A Tale of Two Criminal HIV Cases

October 11, 2013

(Iowa City, IA) – This is the story of two men in Iowa charged with the same Class B Felony — criminally exposing HIV to another person — but one was convicted and the other was not. In 2009, Nick Rhoades, 38, was sentenced to 25 years in prison, while all charges against Thomas Call were dismissed in 2012.

What accounts for the dramatically different outcomes?  The short answer is that Rhoades’ attorneys advised him to plead guilty and Call’s defense lawyer fought the charges by accepting the involvement of the Office of Medical and Scientific Justice (OMSJ), whose experts reviewed Call’s medical records and showed that he had been misdiagnosed.

In dismissing the case, the prosecutor cited the complex medical information surrounding HIV.  Today, Thomas Call, 50, is free of the stigma of a criminal conviction yet he struggles to recover from the unmerited media attention that disrupted his life.

rhoadesIn many countries, intentionally or recklessly exposing another person with HIV is a crime. In the United States, 32 states, including Iowa, and two territories — Guam and the U.S. Virgin Islands — have such laws on their books.

Since 2009, OMSJ has been involved in more than 100 HIV-related criminal cases.  Of the fifty cases now resolved, all but three have resulted in dismissal, plea bargain, or acquittal. In early October, citing questions about whether the HIV test evidence used to convict USAF Staff Sgt. David Gutierrez, a 20-year-military veteran, was insufficient, the military’s highest court ordered a review of the case, based on OMSJ’s findings.

OMSJ made several (unsuccessful) attempts to contact Nick Rhoades’ lawyers from LAMBDA and the Center for HIV Law & Policy (CHLP), but none showed interest in establishing that Rhoades, too, was likely misdiagnosed and not infected with HIV— facts that could lead to their client’s successful appeal.

BAD ADVICE

In June 2008, the 34-year-old Rhoades, a hospital administrator, had a one-time sexual encounter with Adam Plendl. After testing “positive” for HIV, Rhoades took antiretroviral medications and his viral load—the amount of virus allegedly in his blood—was undetectable.  He wore a condom with Plendl, he said, but didn’t disclose his HIV status. When Plendl found out, he went to a hospital for treatment, and the police were notified. What happened next, changed Rhoades life forever.

On the advice of his attorneys, Rhoades ended up pleading guilty. “I entered a guilty plea based on the advice of my attorney,” Rhoades told CNN. “I really didn’t understand the law; I didn’t understand it enough to know I shouldn’t plead guilty.”

So he went to jail, even though Plendl says hospital tests confirmed he was not infected with HIV.  Unable to post the $250,000 bail, Rhoades spent the next nine months in the Black Hawk County jail, before gay activists campaigned to have him freed. “I spent six weeks in solitary confinement,” Rhoades reported. “I was in a cell for 23 hours a day with a camera on 24 hours a day. I was allowed just one visit per week.  I could not see out a window.”

Rhoades was eventually re-sentenced to the time he had served, plus five years of supervised probation. But he also had to register for life as a sex offender.

For the record, OMSJ Director Clark Baker sent this email to Center for HIV Law & Policy (CHLP) Executive Directors Catherine Hanssens and Tracy Welch, Iowa attorney Earl Kavanaugh; LAMBDA Attorney Christopher Clark, AIDS activist Sean Strub and Rhoades.  Although Rhoades’ attorneys opened the email, none showed interest in OMSJ’s assistance.

THE TOM CALL CASE

In nearby Davenport, Iowa, meanwhile, Thomas Call had been involved in a similar relationship with Jim Julien.  According to Julien, Call never disclosed that he was “HIV positive” during their 2007 relationship.

Shortly after Call’s arrest in 2010, OMSJ’s HIV Innocence Group informed Attorney John Steckel that there was a good chance that Call was misdiagnosed and never infected with HIV.  At first skeptical, Steckel hired OMSJ (pro bono) to assist in Call’s defense.

After reviewing the medical record, OMSJ found no evidence that Call’s clinicians had ever attempted to diagnose Call.  Instead, the clinicians had relied on tests that the FDA and manufacturers admit do not detect HIV or HIV antibodies.  Call’s doctor later admitted that, because the health department does not formally evaluate symptoms, he could not establish the presence or absence of HIV in Call’s blood.

Hours before OMSJ’s team departed for the Davenport trial, Assistant Scott County Attorney Jerald Feuerbach withdrew all criminal charges against Call.

NICK RHOADES APPEAL

Given OMSJ’s success rate, why would Rhoades’ attorneys refuse free assistance from OMSJ’s team of medical, scientific and legal experts?  This is where the story takes a turn and heads into deep political waters.

After reviewing scores of medical records, OMSJ’s team of medical, scientific and legal experts are familiar with the poor quality of medical records and treatment delivered by hundreds of HIV clinics and county health departments across the U.S.  Most records reviewed contain little evidence that HIV clinicians did more than order unreliable tests to justify the unnecessary prescription of toxic, black box warning carcinogenic, mutagenic, and psychotropic HAART drugs. In many cases, these clinics and clinicians accept kickbacks that are based largely upon the numbers of individuals they claim are HIV-infected.

Given access to Rhoades’ medical records, OMSJ could have assessed whether Rhoades was similarly targeted.

CONFLICTS OF INTEREST

Whose interests were Nick Rhoades’ attorneys serving—their corporate sponsors—or their client’s interest?

While LAMBDA Legal is largely funded by Microsoft pioneer Ric Weiland, The Center for HIV Law & Policy (CHLP) is heavily funded by a who’s who of pharmaceutical groups included in this list, that use a non-profit philanthropic pretext to market HIV tests and drugs.

To avoid the appearance of a conflict of interest and potentially harming their pharmaceutical sponsors, CHLP doesn’t directly disclose their ties to the industry that develops and markets HIV tests and antiviral drugs. Yet CHLP’s Advisory Board shows its direct ties:

THE END RESULT

According to the American Bar Association (ABA) Rules of Professional Conduct, “conflicts of interest” arise when an attorney puts personal interests ahead of professional responsibilities to the client.  Examples include attorneys who adversely affect one client by representing another, or when attorneys enter into business relationships that can affect his or her legal representation, unless the client is fully aware of how the relationship can affect him.

With millions of dollars and thousands of reputations at stake, the CHLP and their pharmaceutical partners cannot afford to accept assistance from OMSJ, whose success is attributed to exposing the incompetence and corruption that funds CHLP’s activities and permeates NIH-and pharmaceutically-funded universities, HIV clinics, clinicians, activist groups and thought leaders.

Despite these facts, Nick Rhoades is a not a complete victim. He is aware of how CHLP’s relationship with the pharmaceutical industry adversely affects his appeal.  Unlike OMSJ, which seeks to end criminal HIV prosecutions that have generated billions of dollars in Ryan White funding for states that passed such laws, CHLP will not challenge Rhoades’ accusers with the medical record.

But now that OMSJ has successfully challenged HIV “experts” in other cases, such as Joan Duwve MD MPH, Sky Blue MD, Joseph Marzouk MD and Lesha Wilson MD, CHLP’s Board of Directors hope to end criminal prosecutions that force HIV experts to explain the pseudoscience.

On October 2, the Iowa Court of Appeals rejected Rhoades’ appeal and upheld his conviction.  For LAMBDA and CHLP’s purposes, Rhoades’ status as a convicted felon and registered sex offender promotes a message that is more politically favorable to the HIV Industry than the dismissal of charges against Tom Call.

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

You must be logged in to comment

Log in