Cole v. Laird’s Empirical Analysis

Citation profile

11 federal appellate · 3 district ·

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 26 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “1. The serviceman’s proper absence from the base. 2. The crime’s commission away from the base. 3. Its commission at a place not under military control. 4. Its commission within our territorial limits and not in an occupied zone of a foreign country. 5. Its commission in peacetime and its being unrelated to authority stemming from the war power. 6. The absence of any connection between the defendant’s military duties and the crime. 7. The victim’s not being engaged in the performance of any duty relating to the military. 8. The presence and availability of a civilian court in which the case can be prosecuted. 9. The absence of any flouting of military authority. 10. The absence of any threat to a military post. 11. The absence of any violation of military property. One might add still another factor implicit in the others: 12. The offense’s being among those traditionally prosecuted in civilian courts.””

   2 later decisions quote this exact passage
   e.g. United States v. Burston · 353 F. Supp. 1032 - Schroth v. Warner

2. ““. . . in Relford the Court quantified the O’Callahan holding into twelve identifiable factors which . . . broadly define the negative parameters of court-martial jurisdiction. “Just what affirmative elements are necessary and sufficient to establish the requisite nexus between military and offense is not yet clear. The United States Court of Military Appeals has, however, suggested that military jurisdiction extends over the possession and use of marijuana or habit forming narcotics on the theory that the use of these items undermines the readiness of the fighting force. The theory was first expressed by dicta in ... Beeker It was later accepted without analysis in Adams “The rationale which the Court of Military Appeals used to bolster this theory was enunciated in Williams . . . There the Court of Military Appeals held that, notwithstanding its judicial notice of the ‘possible, disastrous effects on the health, morale, and fitness for duty of persons in the armed forces,’ of the use of habit-forming narcotics, the panel members must be specifically charged to acquit unless they found the defendant’s possession and use of drugs to be prejudicial to the good order and discipline of the service. Thus, the Beeker court’s reliance on Williams was misplaced. “It is clear that the on-post possession of marijuana is an offense cognizable by court-martial. . . . But any offense which occurs on a military reservation has an intimate service connection. . “The Government recognizes t”

   1 later decision quote this exact passage
   e.g. 353 F. Supp. 1032 - Schroth v. Warner

3. “The Government contends, however, that Cole has viable forums to present his claim of constitutional law in the person of the Judge Advocate General of the Air Force, Uniform Code of Military Justice, Art. 69, 10 U.S.C. § 869 , or before the Board for Correction of Military Records, 10 U.S.C.A. §§ 1551-1554 . Whatever may have been the efficacy of the Government’s exhaustion argument regarding Article 69 is rendered academic by the action taken by Major General James S. Cheney on December 27, 1971, denying Cole’s request for relief. A careful reading of the statute creating the Board for Correction of Military Records and the cases which have been resolved through that Board convinces us that its function is one of administrative review, its expertise is inapposite for the task at hand, and its powers too limited to grant appropriate relief. Cf. Pitcher v. Laird, 5 Cir., 1970, 421 F.2d 1272,1276 . Although it is clear that some degree of exhaustion is required before federal courts will review courts-martial convictions, it is clear that Cole’s only opportunity for judicial scrutinization of his conviction lies with the federal courts. Cf. Parisi v. Davidson, 1972, 405 U.S. 34 , 92 S.Ct. 815 , 31 L.Ed.2d 17 .”

   1 later decision quote this exact passage
   e.g. 369 F. Supp. 340 - Betonie v. Sizemore