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Defense argues HIV issue

THE BALTIMORE SUN

Allowing testimony about a Carroll County man's HIV-positive status during his child sex abuse trial could prejudice jurors against him, defense attorneys argued during a motions hearing yesterday in Circuit Court.

In addition, lengthy medical testimony about the human immunodeficiency virus and how it causes AIDS could detract from telling what happened to a 3-year-old county boy, county public defender Barbara Kreinar told Judge Raymond E. Beck Sr. yesterday.

"If we leave that in, it is not a trial focusing on [the boy's] story and what happened" to the boy, Ms. Kreinar said as she argued that charges against the man should be separated into two trials.

He is charged with raping his step-grandson and assault with intent to murder.

"There are certain prejudices that will take away what really are the issues in the case," she said.

The 46-year-old Upperco man, who is facing similar charges involving the boy's 8-year-old brother, is not being identified to protect the identity of the two children who accused him of rape and molestation.

The case marks the first time Carroll County prosecutors have charged an HIV-positive person with assault with intent to murder, arguing that the man knew he had the virus that causes acquired immune deficiency syndrome at the time of the alleged attacks.

A jury trial in the case involving the younger child has been set for Aug. 16. No date has been set for the trial involving the older boy.

"Evidence that would be admissible for the assault with intent to murder charge is not mutually admissible for the sexual allegations," Ms. Kreinar said. The virus "may at some point develop into AIDS, but that's not a foregone conclusion."

Prosecutors argued that separating the charges would be a waste of the court's time and could expose the state's attorney's office to accusations of double jeopardy.

"The exact same sex acts apply to the assault with intent to murder charges," said Assistant State's Attorney Tracy A. Gilmore. "It would be a waste of judicial time."

Ms. Kreinar also argued during the hearing that her client's right to privacy had been violated because the health agencies contacted about the man had released too much of his medical record.

She conceded that state law allows the release of medical records in child abuse cases but said it was not necessary to release private information such as the man's HIV-positive status and the fact that he considered himself bisexual several years ago, Ms. Kreinar said.

"The state is not entitled to the entire record," she said. "The reason for confidentiality is that when people go to the doctor, they need to reveal very personal information necessary to effectuate medical treatment. I don't think they're entitled to notes from the doctors and nurses of things that he came in and told them over a period of time."

Ms. Gilmore said she felt the defendant had waived his right to privacy by publicly announcing his HIV-positive status during bail review hearings. In addition, state investigators learned of the man's bisexuality through family members, not the medical records, she said.

"He made it quite clear to the court that he was HIV-positive," Ms. Gilmore said. "When he said what his health status was, he waived any privilege to privacy."

The defendant made his HIV-positive status and his sexual preferences clear yesterday afternoon during a hearing to let him air complaints about his lawyers.

The man -- who sent letters of complaint to local news media, lawyers and judges -- also said he was being discriminated against by the state's attorney's office, which he said has unfairly argued to keep him in jail because of his sexuality and his illness.

"Now I'm a homosexual because she says so," the man said, indicating Ms. Gilmore. "I was bisexual and, I've never done nothing like that for years.

"I don't have AIDS. I'm HIV-positive. I couldn't give anybody AIDS because I don't have it. I've been discriminated against like a dog."

When Judge Beck asked him whether he wanted to continue with Ms. Kreinar as his attorney, be assigned another or represent himself, the defendant chose to keep the public defender.

"Miss Barb here says she's going to do a good job," he said.

Judge Beck said yesterday that he expects to issue his decision on the defense motions in about a week.

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