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Tuesday, April 17, 2018

Statement of Attorney Richard V. Stevens on Dismissal of Charges and Case against Client, Air Force MSgt Michael Silva


The court-martial case against MSgt Michael Silva has been dismissed by the government.  I am grateful and relieved that Mike and his family can now try to move forward from this difficult time.

Much has been said publicly about this case; some of it inaccurate, some of it uninformed, some of it clearly biased.  I won't address it all, but I do want to address some.

I did not represent Mike in his first trial, but it is important to note that while the conviction in his first trial was overturned by the Air Force Court of Criminal Appeals based on a legal error, that legal error cannot be just considered a "technicality."  It was far from that.

In Mike's first trial, the prosecution was permitted to make an improper argument about how the court members (jury) could consider the evidence in the case.  So, not only did the prosecutor seize on the opportunity to make that improper argument, the trial judge instructed the members they could consider the evidence the way the prosecutor said they could.

This improper argument was one prosecutors were making at the time of Mike's first trial (and defense counsel were objecting to) because a case addressing the improper argument had not yet been considered on appeal.  So, in the absence of case law prohibiting the argument, prosecutors were gambling that such an argument would hold up on appeal - even though defense counsel were arguing against the legality of the argument.  The gamble did not pay off for the government/prosecution.

When that prosecution argument was finally considered on appeal by the highest military appellate court - the Court of Appeals for the Armed Forces - in a case called United States v. Hills, the argument was found by the Court to be improper, unconstitutional, and to undermine the presumption of innocence.

The prosecution used that improper argument in Mike's first trial, the court members considered the evidence in a manner undermining his presumption of innocence, and the improperly obtained conviction in Mike's first trial was overturned based on U.S. v. Hills.

It is also important to note, however, that not every case in which the prosecution used that improper argument and obtained a conviction has been overturned on appeal based on U.S. v. Hills.  The appellate courts also look at the evidence in the particular case, to determine if a conviction would have been secured despite the improper argument.  Specifically, the government must show to the appellate court that there was no reasonable possibility that the erroneous argument contributed to the conviction.

The government was unable to show that the erroneous argument did not contribute to the conviction in Mike's case.  The Air Force Appellate Court emphatically disputed the government's claims that they would have obtained a conviction anyway.  In fact, with regard to Mike's first trial, the Appellate Court found that the trial prosecutor "hammered" on the improper argument, and the Appellate Court detailed many of the weaknesses in the prosecution's evidence and case that were overcome by the prosecutor using the improper argument.  That is why Mike's case was overturned based on U.S. v. Hills, while some other military cases that raised this issue on appeal have not resulted in an overturned conviction.

In addition, because Mike's conviction was overturned based on the U.S. v. Hills issue, the appellate court did not have to address any of the other issues raised on appeal...and there were additional strong issues that were raised on appeal but never addressed, because the case was decided on the U.S. v. Hills issue.

In MSgt Silva's re-trial, in which I represented him, we raised multiple pre-trial motions that were pending, including a motion to dismiss the case.  Based on that pending motion to dismiss the case, the Convening Authority dismissed two of the remaining three allegations.  That left one allegation for which there were several pending motions, to include the motion to dismiss.  Before the motions could be heard, based on inputs received by the Convening Authority, the remaining allegation, and the case, was dismissed.

I would like to sincerely thank all of those who have provided support to Mike and his family during this case.  It has been a long and difficult road.  I would also like to thank Save Our Heroes, not only for their support, but for their considerable efforts in uncovering even more information for the defense to use in the re-trial, which was cited by some of the motions we filed before the case was dismissed.  

It has been my pleasure to represent and defend MSgt Mike Silva.  Now that the court-martial case is over, it is my hope that Mike and his family can put this painful chapter of their lives to rest. 

LAW OFFICES OF RICHARD V. STEVENS, P.C. 
Phone:  (888) 399-0693
Web:  http://militaryadvocate.com/ 
Blog:  http://militaryadvocate.blogspot.com/

Sunday, April 15, 2018

Civilian Court-Martial Defense Lawyer: Military Officer Represented by Attorney Richard V. Stevens Separates with Honorable Discharge


Military Defense Lawyer (Former JAG Attorney) News:

Recently, a military officer defended by attorney Richard V. Stevens (Military Defense Law Offices of Richard V. Stevens, P.C.) who was accused of serious and recurring misconduct separated from the military with an Honorable discharge.   

In response to the allegations faced by the officer client, we submitted responses and rebuttals on his behalf.  Ultimately, despite what the government was seeking, the client separated from the service with the highest characterization of discharge – an Honorable discharge. 

Because of the nature of administrative actions, no specifics about this particular case can be discussed.  While the defense was successful in this case, it is important to understand that every case has different facts, and success in some previous case(s) does not guarantee success in any particular future case.  No military lawyer or civilian defense lawyer, including those who specialize in military law as we do, can guarantee the outcome of any military case. 

