(WASHINGTON, DC) – Citing questions about whether the evidence used to convict USAF Technical Sergeant David Gutierrez, a 20-year-military veteran, was sufficient, the U.S. Court of Appeals for the Armed Forces in Washington, D.C. (CAAF), has ordered a review of the case to decide whether HIV test results and testimony presented by Gutierrez’ clinician, Donna Sweet MD, was “legally insufficient to find beyond a reasonable doubt that (Sgt. Gutierrez) had committed assault likely to result in grievous bodily harm.”
If successful, the Gutierrez Case could change the way the military prosecutes HIV-related criminal cases (see Dacus 66MJ235).
TSgt. Gutierrez, 46, was convicted in 2011 of aggravated assault and adultery for exposing multiple sex partners to HIV at swinger parties. He was sentenced to eight years at Ft. Leavenworth Federal Penitentiary, after which he will be dishonorably discharged from the military.
After reviewing Gutierrez medical records, OMSJ expert Rodney Richards, Ph.D., a chemist and HIV test expert, found that the contract testing facilities and his clinicians had deviated from FDA and military directives and that the results could not prove infection with any degree of medical or scientific certainty.
OMSJ expert Nancy Banks, M.D., a board certified gynecologist and sexually transmitted disease specialist, further challenged the medical evidence used to convict Gutierrez. “Even if standard FDA-proved tests had been used”, she states, “the tests are subject to false positives for a variety of reasons, and particularly for vaccinations.”
A member of the 22nd Maintenance Squadron, at McConnell Air Force Base, Tech Sergeant Gutierrez consistently received top performance evaluations for managing the service and repairs for the 22nd Air Refueling Wing at McConnell Air Force Base. Although healthy and never assigned to hostile combat zones, Gutierrez cooperated with the military’s experimental vaccination program and received more than 40 vaccinations (for such diseases as anthrax, hepatitis, tuberculosis, and pneumonia), 17 of which he received in 2007 at roughly the same time he submitted to the initial HIV tests.
During the next three years, the clinicians who tracked Gutierrez health indicated that he was nothing more than asymptomatic–no visible sign or evidence of disease. Based upon evidence uncovered by OMSJ, Gutierrez now doubts that he is infected with HIV and denies that he committed adultery in violation of the Uniform Code of Military Justice (UCMJ). Allegations that Gutierrez committed adultery were called into question when OMSJs investigation found that the USAF veteran’s wife willingly participated in and encouraged the couples’ group sex activities.
Gutierrez’ appeal also cites ineffective assistance of trial counsel as a contributing factor in his conviction. Founded by investigator and retired LAPD officer Clark Baker, of the more than 50 cases OMSJ has completed since 2009, all but three have resulted in favorable plea agreements, acquittal or the withdrawal of all HIV-related charges. Those cases included the military acquittal of Army Sergeant TD.
A ruling is expected by July 2014. For more on the Gutierrez Case and appeal, see Sex, Lies, Drugs & the Destruction of Sgt. David Gutierrez.
UPDATE: Gutierrez case remanded back to lower court.
UPDATE 26 Sep 2014: Grant brief refiled – case to be heard before the Court of Appeals for the Armed Forces (CAAF) on 9 Dec 2014 in Washington DC.
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