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.

26 Responses to “Putting Parker in perspective”

  1. Dew_Process says:

    Thanks Dwight!   And for those who don’t recall the Mutiny on the Ewing, here’s a great historical and short account:

    http://www.history.noaa.gov/stories_tales/ewingmutiny.html 

  2. Sgt Dad says:

    And there is the sad tale USS Somers.  As I recall, the signal for the mutiny to proceed was 8 bells.

  3. Mike "No Man" Navarre says:

    I would love to say something constructive, but this sentence in the Philly drive by evidence analysis just keeps making me laugh:

    In making this determination, we examine the fundamental question of what, if any, nexus exists between the alleged conduct and the charged offenses. As noted extensively above, the appellant was charged with premeditated murder and attendant felonies, including kidnapping, of two individuals on different dates. Both individuals were murdered as a result of a single shotgun blast at close quarters. Neither of the victims was alleged to be situated within a vehicle at the time of the killing.

    I guess I now have all the confirmaiton I need that Judge Mod did not grow up in the hood.

  4. Cloudesley Shovell says:

    I thought that one of the most significant comments from the Court came in the second paragraph of the conclusion.  The Court notes that the robbery and murder of LCpl Page, standing alone, surely rated the death penalty.  It was only because of other errors in a messy trial that resulted in the reassessed sentence.
    I think the Court here is suggesting, however subtly, that trial practitioners, SJAs, and CAs reconsider the shotgun approach to charge sheets, and carefully consider what the case is really about.  It was the complexity of this trial that led to errors and ultimately the life sentence rather than death.  Keep it simple.

  5. Mike "No Man" Navarre says:

    Amen, brother Cloudesley. 

  6. Atticus says:

    It’s about time to take the death penalty off the books for the military. There is no reason to have it there if it’s never going to be enforced.  And although Col. Sullivan notes the 82% figure above, I don’t know what we are to discern from it.  Some argue it’s some type of proof that our military justice practcioners – trial and defense cousnel and judges – are not competent to handle these cases. On the other hand, one could argue it’s the result of an incredibly paternalistic appellate system that never saw a DP case it didn’t want to overturn.  For instance, why in this case not send the Page findings back for a sentence rehearing?  The only function for referring a case capital now is to have the ability to take it off the table during the plea process.      

  7. stewie says:

    All one has to do is look to the norm in the civilian community to see that it in fact has nothing to do with paternalism, but is completely about lack competence in DP jurisprudence.
     
    That’s not  an attack. Pro Football players are often insanely amazing athletes, but most don’t have the specific skills necessary to hit a 100 mph fastball or drill a 26 foot three pointer with a 6-7 guard’s hand in their face.

  8. Cheap Seats says:

    Perhaps Congress should enact legislation to push military DP cases into the Federal Courts.  The decision of the CA to refer capital could trigger the push into Federal District Court.  Military counsel could assist the prosecution and defense, but we could have an established and experienced system trying these cases (and the appeals).  Now, would civilian juries sentence military defendants to death?  Would CA’s give up control by referring caital?  Not sure.  But you do have to question why we bother with military DP cases.  I couldn’t say without facing that prospect myself, but I am not so sure “taking it off the table” is worth much in the plea negotiation.  Odds are you’ll be stuck with the life sentence either way.

  9. Bruce MacKenzie says:

    Stewie – to add to your metaphor – there are professional athletes that CAN play at the pro level  in other sports other than the one they are being paid for.  How well they do in these endeavors I leave to the pundits whom cackle on that subject matter.   

    I do agree – there is simply not enough exposure to capital litigation in the military lawyer world.  And the opportunity of gaining such is practically nil IMHO – the JAGs/SJA will simply not send litigation teams to the civilian world to gain the expertise over several years.  CS has an option.  Or maybe a statute which permits/directs Federal prosecutors/capital qualified PDs into a military court-room? 

    Personally I see no change on the horizon.  I suspect a flurry of great and powerful concernation in the relatively near future over these matters but, again, with little definitive resolution.    

  10. Atticus says:

    Stewie-

    I couldn’t disgree more.  The guy who prosecuted Walker and Parker – John Ladue – is still widely recognized as having handled those cases very professionally, even though he was an O-3 I believe at the time.  If you look at the Marine Corps cases closely, all three recent reversals were based mostly on judge’s errors – which is the simplest place a paternalistic reviewing court can go to easily revererse.  They might say they apply an abuse of discretion standard, but they impute their own judgment.  The same basis was used in most of the other MC cases set aside over the years.  None were for IAC or prosecutorial misconduct, etc.   

  11. stewie says:

    with all due respect, of the three legs so to speak, the easiest one is prosecution. A competent prosecutor gets the DP in Akbar for example. You treat it like a standard murder trial, but add on that you give the Defense pretty much what they want as far as experts and time, and voila, you’ve tried a great capital case (particularly when we generally don’t send just anything capital, certainly not these days).
    The other two prongs, defense and judge, are where things are more iffy. Obviously the stats bear this out pretty clearly. The paternalism you speak of also extends to a real aversion to declaring IAC, even in DP cases.
     
