The headline alone suggests that United States v. Burke, Misc. Dkt. No. 2011-08, would not be your run-of-the-mill appellate case.
Our prior coverage of this unusual appeal can be found here. In summary: 1st Lt Patrick T. Burke was tried by a military judge sitting as a general court-martial, and was found not guilty only by reason of lack of mental responsibility. The government thereupon filed an Article 62 notice of appeal, indicating that it had consulted with appellate government counsel and the convening authority’s SJA and stating, in pertinent part, “The Government intends to appeal the order or ruling of the Military Judge that terminated the proceedings.” Precisely how the government planned to appeal an acquittal was not made clear; but as one of my colleagues here in Las Vegas (a former AF trial defense counsel) speculated, “Maybe the government thinks insanity acquittals should be best two out of three.”
Alas, we will never know. Today, the government sent notice to the Air Force Court of Criminal Appeals that it would not, in fact, file an Article 62 appeal in Burke.