After three years in prison and after enduring a hellish ordeal as bizarre as it was undeserved, MSgt. Mike Silva will soon be a free man once again. The Air Force Court of Criminal Appeals (AFCCA) has set aside his 2015 conviction for rape in an opinion laced with muted criticism of those who overzealously condemned Silva on the basis of allegations that would have and should withered under the slightest application of objective scrutiny.
Silva’s sole crime: being investigated for something sex-related at the height of the Lackland witch hunt, which was a bureaucratically mandated search for scalps masquerading as a search for justice.
The Air Force had, at the time, taken a fresh beating in Congress over its inability to engender basic respect and dignity in the ranks, one manifestation of which was an unacceptable incidence of sex crime together with a pattern of inappropriate command responses to complaints of sexual misconduct.
The service set out to address these issues with a public showing of seriousness. What followed will someday be scrawled into legal texts as an example of unlawful influence baking fundamental unfairness into a process designed to find the truth rather than harvest the pelts of legal quarry.
Silva was convicted in 2015 on three specifications of rape and sentenced to 20 years in prison, total forfeiture of all pay and allowances, and reduction to E-1. His life was left in shambles, his family abandoned by the service he had served his entire adult life.
The charges arose from an allegation made by a former Air Force basic trainee who’d been in a flight Silva briefly supervised during his time as a Military Training Instructor (MTI) in 1995, seventeen years before she raised the complaint. The woman, who had ultimately never served in the Air Force or graduated from Basic Military Training, was seeking VA benefits at the urging of her then husband, an Army veteran who was himself drawing such benefits. She also had a mental health diagnosis.
The woman’s claim could not be corroborated with physical evidence, eyewitnesses, contemporaneous complaints, or anything else. But it was open season on Lackland and particularly on MTIs at the time the allegation was fielded, so the Air Force’s Office of Special Investigations (OSI) did what it saw as imperative: it engaged in a wide-ranging fishing expedition looking for any additional evidence it could unearth.
This led to additional allegations from Silva’s ex-wife, who he’d divorced against her will two decades previous. She made vague allegations that could not be corroborated or independently supported, but OSI slurped them up nonetheless. When she later recanted, this didn’t stop prosecutors from introducing the allegations at trial.
OSI went on to coach and coax similar allegations out of a third person, another who had a relationship Silva long in the past and whose recollections existed in isolation from a shred of corroborative evidence.
Armed with three disconnected allegations, OSI fed them to prosecutors who eagerly wove them together in a gambit to paint him as a habitual offender with a predisposition to commit rape. There were no forensics. No witnesses. No evidence concerning his movements, behaviors, statements, or timelines. No admissions from Silva himself. No testimony from third parties attesting to his alleged propensity for abuse. No insights from the dozens of other women he had dated, worked with, and associated with over the years.
The entire case, such as it was, consisted of he-said/she-said evidence. Silva vehemently denied the accusations, wondering how the same Air Force he had dutifully served and genuinely loved most of his adult life could betray his trust by lending potentially life-shattering credence to the statements of a manifestly unreliable woman. He knew he was innocent, yet now he was the bad guy. But the nightmare was just beginning.
Never mind the lack of evidence or the manifest problems with the witnesses. Prosecutors no-doubt saw it as imperative that Silva be prosecuted. The pressure applied to them from Washington had morphed San Antonio into a modern-day Salem. They took the Silva case to trial, where they argued that the sheer weight of disparate allegations of rape demonstrated a propensity to offend. The court allowed this argument and the panel bought it. Silva, to the shocked disbelief of just about everyone, was sent down.
Down but not out, he set about fighting the conviction immediately. The government dragged its feet, violating due process thresholds that guarantee those like Silva timely processing of their appeals (something noted with disapproval in the AFCCA opinion). But eventually, his appeal made it to the AFCCA, where justice finally prevailed. The legal story of how this happened is important, as it reflects the first stirrings of a justice system at long last beginning to awaken from a long season of corruption.
