A military appeals court has thrown out the conviction of a former Air Force drill sergeant in a case his supporters claimed illustrated the Pentagon’s zeal in prosecuting troops accused of sexual misconduct.
The U.S. Air Force Court of Criminal Appeals, located at Joint Base Andrews outside Washington, D.C., on Wednesday reversed three rape convictions of Airman Silva at a 2015 trial. He is now eligible for release from Fort Leavenworth, where he is serving a 20-year sentence. He was reduced in rank to airman and given a dishonorable discharge.
He is one of the high-profile cases featured by the nonprofit group Save Our Heroes Project. Staffed by military veterans, the group argues that the military has wrongly convicted a number of troops in a Pentagon-directed campaign during the Obama administration to wipe out sexual misconduct.
In the Airman Silva case, the appeals court expressed doubt about two accusers whose testimony convicted him.
The jury’s decision was based on an error by the court-martial judge, Col. Natalie Richardson. She instructed the jury to consider all the charges against Airman Silva as “a propensity to commit sexual assault.” The overturning opinion noted that a higher court order that guided the appeals decision had not come out when Col. Richardson gave the jury instructions.
The appellate judges also emphasized the prosecution’s weaknesses: There was no corroborating physical evidence, and the convictions were based on the words of a long-ago recruit and an ex-wife who recanted her initial charge.
Airman Silva was among scores of basic training instructors snared in the Air Force Office of Special Investigations (OSI) much-publicized probe of sexual abuse charges at Lackland in 2012.
But in his case, the charge did not come from a recent recruit but from a woman, identified only as “SCG,” who was at Lackland in 1995 when Silva was a senior airman. She went to OSI with her charge amid the Lackland turmoil.
The other two accusers: an ex-wife, “BS,” who said the rapes occurred in 1993, and a former spouse, “JB,” who said she was raped in 2006. She recanted, then reasserted the charge.
The jury found Airman Silva not guilty in the BS case.
“One could argue that the acquittal demonstrates the weakness of the prosecution’s case and that, but for the propensity instruction, appellant might have been acquitted of all specifications,” the appeals court stated.
On the evidence, the opinion said: “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 by Appellant, who did not testify. Specifically with regard to SCG, the Defense introduced medical records, called witnesses, and elicited direct and cross-examination testimony that suggested the window of opportunity for Appellant to have committed the two rapes was a narrow one, and tended to cast doubt on her account in other ways.”
Airman Silva’s supporters said SCG was only in Airman Silva’s unit for three days before being transferred due to a leg injury. She described wearing a uniform that new recruits do not receive that early in training. Silva supporters also say her barracks had 24-hour security, making it impossible for him to get inside and take her away for the purpose of raping her in a car and at an unknown location on two successive nights.
The appeals court noted that both JB and SCG are receiving “substantial monthly disability payments from the government based, at least in part, on mental health disorders related to the alleged sexual assaults” by Airman Silva.
The Air Force has 120 days to decide whether to continue the case. Supporters are hoping he is released within a week or so.