Defense: Bio-terrorism charge should be dismissed

MT. CLEMENS — Daniel Allen, the 44-year-old Clinton Township man facing unprecedented bio-terrorism charges, will have to wait a while longer before he finds out if that charge will be rejected by the courts.

In a Monday morning hearing, Macomb County Circuit Court Judge Peter Maceroni heard argument from prosecutors and the defense on whether or not to dismiss the charge. While he accepted the Amicus briefs filed by the ACLU of Michigan and Lambda Legal Defense and Education Fund — noting the court would take “whatever help it could get” in the case — he told the courtroom he would wait to rule for a time.

“I’ll issue a written decision,” Maceroni said in the view of an assembled media crowd, including television from the Detroit market and radio.

The media attention is the result of the unprecedented charge of “use or possession of a harmful biological substance.” The charge is a state terrorism charge based on a 1998 law passed in the wake of the Oklahoma City Bombing, and tweaked by lawmakers in 2004.

Allen was charged with the count in Nov. 2 along with assault with intent to do great bodily harm less than murder and assault with intent to maim. The charges stem from an Oct. 18 altercation with his neighbor, Winfred Fernandis Jr., who alleges that when he approached Allen to discuss an ongoing issue with his child’s football landing in Allen’s yard, Allen “hugged up” to him, and bit him on the lip.

But Allen tells a very different story, alleging that Fernandis, his father and his wife were the assailants and that he was the victim of a gay-bashing.

Allen has since filed a complaint with the FBI. Galen told Michigan Messenger Monday that case has been closed because the incident occurred before the Matthew Shepard James Byrd Jr Hate Crime Act went into effect.

Shortly after Allen was arrested, Fox 2 News got Allen on tape admitting he was HIV.

That is when Prosecutor Eric Smith authorized the bio-terrorism charge. Prosecutors contend Allen was in possession of a harmful biological substance — the HIV virus in his bloodstream — at the time of the fight.

Defense attorney James Galen Jr. argued before Maceroni Monday the charge should be tossed for a number of reasons. First, he contends, he never stipulated — or agreed — that Allen was HIV-positive at the time of the incident. Assistant Prosecutor John Paul Hunt argued that Galen had failed to challenge the alleged stipulations, and thus they stood.

Galen also argued that the prosecution had presented no medical information to show that any alleged actions by Allen could have transmitted HIV, and that the prosecution failed to show medical evidence that HIV can be transmitted by saliva.

In amicus briefs filed before the court, the ACLU and Lambda Legal note that the medical evidence available shows HIV is not transmitted via saliva, unless that saliva is mixed with blood.

Galen argues the prosecution also failed to even show Allen was bleeding in the mouth at the time of the alleged assault.

“I think Judge Davis really abused her discretion,” Galen told Maceroni. noting the judge had ruled that the alleged bite showed intent to harm another with a harmful biological substance.

The case on which the prosecution is hanging its hat is an appeals court ruling called People v. Odom. In that case, the appeals court found that HIV infected blood was a harmful biological substance.

Hunt argued back that Davis did not abuse her discretion in the case because it was reasonable for her to conclude, based on Fernandis’ testimony, that Allen grabbed him and bit him and that he had an intent to cause harm with his HIV.

“[Allen] knew he was HIV-positive, and he bit the guy,” Davis said from the bench, reported the Macomb Daily. “That on its own shows intent.

Galen also hammered on the idea that this situation was not what the legislature had envisioned when it passed the laws.

“I have to state … I am sort of dumbfounded by the amount of state legislators who have come out and spoken publicly to the news media — both on TV and the various news media — about their disdain for this type of prosecution,” Galen told the court.

The Detroit News on Saturday spoke to Rep. Gary Peters, who as a state senator proposed the legislation the legislation which became the 1998 law.

The 1998 law was written by Democrat Gary Peters, now a congressman, while he served as a state senator. Peters said he was concerned that Michigan law did not provide local law enforcement with proper tools to address terrorist threats involving biological or chemical weapons.

“That was the sort of case anticipated by my bill, and its passage was meant to provide law enforcement officials the power to aggressively deal with these types of terror threats,” he said in a statement to The Detroit News. Peters would not comment specifically on Allen’s case.

At one point in his pleadings, Galen brought up the Detroit Christmas airliner bomber and the recent attempted car bombing in New York City. Maceroni asked, “What’s that got to do with this case?”

“Those are terrorists, your honor,” Galen responded immediately. “Mr. Allen is not a terrorist.”

Judge Maceroni did not announce when he would rule on the motion to dismiss the bio-terrorism charge, but he did say he would do so in a full written ruling.