When his appeal reached AFCCA, Silva’s legal team argued seven legal grounds upon which they believed the verdict and sentence should be vacated. Among these were misapplications of the rules of evidence, ineffective assistance of counsel, discovery violations, unlawful command influence, Sixth Amendment confrontation issues, and lack of sufficient evidence to sustain a conviction.
But the best argument was the first one submitted by his team: that the trial court had erroneously instructed the jury concerning the meaning and application of multiple sex offense charges being brought concurrently. Trial Judge Natalie Richardson wrote a jury instruction confusing enough that its perplexing inconsistency could have been stand-alone grounds for an appeal. Read for yourself, but do not try to understand this unless you have been taking heavy drugs:
When Richardson’s instruction is interpreted most favorably, it means she gave the jury the latitude to decide that if they found the evidence of one of the allegations against Silva credible, they could use it to establish that he had the propensity to commit the other offenses.
This is a judicial no-no. While rules of evidence allow propensity evidence generally (provided it passes a series of tests the court must first perform), it cannot be used in sexual assault cases when the charge used as a basis for propensity evidence is concurrent with the charge being considered and the accused denies the charge. This is a key protection with constitutional implications. Without it, prosecutors could theoretically guarantee a conviction simply by stacking up enough concurrent charges that their collective weight could be too substantial for a jury to escape the conclusion of propensity.
The idea here is that if there is a prior conviction of rape or sexual assault, the prosecution can — if the evidence meets other criteria — use it to help persuade the jury that a defendant had a propensity to offend, and the jury can then weigh this when considering other evidence. But if concurrent charges could be used in the same way, the government could paint a given defendant as a habitual sex offender without ever proving a single charge, the separate charges being used to substantiate one another without true evidence ever entering the picture.
When a judge allows this, it is erroneous, and a resulting conviction can only stand if the government can prove beyond a reasonable doubt on appeal that there was no reasonable possibility the error contributed to the verdict. In the Silva case, the judge committed a clear and inarguable error, and the government carried the burden on appeal of proving it didn’t matter.
This was a burden too heavy to bear. The government conceded the trial judge had made the error, but offered contradictory, speculative, and flimsy arguments in a vain attempt to prove the error had no determinant impact. AFCCA was unconvinced, and set aside Silva’s conviction and sentence based purely on the flawed instruction.
While finding it unnecessary to exhaustively analyze the other issues in the case, AFCCA did take time to ponder the abject lack of evidence presented at trial.
Stopping short of issuing a dismissal, the AFCCA opinion did authorize a rehearing where the government could, in theory, bring new evidence justifying a retrial. This is highly unlikely. At this point, the government will construe a duty to limit the inevitable discredit that would come from re-litigating with a losing evidentiary hand. Prosecutors are also no doubt cognizant that while AFCCA refrained from exposing weaknesses in six of the seven issues raised in Silva’s appeal, those issues are nonetheless replete with strong arguments for the defense. Absent a new smoking gun, it appears this case is over.
This case marks another waypoint on the trail of shame marked by the perpetrators of the Lackland witch hunt. Of the 35 MTIs originally targeted as alleged offenders, only six were taken to trial and only three convicted. Two have now had their trial verdicts overturned. This comes on the heels of another trial tossed out because it was found subject to unlawful command influence by senior generals. We hear rumblings of developments in other cases that could continue to crumble confidence in the Air Force’s trial courts, prosecutors, and investigators.
Many of my friends work in those functions. To them I say be careful … do not allow yourself to be co-opted or politicized. In the end, justice usually catches up, and it’ll be you holding the bag for defying it rather than the general or colonel who pressured you to betray your principles.
In the meantime, every officer who had anything to do with the Lackland debacle should be investigated, charged, and disciplined. Ethical conduct is the bulwark that prevents politics from infecting professional law enforcement. Our officer corps has failed miserably to fulfill its ethical duty, and this must be scribed into the record. We should aspire to a future more ethically governed.
For now, let’s count our blessings that MSgt Mike Silva has gotten justice. While the technical process of his release from prison continues to unfold, all indications are that his long nightmare is finally coming to an end.