Saving Private Hensley

Justin Hensley (probably “Police Informant #2) was recently deployed to Iraq, which led the prosecution to motion that his prelim testimony be allowed in the main trial, if his deployment results in him being unavailable at trial.

But will he really be “unavailable?” Is there any way for DA Melnick to reach into the war zone, and extract Private Hensley for the greater good of the Republic?

I did a bit more digging into Army regulations on the subject, and from what I have been able to determine, he MAY be able to come back for the trial, if need be.

There are four main types of military leave in the U.S. Army:

1. Ordinary leave: regular chargeable leave time; the military equivalent of vacation time.
2. Emergency leave: chargeable leave based on certain enumerated emergency circumstances that may arise; none of which seem to include being a trial witness, so is likely inapplicable here;
3. Convalescent leave: Requires a doctor’s OK and is also likely inapplicable; and
4. Permissive Temporary Duty (PTDY): Defined as “nonchargeable absence from duty may be granted at no expense to the Government to perform a semi-official activity that benefits the Service and the soldier.”

Now, Justin could always come back to PA using his ordinary leave, IF he has any stored up, and IF he gets the necessary clearances. Using ordinary leave is not the best option from Justin’s point of view, however; a soldier accrues only a finite amount of ordinary leave time. Luzerne County is not exactly a known as a garden spot, and sitting around a courthouse waiting to testify is not my idea of an ideal vacation.

The other option is PTDY. This one seems to be the ticket, as one of the specific reasons for authorization is being a witness at a major criminal trial:

5–32. Permissive temporary duty authorization
PTDY may be authorized as follows:…

b. To perform State jury service or be a witness at State criminal investigation proceedings or criminal prosecution is subject to the following conditions:
(1) Soldier must have received a subpoena, summons, or request instead of process.
(2) Case must involve substantial public interest; for example, a major crime has been committed, and the soldier is a major witness.
(3) Decision to grant PTDY must be coordinated with command staff judge advocate (SJA) or legal office.

Seems to me the Kocis trial would indeed be a criminal prosecution of “substantial public interest;” a “major crime has been committed” and Justin “is a major witness.”

The advantage of PTDY over ordinary leave is that it will not be charged against Justin’s accumulated ordinary leave. One disadvantage, however, is that the army regs are very clear on one aspect of PTDY: The Army will NOT pay any travel expenses involved. Although perhaps it is fair to assume Luzerne County would pick up the tab for the air fare in the instance, saving Justin the expense to and fro.

Keep in mind, however, while the military bureaucratic mechanisms for granting leave in this case do indeed exist, it is still no sure thing. The paperwork process will have to be initiated by Justin; then approved by his commander (with input by the "command staff judge advocate (SJA) or legal office"), who has discretion to reject the application. It is for this reason that Melnick made the motion to use his prelim testimony at trial no doubt, to cover this uncertainty.

Another possibility, of course, is that what with all the trial delays, Justin Hensley’s deployment period in Iraq might come to a natural end before trial, bringing him back in time with no fuss at all. It is not entirely clear to me how long Justin is over there for…guesstimates over on PC’s blog ranged from six to fifteen months…but if it towards the 6 month estimate then yes, I could easily see this all becoming a non-issue due to trial delays.

Another even more likely possibility, of course, is that there will be no trials, that Harlow and Joe will both plead guilty in a plea bargain…making this whole problem irrelevant. I am becoming more certain this is EXACTLY how it will go down, based on the fact that Harlow and his supporters keep saying there will be a trial, and that there is no possibility of a “deal.”

The more their lips move, forming the words “there will be NO deal” the more certain I am that is exactly what they are negotiating right now.

Update: It is also possible the trial may start while Justin is still in Iraq, and then drag on for at least fifteen months while hearing from all 385 prosecution witnesses called to rebut Joe's alibi defense, thereby allowing Justin to come home, just in time to testify next.