Re: U.S. v. 1st Lt Patrick T. Burke

Charles W. Gittins

Attorney and Counselor at Law

P.O. Box 144
Middletown, VA 22645
(540) 662-9036
(540) 662-9296 (fax)

-----Original Message-----
From: Puckett Neal <neal@puckettfaraj.com>
To: cgittins <cgittins@aol.com>
Cc: Faraj Haytham <haytham@puckettfaraj.com>
Sent: Sun, Oct 16, 2011 4:34 pm
Subject: Re: U.S. v. 1st Lt Patrick T. Burke - Notice of Appeal

Thanks, Charlie. My first such win. The old "temporary insanity" defense. Pretty rare to get 4 mil shrinks to not only agree but remain adamant about it. They brought in a 5th shrink as a hit man to sing the praises of the go-pill program, which they feared would come under attack if even partially blamed for my guy's delirium. He discounted their evaluations and said it was more consistent with just alcohol abuse, the centerpiece of the G case. I'm sure that's why the 62 appeal trying characterize a verdict (reinforced by the MJ again today). They are scared to death they'll be sued by this third party victim of carjacking over the Dexedrine. Intel says that ACC (4-star) directed that his JAGs appeal. I think it will die an early death.

Neal

Neal A. Puckett, Esq

LtCol, USMC (Ret)

Puckett & Faraj, PC

1800 Diagonal Rd, Suite 210

Alexandria, VA 22314

703.706.9566

www.puckettfaraj.com

www.twitter.com/puckettfaraj

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On Oct 16, 2011, at 5:20 PM, cgittins@aol.com wrote:

I had a NG by reason of lack of mental responsibility in a MJ case with Ed Loughran as Military Judge. It was probably in 2001 or 2002. I think he got jammed for not doing the hearing required. But my guy went home after the trial too. Great outcome, Neal. I don't think the G has much chance on appeal and I'd be surprised if the appeal was not ultimately dismissed.

Good luck, if you are involved in the appellate work, but I don't think you'll need much luck! Congrats on the win.

Charles W. Gittins

Attorney and Counselor at Law

P.O. Box 144
Middletown, VA 22645
(540) 662-9036
(540) 662-9296 (fax)

-----Original Message-----
From: Puckett Neal <neal@puckettfaraj.com>
To: cgittins <cgittins@aol.com>
Cc: Faraj Haytham <haytham@puckettfaraj.com>
Sent: Sun, Oct 16, 2011 5:23 am
Subject: Re: U.S. v. 1st Lt Patrick T. Burke - Notice of Appeal

No. That's a common misconception and perhaps that's the way it used to be. After extensive research, and after delivering the verdict, the MJ took another 10 min to read into the record all of the USC provisions juxtaposed with the applicable RCMs. The authority to make the determination of current or future dangerousness rests with a MJ in all military cases. The guy has to be committed to an institution appropriate to his condition. In this case, he just wanted allowed to leave the legal office. Parties recommend a mental health professional to conduct an evaluation. MJ appoints that expert. The expert does an eval (in this case we brought in 2 of the 3 706 board members to re-validate their conclusion of a complete absence of a psych diagnosis). The expert(s) produce a report. All of this must be accomplished within 40 days. (Nothing says it can't be done in less time, like right after trial). A MJ must conduct an RCM 1102 hearing at which the accused has a right to be present with counsel and the govt is free to take any position they want. Here, the MJ simply stayed afterward to appoint the expert(s), conduct the hearing, and in accordance with the report and the government agreeing that he was not a danger to himself or others, the MJ ordered his release. He was home less than 4 hrs after we got the verdict.

It's was a first for me. Both the win on these grounds and the process required after.

Thanks for weighing in. This all seems like sour grapes by the CA. I think he was guaranteed a conviction. Oops.

On Oct 16, 2011, at 9:01 AM, cgittins@aol.com wrote:

I don't think they can appeal a NG finding. But, correct me if I am wrong since it has been a while since I did one, but they can remand the client to the Attorney General for evaluation, yes? I think the appeal will go nowhere. Once the adults at Appellate G look at the rules, they will dismiss the appeal. That's what happened with major Anglin when the G appealed a ruling regarding Webb's Article 32 testimony.

Charles W. Gittins

Attorney and Counselor at Law

P.O. Box 144
Middletown, VA 22645
(540) 662-9036
(540) 662-9296 (fax)

-----Original Message-----
From: Neal Puckett <neal@puckettfaraj.com>
To: Gittins Charles <cgittins@aol.com>
Cc: Faraj Haytham <haytham@puckettfaraj.com>
Sent: Sat, Oct 15, 2011 5:41 pm
Subject: Fwd: U.S. v. 1st Lt Patrick T. Burke - Notice of Appeal

Charlie,
Thought you'd find this fascinating. Gov't is appealing my client's acquittal. 
What do you make of it?  Isn't NG only by reason of lack of mental 
responsibility still an acquittal by another name? 
Hope you had a great day at Orange. 
Neal

Neal A. Puckett, Esq.
LtCol, USMC (Ret)
Senior Partner
Puckett & Faraj, PC
703.706.9566
www.puckettfaraj.com

> 
> 
> 
> -----Original Message-----
> From: Kouba, Dustin B Capt USAF ACC 7 BW/JA 
> Sent: Saturday, October 15, 2011 5:06 PM
> To: VAN DALEN, MATTHEW D LtCol USAF AETC AFLOA/JAT; 'Puckett Neal'; 
Doser-Pascual, Ranae L Capt MIL USAF AFLOA/JAJD
> Cc: ALBERTSON, KIRK W Capt USAF AMC AFLOA/JAJG; Harris, Ervin N Capt USAF ACC 
7 BW/JA; Mann, Elizabeth A SSgt USAF ACC 7 BW/JA
> Subject: U.S. v. 1st Lt Patrick T. Burke - Notice of Appeal
> 
> Lt Col Van Dalen, Mr. Puckett & Capt Doser-Pascual,
> 
> 
> 
> Attached please find the Governmentâs Notice of Appeal in the case of U.S. v. 
1st Lt Patrick T. Burke dated 15 October 2011.  Please contact me with any 
questions or concerns.
> 
> 
> 
> Very respectfully,
> 
> 
> 
> Dustin B. Kouba, Capt, USAF
> 
> Trial Counsel
> 
> 7 Lancer Loop, Ste 223
> 
> Dyess AFB, TX 79607
> 
> DSN:  461-2035
> 
> Comm:  325-696-2035
> 
> 
> 
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