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Representing Defendant(s) · Loss · Final Disposition on December 31, 2003

Commonwealth v. Smith

In 2000, GLAD filed a brief in a Middlesex Superior Court criminal action on behalf of a person with HIV who had been charged by Middlesex District Attorney Martha Coakley with assault with intent to kill for throwing feces at a probation officer and biting a corrections officer. Such conduct, while inexcusable, is not a mode of HIV transmission; and these types of prosecutions serve no purpose other than to spread fear and hysteria about HIV among judges, jurors and the public at large. Faced with a trial judge who believed that HIV could be transmitted by saliva, the defendant entered into a last-minute plea agreement that resulted in his being sentenced to three years in prison (much more than a typical sentence for drunk driving)!

In 2003, the defendant filed an appeal seeking to vacate his guilty plea because it was based on his public defender’s advice in the trial court that he disclose his HIV-positive status during grand jury proceedings.  The question was whether this was bad advice because the Massachusetts HIV testing and confidentiality statute prohibits HIV testing or disclosure of HIV status without written consent.  The absolute requirement of informed consent for HIV testing has been a key element of the public health effort to stem the tide of the HIV epidemic.  GLAD filed an amicus brief to ensure that the Appeals Court did not craft exceptions to the statute that would undermine its purpose in many contexts beyond this case.

In its decision, the Appeals Court ruled that the defendant had not met the high burden of demonstrating ineffective assistance of counsel and stopped short of ruling on the scope of the HIV testing statute.