Here’s an interesting PJ Tatler post by Clarice Feldman reporting on an Air Force case in which the government filed a notice of appeal after the accused was found not guilty only by reason of lack of mental responsibility.  Article 62 provides that “the United States may not appeal an order or ruling that is, or amounts to, a finding of not guilty with respect to the charge or specification” and Supreme Court case law indicates that the Double Jeopardy Clause would prevent retrying a defendant who was acquitted due to insanity.  See, e.g., Burks v. United States, 437 U.S. 1 (1978); United States v. Scott, 437 U.S. 82, 97 (1978); see generally Kruelski v. Conn. Super. Ct. for Jud. Dist. of Danbury, 316 F.3d 103. 108-10 (2d Cir. 2003).

UPDATE sponsored by No Man:  Here is a link to the government’s “no fanfare” notice of appeal in the case.

20 Responses to “[UPDATED] Blog post on government notice of appeal following not guilty only by reason of lack of mental responsibility verdict”

  1. Cloudesley Shovell says:

    Has anyone seen an actual copy of the filing? In deference to the romantic idea that there must be a shred of respectability on the gov’t side of the case, perhaps the filing challenges the post-trial finding regarding whether the accused poses a danger to himself or others.

  2. Phil Cave says:

    It’s a Neal Puckett case. He’d emailed me about it at the time. It was a standard, “notice of appeal.” Apparently there had been some prior discussion with Appellate Government; but maybe I misunderstood Neal’s comment on that. The post-acquittal hearing took a short time and Burke was not sent off to the AG.

  3. Outlaw Biker says:

    The post-trial dangerousness finding was unopposed by the gov’t. The thrust appears to be that since the words, “Not Guilty only by reason of lack of mental responsibility,” were uttered by a military judge rather than the president of a court-martial panel, it was merely a “ruling,” as that term is used in Art. 62.

  4. Dew_Process says:

    Jeopardy attached when the first witness was sworn. A reading of RCM 921(c)(4) in conjunction with RCM 916(k)(1), suggests that this appeal is meritless. This was clearly a “Finding” versus an evidentiary ruling.

  5. stewie says:

    So by that logic, are they saying all not guilty verdicts uttered by a military judge are appealable simply because it was a “ruling” and not a verdict?

  6. Tami says:

    The rule is clear that even if a ruling is “just a ruling,” if it has the same effect as a “finding” of not guilty, then the government can’t appeal it. The reason for the ruling/finding of not guilty is irrelevant. “Not guilty” for any reason means “not guilty.” And “not guilty” means “not appealable.”

  7. Outlaw Biker says:

    Tami: Apparently the clear meaning of the rule is less clear if you’re a JAG in a blue uniform disappointed with the result of the trial.

  8. Bill C says:

    I recently had a bench trial where the judge found my client not guilty and then said “government, you just didn’t prove your case.” So by the AFGAD logic is that appealable because he “ruled” that the government did not prove their case?

  9. Tami says:

    I had a couple of cases where the judge granted my motion for a finding of not guilty under RCM 917. In one of those cases, the trial counsel announced they intended to appeal, but after a thorough crash course on Article 62 in court, the TCs backed off. Did the judge in the AF case do something similar and the TC ignored the lesson?

    I’m also surprised by the IG response–even though the LT alleges “reprisal” I would have thought that the IG would say his complaint is not appropriate for IG action b/c he has other means of redress available (i.e. AFCCA and CAAF).

    Outlaw Biker–the Army has transitioned from the green uniform to the blue. :) But I know what you meant.

  10. stewie says:

    Based on reading that, they are treating it like a motions ruling. Even if someone, some way they could find a manner to get the Service Court to agree to review it, how in the world do they expect such a court to replace the findings of the military judge of insanity with their own judgment having not seen the witnesses. Yes, they have the power to find facts, but they ain’t gonna do it in a case like this, ignoring that they almost certainly can’t under the law.

  11. Outlaw Biker says:

    Yes, stewie. That’s exactly how they are treating it. Has anyone else thought about WHY the Air Force is torturing the law this way? What would be the policy reason for challenging this verdict? We see convicted appellants desperately trying any and every argument to get relief after a conviction. That is expected. But why would a military department pursue something that seems to the casual observer of the legal process to be so clearly, directly and specifically prohibited by the language of Art 62? Or as the Air Force says, what is the view of this case from 30,000 feet? Is it a strategic effort to begin to change the law of the insanity defense?

  12. stewie says:

    Well, I would guess yes, it is an attempt to say a finding of insanity is purely a legal ruling and thus not really a verdict (even as it directly leads to a verdict).

    Of course, the differentiation between the judge as factfinder and the panel as factfinder is problematic for them (amongst other problems). Insanity has a legal definition but it’s still a factual finding.

  13. Dew_Process says:

    Face it, the AF is saying, “this is my sandbox and if you want to play in it, you play by our rules” – and when the accused here did this and beat them, they throw sand in your face and say, “hell no, we’re going to do this over again so we can convict you!”

    Convictions are the mission and they’ll use whatever tactics necessary to get them as this case shows.

  14. Dwight Sullivan says:

    “The drafters further intended that, for purposes of subsequent appellate and other legal reviews under this Manual, a finding of ‘not guilty only by reason of lack of mental responsibility’ shall be treated as any other acquittal.” Manual for Courts-Martial, United States, App. 21, at A21-67 (2008 ed.).

  15. Outlaw Biker says:


  16. Ama Goste says:

    I presume Col Christensen set the trial counsel straight when the base office notified JAJG (should have started there before embarrassing themselves)?

  17. Outlaw Biker says:

    Nope. His signature block was on the filing of the record with AFCCA last Friday (though someone signed for him), suggesting he was at least consulted before someone signed for him.

  18. Christopher Mathews says:

    @ Dwight Sullivan

    “The drafters further intended that, for purposes of subsequent appellate and other legal reviews under this Manual, a finding of ‘not guilty only by reason of lack of mental responsibility’ shall be treated as any other acquittal.” Manual for Courts-Martial, United States, App. 21, at A21-67 (2008 ed.).

    That’s awfully inconvenient language for the government.

    The briefs should be interesting.

  19. Tami says:

    Can anyone post a copy of the AFCCA filing?

  20. Dwight Sullivan says:

    Tami, I entered an appearance and became part of 1LT Burke’s appellate team today. If you shoot me an email, I’ll send you a copy of our submission. You can reach me at