Sgt David Gutierrez Appeal: Clark Baker’s Spin Machine

The ruling in the appeal of Sgt David Gutierrez came down February 23. I waited until now to write about the decision because I wanted to see how Clark Baker would spin it. I am actually a little surprised that most of the spin has come from other sources, most notably Henry Bauer and Elizabeth Ely, but I will get to that in a moment.

Mr. Baker’s Personal Spin

I. Mr. Baker only left one comment at each of the major outlets that reported this story. That comment was mostly to brag that OMSJ was responsible for bringing about this appeal. That is true and I reported that fact back in December when oral arguments where heard in this appeal. Baker’s original complaint was of legal incompetence against the defense team because they declined Baker’s offer of assistance. However, Mr. Baker has failed to mention that his accusations of legal incompetence were dismissed as being untrue as I also pointed out via this military document.

“The record clearly rebuts the appellant’s claim that his trial attorneys proceeded without expert assistance. The convening authority appointed an HIV expert to assist the trial defense team, and the expert actively participated in pretrial interviews of the Government’s expert who, as a result of challenges by the defense expert, modified her opinions concerning the likelihood of transmission during various forms of sexual activity in favor of the appellant. A voucher shows payment to the named defense consultant for over 16 hours of consultation and records review. The specific error claimed by the appellant that his trial attorneys proceeded without expert assistance is simply incorrect. Rather, the appellant’s argument is essentially a request to try the case again with a different expert. Having considered the record of trial and the post-trial submissions of counsel, we find that the appellant has failed to meet his burden of showing that his counsel were in any way deficient under the standards of Strickland.”

Although the court dismissed this portion of the appeal request the appeal did go forward on the allegation of legal insufficiency of the evidence. So for that reason, OMSJ can be given credit. However, it must not be glossed over, although Baker and all his Spin Doctors have done so, that the appeal was won on the science and not any obfuscation of the science.

II. The major issue I have with Mr. Baker’s spin is one short sentence in Baker’s Press Release:

Testimony from OMSJ defense experts established that the likelihood of heterosexual HIV transmission is close to non-existent, while the military’s own medical expert admitted that HIV transmission is “unlikely to occur when there is only a 1-in-500 chance of occurrence.”

This is an outright fabrication. There was no “testimony from OMSJ defense experts”. The only evidence considered in the appeal was from the original trial and from oral arguments in the appeal. Don’t forget, as I just wrote above, this appeal came about because Baker’s offer of assistance was declined by the defense attorneys in the original trial. OMSJ’s pseudo-experts did not factor into this appeal or the decision. This is just shameful and one more example of what a fundamentally dishonest person Mr. Baker is.

The Spin Doctors – Ely and Bauer

That brings me to the rest of Baker’s Spin Machine; Elizabeth Ely and Henry Bauer. Ely did an interview with the defense attorney Kevin McDermott on her seldom heard podcast How Positive Are You? Mr. McDermott had some less than flattering comments about the original defense team and he said they put on a poor defense. However, McDermott contradicted his assessment of the original team by saying that they basically had no options. McDermott admitted that there was no way they could win. McDermott said the lower court was never going to overturn the precedents to clear Gutierrez and only the appeal court would do that.

McDermott also contradicted his opinion of the original defense team because he used much of their same strategy in his own oral arguments regarding transmission rates and Viral Load. In his oral argument McDermott quoted from the original transcript. If the original defense was so inept, why did he duplicate much of their strategy and work?

Legal Success Thanks to Science

This is a good place to definitively state that this appeal was a legal victory due to overturning shitty case law and it was all predicated on science. This appeal victory had nothing to do with Baker’s Denialist Strategy that “HIV tests are worthless ” or that “HIV science is incoherent gibberish”. The oral arguments can be heard here and they discuss Viral Load, transmission rates and the fact that HIV is now a chronic manageable disease thanks to HAART. The final decision is here and it is clearly based on transmission rates from HIV expert Donna Sweet and the CDC, footnote #4:

4 We note that Dr. Sweet’s testimony is consistent with information on HIV transmission risk published by the Centers for Disease Control. See Centers for Disease Control and Prevention, (last updated July 1, 2014).

The decision also has this interesting and relevant footnote #3:

3 At the threshold, Appellant contends in his brief that he has never been validly diagnosed with HIV, and submits post-trial affidavits challenging his diagnosis. Appellant did not challenge the fact of his HIV diagnosis at trial, and is not entitled to relitigate an essential fact of the case before this Court, which is limited to reviewing “matters of law.” Article 67(c), UCMJ, 10 U.S.C. § 867(c) (2012).

Although this is a great decision and a big step forward in bringing these laws into the 21st century, it should also be said that David Gutierrez acted irresponsibly, selfishly and with a complete disregard for his sexual partners. Just because the statistic risk of infection may be 1 in 500, that does not mean infection could not happen the first time or every time, for that matter.


This last little bit of spin is so ridiculous and over-the-top it should be easily dismissed. However, I thought it would be fun to end on Henry Bauer’s blog post. The title, while completely false and misleading, shows just how prone to hyperbole our favorite Loch Ness hunter can be:

HIV/AIDS Theory Cannot Stand Up In Court

The facts have been crystal clear for a long time, that HIV/AIDS theory is bankrupt and has done and continues to do enormous damage to innumerable people (The Case against HIV). But people cannot be forced to look at or admit facts — except (at least sometimes) in court, where HIV/AIDS experts can be cross-examined and their misguided beliefs exposed as such.

I’ll just leave it at that.

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