January 6, 2012

Judge Frank Wilson Parker: Frontier Lawyer, Political Warrior

By Mark Thompson
In May of 1885, thirty-six residents of the Hillsboro area in Sierra County petitioned the territorial governor and the adjutant general seeking the creation of a volunteer militia to fight an insurgency in their backyard, the threat of the Apaches led by Geronimo. The petition resulted in the establishment of Company G captained by one of the petitioners, Nicholas Galles. Among the petitioners receiving a noncommissioned officer position was a twenty-four year old lawyer from Michigan, F. W. Parker. Company G saw limited service, September 30 through October 7, 1885, and, unlike politicians who regularly touted their experience as "Indian fighter," Parker apparently downplayed the importance of the campaign. Frank Wilson Parker, however, went on to make his mark in New Mexico legal history, proving to be a courageous participant in the political wars.

F. W. Parker was born October 16, 1860, on a farm in Sturgis Township, St. Joseph County, located near Kalamazoo, Michigan and also bordering the State of Indiana on the south.  His grandfather, John Parker, and grandmother, Elizabeth (Leiser) Parker, were born in Pennsylvania but had moved to Michigan from New York shortly after the birth in 1829 of Frank’s father, James Wilson Parker. Frank’s mother was Maria Antoinette Thompson of Sturgis, Michigan who at age 15 was living in the John Parker household, indicating, perhaps, the early death of her parents. 

The biographical sketches, including remarks printed in the New Mexico Law Reports, indicate that Parker attended school in the town of Sturgis and at age eighteen entered the University of Michigan. One biographical sketch indicates that he took “a limited course in the ‘Academic Department,’” and another has him graduating from the “Ann Harbor” Law School. Although Parker is not mentioned in a compilation of graduates and ex-students of the University of Michigan Law School serving in the judiciary in the United States, the official school website includes Parker in the class of 1880.

The University of Michigan Law School, probably the premier public law school in the United States, was established in 1859, at a time when it was rare for lawyers to have any academic training in the law. In 1878, the only two requirements for admission to the Law Department were proof that the applicant had reached age eighteen and was of good moral character. Graduation with an LL.B. required only completion of the full two-year course and passing an “approved” examination, including a dissertation. I did not find the exact date for Parker’s completion of studies, or for his admission to the Michigan Bar, but in the federal census for July 1880, he is shown with the occupation “lawyer.”    

Possibly at the suggestion of a friend, in October of 1881, Parker moved from Michigan to Socorro, New Mexico. The next month, now 21 years of age, he was admitted to the Bar by the Second District Territorial Judge, Samuel C. Parks. With two years of academic study of the law and a year of practice in Michigan, Parker should have had no trouble gaining admission to the practice of law under the standard prevailing at the time. One fanciful biographical sketch says he was examined by a committee of the bar, but even if Judge Parks had some help in the process, Parker only needed to convince the judge that he knew enough law to be granted his license. In 1881, admission by one of the territorial judges was sufficient for all purposes. New Mexico did not limit the power of the individual judge and had no uniform standards for admission until 1909.
Sierra County Courthouse as seen from atop the George T. Miller home. Frank Parker practiced law here, and presided over the trial of Oliver Lee and Jim Gililland for the murder of 8-year-old Henry Fountain. Photo George T. Miller Collection Black Range Museum
Shortly after admission to the bar, Parker moved his practice to La Mesilla, and, with an intermediate stop in the emerging town of Kingston in 1882, by 1883 he had taken up residence in Hillsboro, where he practiced law for the next fourteen years. In addition to his brief stint in the territorial militia, he participated in Republican Party politics and he served a two-year term as Sierra County school superintendent, an elected position. By 1897, U.S. Presidents, in the absence of overriding political needs, were willing to appoint "local" lawyers to the territorial bench, and President McKinley picked Parker to succeed Judge Gideon Bantz on the Territorial Supreme Court and as judge for the Third District, with headquarters in Las Cruces.   

Territorial judges appointed by the President served as trial judges in their individual districts and as appellate judges sitting as the territorial supreme court. Although they were “federal judges” in that they were appointed by the President and confirmed by the Senate, they did not have lifetime tenure, i.e. they were not “Article Three Judges” under the U.S. Constitution. With a four-year appointment prescribed by the act creating the territory, they were characterized as “legislative” judges. Obviously politics played a large part in their appointment and reappointment, and some historians claim that they served at the “will of the President.” I have argued elsewhere that the Congress intended that judges have more independence than territorial executive branch officers appointed by the President, and consequently could not be removed on a whim except during the existence of a separate federal law, the so-called “Tenure of Office Act.”