    Look at Gray, still sitting in habeas review after all this time, obviously suggesting there’s something the civilian courts see or want to look at that our paternalistic courts dont.
     
    Look at what the state and feds required for “learned counsel” then compare it to what we require. If our system is paternalistic, then what are the civilians??

  12. Dwight Sullivan says:

    Atticus, CAAF reversed LCpl Curtis’s death sentence due to IAC for sentencing.  United States v. Curtis, 46 M.J. 129 (C.A.A.F. 1997).  And both CAAF and NMCCA expressed grave concern over the massive prosecutorial misconduct in QuintanillaSee United States v. Quintanilla, 60 M.J. 852 (N-M. Ct. Crim. App. 2005), aff’d in part, rev’d in part, 63 M.J. 29 (C.A.A.F. 2006).

  13. WWJD says:

    “….it’s the result of an incredibly paternalistic appellate system that never saw a DP case it didn’t want to overturn”
    ^^^
    This.

  14. Atticus says:

    A DP case sitting in habeas for a long time is hardly a novel situation.  But I can bet you it will not sit there for 19 years while the court responsible for moving it along itself sits idly by. How many appellate judges have been through NMCCA while Parker was docketed there?  Same for Quintanilla and Walker.  Everyone agrees the trial team in Quintanilla was an abomination, but it was also an abberation. And let’ s go with full disclosure.  Neither court found it had any effect on the findings or sentence.

  15. Dwight Sullivan says:

    Note that in Quintanilla, CAAF observed that “[b]ecause we have concluded that the sentence should be set aside” due to the military judge’s erroneous grant of a government challenge for cause, “we consider” the prosecutorial misconduct issue “only with respect to findings.”  United States v. Quintanilla, 63 M.J. 29, 38 (C.A.A.F. 2006).  Regarding the defense’s claims of prosecutorial misconduct during the assistant trial counseling’s sentencing argument, CAAF held that “this argument did not prejudice the findings because the sentencing argument was made after the findings were entered.”  Id. at 39.  We don’t know whether CAAF would have held that the prosecutorial misconduct in the case affected the sentence.  So I wouldn’t take any solace from the fact that Quintanilla‘s sentence was reversed on grounds other than prosecutorial misconduct.  Fortunately, due to the Marine Corps’ recent reorganization of the way it provides legal services, it’s probably less likely that prosecutors could engage in such misconduct today compared to in 1996.

  16. Atticus says:

    Stewie-

    Since you believe the civilians handle DP cases better, then how about sending all military DP appeals to the DC Circuit?   

  17. stewie says:

    I don’t have a problem with the idea of removing DP jurisprudence from the military IF we aren’t going to give a select group of our folks the training OR we aren’t going to spring for HQE(s) to shepherd things through. What Circuit it gets sent to is less important to me, could be DC, could be the circuit where the military base is located (makes more sense to me).

  18. stackhouse says:

    Why not just abolish the death penalty all together – then there is no problem.  That way, if there’s a mistake, we don’t have to say whoops…never saw that coming.  

    It serves no real deterrent effect anyway.  It isn’t applied consistently or evenly across any community, let alone the military community.  There’s another perfect example in the news today why it should be abolished – when a man is set free in Louisiana after 18 years when DNA clears him of the murder conviction – imagine if that came the day after he was executed (this was not a death penalty case, but in Louisiana it easily could have been) 

    http://www.nypost.com/p/news/local/mom_home_kyjt7YZVLGl0mD4LdOPwvO#ixzz24SvARvyo

    It costs hundreds of thousands of dollars more to prosecute a death penalty case.  

    It would be curious to hear from a prosecutor who got one wrong – definitively wrong.  My guess is either that they are beyond help emotionally or they refuse to accept they got it wrong and someone was killed by mistake.

    I would encourage you to read two books on the subject: “I shall not die” by my friend Billy Neal Moore…who did murder someone and was sentenced to death and all appeals were exhausted.  Finally have 2 decades he was granted clemency by the Georgia Parole Board. Then decide if the world is a better place with him or without him.  The family of the man he killed thought it better with him. (It’s only 96 pages and takes about that many minutes to read). And “Chasing Justice” by Kerry Max Cook – who was on this 4th death penalty trial when he pled no contest to escape the prosecution who was semmingly prosecuting for sport.  How many prosecutors treat it as a feather in their cap to get a death sentence?
    It’s not an issue of whether it affected the prosecution – but the mindset that puts all of this into motion for the wrong reason.
    Remember this from Quintanilla: Maj G withheld the pistol used by the appellant in the shootings. Capt F later received the pistol, mounted it on a plaque, and hung it in his office, where he served as a Deputy District Attorney in Steamboat Springs, Colorado. The plaque was engraved as follows: Capt C F and Maj G G, Sureno Busters. 
    We can say these two guys were jokers, but my guess is that they were very well respected Marine Officers and Judge Advocates at the time of the prosecution  They are probably very good people as well – but how does one celebrate a death sentence for anyone.  I’m sure that if you asked these two guys before they were assigned to prosecute Quintanilla if they should be slapping high-fives and making plaques celebrating a death sentence … They would have said no…but look what happened.
    You ask almost anyone in a trial shop if they want in on a death penalty case – they will say yes, regardless.  You anyone in a defense shop if they want in on a death penalty case – they will say yes, regardless.  They question is: why?

