The Parker and Walker cases are the naval justice system’s version of Dickens’ fictitious Jarndyce v. Jarndyce: innumerable young judge advocates have entered appearances in the cases; innumerable old judge advocates have withdrawn from them.
Between the time the two senseless and tragic murders were committed and the cases’ completion of direct appeal, a judge advocate could have entered active duty and qualified for retirement.
LCpl Wade Walker and LCpl Kenneth Parker were each convicted of two premeditated murders at two separate courts-martial held at Camp Lejeune in July 1993. Both were sentenced to death.
Both cases languished on appeal for extended periods. And both appeals finally ended this year. NMCCA first decided the Walker case in 2008 — 15 years after the court-martial. United States v. Walker, 66 M.J. 721 (N-M. Ct. Crim. App. 2008). NMCCA set aside one of the two premeditated murder convictions as well as the sentence and authorized a rehearing on both. Neither side appealed further. The government retried Walker on the set-aside premed murder charge and sought death a second time. While the members reconvicted Walker of the premed murder, they adjudged a life sentence. (Col John Baker, our very own Jason “Super” Grover, and Capt Kelly Repair litigated the rehearing brilliantly on Walker’s behalf.) But while all of that activity was occurring in the Walker case, for various reasons the Parker case remained stalled.
Finally, on 12 April 2012, NMCCA heard oral argument in Parker. Little more than four months later, NMCCA issued its opinion. United States v. Parker, 71 M.J. 594 (N-M. Ct. Crim. App. 2012). Senior Judge Maksym wrote for a unanimous panel. NMCCA not only set aside one of the two murder convictions, but did so on legal insufficiency grounds, among other bases, effectively insulating the decision from CAAF review. NMCCA then reassessed the sentence, replacing death with confinement for life, total forfeiture of pay and allowances, reduction to E-1, and a DD. The standard of review for reassessments would have made it difficult for the governmenr to overturn that decision by taking the case to CAAF. Ultimately, neither side even tried. No one moved for reconsideration en banc and there was no request for further review by CAAF. Both sides could live with NMCCA’s outcome — literally, in the case of the defense. The opinion seemed designed to bring the case to an end. And both sides seemed relieved to let it. No more judge advocates would have to litigate the military’s version of Jarndyce v. Jarndyce.
But while Parker ended with a bang, Walker finally ended with a whimper. Walker’s life sentence upon his rehearing brought the case within NMCCA’s jurisdiction a second time. This time, NMCCA criticized the rememdy that NMCCA itself had ordered in the initial appeal and knocked one of the premeditated murder convictions down to unpremeditated murder. United States v. Walker, 71 M.J. 523 (C.A.A.F. 2012). Senior Judge Carberry wrote for a unanimous panel. Noting that the other premeditated murder conviction carried a mandatory minimum of confinement for life, NMCCA affirmed the life sentence and other punishments that the members adjudged upon retrial.
But the original prosecutors in the case hadn’t been content with two premeditated murder charges; in this capital case, they also charged the accused with, among other offenses, adultery. That, of course, gave rise to a Fosler challenge. So the final ruling in the military’s Jarndyce v. Jarndyce was a CAAF summary disposition setting aside two Article 134 convictions — one for adultery — in what had formerly been a capital case. United States v. Walker, 71 M.J. 363 (C.A.A.F. 2012) (summary disposition).
Parker is also significant because it resulted in the removal of the last Marine from military death row. When Parker left the SHU, there was no Marine under a sentence of death for the first time since 1987. No member of the Department of the Navy has been executed since 1849 and no Marine since at 1817. Given the pace at which capital cases proceed through the military justice system, it will likely be decades before that streak comes to an end.
NMCCA, for bringing the long-running Parker case to a close that both sides were content with, you’ve earned a spot in the top-10 military justice stories of the year.