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.

4 Responses to “BREAKING NEWS: Gov’t changes course, will not appeal acquittal”

  1. Dew_Process says:

    Someone there no doubt was reading the “tea leaves” here on CAAFlog….

  2. Mike "No Man" Navarre says:

    DP–You give us too much credit. Clearly sanity prevailed
    [insert rimshot]

  3. Charles Gittins says:

    I told Neal this would be the outcome the day I heard about it. Someone in Appellate Government finally read the rules.

  4. Ama Goste says:

    Something tells me the JAJG chief (a former military judge and one of the most knowledgeable litigators in the military) came back to the office and said (I paraphrase) WTH?!