Code 45’s famous snakes and ducks crest derives in part from this excerpt from a 1978 Navy Court of Military Review opinion:
In this connection, in United States v. Rivera, 6 M.J. 535 (N.C.M.R.1978)
, we expressed concern that a number of military lawyers appear relatively indifferent to the perpetuation of traditional military terminology, practices and procedures. Many have certainly taken to so-called “civilianization” of the United States military justice system like ducks to water. Yet the truth of the matter appears to be that this timorous and undisciplined spirit of conformism may be fraught with some serious problems.
United States v. Jones, 7 M.J. 806, 808 (N.C.M.R. 1979).
The Rivera decision cited by Jones (both of which were written by Senior Judge Dunbar), included this discussion of military justice terminology:
“Civilianization” of the military justice system is no mere bubble blown out of a legal pipe dream. Records of trial reveal that even our military judges, along with the High Court, often refer to a duly constituted military membership court as “the jury”. And only recently this Court considered an assignment of error wherein it was asserted that the accused was denied a fair trial because the “jury” that tried him was not composed of 12 members. Apparently, we seem to be entering a period where we are using the same terms with different meanings.
United States v. Rivera, 6 M.J. 535, 537 n.3 (N.C.M.R. 1978).
Court-martial panels aren’t juries. If they were, they couldn’t have only five members or reach non-unanimous verdicts when they have six members. Ballew v. Georgia, 435 U.S. 223 (1978); Burch v. Louisiana, 441 U.S. 130 (1979). The Supreme Court has repeatedly stated that the Sixth Amendment right to trial by jury doesn’t apply to courts-martial. See, e.g., Whelchel v. McDonald, 340 U.S. 122, 127 (1950) (“The right to trial by jury guaranteed by the Sixth Amendment is not applicable to trials by courts-martial or military commissions.”).
All of that went through my mind this past week when I first noticed what was written on a sign I’d walked by hundreds of times since my office moved to Joint Base Andrews last year. Here is the sign on the deliberation room at the Andrews trial courtroom:
That isn’t the only sign at the trial courtroom complex that abandons standard military justice nomenclature. Here’s another:
And how does the signage refer to the defense counsel? I don’t know; there didn’t seem to be a room reserved for one of them.