Thomas Shevory, Ithaca College

This posting is part of a series that provides a follow-up to my book, NOTORIOUS HIV: THE MEDIA SPECTACLE OF NUSHAWN WILLIAMS.  Previous postings have examined other current aspects of the case. 

A recent court case in Buffalo involving a young man, who engaged in sexual conduct with a number of young women, provides an interesting, and troubling, contrast to the Nushawn Williams case, as it raises important questions of equity and justice.

Darryl Fortner was accused of having unprotected sex with five young women, one of whom was fifteen years old.  Fortner pled guilty to five reckless endangerment misdemeanor charges, for which he received five one-year consecutive sentences.  In jail since April, Fortner is expected to be released in December, at which point he will have spent a total of nine months in prison.   

Nushawn Williams was also charged with reckless endangerment. Additionally, he was charged with statutory rape (having sex with a woman under the age of 18) and possession of cocaine.  Williams, however, was offered a plea deal of four to twelve years in prison (and threatened with 75 years), and he has now spent more than thirteen years behind bars.  

Williams was cast as an AIDS monster, a sexual predator, and was the object of a media hysteria. Public officials and journalists labeled him a mass murderer, declared his guilt before trial, and, in some cases, called for his torture and execution.  

What explains the differential of treatment here?  Court officials said that the reluctance of the young women to come forward, in Fortner’s case,  made it difficult to convict on charges of “depraved indifference to human life." But one did come forward, and only two came forward in the Williams case.  

Moreover, while Williams and Fortner were charged with the same crime, reckless endangerment, in Fortner’s case there were five counts, rather than two for Williams. In Williams' case, however, they were felony charges. In Fortner’s case, prosecutors chose not to pursue a statutory rape charge.

Williams is still in prison awaiting disposition on his appeal against the state’s attempt to have him confined indefinitely under the state’s sexual predator statute. The state has decided not to pursue such a strategy against Fortner.  

In Fortner’s attorney's words, “Given the circumstances, I think we made out okay.”  

It’s hard to know the what role race may have played in this case.  Both Fortner and Williams are African-American, but in Williams’ case, the young women involved were white.  We don’t know the racial characteristics of Fortner’s partners, which may, in itself, be a significant fact.

Interestingly, The Buffalo News carried an article noting the differences in sentencing between Fortner and some other recent cases involving criminal HIV transmission. But it made no mention of the Williams case.  Two of the cases that it mentioned involved aggravated sexual assault, and not consensual sex.  (All of Williams’ relations were consensual).  

This was the same newspaper that carried an editorial, during the Williams spectacle, suggesting that punishment be initiated "involving devices not used since the Middle Ages.”

My purpose here is certainly not to suggest that Daryl Fortner ought to spend more time in prison.  Quite the contrary, the sentence does seem altogether reasonable under the circumstances.   But obviously something has changed. For one thing, HIV is no longer treated with the same kind of hysteria than it was in the late 90s, when Nuhsawn Williams pled guilty to his crimes.

In fact, in this case, the state’s medical expert noted that a positive HIV diagnosis is no longer a death sentence.  In fact, it hasn’t been for many years.

Isn’t it time for the state to end its relentless persecution of Nushawn Williams and let him out of jail once and for all?

 

Thomas Shevory, Ithaca College

This posting is part of an occasional series on the Nushawn Williams case:

The Williams case is becoming increasingly interesting in legal terms.  For one thing, Nushawn now has a competent lawyer, John Nuchereno, who seems determined to provide a strong legal defense, for the first time really.  The case has been progressing along two tracks. Track one has been an attempt on the part of Mr. Nuchereno to have Nushawn’s guilty pleas excised  and initiate a new trial   Track two involves the civil confinement issue.  Let’s take a look at track one here:

The motion to withdraw Nushawn’s guilty pleas is based on two very important pieces of evidence or, more accurately, lack thereof.  First, no written document exists showing Nushawn Williams’ HIV test results, nor, second, that he was told of that he was HIV positive by public health authorities. Nushawn’s attorney, Richard Slater--at the time that his picture was being posted up around Chautauqua County and he was being characterized in the media as an “AIDS Monster”-- advised him to plead guilty. Slater traveled to New York City, where Nushawn was in prison for a cocaine charge, to tell him to take the guilty plea or end up in jail for decades, once found guilty by a Chautauqua County jury.   

At a hearing held on January 20^th, it became clear that none of the documents that would have been presumably essential for a conviction at trial exists, and there’s no reason to believe, at this point, that they ever existed. Hence, it’s likely that the state had no proof that Nushawn was HIV positive when he was said to have infected several young women, and that the state had no proof that he knew that he was HIV positive at the time.

Nushawn has always denied the state’s claim that he was informed of his HIV status while in a Chautauqua County jail (after being held there for stealing a car.)  And it’s clear now that there is no evidence to support that claim.  On the other hand, given the atmosphere at the time, it’s unlikely that facts would have deterred a jury from finding him guilty of something particularly egregious, perhaps even attempted murder, as Rudy Guliani suggested.  Taking a guilty plea, with the hope of being released in as soon as four years, was, no doubt, given the circumstances, a rational course of action. 

Of course, it’s also not clear that the atmosphere is much different now.  For example, the lead of a recent news story described  Nushawn as, “The man who said he knowingly infected as many as 13 women with HIV[.]”  This statement is simply false.

District Attorney David Foley’s response to Nuchereno’s presentation was to argue that its timing was suspicious.   Nushawn, he argued, could have brought this claim before, but he is only doing so now because he is facing civil confinement.  Foley apparently produced no documentary evidence to address the defense claims. But apparently it wasn’t necessary.

Last Monday, the judge turned down the motion for withdrawing the plea.  Of course, this was the same judge that accepted the original guilty plea.  Perhaps a court at the appellate level will be more willing to consider whether there was, in fact, an injustice committed here.