not to betray his friend and help someone wrongly accused of a triple murder. and shawn buckner had no reason to help tim hennis.

>> he came home empty handed hoping that buckner would eventually change his mind. the retrial of timothy hennis began on january 27th, 1989, almost four years after the brutal murders of gary eastburn's wife and daughters. >> the state had a re-trial, but the defense had an entirely different case. >> we were going to drill him and film 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. >> and we felt that if he showed rage or emotion, the jury would say, there, you see, he could get to this point. >> how does this all make you feel? >> extremely upset and angry. >> on cross-examination, the prosecutor confronted hennis

with the alleged motive for the murder. >> the prosecutor says that you lost your cool, and went in there and tried to have sex with her, and when she refused you snapped and killed her. >> and they were trying to provoke him on the stand and he had to calmly say, i did not, i did not. and he said, i never had sex with that woman, and it did not happen. and when it was over, they did not get the reaction they wanted, and it was a different light that the jury had seen, and it made a huge difference. >> in the absence of the blood on the jacket made a difference in the first trial insisting that the dry cleaner had removed the blood stains. but richardson saw it differently. >> and the dry cleaner said that you have to use a special chemical to remove blood. i said, did you use it in this case, and he said, no. >> and so when they challenged it, richardson was ready with his own expert.

>> this chemist got some blood and put it on a members only jacket, and then put some luminol on it, and it e glowed right there. but hennis' on the other hand had no sign of blood. so richardson had turned the prosecution's evidence against them. and then lucille cook who swore she saw hennis at the atm. two days after the murder. >> lucille cook had made dozens and dozens of transactions around the time of the murder, and asked her if she could remember those, and of course, she could not. >> there was a gap of time between her transaction and the transaction used allegedly by tim hennis. it was 3 1/2 minutes. >> well, it does not seem like a lot, until you sit there and time it. we had the jury sit there and time it 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 that they got in the jury room and laughed at her. >> and now it was time for richard to go after the state's star witness, pat cone. after some soul searching shawn buckner agreed to testify against his old friend. he said that pat cone was extremely drunk that night, and in addition to that, he had doubts about what he saw. >> and patrick had told shawn buckner that he felt like he was sending an innocent man to prison. >> but richardson knew he had to answer one last question. >> in the back of their minds, the jury is saying that the kid saw something, and if it weren't your client, who would it be?

>> and so the next witness -- >> the back doors opened and everybody turned around and the prosecutor said, who is that? >> that is as close to a perry mason moment as i have had. >> and the lead detective looked and said, we are in trouble. is that lionel richie? let's reopen the market. mr. richie, would you ring the 24/5 bell? sure can, jim. ♪ trade 24/5, only with td ameritrade. ♪ ♪ i'm jimmy, this is my definition of fresh since 1983.

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defense attorney billy richardson had always wondered, if it wasn't tim hennis who did eyewitness pat cone see at the eastburn home on the night of the murders? >> billy was going door to door to talk to every neighbor, and

he said, talk to that kid who walk the street? she said, i see that kid all the time. he walks the neighborhood all the time. and they didn't know who he was, so billy did a vigil and it became this quest for the mythical figure for the walker. >> you can win the case for the walker. so i sat there for six weeks. >> richardson even hoped that he might find the real perpetrator, but he came up empty handed. and then before the second trial, richardson hired an investigator the renew the search, and finally, they found the mystery man, no murderer, but a high school senior who worked at the lope's supermarket. >> a kid by the name of john rupauh, and he had a habit of walking the road, and he was a big blond kid with a blond mustache. >> and it fit, fit like a glove.