Even if they had some tenuous hold on their seat, the judges were products of the political system and "political" lawsuits, including criminal prosecutions, were probably more common than we would like to think. To have the confidence of the parties and lawyers and to be considered honest and fair was no small task for a trial judge.  Perhaps overlooked, at least by those of us far removed from the fray, was the need for the personal courage required to administer justice under the circumstances. Just two months after assuming the bench on January 10, 1898, Frank Parker would be tested by involvement in what certainly would be considered one of the most "political" criminal cases in New Mexico history.  

On February 1, 1896, the prominent lawyer and former Speaker of the House of Representatives, Albert J. Fountain, disappeared with his young son Henry somewhere between Lincoln and their home in La Mesilla and were presumed dead. Finally, in a long anticipated move, Sheriff Pat Garrett of Dona Ana County, on April 3, 1898, asked Judge Parker to issue arrest warrants for Oliver Lee, Jim Gililland and William McNew. Although the judge granted the application, it would be another thirteen months before he could get the case to trial. I have no intention of “retrying” the murder case, which would be something like “carrying History to Hillsboro,” but it would be interesting to see the case from the viewpoint of a new judge, something we are unfortunately prevented from doing in the absence of a memoir by a long retired judge.
Lawyer, and later Justice Frank W. Parker, walked through this east arch of the Sierra County Courthouse, this image taken in 2010. Photo Craig Springer
First, there is an apocryphal story that every new judge is warned that in a criminal case he should never sustain the prosecution objection to evidence tendered by the defense and, to the extent possible, always sustain the objections of the defense. The reason is simple—the judge does not want to give the defense grounds for overturning a conviction on appeal. Without even knowing Parker’s motivation, it is possible to answer the criticism that he acquiesced in all of the “demands” of the defense by just applying the apocryphal rule.

Secondly, the politics of the case was extreme. Even after Parker issued the warrants in April 1898, the political maneuvering continued apace, including the formation of Otero County to deprive Dona Ana County Sheriff Pat Garrett of jurisdiction. After the new county was created effective January 30, 1899, Oliver Lee surrendered in March 1899 to George Curry, a future governor and the newly appointed sheriff for Otero County. Parker was able to set the case for trial in May, after first granting a defense motion for a change of venue from Otero County to Hillsboro in Sierra County.

The fight on several levels, including in the legislature, was between Albert B. Fall of Las Cruces and Thomas B. Catron of Santa Fe, the men who would eventually be selected as the first U.S. Senators for the State of New Mexico. Fall represented Lee and Gililland, Catron was a special prosecutor aiding the district attorney, Richmond P. Barnes. It seems likely that Judge Parker knew most of what was “at stake” politically, but did he himself orchestrate the result?  Fall even accused him in closing arguments of being a part of the conspiracy to convict Oliver Lee, probably pure political theatre rather than a serious claim by the defense. At least the residents of Hillsboro and the spectators at the trial made it clear where they stood—upon the announcement of “not guilty,” “[t]he people cheered.”

Having been twice reappointed to the territorial bench, Parker in 1909 then presided over what many view as the sequel to the Lee/Gililland trial, the prosecution in Las Cruces of Wayne Brazel for the murder of Pat Garrett. Garrett had been killed in March of 1908 and Brazel had immediately "confessed" with a claim of self-defense to Dona Ana County Sheriff, Felipe Lucero. The case came on for trial on April 19, 1909, and was over with a “not guilty” verdict in one day. No cheering by the spectators this time, but several citizens found it necessary, in a letter to the Rio Grande Republican, to defend the result and Judge Parker, perhaps against a charge of local bias favoring the defendant: “The presiding judge of this court, while a resident of New Mexico, is an appointee of the president of the United States, is a federal judge and has held such position for several years.” Albert B. Fall had again served as defense counsel, with former district attorney Herbert B. Holt taking the defense lead at trial. The later public relations campaign, although including Governor Curry and several prominent citizens, appears to be clearly instigated by Fall.    

