In Parker, NMCCA found the evidence supporting one of the two premeditated murder convictions to be factually insufficient and reassessed the sentence. CAAF’s scope of review over such determinations is quite narrow. While CAAF can exercise review authority over a CCA’s factual sufficiency determination to ensure that it was based on a “correct view of the law,” United States v. Nerad, 69 M.J. 138, 147 (C.A.A.F. 2010), in Parker, NMCCA’s holding was a plain assessment of the evidence as insufficient. There doesn’t appear to be any underlying legal issue that the court resolved to make that decision; rather, it was performing a jury-type function, just as Congress contemplated in Article 66(c). Accordingly, there appears to be nothing for CAAF to review in the factual sufficiency determination.
CAAF’s review of a CCA’s reassessment of a sentence is also narrowly constrained. CAAF reviews “a sentence reassessment by a Court of Criminal Appeals for obvious miscarriages of justice or abuses of discretion.” United States v. Harrow, 65 M.J. 190, 206 (C.A.A.F. 2007). NMCCA’s reassessment in Parker doesn’t appear to be vulnerable under that standard. So it seems unlikely that the Judge Advocate General of the Navy would certify any issue from the case to CAAF and even more unlikely that CAAF would reverse even if she did.
So NMCCA’s ruling in Parker is probably the final word in the case. If so, the decision will take the last Marine off of military death row at the USDB’s Special Housing Unit (SHU). Five men will remain– four Soldiers and one Airman. The last time the Marine Corps carried out an execution was in 1817. No member of the Department of the Navy has been executed since 1849 when two Sailors from EWING were hanged for mutiny aboard one of the ship’s longboats.
Counting Parker, 9 of the 11 (81.8%) military death penalty cases that have completed direct appeal have been reversed.