Saturday, February 09, 2008

A military justice bestiary

Judge Cox was certainly the master of the animal metaphor. But he's hardly the only military appellate judge to employ beasts -- real or imagined -- to vividly make a point.

Here are a few of my favorites. I'll set out the beast, followed by its definition, and then -- in OED fashion -- the first known military justice use of the term or concept. If you have other good examples, please post them.

800-pound gorilla: a very powerful beast with superhuman (or superjudicial) power to protect a convicted servicemember. "Moreover, Courts of Military Review are something like the proverbial 800-pound gorilla when it comes to their ability to protect an accused." United States v. Parker, 36 M.J. 269, 271 (C.M.A. 1993) (majority opinion by Judge Cox).

Duck: a web-footed swimming bird of the family Anatidae characterized by a flat bill, short legs, and instinctive attraction to the water that displays a penchant to smuggle civilian legal terms and principles into the military justice system. "Many [military lawyers] have certainly taken to so-called 'civilianization' of the United States military justice system like ducks to water." United States v. Jones, 7 M.J. 806, 808 (N.C.M.R. 1979) (majority opinion by Senior Judge Dunbar).

Elephant-trunked camel: 1. a large humped ruminant quadruped of the genus camelius whose hump sports the long, flexible cylindrical nasal appendage of an elephant. 2. an evolutionary mistake. 3. the mixing of civilian with military law. "To apply civilian concepts of pendency of appeal within the statutorily constructed scheme of the UCMJ is to graft the elephant's nose to the camel's hump." United States v. Roettger, 16 M.J. 536, 545 (A.C.M.R. 1983) (Judge Coker, dissenting).

Hound dog rule: an inclination to exercise a peremptory challenge because a court-martial member just doesn't smell right. "The only thing that bothers me about this is that I don't know what impact it will have on the 'Hound Dog Rule.'" United States v. Santiago-Davila, 26 M.J. 380, 393 n* (C.M.A. 1988) (Cox, J., concurring).

Kangaroo court: that which a court-martial is not. "This was no 'kangaroo court.'" United States v. Davis, 46 M.J. 551 (N-M. Ct. Crim. App. 1997) (majority opinion by Judge Oliver).

Orangutan: an arboreal long-haired anthropoid ape that would be unlikely to satisfy the Article 25 criteria for court-martial members. "No doubt there are limits to waiver; if the parties stipulated to trial by 12 orangutans the defendant's conviction would be invalid notwithstanding his consent, because some minimum of civilized procedure is required by community feeling regardless of what the defendant wants or is willing to accept." United States v. Weasler, 43 M.J. 15, 18 (C.A.A.F. 1995) (majority opinion by Judge Crawford) (quoting United States v. Mezzanatto, 513 U.S. 196, 203 (1995) (majority opinion by Justice Thomas) (quoting United States v. Josefik, 753 F.2d 585, 588 (7th Cir. 1985) (majority opinion by Judge Posner))).

Pink elephant: a large five-toed pachyderm of a markedly non-standard color that, while fictitious, is still difficult to ignore. "Unfortunately, it may well be that such an instruction is akin to one to ignore the pink elephant that just walked across the courtroom." United States v. Welker, 44 M.J. 85, 92 (C.A.A.F. 1996) (Senior Judge Everett, dissenting).

Skunk: a small North American mammal of the weasel family that produces a malodorous scent when struck by an automobile. "These cases are very similar to running over a skunk while driving your car. You might not ever see the beast, but you certainly can smell it." United States v. Wales, 31 M.J. 301, 311 (C.M.A. 1990) (Judge Cox dissenting in part and concurring in the result).


Mike "No Man" Navarre said...

Wasn't there another famous one about snakes and appellate defense counsel that was the impetus for the other half of the Navy App Def seal?

Christopher Mathews said...

I once wrote in dissent "If it walks like a duck and quacks like a duck, it may indeed be a duck; but if it subsequently barks, purrs, or howls at the moon, perhaps it wasn't a duck after all."

John O'Connor said...

In terms of bestial allusions, I think the Golden CAAF (pun intended) has to go to Judge Bryant of the NMCCA in United States v. Robertson, 2003 WL 21056778 (NMCCA 2003). In a concurring/dissenting opinion the good judge appears to have turned over to his revered grandfather, there is a hornet's nest worth of porcine analogies. To wit:

"In the process of trying to correct a 'harm,' the majority has only succeeded in making -- as my Grandpa used to say -- 'the dadburn pig-pen stink.' Loosely translated: taking an already smelly environment and, somehow, making it smell even worse."

"As the adage -- often used by my Grandpa -- indicates, 'Son, if it looks like a duck, walks like a duck, and quacks like a duck, then odds are it ain't no pig!'"

"As my Grandpa uase [sic] to say, 'Boy that's about as useful as a pig on ice.'"

Dwight Sullivan said...

Excellent point. CAPT Bryant was always a favorite of mine -- kind of like an earlier version of JMTGst.

egn said...

This post calls to mind another animal reference by Judge Bryant, in United States v. Pinero, 58 M.J. 501 (N-M.Ct.Crim.App. 2003), affectionately referred to as the "squirrel gun" case by Appellate Defense counsel at the time. While not specifically alluding to the squirrel itself, Judge Bryant again colorfully called upon his grandfather's wisdom to illustrate a point:

"I am, however, reminded of my grandfather's repeated comment to my brothers and myself when he supervised our use of his vintage squirrel-gun for target practice. We grandchildren would gleefully and proudly proclaim how close we were when, although missing the target, we hit the barn used as a back-drop. Grandpa's only retort would be 'close enough ain't good enough - it'll never put meat on the table.' In this instance, the majority's decision does not put any meat on the table."

Incidentally, this was also a dissenting opinion, after which Judge Bryant was vindicated when CAAF overturned the original majority.

Phil Cave said...

"like snakes in the grass was part of the language." It's an unpublished opinion that doesn't seem to show up in Lexis. Maybe DHS has a copy.

Dwight Sullivan said...

My Liege,
Unfortunately, I never saw that opinion myself. According to Code 45 lore, there was an opinion that said issues were hidden in records of trial like snakes in the grass. But I know not whether that lore is real or apocryphal.

Anonymous said...

Don't forget man's best friend, The Dog:

CCA Judge Morgan in US v. Williams, 46 MJ 820, 822 (AFCCA 1997): "That dog won't hunt."

Senior Judge Sullivan, concurring in US v. Barner, 56 MJ 131, 138 n.* (CAAF 2001): "One is reminded of a similar incident of omission in the Sherlock Holmes story of 'Silver Blaze,' where a local police inspector was trying to get Sherlock Holmes's view of the evidence at the scene of a larceny:

'Is there any other point to which you wish to draw my attention?

[Holmes replied] 'To the curious incident of the dog in the night-time.'

[Police Inspector] 'The dog did nothing in the night-time.'

'That was the curious incident,' remarked Sherlock Holmes.

And Judge Latimer, in US v. Doyle, 3 CMA 585, 593, 14 CMR 3, 8 (1954): "Justice Holmes in his book 'The Common Law' in considering criminal intent made the observation 'Even a dog distinguishes between being stumbled over and being kicked.'"

Anonymous said...

You are missing the point!

Dwight Sullivan said...

Which is . . . ?