Two cities, one in Western New York, one in Western Pennsylvania: One was once a manufacturing town.  One is a football town.  One has been economically damaged by globalization.  One has been more insulated, given that it is home to one of the state's premier public universities.

In the first town, a young black man is charged with spreading the HIV virus to a group of consenting partners, two of whom were  underage.  In this case, the defendant was characterized as a monster.  Posters, with his picture on it, were placed around the area in an attempt to track him down.  He found himself on the cover of national magazines.    Suggestions were made that he should be tortured and given the death penalty. The  state’s governor declared him guilty before he was brought to trial.

He was appointed a public defender. He was held without bail.   He was offered a plea deal of 75 years in prison, an offer that he declined, in spite of the atmosphere of hysteria that surrounded his case.   Eventually he pled guilty to reckless endangerment and statutory rape.  He was placed into protective custody in prison, where he faced harassment by other prisoners and guards, hostile to him because of the publicity that the case generated.  He is still confined to prison, and has served almost two years longer than his maximum sentence.

In the second town, State College, Pennsylvania, a man is accused of abusing his position as a football couch and the leader of a nonprofit organization involved with at risk youth.  He is accused of raping boys, some as young as ten years old. The indictment against him involves forty counts of sex crimes. He has been a respected and established presence in a community where football is valued in almost religious terms. Evidence appears that he was carrying on questionable activities for years.  Calls to investigate his behavior went nowhere, in spite of truly horrifying accusations of his having raped a young boy in a shower.

When charges were finally brought, he is released on $100,000 bail.  Finding the money is apparently not a problem.  He is seen walking through a local shopping mall, wearing a t-shirt for the college where he was once a coach.  

When newscasters discuss the case, they seem very careful to use the term “accused.”  High state officials, such as the governor, have made no statements regarding his innocence or guilt.  In fact, everyone seems to be exceedingly careful to be sure that his constitutional rights to a fair trial are not violated.  After all, he will, no doubt, have good legal representation at his trial. 

He is even offered an opportunity to defend himself on national television, an offer to tell his story to one of the nation’s most highly respected sports analysts . While the wisdom of doing this might be questionable, he gets the opportunity, and questions are asked and answered in a civil, moderate tone.  Attorneys on a national cable news network debate dispassionately whether the prosecution has a valid case, given the amount of time that has passed, and issues regarding the credibility of accusers. 

The two cases in question are Nushawn Williams in the first instance,  and of course Jerry Sandusky in the second.  The two cases are not equivalent.  No two cases ever are. Nushawn Williams was apparently HIV positive when he engaged with sex with young women.  Whether he knew of his status is a matter for debate, but it was never debated in media accounts of his case.  All of his acts were consensual, although, again, you would be unlikely to learn this from various media reports that circulated at the time.

Jerry Sandusky is accused of truly heinous acts of raping very, very young children.  He may have engaged in such behavior for years, raising very troubling questions about the power and irresponsibility of institutional authorities, from the athletic department to the governor's office.

Having been closely involved with following the Williams case for a long time, I try to maintain a reasonable skepticism about the charges that are now being brought against Sandusky.  I know that it is very difficult, if not impossible, to determine what happened in criminal cases from press reports.  But I am also struck by the moderate, almost analytical tone that comes across when discussing Sandusky.  The absence of hyperbole, hysteria, not to mention declarations of outright guilt, offers a stark contrast to the Williams case.

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

Last week Nushawn Williams went before a judge in Erie County in an attempt to have the state’s civil confinement petition dismissed. This is the second time he’s attempted to have the commitment petition thrown out, but he now has very competent legal assistance, and a recent New York State Court of Appeals decision seems to be in his favor.

The Appellate Court decision involved Mustafa Rashid.  In 1988, he committed a horrible sex crime in the Bronx, one that involved a forcible rape, an act of sodomy, and a stabbing. He was released on parole in 1999, and, he soon committed another horrific crime, this one involving another break-in, threats of extreme violence, allegedly fondling an infant, and masturbation. He left the scene with some cash, provided to him by the woman that he assaulted. He eventually pled guilty to robbery and weapons possession.

New York State sought to have Rashid civilly confined based upon his history of sex crimes and recurrent criminal behavior.  He appealed and the case eventually made it to the state’s highest court.  The central question was whether Rashid was under state supervision for a sex crime at the time that Article 10 of the  Mental Hygiene Law went into affect.  The statute did not cover those who had been convicted previous to its passage, nor to those under supervision in the community, only to those at the time who were in state custody for a sex crime or related offense. While Rashid was, in fact, in custody at the time that the state filed its confinement petition, the crime that he was in custody for, was the weapon’s charge, which is not included under the law as a sex crime.  The state’s high court agreed and Rashid was discharged.

Nushawn was originally convicted of three sets of crimes, statutory rape (having sex with underage girls), a cocaine charge, and reckless endangerment.  Only the first is a sex crime under the state’s list of crimes eligible for civil commitment.  The question now is whether he served out his sentence for the statutory rape charges and moved on to the non-sexualized crimes before the civil confinement law went into affect. His plea agreement specifies that he serve his sentences consecutively, with the statutory rape charges served first.  If that is the case, then he would not be eligible for civil confinement, because, when the law was passed, he was not in state custody for a listed sex crime. The Rashid case suggests that the state can’t just mix everything together once a person is convicted and sentenced for a sex crime.

