Biased “Reporting” Compounds Injustice for Wrongly Convicted Airman

What follows is not unbiased or objective. I fully disclaim it. Like nearly all articles on this blog, what follows is opinion deeply rooted in fact and reasonable inference. Unlike mainstream media reporters, I make no attempt to bullshit my readers.

In general, I’d rather not use this blog to critique journalists. The world doesn’t have enough people genuinely interested in unearthing and communicating key truths. I’m least interested in going after those who cover the Air Force. Very few actually bother to do so, and the public (whether it realizes it or not), as well as those who invest their lives in the service, desperately need its story told and its bureaucracy held to reasonable limits through the exposure of solid reporting.

But a recent article from San Antonio Express News leaves little choice. Both the Express and Senior Reporter Sig Christenson ought to be ashamed of themselves for attempting to pass off an obvious example of biased hackery as actual journalism. In unchaining himself from straight reporting while pretending not to do so, Christenson — who obviously lacks rudimentary legal knowledge yet insists on covering legal matters — has harmed his stature and alienated himself from close observers of the Air Force’s ailing judicial system. He’s also compounded the suffering of an airman wrongly convicted and a family anxiously awaiting his release from mistaken imprisonment.

The background of the case “covered” by Christenson can be found here in a recent piece from JQP, where we detailed the case of MSgt. Mike Silva. He was tried and convicted of rape by Air Force prosecutors who relied on frail evidence gathered in a troubled investigation. The jury in Silva’s case was improperly instructed by the same judge who ignored obvious and fundamental evidentiary and process flaws that should have prevented the charges from ever being deliberated. An appeals court recently set aside Silva’s conviction and sentence based on the improper jury instruction, upending the prosecution’s evidence and arguments in the process.

At its core, the Silva story is about overcharging, overzealousness, and abuse of legal authority by those entrusted to represent the government in matters of justice. Its about a prosecutorial witch hunt at Lackland that ruined dozens of lives in securing three convictions, two of which have since been tossed out.

You wouldn’t know any of this from reading Sig Christenson’s July 24 article “[c]ourt overturns guilty verdict in Lackland sex case,” in which the reporter demonstrates inappropriate bias from start to finish. At times he attempts subtlety and at other times he simply abandons any journalistic standard whatsoever, openly portraying MSgt. Silva as a serial rapist when an appeals court has reached exactly the opposite conclusion.

The bias starts in the title, which manages to link Lackland to guilt and sex while shifting the focus of the reader away from the innocence of the wrongly convicted defendant at the true center of the story. This sets the tone for a piece mainly about the original court findings rather than a more relevant story about how those findings have been legally obliterated.

It’s clear from the outset Christenson is using the recent court action as an excuse to re-hash, in lurid detail, allegations that have since been nullified. He takes license to tarnish the reputation of a man who is still sitting in a prison cell awaiting release, and therefore unable to publicly defend himself. This is the sort of chicanery that has turned so many Americans against what remains of their once consequential Fourth Estate.

The bias continues with Christenson referring to Silva as an Airman Basic. The tag is only accurate because the Air Force’s administrative ineptitude forces men like Silva to endure delay in regaining that to which they are legally entitled. In a well-functioning system, this innocent SNCO would already be wearing his stripes again. Christenson knows this, and it makes his reference slyly cynical. Silva’s guilt and sentence have been set aside. He will, when the wheels of administration finally turn, be restored to his prior pay grade as if the conviction had never happened. This will be the case even if he is re-tried (more on that in a moment). This seems like a way for the reporter to diminish his subject. Objective reporting doesn’t do this.

Consider next the following formulation:

“If the Air Force decides not to try him again, he would be freed from the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas.”

This makes it sound likely that the Air Force will try Silva again. It presumes he should be tried again. It encourages Air Force prosecutors and convening authorities to try him again. It invites more despair for Silva and his family, who have endured the living hell of his imprisonment and finally reached the point of long-awaited redemption … only to have their rekindled embers of joy snuffed out by the looming prospect of enduring it all again.

