Fwd: Update on 1Lt Patrick Burke

Hi Darrell,

First of all, I want to thank you again for your thoughts and prayers over the past several months as we dealt with this ordeal of Patrick's.

The verdict that the judge delivered Thursday afternoon, not guilty on all counts, was what we had hoped and prayed for since the USAF decided to proceed with this case last January. Our elation was short-lived though as Patrick's squadron commander called him yesterday (Sunday) morning and asked if he could come over and talk with Patrick. Not a particularly good omen when your commander asks to come to your home on a Sunday morning to discuss something.

The news that the commander (LtCol Matt Brooks, 9th Bomb Sqdn Cmdr) came to deliver in person was that the JAG and the WG CC had filed a notice of intent to appeal the ruling by the Military Judge (LtCol Matthew Van Dalen) that Patrick was not guilty. This is despite the fact that the Manual for Courts-Martial, Rule 908, paragraph a, clearly states the "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 is despite the fact that the judge had informed Capt Kouba (from the Dyess JAG office and the junior chair for the government in this case) his ruling that Patrick was "not guilty" was actually a verdict and therefore not appealable under Rule 908. The judge has stated that he is perplexed by the prosecution's decision to proceed in this fashion, without regard to long standing precedent and the legal prohibition of the government to appeal a verdict. He also stated that he is even more disturbed that someone from higher headquarters approved this action.

Darrell, I don't understand what is going on and I have serious concerns that this has turned into a hugely political struggle that is being orchestrated in such a manner as to allow one or more individuals to CYA, without regard for the rule of law and without regard to the future of a young officer who should have already pinned on Captain. How exactly do we ask our young officers to make the sacrifices required to defend our country when members of the senior leadership are either criminally negligent in their ignorance of the law or worse, they are knowingly disregarding the law?

Patrick was found by a 706 board of three officers to be mentally not capable of appreciating the actions or consequences of actions that he might have done on the evening in question. This was a unanimous decision which in and of itself is amazing. Neal Puckett (Patrick's civilian counsel) said this kind of unanimous decision is exceedingly rare (he may have told me that he had never seen it in 28 years of practicing military law but I'm not sure). The finding of the 706 board was based on the facts that Patrick had been up for anywhere from 34-40 hours at the time of the incident, had taken 4 prescribed 10 mg doses of Dexedrine (GO pills) during his 18.8 hour flight from Al Udeid AB and had then gone out with his crew and had dinner and probably 8-10 drinks over a period of about 10 hours. This unanimous finding by the 706 board should have been enough for the USAF to drop the case as a matter of law. But the USAF decided to press on. There was also another independent evaluation done by an Army 0-6 psychiatrist from D.C. that reaffirmed the findings of the original 706 board.

As a sidebar, I have two comments. 1. The 706 board makes no judgement as to whether the events in question actually occurred. They are only there to determine the mental capacity of the person in question at the time of the alleged incident. 2. The prosecution continued to insist that Patrick was drunk but there is NO proof that Patrick was legally drunk. He may not have even been legally impaired by South Dakota standards to drive at the time. If he had 8 beers and 2 shots over a 10 hour period and his weight is 185 lbs, his BAC was somewhere in the 0.05 range AND HE WAS NEVER DRIVING. The residual effects of Dexedrine in his system would lower that even further because of the increased metabolic rate. The only person who driving was the accuser and she was tested by the police and popped a BAC of 0.147.

The Investigating Officer (IO) at the Article 32 hearing recognized that there were enough problems with two of the charges (drunk driving and the consequent leaving the scene of an accident) that she recommended that they not be referred for court martial. She also noted serious problems with the other charges but allowed that they should proceed. Someone in the chain of command disregarded the IO's recommendations and decided to press forward with all charges. Why did we even bother with the Article 32 hearing if the recommendations were to be ignored? This was also the first indication to me that the consumption of alcohol, regardless of other factors, was the most important thing, to someone, in this case.

So what is going on here? Although I haven't watched any X-Files or worn a tin foil hat (lately), my theory does sound rather conspiratorial.

The USAF had to find Patrick guilty of these allegations in a manner that excluded the effects of go pills so that there would be no repercussions on the past, present or future use of these drugs.

My reasoning is:

South Dakota authorities, who were on scene, never charged Patrick with drunk driving. This charge was added by the USAF - after South Dakota dropped all charges (because there was no evidence that ever put Patrick in the driver's seat of the car or gave the accuser the kind of beating that she alleges. Not to mention the contradictions that exist on the 911 call and the accuser's reports to the police or her huge incentive to fabricate this story.

SOMEONE in the USAF decided to pursue the drunk driving against Patrick, regardless of the fact that he may not even have been too inebriated to drive, and against the recommendations of the Article 32 IO.

The senior USAF lawyer (Capt Albertson from 12AF) at the court martial was vehement in his attacks on Patrick, calling him nothing but a liar and an irresponsible drunk who was trying to escape responsibility for his actions. He called every officer on the crew of the B-1 a liar saying that we only had their word that they didn't get some sleep either on the jet or in the Q before going to dinner, despite the fact that all crew members stated under oath that they never did so. His questioning of witnesses (including three O-6s in uniform) was often so disrespectful, full of sarcasm and invective, and so completely lacking in knowledge that I was stunned, as were many other officers present in the gallery. ALL of the the government's case, as we saw it from the gallery, hinged on nothing but the use of alcohol. ANYTHING else that ANYONE else posited was the product of dishonesty and fantasy and Capt Albertson was smugly, and arrogantly happy to point this out, over and over and over. His demeanor and performance at this court martial makes him the poster boy for any bad lawyer joke you might care to remember.

