Defense in HIV-as-Terrorism case says charge should be dropped

Attorney James Galen has filed a motion in Macomb Circuit Court on behalf of his client Daniel Allen arguing that the terrorism charge against the 44-year-old Clinton Township man should be dropped.

Allen was charged with bio-terrorism under state law following a fight with a neighbor. The neighbor, Winfred Fernandis Jr., alleges Allen bit him through is lip during the October 2009 altercation. Allen counters that it was he who the victim in the assault. He further alleges that Fernandis and his family members engaged in a “gay-bashing.”

In the brief, Galen relies on several areas to support throwing out the charge.

First, Galen argues there is no evidence that Allen actually bit Fernandis. He further argues that despite repeated motions for discovery served on the Macomb County Prosecutor Office — and an order by a district court judge that evidence be produced — he has never been provided photographic evidence of the alleged bite wound on Fernandis’ lip. Galen argues that from observation the wound appears to have been the result of Fernandis’ own teeth, and not an external bite.

Secondly, the defense counsel argues that the prosecutor failed to prove that at the time of the altercation Allen was infected with HIV. Galen says in the brief that while a stipulation to agree that Allen was positive was stated on the record by the prosecution and later acknowledged by the judge in the preliminary hearing, that Galen as counsel never actually agreed to the stipulation as is required by Michigan law. That, Galen argues, means the prosecution has failed to prove the key element of the bio-terrorism charge — that Allen was in possession of HIV, a hazardous biological substance.

Allen has disclosed to various media outlets, including Michigan Messenger, that he is HIV-positive.

Thirdly, defense argues that the prosecution failed to prove their was a risk of transmission from the bite. This section of the brief closely follows the scientific issues and concerns raised in both Amicus briefs filed in the case. Specifically Galen notes that scientists do not believe that saliva can transmit HIV, but that blood must be present in the saliva. That, Galen argues, was never proven in the preliminary exam.

Building on that message, Galen further argues that the appeal court decision on which the prosecutor was relying to apply the bio-terrorism to the case — People v. Odom — would not be applicable. Noting again that no evidence was presented to show that Allen was bleeding in his mouth at the time of the assault, Galen notes the appeals court ruling of Odom specifically dealt with a prisoner who was spitting bloody saliva at prison guards. That is how the court determined that HIV-infected blood was a bio-hazard and dangerous for the purposes of rankings in deciding punishment.

Galen also notes that lawmakers have said the current situation was not what they had in mind when the bio-hazard statute was written.

Allen will be back in Macomb Circuit Court on May 10 at 9 a.m. for a hearing in which Judge Peter Maceroni is expected to rule on allowing the Amicus arguments from Lambda Legal Education and Defense Fund and the ACLU of Michigan. He is also expected to weigh the defense motion to quash.