The legal and practical presumption is that Silva will not be tried again. Unless the prosecution has new evidence, it is something close to a practical impossibility. One of the legal experts contacted for the Express piece actually alludes to this, but Christenson buries this insight at the tail end of his story rather than consider it as he introduces the basic narrative in his early paragraphs. What he should have written was something like:

“Assuming he is not re-tried, which is likely outcome given for a variety of reasons, he will be freed from the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas.”

Note also Christenson’s eagerness to invoke Leavenworth. This is again the work of a biased reporter with the gift of nuance. Leavenworth is where we send bad people who do really bad things, right? So Silva must be a bad guy, right? It’s not germane to the story. It’s just one more drip in a story anxious to paint a grim picture of bad news. An objective report would focus on the good news: that a court had the courage to see the right and act on it, setting an innocent man on the path to deliverance.

The article then cites a statement from an Air Force spokesperson that Christenson should have jumped all over … but instead reported from rote as if it were perfectly untouchable. Read for yourself:

“Air Force spokeswoman Brooke Brzozowske said the service has one month to make that decision, adding, ‘As the judicial process is still currently underway, it would be inappropriate to speculate on further actions at this time.'”

Where’s the follow? Did the reporter question Brzozowske on why the service would exhaust the entire month to make the decision? Did he question why Silva — an innocent man — was still in prison wasting another month of his life in idleness while the Air Force made up its mind? Did he press her on the inaccuracy of her statement that the judicial process is still currently underway?

He should have, because the judicial process is over. The Air Force is authorized to re-initiate that process if it so chooses, but that’s not a judicial process. It’s a prosecutorial decision, and no man should be forced to endure an extension of an already unjust imprisonment while a prosecutor makes up his mind. The timing of the court’s opinion is not a surprise, and the Air Force should have been expecting to lose, which means it should have already done the homework and deliberation necessary to make up its mind. A responsible reporter interested in a balanced story pushes for answers to questions like these. If the Air Force won’t or can’t answer, he reports on their bumbling, which is costing a wrongly convicted man precious days of his already interrupted life.

But the most disgusting example of Christenson’s bias, and the one that will have me and many others reading his work with a jaundiced eye for the rest of however long he chooses to work as a reporter, is his insistence on re-stating in gory detail the allegations against Silva.

Christenson spends several paragraphs — nearly 600 words — spelling out in disturbing and graphic imagery a bevy of inflammatory charges levelled at Silva in the original trial. Charges that a court has just found legally insufficient to sustain a conviction. He even includes details involving private conduct that was not the subject of criminal charges.

This would not necessarily be problematic if Christenson did it in a balanced way, but his portrayal of the original court record is completely one-sided. He doesn’t mention that one of the witnesses against Silva was found to be mentally ill, and to have given inconsistent accounts of the alleged conduct. There’s no mention of her motivation to seek VA benefits by having herself declared a sexual trauma survivor — an idea she got 17 years after her alleged victimization. There’s no mention of the trial court ruling that Silva could not get sufficient access to her medical records to secure his Constitutional right to confront his accuser.

There’s also no mention that another of the key witnesses recanted her allegation and told several of her friends and family members that she did not believe Silva had raped her. Also missing from Christenson’s story is the defense’s allegation that investigators coached witnesses with closed and leading questions in order to concoct the theory that he was a serial offender.

The article spends a bunch of time recounting the accusation that Silva took a basic trainee from her dorm twice to his car in order to drive her to desolate locations where he could assault her. What it doesn’t disclaim is the complete lack of evidence to support this theory.

