HIV-as-terrorism case could make legal waves

MOUNT CLEMENS — An HIV-positive Clinton Township man facing charges stemming from a fight with neighbors was arraigned in Macomb County Circuit Court on Monday, setting the stage for a potentially explosive case where prosecutors are for the first time linking laws designed to stop acts of terrorism to an individual’s HIV infection.

Daniel Allen, 44, stood mute as his attorney James Galen Jr. entered a plea of not guilty before Macomb County Circuit Court Judge Peter Maceroni to charges stemming from an Oct. 18 neighborhood scuffle.

Allen is charged with one count each of assault, assault with intent to maim and possession or use of a harmful device — the latter charge based on a law passed in 2004 by the Michigan legislature as part of a broader rewrite of terrorism laws in the wake of the Sept. 11 terrorist attacks. As Michigan Messenger reported last week, Allen’s case is the first time experts are aware of that HIV has been presented as a bioterror weapon, something Catherine Hanssens, executive director of the New York City-based Center for HIV Law and Policy told Michigan Messenger was “the boogey-man characterization of people with HIV.”

Allen is accused of biting neighbor Winfred Fernandis, Jr. in the lip during a fight.

Officials from Democratic Prosecutor Eric Smith‘s office declined to comment for this story, and the Fernandis family left the courthouse without comment.

Galen, however, did speak with Michigan Messenger and allowed his client to be interviewed.

Terrorism count added to charges

Galen said he had no idea when he arrived in court on Nov. 2 that he was going to be staring down a terrorism charge for his client.

“The prosecutor wished to adjourn to think about additional charges,” Galen said. But Galen said his client had a right to face his charges within 14 days, and District Court Judge Linda Davis agreed that there should be no delay in additional charges.

As a result, Galen said, the prosecutor received a fax which included the possession or use of a harmful device charge as well as the Michigan Court of Appeals ruling in People v. Antoine Deshaw Odom. That ruling found that HIV-infected blood was a “harmful biological substance,” under Michigan law and upheld additional prison time for an inmate who spit bloody saliva at guards during a fight at a Jackson area state prison. The inmate was infected with both HIV and Hepatitis B, although the court was mute on whether Hepatitis B-infected blood was also a “harmful biological substance.”

“I had to digest a 17-page ruling by the Michigan Court of Appeals as well as a statute,” Galen said of the Nov. 2 hearing.

“Absolutely it troubles me,” Galen said of the terror charge. “I did not expect any additional charges.”

Both Galen and Allen said they were “shocked” and “dismayed” at the inclusion of the terrorism charge, which was added after Fox 2 News reported he was HIV-positive.

Smith told local news media he would seek additional charges as a result of that revelation.

Galen believes Smith responded to outside pressure in lodging the terrorism charge against Allen, and he said the potential impact if this case goes to trial on those living with HIV in Michigan is unmeasurable.

“The legislature never intended or foresaw this [law] being used this way,” Galen said, echoing comments from Michigan House Judiciary Chairman Mark Meadows (D-East Lansing), who told Michigan Messenger last week that the charges were “silly.”

Risk of transmission of HIV very low

One argument likely to be made in court will be based on Allen’s medical records. Allen says that his viral load — a measure of how much of the HIV virus is present in the bloodstream — has been undetectable for two years. If documented for the court, experts will likely testify that the odds of transmission of the virus were exceedingly low in such circumstances.

That, experts say, is a key piece of information in this case, as a higher viral load could have made the possibility of infection through a bite wound — although very low — slightly higher. The Swiss High Court last year ruled that a person on successful antiretroviral medications with a continuous undetectable viral load for six months or more and no other sexually transmitted infections was legally no longer infectious.

Bebe Anderson, director of Lambda Legal‘s HIV Project, told Michigan Messenger accurate information about HIV is going to be key in the case.

“I think it is very important to try to get in front of the judges and the prosecution accurate information about HIV,” Anderson said. “I think what happens is that these prosecutions are fueled by ignorance, then unfortunately that ignorance gets compounded because the judge makes a ruling or the jury makes a ruling based on fear and myths of HIV and not the actual risk posed by particular conduct.”

Two versions of fight

In court, Allen will tell a very different story about what happened Oct 18 than does the police report from the Clinton Township Police Department. He alleges that Fernandis and his family members have been involved in a long-standing pattern of harassment directed at him because he is gay. Galen calls the attack an “anti-gay hate crime.”

For years, Allen says, the Fernandis family has routinely called him “faggot,” and harassed him. Family and friends say they have witnessed this behavior on several occasions. Allen brought two people with him to court who claim to have heard Fernandis make anti-gay remarks to Allen on more than one occasion. In at least one instance, the police may have been involved.

While Fernandis wrote in his police statement that he approached Allen that day and Allen “hugged up” to him, and began biting Fernandis, Allen says, in fact, it was Fernandis who started the violence.

Allen alleges the younger Fernandis stormed up to him, spitting.

“He got up in my face, I mean right up in my face,” Allen says, placing his hand just in front of his nose. “Then he chest bumps me. He grabbed me here,” he says indicating his rib cage, “and I started scratching at his face. He picked me up and threw me on the ground on my back.”

At that point, Allen alleges, Fernandis was joined by his wife Denise and their son and all three were assaulting him at the same time. Fernandis’ father broke the fight up.

Allen hopeful about outcome of the case

“We’re convinced with Judge Peter Macerino presiding justice will prevail,” said Galen. “Ultimately, the eyes of the public will open up to the fact my client is not only not guilty, but is in fact the victim of a hate crime — a gay bashing.”

At Monday’s arraignment, Maceroni continued his bond as set by the district court, which on Nov. 2 sent the case over to circuit court because of the felony charges. Allen will be back in Maceroni’s court room at 8:30 a.m. on Dec. 17