Mich Law Broken in OMSJ Case?

February 1, 2012

1 FEB - A Michigan man faces up to eight years in prison in a criminal case marked by confusion, hearsay, and a local health department that might have potentially violated state law.  Holes in this ongoing case of a man alleged to have exposed hundreds of people to HIV suggest that either Kent County or the state — or both – violated policies that could have either contributed to the suspect infecting others, or could lead to a wrongful conviction.

by TODD HEYWOOD
American Independent 

Whether or not the suspect — who has a history of mental instability — is in fact HIV-positive has not been confirmed.  Meanwhile, his reputation has been dredged through the mud by local, national and international media that have reported the story based almost entirely on the local county’s questionable information.

The American Independent has been investigating the timeline of the allegations since the end of December, when prosecutors charged the man with two felony counts of failing to disclose his HIV-positive status to sexual partners.

The 51-year-old Comstock Park man allegedly walked into the Grand Rapids Police Department on Dec. 22, 2011, and turned himself in for, police say, attempting to infect hundreds of people with HIV. While officers investigated, the man was placed in a psychiatric hold. On Dec. 24, he was formally charged with one count of AIDS – Sexual Penetration Without Disclosure. On Dec. 27, he was charged with a second count. He was ordered to a state-run psychiatric facility earlier this month to determine if he is competent to stand trial. Results are pending.

Previous to his admission, the man was committed to Pine Rest Christian Mental Health Services for 90 days. He had been released and was living in a housing facility for people with mental health issues. The Grand Rapids Press reported the man was diagnosed with post-traumatic stress disorder and depression.

Following the first charge, the Kent County Health Department sent out a press release about the case. In the release, health officials urged those who had had contact with the suspect to get tested.  They noted that the suspect had allegedly attempted to infect others through both sexual encounters and needle-sharing. The press release, and resulting media coverage, was later called “sensationalist” by advocates and activists alike.

Through interviews and Freedom of Information Act requests, TAI has thus far been unable to find any records of the suspect’s HIV-positive status, neither within the Kent County Health Department, nor within the state health department. Absence of a record of the man’s HIV status suggests he might not be HIV-positive, as Michigan law stipulates that laboratories and physicians report HIV-positive test results to the state health department and to the infected person’s local jurisdiction immediately following a positive result. It should be noted that state confidentiality laws play a role in our ability to access certain data. But based on what the local and state health departments have told us, charges against the man appear to be based entirely on his confession to authorities last month.

Indeed, Kent County Deputy Corporate Counsel Sangeeta Ghosh told TAI that the county officials first became aware of the suspect and his alleged crime in December 2011.

When asked if the county has evidence of the suspect’s HIV status, Ghosh said in an email: “[Name redacted] tested for the HIV virus outside of the Health Department. Those records are not available with the Health Department.” She said the county health department was not in possession of the suspect’s monitoring lab results, saying those records are “retained by his physician or lab.”

Later in a phone interview, Ghosh speculated that the suspect might have tested anonymously at the Kent County Health Department, but she said the county was unable to verify that information.

A spokesperson for Kent County prosecutor William Forsyth declined to comment on the case or identify when the suspect allegedly tested positive for HIV. The spokesperson would not tell TAI if the prosecutor’s office had a positive test result for the suspect.

The suspect’s defense attorney, Richard Zambon, also declined to comment for this story.

Ghosh’s claim that the test results were not available to the county health department flies in the face of Michigan Department of Community Health policies and procedures created under state law.  The only time a lab cannot report positive HIV results is when a physician submits an anonymous sample for testing, but there is no indication from state or Kent County officials that is the case in this instance.

Meanwhile, the suspect has been charged with two felony counts — and a possible four-year prison sentence for each count — based on testimonies that he had infected two people without disclosing his alleged HIV status.

According to news reports, the man is being charged with failing to disclose his status to a sexual partner in June 2008. That individual subsequently tested positive for HIV in October 2008, according to her interview with WOOD TV 8, the NBC affiliate in Grand Rapids. The Comstock Park man is also being charged by a second witness in a January 2009 incident of sex without disclosure; however, the HIV status of that witness has not been disclosed.

These allegations, if true, again suggest that state law was broken.

Michigan law provides for partner services for those who test positive for HIV and other sexually transmitted infections. The program is designed to help health officials identify persons who might have the infectious diseases and prevent them from spreading it.

In other words, following her HIV-positive test, the woman’s partner-services interview would likely have identified the suspect, who would have landed in the state’s name-based list of HIV-positive persons. This should have set off a chain of health-department-led interventions to bring the suspect into the county for counseling or possible civil action under the state’s Health Threat to Others clause in the Public Health Act. Michigan law requires investigators to contact those identified as having been exposed to HIV within 35 days. The law also mandates strict confidentiality of those infected.

TAI has previously reported that Michigan’s local health departments routinely access the state’s name-based database to compare names of partners in HIV cases to the names of people already identified as living with HIV. In some instances, those persons then go on to face Health Threat to Others action by the local health department, based solely on their identification as a partner in an investigation.

If the suspect in this case turns out not to be HIV-positive, it will not be the first time a person has been falsely charged under a state disclosure law. Our sister site The Florida Independent reported on one such case in Broward County, Fla. There sheriff officials arrested a man on a shoplifting charge and claimed he tried to bite them during the arrest. Law enforcement alleged that he was HIV-positive and charged him with violating the state’s disclosure law. Subsequent tests showed the man was not HIV-positive, and Broward County officials had to drop the charges related to the infection.

The results of TAI’s investigation are not sitting well with one HIV activist in Michigan.

“This case seems to suggest either a catastrophic failure of the public health system in applying the laws of the State of Michigan, or there was, and perhaps still is, no verification of the suspect’s HIV status other than his own alleged confession,” said Josh Moore, owner of Detroit Legal Services a legal clinic offering support to HIV-positive people.

“If this is the case there would be serious implications involved which would question the entire case against him,” Moore continued. “There would be serious due process questions regarding the way this case has been handled and especially in light of the vilification of this man in the media and — perhaps — a man who is mentally ill.”

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