>> during the retile trial, richardson kept the information from the prosecution for maximum impact.ile trial, richardson kept the information from the prosecution for maximum impact.le trial, richardson kept the information from the prosecution for maximum impact.e trial, richardson kept the information from the prosecution for maximum impact. trial, richardson kept the information from the prosecution for maximum impact.trial, richardson kept the information from the prosecution for maximum impact. >> the back doors burst open. >> and at 3:30 in the morning, you wonder if that is who patrick cone saw on the road. >> this is another tall white guy blond walking down the street, and it is effective. >> it is one of those magical moments in the courtroom, and the walker gave that jury a reason to have reasonable doubt. it gave them a reason to say it was not tim. >> when the walker took the stand, richardson asked what he wore on the nightly walks down summerhill road. >> he 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. >> the defense accused the prosecution of outright cheating, because it turned out

that the prosecutors knew exactly who john raupaugh was. >> the state basically hid him from us. >> and then the attorneys told the judge what they discovered about the pro cougs cougs's conduct. >> they had him bring the jacket and the hat and they had taken it from him, and they had put it in one the trunk of one of the detective's cars, and returned it to him after the trial. fr and that is the type of evidence that could have tilted the evidence in his original trial. >> and we were plain mad at that case. >> you get mad enough you go another way. >> we had sat there in the courtroom to thinking that he had been guilty to not sure that the jury will not find him guilty, to then they will find

him guilty, to not. >> and then after three hours the jury announced the verdict, not guilty on all counts. >> we just broke down and started crying, because i knew what they had been through. and next to marrying my wife and the birth of my children, that is probably the happiest day of my life. >> knowing what they had been through, it is a tremendous, tremendous load off of my shoulders. >> the jurors came out, and they were adamant that they needed to reinvestigate the case, and quit picking on the guy. >> why were they bothering this poor man and has he not suffered enough? talking about hennis, and hasn't he suffered enough? he had killed two children and a woman. and how much will he suffer for

the rest of his life. >> like it or not, tim is our client and if he dies, we will live with it. >> in the years that follow, the hennis case was the textbook case of wrongful prosecution. scott whisnant spoke about the case, and it was adapted into a tv movie. >> not everybody sitting in prison is guilty. north carolina now has a commission that actually has released a number of innocent people. >> despite all of the attention to hennis' acquittal, the eastburn's murders would go unsolved for 16 years until 2005 when scott whisnant spoke about the case at a criminology seminar, and he spoke at a seminar with larry fayetteville was in the audience. >> there were potentially other evidence out there.

other people not interviewed or other forms of evidence. >> well, if he is innocent, who did it? the state of north carolina did not pursue it for 17 years, and so why didn't they try to find out who it was. >> somebody was stalking that woman for weeks. mrs. eastburn was writing her husband saying somebody is 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 the evidence was discussed, then he 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 any more. someone should be investigating this case. it should be solved now. technology is improved. that's how we left it. >> in fact, trotter had been assigned by the sheriff's case office to review cold cases. office to review cold case >> we had over 100 unsolved

cases, and as i went through the docket, i realized that there was a vaginal swab that never had been sent off for testing, and when the murder happened, dna was in the infancy, and the obvious thing was to send it off for testing. >> for over two decades gary eastburn had lived without closure for the devastating murder of his wife and two daughters. >> we had done a great injustice to this man. and how he withstood it, i don't know. you just wanted to do something for him, and you wanted to find out who did this. >> in may of 2006, the state lab contacted the sheriff's department and said 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 seat. i got something to tell you.

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after tim hennis had been freed from death row in 1989, he didn't know where to turn. >> i feel very diminished and very worn out, dragged out. i don't have the self-confidence and reliability that you once had. >> his lawyers told him to get out of the army, and it is a bad

place to be, but you have been on death row, and there were not a lot of employers who would take that on, and 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 and desert storm honorably, and tim's supervising colonel told me that he was without a doubt the best nco that he had ever worked with. >> he retired in 2004 and he and angela had a son who they would not have had if he had not gotten his life back together. >> but tim had no idea that the eastburn case was about to be breaking wide open. >> in 2006, a rape kit yielded new results. and the prosecutor called gary eastburn and said that there was a hit on the dna. and he said, who? and they said hennis.