For more information about the military justice system, particularly administrative adverse action cases, please see:



We offer free consultations for a case you may be involved in.  Just call us.

Thank you.    

By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, P.C.

http://www.militaryadvocate.com

Blog postscript: I (attorney Richard V. Stevens) am a former active duty military lawyer (JAG). My perspectives and advice, therefore, are based upon my experience as military defense lawyer and as a civilian criminal defense lawyer practicing exclusively in the area of military law and military justice. This blog addresses issues in military law, military justice, military discipline, military defense, court-martial practice, the Uniform Code of Military Justice (UCMJ) and other military and/or legal topics. Nothing posted in this blog should be substituted for legal advice in any particular case. If you seek legal advice for a particular case, please contact The Law Offices of Richard V. Stevens for a free consultation. These military defense law offices are located in the Northern Florida/Georgia areas, but the military defense representation is worldwide – when necessary, the attorneys travel to wherever the client is stationed around the world.

Tuesday, April 10, 2018

Civilian Court-Martial Defense Lawyer: “Beating a Dead Horse”…ACCA finds Actual and Apparent UCI (Unlawful Command Influence) in U.S. v. Schloff


Military Defense Lawyer (Former JAG Attorney) News:

In the past couple weeks, I have posted about U.S. v. Vargas and U.S. v. Barry.  So, posting about Unlawful Command Influence (UCI) in U.S. v. Schloff seems like I’m “beating a dead horse” about the terrible issues eroding the basic fairness of the current military justice system, particularly in alleged rape and sexual assault cases.  

While the post does seem repetitious, I think it’s more concerning that there continues to be a dead horse for the beating.  That’s an ugly idiom (particularly since I’m a horse lover), but Unlawful Command Influence is an ugly cancer in the military justice system…that is spread by the current political environment in which the military justice system exists. 
     
So, here is U.S. v. Schloff.  Another UCMJ Article 120 case.  The CAAFlog case page appears here:


The Army Court of Criminal Appeals (ACCA) overturned the conviction in Schloff and remanded the case based on actual and apparent UCI.  This was affirmed by the Court of Appeals for the Armed Forces (CAAF).  Of note, ACCA held:  

“The UCI was a ‘palpable cloud throughout the deliberations’ left to permeate in each panel member’s decision-making process.”  

Of concern was the following:

“At the beginning of deliberations on findings of appellant’s court-martial, the president and senior ranking member of the panel, [COL JW], made a statement to the effect that based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault. He also asked a question to the effect of, ‘How does the Chief of Staff of the Army’s current emphasis on sexual harassment affect the findings and our decision in this matter?’ [COL AM] made some unspecified but similar comments or comments indicating agreement with [COL JW].

All the members had the ability to hear these statements and all members were engaged in the deliberations. The members debated these comments, with [two of the members] in disagreement with [COLs JW and AM]. The discussion regarded the general climate on sexual assault in the Army and in Korea at the time and Army policy. [LTC JV] argued that the case should be decided on the merits and that ‘the outside’ shouldn’t be brought into the deliberations, or words to that effect. The members then debated the evidence and voted on findings.”

Yes, you read that correctly.  The court members’ (jury) deliberation began with the O-6 President of the panel and another O-6 commenting on how the Army couldn’t seem weak or soft in dealing with cases such as they were about to consider…and raised the Army Chief of Staff’s emphasis on sexual misconduct – all contrary to the instructions of the Military Trial Judge!  The court members then discussed this issue as they deliberated about the accused's case.

Not only is this grossly improper, but bear-in-mind that we rarely learn about what occurred behind the closed door of the deliberation room.  Who knows how many times a similar discussion has taken place in other military cases that were unknowingly and unfairly tainted?  At least in this case the UCI was exposed, and this resulted in the conviction being overturned. 

I’m just going to end this blog post with a sigh………..

By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, P.C.

http://www.militaryadvocate.com

Blog postscript: I (attorney Richard V. Stevens) am a former active duty military lawyer (JAG). My perspectives and advice, therefore, are based upon my experience as military defense lawyer and as a civilian criminal defense lawyer practicing exclusively in the area of military law and military justice. This blog addresses issues in military law, military justice, military discipline, military defense, court-martial practice, the Uniform Code of Military Justice (UCMJ) and other military and/or legal topics. Nothing posted in this blog should be substituted for legal advice in any particular case. If you seek legal advice for a particular case, please contact The Law Offices of Richard V. Stevens for a free consultation. These military defense law offices are located in the Northern Florida/Georgia areas, but the military defense representation is worldwide – when necessary, the attorneys travel to wherever the client is stationed around the world.