Part II Sexual Assault in the Military and the Presumption of Innocence

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Last year I submitted an appellate brief on behalf of Master Sergeant Michael Silva that resulted in his conviction for rape x 3 being set aside.  Michael was two-years into his twenty-year sentence when he was released.

Political Need for “Bad Guys”

Michael was caught up in the Lackland Air Force Base sex abuse scandal.  The investigation into Master Sergeant Silva started after the Air Force encouraged current and former airmen to come forward with allegations of sexual assault against their former Military Training Instructors (MTIs).  One former trainee who spent less than three months total in the Air Force in the mid-1990s alleged that her MTI had sexually assaulted her twenty-five years earlier.

Investigators settled on Master Sergeant Michael Silva as the culprit.

As had become the standard in searching for propensity evidence, the prosecution team of lawyers and OSI agents interviewed nearly every woman from Master Sergeant Silva’s past.  Investigators found two ex-wives willing to allege sexual assault years or even decades after the alleged assaults occurred.  One allegation dated from 1993.  The other allegation came from an ex-wife who had accused Master Sergeant Silva while they were in the middle of a contentious break-up – she later recanted her allegations explaining that Master Sergeant Silva had not assaulted her.

Whole Lot of Nothing

Based on my twenty years of military justice experience, none of the allegations against Master Sergeant Silva could stand separately on their own merits; they lacked both direct and circumstantial evidence.

In order to get a conviction, the prosecution had to rely on the propensity argument.

Master Sergeant Silva’s court-martial lasted nearly two weeks.  The record of trial is sixteen volumes including over two-thousand pages of verbatim transcript.  However, at trial, the prosecution presented no significant evidence besides the testimony of the three accusers.

In its opinion setting aside the convictions, the Air Force Court of Criminal Appeals stated the following:

Finally, the Government argues the evidence of Appellant’s guilt with regard to SCG and JB was “overwhelming.” Again, we disagree. There were weaknesses in the Government’s case. The alleged crimes occurred far in the past. There were no eyewitnesses other than the victims themselves. The only one of the charged or uncharged victims to report the alleged crimes to law enforcement prior to 2012 was JB, and she recanted her initial allegation. The Prosecution presented no physical, scientific, or photographic evidence of any of the offenses.  The Government offered no confessions or admissions to any of the offenses. . . .

So what did the prosecution point to as their strongest evidence of guilt?   Propensity.  Trial counsel began his closing argument by calling MSgt Silva a “serial rapist.”  He ended his closing argument stating, “The last point. Every account in this court-martial is corroborated in the details and we have convergent validity.”  “Convergent validity” was a fancy way of arguing he must be guilty because he is accused by so many women.  While this circular argument may be compelling, it is also improper because it undermines the presumption of innocence.  This is precisely the type of government argument the HillsCourt determined offends due process.

Innocent Until Proven Guilty 

When the highest military court, composed of five independent civilian judges, holds that a convicted military man or woman did not receive due process at their courts-martial, we should ALL be horrified. Prosecutors ought to be concerned that the system that they manage has failed to provide a fair trial to an accused service member.  However, some prosecutor types express concern not that the system failed to provide a fair trial to an accused, but instead worry that the formerly convicted service member will be viewed as “innocent.”  Some practitioners are convinced that the Hills ruling is absurd, that prosecutors can and should be permitted to use charged offenses for propensity purposes.

The results oriented segment of the military justice community are focused on a particular result instead of the process. They would have us believe that Master Sergeant Silva is a “lucky man” to have been convicted and then released because an appellate court determined he did not receive a fair trial. However, any person who is subjected to the court-martial process and then spends more than two years in prison is not “lucky.”

In a recent article in the San Antonio Express-News, a former Air Force JAG and current president of Protect Our Defenders is quoted as saying, “Silva is a very, very, very lucky man . . . My concern is that . . . (Silva’s supporters) will be saying all this proves he was innocent, proves he was railroaded. No, all this proves is that he twice has benefited from (judges) changing their mind on the status of the law.”  His statements drip with self-righteousness and demonstrates disdain for the presumption of innocence.

In fact, Master Sergeant Silva isinnocent because he has never been proven guilty at a trial that could pass Constitutional muster.

The presumption of innocence is a basic legal concept that all segments of the military justice system are obligated to honor. Unfortunately, some have chosen to politicize our system of military justice.  In the long run, we will point to cases such as Master Sergeant Silva’s as examples of how the military justice system was corrupted by political influence in order to achieve predetermined results.

As an attorney dedicated to military justice, I hope the system corrects itself and soon.  Bear in mind that in cases where sexual assaults occur, these tactics that compromise the system hurt legitimate victims; in those reversals, prosecutors have to call upon those people to go through their part in the experience again.  As long as the politicians continue to make changes to the system in order to achieve particular results, due process and the presumption of innocence will suffer. So too will our military men and women continue to suffer at the hands of a system more concerned with its own survival than its ability to deliver justice.

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