By defending Judge Parker, Fall may have sought to avoid the issue historians have considered more important, the quality of the prosecution. Unlike in the Lee/Gilliland case, the prosecution this time had no big name lawyers, although Attorney General James Hervey may have suggested that the A.G.’s office handle the case. Instead, the prosecution was conducted by twenty-seven year old Mark B. Thompson, admitted to the bar in January 1906 and appointed district attorney by Governor Hagerman in March of 1907.  But to claim youth and inexperience as an excuse for a prosecution conducted, according to some historians, with “appalling indifference and incompetence,” would be disingenuous. Governor Curry in his letter to A.B. Fall suggested that the Attorney General had said the evidence did not warrant conviction but that “the district attorney thought it best to let the case go before a jury . . . .” Not exactly a ringing endorsement, but probably the best the prosecutor was going to get. Thompson would eventually become Fall's personal attorney and work for Fall in the Teapot Dome Scandal.

The Las Cruces years were good to Judge Parker, including a second marriage, this time to Anna Davis of Iowa in 1904. The union  produced one child, Frank W. Jr., born in 1907. In 1910, he was a successful candidate for delegate from Dona Ana County to the Constitutional Convention, joining fellow Judge Clarence J. Roberts of Colfax County as one of the powerhouse lawyers at the convention. Parker, as chairman of the Judiciary Department Committee, is generally credited with achieving the agenda of the conservative, “railroad lawyers” in making sure that the first New Mexico Constitution had an elected judiciary. Parker then obtained the Republican nomination for one of the three Supreme Court positions and was elected to the initial court at the special election in 1911. Following the final act granting statehood, the signature of President Taft on January 6, 1912, Frank W. Parker began a twenty-year career on the New Mexico Supreme Court.

An appellate judge may be one step removed from the political cases, but Justice Parker could not avoid involvement in the fascinating political controversy between a district judge and an Albuquerque newspaper editor. Carl C. Magee as editor of the decidedly Republican Albuquerque Journal decided to take on the party establishment and in 1921 lost his control of the Journal but was able to continue his attacks as editor of the New Mexico State Tribune. Much of his ire was directed at the judiciary, especially Judge David Leahy of Las Vegas, but Judge Leahy saw an opening for revenge when Magee made a comparatively mild criticism of Chief Justice Frank Parker, suggesting that Parker had failed to see anything wrong in the way the clerk of the Supreme Court was handling court money. Judge Leahy charged Magee with criminal libel and of course obtained a guilty verdict from a Las Vegas jury.  That was followed by an attempt to disbar Magee’s attorney, former Supreme Court Justice Richard Hanna. Both of these cases resulted in Supreme Court action, first, affirming Governor Hinkle’s pardon of Magee and, second, resulting in a slap on the wrist for Hanna.    

Judge Leahy could not let go and in 1924 he convicted Magee of direct criminal contempt of court, i.e. contempt of Leahy himself. Magee was again pardoned by the governor, but the sheriff refused to release Magee resulting in a habeas corpus “original proceeding” in the Supreme Court. Having recused himself from sitting on the first two cases, Parker wrote the opinion in the habeas corpus action, holding that the governor’s constitutional pardon power extended to those guilty of direct criminal contempt. “Judges are human,” wrote Parker, and the governor’s pardon is “a reasonable check upon the exercise of a one-man power…which often must be exercised under the stress and sting of personal insult, sometimes depriving the judge of the ability to act wisely and judicially in such matters.”  

In what could be unprecedented, on January 11, 1928, the New Mexico Supreme Court paused to eulogize its still sitting Chief Justice on the thirtieth anniversary of his first appointment. Lawyer and State Senator, Herbert B. Holt, a long time friend, and once a court reporter for Parker, was recognized and no doubt "pleased the court" by his remarks. Judge Parker had many more years to contribute to New Mexico law and, upon his death, the court devoted even more space in the New Mexico Reports to honor him and his work on the court. Frank W. Parker died in Santa Fe on August 3, 1932, and was buried in the Fairview Cemetery on Cerrillos Road. Justice Parker was memorialized in the halls of the Supreme Court.

The Bureau of Public Health official certificate states that the cause of death was "cirrhosis of liver," but, as if anticipating the "objection of counsel," the physician added a question mark on next line! 

Mark Thompson, a former member of the New Mexico Bar, lives in Centennial Colorado.  He is the great grandson of Nicholas Galles and the grandson of Mark B. Thompson.



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