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Recent Developments in 3 Cases involving HIV

Catherine Hanssens from The Center for HIV Law & Policy has provided this summary of recent developments in three cases involving HIV as proof of intent to harm. Two are criminal; one involves indefinite civil commitment based on the finding that the individual is a dangerous sex offender in need of supervision under NY’s Article 10.

Michael Johnson

On May 15, 2015, Michael Johnson, a young Black college student at Lindenwood University in St. Charles, Missouri, was found guilty in the Circuit Court of St. Charles County of one count of the Class A felony of recklessly infecting another with HIV, one count of the Class B felony of recklessly exposing another person to HIV, and three counts of the Class C felony of attempting to expose another person to HIV.  The complainants in case were men of similar ages, most of whom Johnson met on online hookup apps and social networking sites. Johnson was sentenced on July 13, 2015 to a total term of 30 ½ years imprisonment.
The Missouri Appellate Public Defender appealed Michael’s conviction and sentence, arguing that (1) the trial court abused its discretion by admitting excerpted recordings of phone calls Johnson made while in jail that were not disclosed to the defense until the morning of the first day of trial, (2) the prosecutor’s closing argument amounted to unsworn testimony violating Johnson’s right to confront and cross-examine the witness, guaranteed by the United States and Missouri Constitutions, and (3) Johnson’s sentence of 30 ½ myears in prison was grossly disproportionate to the crime and violated his constitutional right to be free from cruel and unusual punishment.

A friend-of-the court brief, drafted by CHLP and the law firm Gibbons, P.C., with the ACLU of Missouri Foundation serving as local counsel, was filed by twenty-three national and state organizations. Amici argue that the Missouri law 1) violates the constitutional right to equal protection; (2) violates the right to privacy in one’s medical information, and 3) violates prohibitions against discrimination on the basis of a disability under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. Amici also argue that Johnson’s sentence was unconstitutional under the Eighth Amendment because it is grossly disproportionate to Mr. Johnson’s conduct and any resulting harm.

In an opinion filed on December 20, 2016, the Missouri Court of Appeals, Eastern District, reversed the judgment of the trial court and remanded for a new trial.  The Court found that the trial court abused its discretion on Johnson’s first point of appeal, and did not reach the constitutional and federal disability arguments raised in Johnson’s second point and the amicus brief.  The Court based its decision on the finding that the State’s disclosure of jailhouse telephone recordings on the first day of trial rendered his trail fundamentally unfair, as it was “knowing and intentional and was part of a trial-by-ambush strategy.”

On, January 4th, attorneys for the State of Missouri filed a motion for reconsideration by the court en banc, rehearing, or transfer to the Missouri Supreme Court.  The State does not directly dispute that the disclosure was untimely, but argues, inter alia, that the Court misapprehended the record and that a discovery violation did not occur because the defendant had knowledge of the recordings, that the prosecutor did not have superior access to the recordings, and the withholding of the recordings was not “to gain a tactical advantage at trial, but to preserve an avenue of investigation.” A decision on the motion should come from the Court of Appeals in two to three weeks.

There are numerous potential outcomes; the most probable will be, as in most cases, the Court of Appeals will deny the motion.  If a request for transfer to the Supreme Court is also denied, a mandate will issue and the case can be retried by the prosecutor.

Orlando Batista

In October 2016, the Supreme Court of Ohio announced it would review the HIV criminal law at issue in State of Ohio v. Orlando Batista. In July 2014, Orlando Batista was indicted for felonious assault for allegedly engaging in sexual conduct with his girlfriend without first disclosing his HIV status to her.  The trial court found him guilty and sentenced him to 8 years imprisonment, the maximum allowed under the statute. Batista preserved his right to challenge the legality of the Ohio statute itself on appeal, but the appellate court rejected these arguments and affirmed Batista’s conviction. The Hamilton County Public Defender, representing Batista, submitted a brief to the Supreme Court of Ohio seeking review of the Ohio law. In June 2016, CHLP and the ACLU of Ohio Foundation, along with thirteen Ohio-based and national HIV, civil liberties, LGBT, social advocacy and criminal justice organizations, submitted a memorandum in support of Mr. Batista’s request for review.

In December 27, 2016, the defendant-appellant submitted his merit brief, arguing that the felonious assault statute (1) violates the Equal Protection Clauses of the Ohio and United States Constitutions, and (2) is a content-based regulation on speech that unconstitutionally compels speech and usurps the Constitutional right to refrain from speaking in violation of the First and Fourteenth Amendments. Additionally, two friend-of-the court briefs were filed on the same date.

In December 2016, CHLP, with support from the Ohio Public Defender and Gibbons P.C. law firm, along with seven Ohio-based and national HIV, LGBT, health professional and criminal justice organizations, submitted an amici curiae brief in support of Orlando Batista to the Supreme Court of Ohio arguing the state’s felonious assault statute: (1) violates the Equal Protection Clauses of the Ohio and United States Constitutions because it singles out people living with HIV for prosecution in response to conduct that is not criminal in the case of other groups, for example those living with other sexually transmitted diseases and (2) violates the clear prohibitions against disability-based discrimination under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.

Jeffrey Gamso, the former Legal Director of the ACLU of Ohio Foundation, along with the ACLU of Ohio Foundation and the Center for Constitutional Rights, submitted an additional amici curiae brief supporting Mr.Batista arguing that Ohio’s felonious assault statute compels speech in violation of the Free Speech Clauses of the First Amendment and the Ohio Constitution.

Nushawn Williams

The Court of Appeals, of New York State denied Nushawn Williams’ motion for leave to appeal (See 2016 NY Slip Op 94324 and 2016 NY Slip Op 94325). Nushawn’s case is, judging by the sheer volume of press, the most notorious HIV criminal case ever, anywhere; He has spent nearly 20 years confined  as a consequence of his guilty pleas to having sex with a 13 year old when he was 19, and for having sex after he knew he was HIV positive with two other women. His appellate attorney raised a number of procedural and substantive challenges to Williams’ commitment. The amici main argument was that HIV status cannot serve as the basis for a dangerous sex offender determination, and the state’s reliance on HIV status violates the Rehabilitation Act of 1973 and Title II of the ADA.

We are reviewing Nushawn’s options in consultation with Nushawn and his appellate attorney. At present, a hearing is scheduled on January 20, 2017 to determine when and whether to schedule an the annual administrative review of Nushawn’s confinement (to which he is entitled by statute).

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