There is no doubt in my mind that there is unlawful command influence in the decision to file an intent to appeal this court martial. Robin Rand still has not been confirmed as either a LtGen or the 12AF commander and I find it hard to believe that the acting commander (BG Norman) along with the 12AF JAG would take it upon themselves to direct the 7th BW Commander and the Dyess JAG to file an illegal appeal. I have a hard time believing that this hasn't been directed from ACC or higher.

I think it all goes back to the USAF use of GO pills. Their use was prohibited in 1991 or 1992 (accounts differ on the date) by Gen McPeak when he was the chief but put back into use by Gen Jumper. Despite the actual and anecdotal evidence that these drugs can cause problems and do have side effects, the USAF has elected to continue their use. I am often up 24 hours or more with a bad weather landing at the end of that period and as many as 167 other people sitting behind me. Not only do I not take drugs to stay awake, if I did, I would lose all my FAA certificates and I would go to jail. But we let our flight crews go out and fly life and death combat sorties while on these drugs? With no further guidance?

These drugs can and do cause problems, especially when mixed with extreme sleep deprivation and alcohol. The expert testimony in this trial, Patrick's experiences, my personal experience with GO pills in the '80s, (and discussing this with Mike Fennessy at dinner tonight, he had exactly the same experience as me) all point to prudence being exercised. I'm NOT saying that there is no valid time and place for the use of these drugs but let's put some common sense restrictions in place. Col. Benedict, the psychiatrist from the D.C. area, said in his testimony that he was amazed to find that there ARE NO prohibitions against the use of alcohol after taking GO pills. He had to look a second time becau se he was sure he must have missed it on his first perusal. This was also the testimony of EVERY crew member who testified, stating that they were never advised by any flight surgeon to be careful about drinking after the use of drugs.

It seems to me that the USAF has missed a golden opportunity to take what might be a landmark case and make something good out of it. My solution would be simple...anyone who has taken GO pills (or any form of Dexedrine, amphetamine, etc.) is prohibited from drinking any alcoholic beverages for 12 hours after the last dose. This would solve the problem via a couple of ways. If you have been awake long enough to warrant the use of GO pills, it is highly unlikely that you are going to stay up an additional 8-10 hours after the mission just to drink. You will probably get something to eat and go to bed. The down time would serve to reduce the level of drugs in the system and any sleep would doubly help to reduce any combinative side effects of fatigue, Dexedrine and alcohol.

Instead, SOMEONE has decided to violate the law, contravene the MCM, and continue to try and prosecute the Lt. Now that's leadership! Speaking of leadership, if the USAF thought that this case was so important (and they must since they processed this notice of intent over the weekend), why were two very junior JAGs put in charge of the prosecution? My understanding is that this was Capt Albertson's first case as the senior prosecutor. The cynic in me might surmise that more senior JAGs didn't want to get near this tar baby.

Darrell, I love the Air Force. If you offered me the chance to go back and add to my more than 2000 hours in the A-10, I'd have a difficult time not risking divorce and showing up at Davis-Monthan tomorrow and being at Balad next month. Patrick's new Sqdn Cmdr has turned around the morale so fast and instilled such an esprit de corps in the squadron it's amazing. I am jealous of the guys and gals in the squadron and I miss that kind of camaraderie and mission so much it hurts ... but from my perspective, the proceedings in this case and some of the leadership (or more precisely lack thereof) that I have observed over the last 10 months sickens me.

If the JAGs don't know enough to know that they can't prosecute after a unanimous 706 decision of lack of mental responsibility, or if they don't know what I can find out in a few minutes of research that the government CAN NOT appeal a verdict, then they need to be removed for cause. If JAGs know the rules and lack the gumption to stand up and say "Sir, we can't do this", then they need to be relieved for a lack of moral courage and integrity. We all took oaths to that affect and I still believe in those values.

The same goes for any commander. This whole idea of appealing a not guilty verdict smacks of unlawful command influence. If any commander is attempting to subvert the legal system for any reason whatsoever, they need to be removed for the good of the service. If any officer can't stand up and say to his superior that he can't and won't proceed with an illegal, immoral or inappropriate action or directive, they need to be removed for the good of the service and our country. They are not who I want to see, or who we need to be making decisions and leading our young warriors into combat. Patrick and Taylor, and the thousands of other young men and women in the long blue line deserve better. Our country deserves better.

I apologize for the length of this letter and I thank you for taking the time to read it. I wanted to write Sunday evening when I got back from Bogota but I decided to take a few hours, collect my thoughts and try to get my heart rate and blood pressure somewhere below maximum sustainable limits before writing. This is the more sedate version of what I was composing in my mind last night and all day. I also wanted to call but the issues are so complex, I needed to write them down before talking. I am in the CONUS through next Monday morning when I go back to Bogota. I would love to talk about this if you have questions or just to talk about it.

Thanks for your time and friendship,

Stoney

P.S. If this happens to find it's way into the hands of any other JAGs, I apologize for my lack of legal acumen and vocabulary. I'm just a pilot with a prodigious memory and access to the internet. JB

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