The PJ Tatler

A Very Peculiar Case

In the United States the prosecution has very, very limited opportunities under the law to appeal a not guilty finding .

 Appeals by the state after certain [trial] court judgments (such as not guilty) are limited by the United States Constitution. The 5th Amendments’s “double jeopardy” clause protects against multiple prosecutions for the same offense. Therefore, if the defendant is acquitted, the state cannot appeal.

There are limited instances, however, when the state can appeal. The state may appeal court rulings which grant a defendant post conviction relief (e.g., the reversal of a conviction). It may also appeal [trial] court decisions on certain pre-trial motions (e.g., the suppression of evidence).


The general rule is that the prosecution cannot appeal such a ruling.  The Uniform Code of Military Justice (UCMJ) follows this practice:

 Uniform Code of Military Justice (UCMJ)  ART. 62. APPEAL BY THE UNITED STATES


(1) In a trial by court-martial in which a military judge presides and in which a punitive discharge may be adjudged, the United States may appeal an order or ruling of the military judge which terminates the proceedings with respect to a charge or specifications or which excludes evidence that is substantial proof of a fact material in the proceeding. However, 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.

This makes the recent actions by the Air Force in the case of First Lieutenant Patrick Burke , USAF, unprecedented , inexplicable and inconsistent with the constitutional protection against double jeopardy.

Burke had been charged with stealing a car, driving drunk, assaulting the owner of the car and a fellow crewmember and wrongfully leaving the scene of the accident. In the course of the three day trial the evidence showed that the defendant had been involved in a 19-hour flight and to maintain a constant state of alertness, he and the other three members of the flight crew had been prescribed 10 mg tablets of Dexedrine, an effective amphetamine and told to take them every four hours after the first four hours of the flight. With a total of 40 mg  of Dexedrine in their systems the crewmembers went out drinking after they landed. Soon after it was apparent that  something was terribly wrong with Lieutenant Burke.

They met a local woman who agreed to show them around, eventually taking them up to Skyline Drive, a popular and scenic overlook above Rapid City, SD.  While stopped at a rest area, Lieutenant Burke began to accuse his fellow crewmember and the woman of being part of a CIA plot to kidnap him.  He also said that he and his platoon were on a mission to hunt down terrorists.  He claimed that Jack Bauer had told him this would happen, and attempted to arrest the Captain by holding his arms behind his back.  He wasn’t joking.  He had watched several seasons of the hit TV series “24” while spending two weeks waiting for the jet to be readied for its return.  According to two witnesses, he was convinced to get back in the car to return to the base, but then lashed out at the other two occupants from the back seat, screaming for them to stop the car so he could escape.  The Captain bailed out and ran away.  The driver then testified that she jumped out of the car, only to be knocked to the ground, beaten and having her keys taken by her attacker.  She then reported that the Lieutenant drove off in her car, only to crash it in a tight curve a quarter mile down the hill.  She testified that when she got to the car he was gone.  The Lieutenant made his way back to his comrades the next morning, and all testified that he seemed to have absolutely no recollection of what had happened the night before when told what he had said and done.  They laughed it off until the woman made a police report and charges were filed first in Rapid City, then by the Air Force, who assumed jurisdiction of the matter.

The Air Force ordered a full psychiatric evaluation by Air Force mental health professionals.  Two psychologists and a psychiatrist agreed that the Lt had no current diagnosis, but that at the time of the offenses, was suffering from poly-substance induced delirium (a severe mental disease or defect) and as a result was unable to appreciate the nature and quality or wrongfulness of his conduct.  In other words, he lacked mental responsibility for his action.  This is the textbook definition of temporary insanity in the military justice system.  In order to better prepare for trial, the defense team requested that a very senior and much more experienced military forensic psychiatrist be appointed to conduct an independent analysis.  That psychiatrist reached the same conclusion.  Three of the four testified at the trial.  They all agreed that as a result of the combination of severe sleep deprivation (approximately 36 hours of constant wakefulness), 40 mg of Dexedrine and voluntary consumption of an unknown quantity of alcohol, he was delirious and his behavior was consistent with the purposeful and normal reaction to a belief that his life was in danger.

In the military justice system, in order to prevail on the affirmative defense of lack of mental responsibility, the defense must establish the accused lacked mental responsibility by clear and convincing evidence.

After the military judge announced the verdict, federal statutes and military court-martial rules require that the accused be held until an evaluation can establish whether he poses a future danger to himself or others.  An evaluation was conducted within 3 hours after the trial.  The military judge held the statutory hearing, receiving a report of the evaluation that concluded the Lieutenant had no psychological diagnosis and therefore posed no danger.  The military judge then ordered his release.

This seems a total acquittal of the charges, but in an unprecedented and inexplicable move the Air Force has filed a notice of a government appeal . This signals that it intends to appeal the acquittal.

The Lieutenant wrote to the Air Force Inspector General’s office complaining of the threatened appeal and received an unsigned response from Vern S. Baldwin, Deputy Inspector General which states in relevant part:

 SUBJECT:  Dismissal of Complaint (ACTS Case # 2011-16957)

  1. I have conducted a thorough complaint analysis of your complaint regarding the possible appeal of your courts martial verdict.  After talking with personnel involved with the matter, I determined that the Air Force has not yet determined to appeal your case, if the Air Force determines to appeal your case you will be notified.  Also, be aware that a “not guilty” verdict is not the same as a verdict of “not guilty only by reason of lack of mental responsibility”, your legal council [Sic]can explain this to you.  As no violation of law or instructions has occurred I am dismissing this case as no creditable evidence of wrongdoing has been provided.

I don’t know what  a “legal council” is and I certainly cannot recall a case holding “a ‘not guilty’ verdict is not the same as a verdict of ‘not guilty only by reason of lack of mental responsibility’” for the purpose of post acquittal prosecutorial appeals. Maybe “legal council” somewhere out in the internet can figure this out.

I understand the Air Force has until Friday of this week to file any appeal. Burke thinks the Air Force is prolonging this as retaliation for his acquittal and one hopes that if the Air Force is foolish enough to go through with the appeal the US Air Force Court of Criminal Appeals (AFCCA)  will dismiss it out of hand.

Perhaps , some have suggested,the real concern is not Lieutenant Burke, but rather  exposure of the fact that the use of Dexedrine on pilots flying long missions hasn’t been carefully monitored enough to protect the pilots from adverse reactions like that suffered by Burke. If so, one wonders whether this strategy of keeping the matter alive makes any sense at all.