  19. Anonymous Air Force Senior Defense Counsel with the initials NM says:

    Why not just accept that as a society, we are not perfect.  If we truly believe the deterrent effects and other benefits of the death penalty outweigh the risk of wrongfully executing someone, then we should be okay with occasionally executing a person who didn’t deserve it.  If we believe the positive effects of the death penalty do not outweigh those risks, then we should abolish it.  It really comes down as a question of how much value we, as a society, place on human life versus how much value we place on the deterrent effects of having a working DP.

    Instead… we try to be perfect, and get all upset when we fail to live up to perfection.  Let’s start by accepting we are not perfect and that we are going to make mistakes.  Once we’ve accepted that we are fallible and going to make mistakes, then we can start asking whether the DP is worth having around.

  20. Atticus says:

    Let’s make sure we are talking about the same thing.  The propsect of executing an innocent person is the top reason to not have the DP, but none of these cases had indentity as an issue. And I don’t think the Quintanilla case is a good analogy.  Those two got way too emotionally invloved with the case and went so far off the reservation it was ridiculous.   To sweep every TC in with that group is unfair and without support.

  21. stackhouse says:

    Those two got too emotionally involved and went off the deep end…I’ll give you that, but what prevents it from happening.  The prospect of some prosecutor saying “Let me do it, I know how, and won’t get too emotionally charged” does not quiet my concern.  I agree that Quintanilla is not a good analogy…it’s the perfect one.

    I suspect that the Quintanilla prosecution team was experienced, savvy, and supervised.  It’s only with 20/20 hindsight we see the error of our ways.  I suspect they got medals at the end of their tour, partly for how they did in prosecuting a DP case and it was only well after they fact their actions were discovered.  

    Sweeping every TC away with that group, why not?  Because you know the good ones, you were a good one…hell, I was a good one – but again – who gets to pick who prosecutes the DP case and why?  I’m sure that CF and GG were hand selected as well.  

    Where should I start with my support?  Cite case after case where prosecutors hid evidence, made inflammatory statements, disingenuous arguments, didn’t hold NCIS/OSI/CID accountable for their ineptness because they don’t work for the TCs, charging offenses that aren’t supported by the evidence…the list goes on.  And what happens to them?  You can probably say the same for some Defense Attorneys, but it’s the difference between representing the US and representing a human being.  

    We’re talking about the difference of sticking a needle in someone’s arm vice putting them in the SHU at the DB for LWOP.  Saying it’s the best we got and some people may get executed that didn’t do it or didn’t merit it doesn’t give me confidence.

    The failure to get it right is but one concern.  The death penalty is disproportionately applied across the races, it is disproportionately applied across socio-economic splits, and it is disproportionately applied across jurisdictions…just to name a few.

    It’s was easy for the NMCCA to say Parker’s actions still merited the DP – when they knew they were going to set it aside.

     

  22. WWJD says:

    Stackhouse and AASDC,
     
    The DP is punishment for a crime, deterrence is irrelevant.  Identity is rarely an issue, the majority of those on Death Row are guilty of murder.

    IMHO I would remove DP unless there is overwhelming evidence that the person did it (i.e. video tape, confessions w/ collaborations).  But as Atticus has said, this does not apply to any one of the cases in the Military.  The members on Death Row should have been executed a long time ago.
    The issue is that we have judges who simply will overturn DP sentences for any precised deficiency (when really there is none).

  23. stewie says:

    “If we truly believe the deterrent effects and other benefits of the death penalty outweigh the risk of wrongfully executing someone, then we should be okay with occasionally executing a person who didn’t deserve it.”
     
    Is there anyone who truly thinks this way? Because I don’t want to meet them. One wonders if they’d like to be the one who is sacrificed so some of the rest of us can feel better/safer/whatever.

  24. Anonymous Air Force Senior Defense Counsel with the initials NM says:

    Stewie — that’s kind of my point.  We have to recognize that any system invented and managed by fallible humans is itself going to be fallible.  If we aren’t prepared to have an acceptable level of fallibility in a death penalty system, then we aren’t prepared to have a death penalty.

  25. stewie says:

    the problem is folks fool themselves into believing that we are flawless in this area…usually the same people who don’t think the government can do anything else right.

  26. Sgt Dad says:

    Stewie is right.  In civil trials, I’ll bet the rate of both Type 1 & Type 2 errors approaches 20%.  In criminal matters, false convictions are less common — but not even close to zero.  The Innocence Project has made that clear.* The system is run by fallible human beings (me included) &, therefore, the error rate will be signifficant.  We can only strive to do better.
    This is the reason I oppose the DP.  By the way, the gov’t can’t do much else right, either.  Best that the gov’t stay out of other people’s business altogether.
    ===================================
    *BTW, when DNA testing became usable, I am astonished at the number of prosecutors that set to destroying evidence in closed cases just to avoid this.