It was more than two months ago that we first brought you the story of MSgt. Mike Silva, the former Military Training Instructor wrongly convicted on what turned out to be utterly baseless rape charges. His case was later set aside by the Air Force Court of Criminal Appeals.
Late last week, after more than 70 days of unacceptable delay, Silva was finally released. He is now home with his family and undertaking what is certain to be a long and difficult process of healing himself and rebuilding his faith in an institution and government that betrayed him for the sake of a paltry political reward.
Silva’s original conviction had been based heavily on propensity evidence, meaning the claims of witnesses were permitted by the trial court to stand as evidence of his tendency to commit the charged offenses … without any of those offenses ever being proven. This type of proof, which should never have been permitted, has since been officially ruled inadmissible in cases like Silva’s. This is the particular rule the Court cited in overturning his findings and sentence, but Silva’s appellate argument contained a host of additional arguments, many with solid legal and persuasive foundation.
We don’t yet know the precise future for Mike Silva, but there are a few clues.
Reports from close observers of the court indicate that the Government petitioned for reconsideration of the reversal and was denied. This was likely a play for time while a vain attempt was made to drum up new evidence or dream up new grounds for additional argument. This of course had the cynical effect of keeping an innocent man imprisoned for an additional month. The Government then spent another month dawdling incessantly about whether to file an additional appeal at the next level, ultimately seeing the weakness in its case and opting to end the appeal process. This was the final trigger for Silva’s long-awaited release.
Appeals now exhausted, the original case against him is dead. This means that administratively, he is due restoration to his prior rank and is entitled to be paid for the time he lost. The only remaining thread to be pulled is whether the Air Force is fool enough to retry Silva on the original charges.
This seems unlikely. The Government’s original case was incredibly weak. No forensics, no eyewitnesses, no firm timelines or exact locations. His accusers had strong motives to lie. There were also fundamental issues of credibility. The Government was able to surmount those weaknesses by bootstrapping through the use of propensity evidence. With this tactic now barred, the case against Silva would be even more reliant on the credible testimony of individual witnesses likely to be eminently impeachable. And this assumes any of them are keen to come forward again. It’s not clear what persuasive case the Government could offer to elicit their testimony. Even if they were willing to testify, it’s not clear any of that testimony would be enough to get a case to trial.
Should the government make the ill-advised decision to put its own face-saving and political chicanery on a plane above justice, there would be intense scrutiny and a strong push for accountability this time around given the massive public interest in the case.
There’s good reason for that interest. This case proves what so many of us have been saying: that the Air Force’s justice process has been hijacked by a government-sponsored social justice project that rewards convening authorities, lawyers, and judges for scalps … and punishes them for exercising fairness. Being the political pawns they are by nature, they’ve sold out completely, relegating the trial judiciary to kangaroo court status.
But things are slowly starting to turn, and Mike Silva’s freedom underscores that. Even as he was getting unfairly maligned in the press … and even as he was silently tarred by a deeply cynical public affairs function which crowed about his conviction but has said nothing about his acquittal … he has managed to find his way home, clothed in the liberty to which he is entitled.
That says something modest but faintly hopeful about the appellate mechanisms charged with overseeing Air Force courts, which have become breeding grounds for Soviet-style condemnation masked by elaborate, pro forma procedures executed by some of the world’s least ethical prosecutors. As a group, they are truly wretched … a big blue swamp in need of draining.
Mike Silva’s freedom is a flaming arrow to the heart of the inane, insane “must believe the victim” movement, which may finally be giving way to the “must believe the evidence” movement.
Beyond all that, his freedom is just the right thing, even if grossly delayed and at an unfairly dear cost.
Congratulations and best wishes to MSgt, Mike Silva and his family.