(GOLDSBORO, NC) – After reviewing evidence from experts with the Office of Scientific and Medical Justice (OMSJ), government prosecutors have withdrawn all HIV-related criminal charges against a 34-year-old airman of Seymour Johnson AFB, N.C. (For privacy reasons, the airman’s name is being withheld.)
Accused in March 2011 of assaulting three partners by engaging in unprotected sex without informing them of his HIV-positive test results, the airman faced a dishonorable discharge, lifetime registration as a sex offender, and a felony conviction carrying up to an eight-year prison sentence.
With support from OMSJ, a non-profit investigative agency comprised of legal, medical, and scientific experts, the airman’s defense successfully argued that according to FDA-approved labeling, results from the airman’s tests provided no reliable evidence with any degree of scientific certainty that he ever was infected with HIV. OMSJ also uncovered evidence of impropriety at the US Military HIV Research Program (MHRP).
In the weeks leading up to the scheduled trial last May, USAF prosecutor Cpt. Mark Rosenow sent a series of emails to pressure a defense witness not to testify. OMSJ contends that Rosenow acted outside of his capacity as a prosecutor and knew the “chilling effect” his direct contact with the University of Massachusetts’ lab would have on defense witness Dr. Gregory Hendricks, Ph.D., who works there. A biochemist and associate professor who designed and built the university’s core electron microscopy (EM) facility, Dr. Hendricks had agreed to examine samples of the airman’s blood using EM, the powerful magnifying technology that detects viruses, but backed out after Rosenow’s contact. Last June, a military judge denied the defense’s motion to dismiss.
Government prosecutors are generally shielded from civil liability except when the misconduct is unrelated to their work as prosecutors. OMSJ’s investigation of Cpt. Rosenow’s undue influence and potentially criminal acts is continuing.
In all states, federal and military law makes it a felony to dissuade witnesses from testifying in any criminal case. Cpt. Rosenow’s expert witness, MHRP laboratory director Sheila Peel PhD, testified last May that she has a vested interest to prevent OMSJ from using EM to examine blood samples of military defendants. Based upon this and other military cases, OMSJ believes that thousands of service members may have been improperly tested and diagnosed as infected with HIV since the 1990s. Evidence uncovered by OMSJ suggests that MHRP deviated from numerous military and defense directives, which resulted in the forced departure of hundreds of healthy and honorable service members who prematurely and unnecessarily lost their careers and were subjected to unnecessary immune-compromising treatments. Many others – like USAF Sgt. David Gutierrez – received lengthy prison sentences.
The North Carolina case is the fifth successful military case OMSJ has participated in since November 2012. Founded by investigator and retired LAPD officer Clark Baker, OMSJ provides medical, scientific, legal and investigative support to the victims of unsubstantiated medical and scientific practices. All but three of more than 50 cases OMSJ has participated in have resulted in favorable plea agreements, the withdrawal of all HIV-related charges, or acquittal.
On December 16, 2013, the U.S. Court of Appeals for the Armed Forces will consider whether HIV and other evidence used to convict Sgt. Gutierrez was “insufficient.” In 2011, Gutierrez, 44, a 20-year military veteran, requested OMSJ’s assistance after he was convicted of adultery and aggravated assault for exposing multiple sex partners to HIV at swinger parties. He was sentenced to eight years at Ft. Leavenworth Federal Penitentiary, after which he will be dishonorably discharged from the military. (See Grant Brief)
“The Gutierrez case has the potential to remap the landscape of HIV testing and prosecution in the United States military,” says attorney Kevin McDermott, who represents Gutierrez. “With any luck, we will soon see the end of HIV test results being used as a basis to convict a serviceman for aggravated assault.”