>> you could have knocked me over with a feather. just hit with a wave of emotion. god, 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. it was just like somebody had taken a 2x4 and hit me upside 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, and i believed it with every fiber of my being. >> but the shocking dna results led to a pragmatic question. >> what do you do now? timothy hennis had been

adjudicated and not guilty. and therefore south carolina was not going to try him again. >> we fought a revolutionary war because somebody could be tried over and over again for the same offense. and the founders put it in the constitution that there is no double jeopardy in this country. >> i understand thatbut certain cases like this, that you have a dna now that says this is the man who raped this woman and killed her, you should be able, and somehow the judicial system has to work around that. >> that was the d.a.'s office who decided to see if the army was interested in bringing him off of retirement and trying him for the murders. >> a team of lawyers from the ranks helped to 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 am sure that there was debate within the military. it is high profile, and 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 arrived to fort bragg, he was charged with three counts of murder. >> tim hennis is the only person in united states history who has been tried and retried for murder three times. >> it is well settled law, because nothing that the state does can affect what the military does. >> they can claim it is a different jurisdiction, but it is the state of north carolina using the army to get to what they wanted to do, plain and simple. >> but billy richardson now on the sidelines, the court-martial of timothy hennis commenced on march 17th, 2010. the prosecutor's case hinged on

the dna results. >> the sperm in the vagina is the person who raped and slaughtered her and her children. and that is timothy hennis'. >> when a scandal erupted at a state lab the dna evidence would be thrown into question. >> they were mixing up dna >> they were mixing up dna samples and putting an innocent guy in prison. and sometimes, i don't eat the way i should. so, i drink boost. boost high protein nutritional drink

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in 2010, timothy hennis went on trial for a third time for the murders of katie east burn and her daughters. but a scandal rocked the state lab that identified hennis' 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 of preserving the evidence. three people had been arrested for evidence tampering. >> hennis' lawyers asked for a postponement to investigate the lab. the judge refused. meanwhile, military prosecutors found a second smear from the rain k rape kit. they sent it to a lab and the

results pointed to hennis. >> the evidence came back to every marker of 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 hughes coming down the driveway, 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 ms. east burn's bed. it's not tim hennis. there is a pubic hair where the

rape took place. >> what is male dna doing under mrs. east burn's fingernails? it's not tim's. there's dna under the daughters' finger nail and it's not hennis. >> underneath the fingernails, that's not timothy hennis. but what is that vaginal swab? >> to me male dna under the finger nail of a woman who is raped is pretty damaging evidence. who is it? >> 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. >> now, whoever had sex with her didn't necessarily kill her, but 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 a judge to make the army do it for you. >> the judge, though, 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? >> without dna results pointing to a different suspect, hennis' lawyers decided to offer an alternate explanation for the incriminating sperm. >> at the very end they threw out there the theory that tim hennis had consensual sex with mrs. east burn within a day or so of the homicides. >> when he said that, you could feel the love leave in that room. i mean, everybody went, i don't believe he said that. >> i mean, there are certain things you can do in front of a jury and there are certain things you can't. it would not have been how i would have done it. >> the 14-person court martial jury declared unanimously that timothy hennis was guilty of murdering katie east burn and her children. their next task would be to decide whether hennis deserved

the death penalty. >> when you've got a man that for 25 years after this occurred did nothing but raise his family, serve in two wars, honorably discharged and still married to the same woman, why are you just going to look and say, that's the monster? >> he leads prayer at church, he gives cookies to kids, doesn't make any difference. we're not there to say how could he do it. we're not there to say why did he do it. we're there to say he did it. >> the prosecution ended their presentation with another slide show. >> gary east burn 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? and he just from his heart with

tears in his eyes said, i just miss them. >> on april 15, 2010, the jury sentenced timothy hennis to death. >> do i feel vindicated for some things you heard when they got a not guilty, when the smile ands smirks you see from certain people? you're right i do, yes, sir, i do. i feel vindicated. >> tim hennis now sits in so tear -- solitary confinement. his appeals in federal courts could take decades. >> i still think tim is innocent, but i'm not his lawyer now and it would be totally improper for me to sit down and say, all right, tim, did you or didn't you? i'm 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's a good system. u.s. president donald trump calls the release of a controversial memo vindication, but lawmakers, even in mr. trump's own party, openly disagree. >> plus, risking everything to escape syria. we take a look at the desperate and often deadly toll in taking a chance for life. >> also ahead, under dogs making history, the philadelphia eagles win their first super bowl title. >> 2:00 a.m. on the u.s. east coast, we are live at cnn world headquarters in atlanta. we welcome our viewers here in the united states and all around the world. i'm george howell. >> and i'm rosemary church. cnn newsroom starts right now.