Anyone who has actually done basic training sees the basic plausibility problem with this. It is not easy to get in or out of a basic training barracks without being seen or questioned … without raising suspicions. For a training instructor to attempt this in the dead of night, when trainees are and always have been prohibited from moving around, would attach an extremely high risk of detection. Yet the prosecution offered no witnesses. Not a fellow trainee. Not Silva’s buddy instructor. Not a dorm guard. Not a single witness who spotted him in the car with a trainee. There was also no proof offered as to how Silva had the opportunity to commit two crimes separated by several days when he only supervised the trainee’s flight for 2.5 days total.

Given Christenson’s insistence on re-hashing bare allegations — and that’s all they are given Silva’s innocence — he owed his readers both sides of the story. He had a responsibility to at least point out, as the appeals court did, that the case against Silva had weaknesses. When a reporter omits information he knew or should have known and the result is reputational damage to a private citizen, this is journalistic malpractice of the worst sort.

It seems clear from the article that Christenson didn’t even speak to the witnesses themselves. This means he’s relying completely on the assessments of others to determine the credibility of the witnesses. This is something like printing anything salacious without endeavoring to understand if it’s actually true. It’s something like tabloid journalism.

This is all really unfortunate given Christenson’s stature and potential to play a constructive role in telling the Air Force story. But more than unfortunate, it’s irresponsible. He is part of the class of society people depend upon to channel the truth. The world is full of cynics and liars. Journalists are supposed to help hold them in check.

Here, the Express betrays that duty and re-transmits allegations that have no basis in fact, offering no counterweight to guide readers to their own objective conclusions. Christenson doesn’t even bother to link his readers to the court documents he used as sources for the allegations. This might be out of concern they would read the documents and see the weakness of the case … and the corresponding weakness of an article that reads like a thinly-veiled argument for a re-trial.

If the Air Force has a lick of sense left in its prosecutorial brain, there will be no re-trial in this case. The evidence is so weak that the prosecution’s only path to a conviction was to combine the statements of coached, unreliable, and mentally compromised witnesses — some with motives casting grave doubt on their credibility — into an amalgamated attempt to prove he had the propensity to commit the alleged crimes. It was borderline unethical to attempt the strategy. It was erroneous for the judge to allow it — even before a subsequent ruling that made doing so a violation of black letter law. It has now been legally demolished. All that remains is the original weak evidence that would have led to an acquittal but for a miscarriage of justice that has now been remedied.

There was a lot more wrong with the Silva case than simply weak evidence, flawed witnesses, and a mistaken judge. Christenson mentions in his article that Silva’s team raised seven particular errors on appeal. But has he done any investigation to understand those errors? Has he tried to understand the many ethical and legal compromises that took this case off the paved surface? Has he done any digging into the issues the appeals court would have considered had it not reached a decision on the very first issue considered? Has he explored why the court might have stopped shy of earnestly and transparently exploring those issues, and what doing so might have meant to the Air Force’s judicial system?

He should do these things. Not just because his readers deserve it. Not just because it’s important to those whose lives are impacted by his reporting. But because this isn’t the last in a line of cases that will rock matters of Air Force law and order. It’s just the beginning.

In true USAF fashion, the service extracted short-term political gain from a wave of show trials in response to political pressure to address the issue of sexual assault. It did this in a bid for preservation of its legal authority. But this myopic move planted a legal and moral bomb in the judicial system — one that is beginning to explode in a wave of reversals and pushes for accountability. No one fights harder than a victim of injustice. No cause is more attractive than a morally certain one. In the end, justice wins, even if it takes too long sometimes.

There is a storm coming, and that’s the real story. If Christenson and others can end the infatuation they seem to have with their own prior reporting, they might just glimpse the potential to tell a more important and relevant story rather than re-hash upended allegations at the expense of the falsely accused.

Given the noticeably high number of reversals, why aren’t we seeing more stories about the cases and why they were reversed? Why aren’t we seeing reporting on recent findings of Unlawful Command Influence? Why aren’t Christenson and others showering the Air Force with FOIA requests and demands for judicial transparency?

Why indeed. The choice of subject matter says a lot.

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