The judge heard the case last week, and has taken it under advisement. I’m not optimistic that the trial judge in this case will allow Nushawn to be released under any circumstances, given the high profile nature of the case.  But chances on appeal may be looking up, given the seeming willingness on the part of the state’s higher courts to take a dispassionate look at the law and facts in these types of highly incendiary cases.

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.  

Thomas Shevory, Ithaca College

It’s hard for me to believe that, after more than 10 years, Nushawn Williams can still generate the kinds of passions that he does.  But if you have any doubts, check out the comments on a Jamestown Post-Journal article about the Williams case.  For other evidence, you can simply look at the fact that the New York State Attorney General’s Office intervened in order to see that he was kept locked up, even after he had served his complete 12 year sentence.   They did this by appealing to the New York State Civil Confinement Law.

Civil confinement laws have been passed by a number of states in reaction to high profile child molestation cases.  Legislators were motivated by the argument, no doubt holding some merit, that some sex offenders are not ordinary criminals, and that they need treatment, rather than just incarceration. But, if child molesters and serial rapists provided the rationale for these statues, they have drastically expanded beyond that reach.

In New York State now, anyone that commits a felony sex crime is eligible for a lifetime of civil confinement.  But eligibility does not mean confinement, and the state seeks confinement for only 10% of those convicted.  Such discretion leaves open the potential for arbitrariness, and the possibility, even likelihood, that those cases that have generated intense media exposure will most likely be pursued.  Criminal notoriety, however, is not synonymous with mental abnormality, the criterion that is supposed to determine such considerations.

Nushawn Williams, it should be noted, was not convicted of transmitting HIV.  New York did not, and does not, have an HIV criminal transmission statute.  He pled guilty to “reckless endangerment,” essentially endangering his partners with infection while HIV positive. (I intend to post a future blog about this aspect of his case.) His sex crimes, on the other hand, involved having consensual sex, when he was 18, with several underage girls.

One of the girls was 13, one 15, and one 17.  He had been clearly quite promiscuous in Jamestown, and he did not know the identities of the girls that accused him, but pled guilty to the charges on his lawyer’s advice.  That one was 13 is often given as evidence of his depravity.  But recently, the identities of the girls were inadvertently made public, and Nushawn was surprised to see the name of the 13 year old accuser.  Because, according to him, he hadn’t known her.

I would not attempt to defend  Nushawn Williams' activities when he was living in Jamestown, selling drugs, partying, and sleeping with many young women.  But in comparison to the crimes committed by any number of Catholic priests, some of whom have never been prosecuted, Nushawn’s seem less than spectacular.  He did not, after all, force himself on anyone.  Moreover, no one, including the state’s psychiatrist, suggests that he is a pedophile. 

The question is not whether he did bad things, or even whether he should have been sent to prison, but whether he deserves a life of confinement for having sex with underage girls while he was a teenager himself. Because that is the state’s position.

Thomas Shevory, Ithaca College

I spent part of Tuesday morning last week in the Erie County Courthouse in Buffalo, New York.  I was there to attend a hearing for Nushawn Williams.  I wasn’t sure which courtroom it was in and was told to check with the Prosecutor’s Office. The receptionist there told me that they weren’t handling the case. 

“That’s federal, I think,” she said. But I knew that wasn’t true, and said so.  Someone else, apparently an attorney, was standing there, and she asked him, “Do you know who’s handling the Nushawn Williams case”?  “No,” he said. A woman standing next to him asked, “Who’s that?”  “He’s the AIDS guy,” the attorney responded.   The receptionist made a phone call, talked for a bit, and then told me, “We’re both wrong. It’s being handled by the Attorney General’s Office, but you’re in the right building.” She then directed me to the appropriate courtroom.

Television cameras there were awaiting Nushawn’s arrival, but there were three cases on the docket before his.  Finally, they brought him in, shackled.  The camera operators were at the ready. Daniel P. Grasso, Nushawn’s attorney, asked Judge John Michalski to reconsider his denial of a previous motion dismissing the state’s current case against Nushawn.  The state’s attorney responded briefly. The judge quickly upheld his previous denial. And that was that.

Except that Nushawn intervened to request a change of counsel.  His attorney, he complained, hadn’t visited him before the hearing, and he hadn’t even been sure what it was about.  The judged denied his request practically before it was out of his mouth.

I waited for a bit and then left, walking back through the corridor and past the scrum of news people by the elevator.  I recognized one of them.  She half-smiled. She had interviewed me a while back for one of the Buffalo television stations. I didn’t smile back. I felt the story was unfairly edited to further demonize him.

Nushawn Williams, infamous for supposedly spreading HIV around Chautauqua County, New York, in 1997, has served his entire twelve year sentence. But he is still in prison, and the state is trying to have him kept behind bars as a dangerous sex offender under its civil confinement statute.  The legislation was pushed hard by Governor Elliot Spitzer, who eventually resigned when it was revealed that he had spent thousands of dollars on prostitutes while Attorney General and Governor.

I know Nushawn Williams quite well.  In 2005, I published Notorious HIV, about his case.  Writing the book, I interviewed him many times, and we became friends.  Last year, I was in Mongolia and out of contact. When I left, I expected, upon my return, to greet him as a free man. But, while abroad, a learned about the state’s decision to try to keep him confined.  I visited him a couple of weeks ago at the Wende Correctional Facility to reestablish contact.  When I learned about the hearing, I decided to attend.

And now I want to devote some of this blog to his case.