| 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. Neal A. Puckett, Esq LtCol, USMC (Ret) Puckett & Faraj, PC 1800 Diagonal Rd, Suite 210 Alexandria, VA 22314 703.706.9566 The information contained in this electronic message is confidential, and is intended for the use of the individual or entity named above. If you are not the intended recipient of this message, you are hereby notified that any use, distribution, copying of disclosure of this communication is strictly prohibited. If you received this communication in error, please notify Puckett & Faraj, P.C. at 703-706-9566 or via a return the e-mail to sender. You are required to purge this E-mail immediately without reading or making any copy or distribution. 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 Government’s 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 > > > > CONFIDENTIALITY NOTICE: This electronic transmission contains confidential information intended only for the person(s) named in the distribution above. It may contain attorney work-product or information protected under the attorney-client privilege, both of which are protected from disclosure under the Freedom of Information Act, 5 U.S.C. § 552. Confidential information is also protected by the Privacy Act, 5 U.S.C. § 552a, or other applicable laws. Do not release outside of DoD channels without prior authorization from the sender. If you receive this transmission in error, please notify the sender and delete copies of this message. > > > |