By Jameson Cook
Macomb Daily Staff Writer
BITE: He maintains his innocence
A 44-year-old Clinton Township man charged with using a biological substance as a weapon for allegedly biting a man while being HIV-positive rejected a deal Thursday that would allow him to plead guilty to a 10-year felony.
"I advised my client that if he says he didn't do this then I couldn't let him plead."
Daniel Allen appeared in front of Judge Peter J. Maceroni in Macomb County Circuit Court in downtown Mount Clemens and turned down an offer from Macomb prosecutors to plead guilty to assault with intent to do great bodily harm less than murder in exchange for dismissal of two other counts — assault with intent to maim, also a 10-year felony, and using a biological substance as a weapon, a 15-year felony.
"My client absolutely maintains he did not do this," said Allen's attorney, James Galen, in court. "I advised my client that if he says he didn't do this then I couldn't let him plead."
Allen has said he does not re-call biting Winfred Fernandis Jr., a neighbor on Sharkey Street, on Oct. 18 following a disagreement over a football that went onto Allen's lawn.
Galen said he plans to file motions to dismiss and quash the charges, and to suppress evidence. A hearing on the motions
was scheduled for April 26. "There is no showing of (criminal) intent" by Allen on all three charges, Galen said outside the courtroom. Galen said he will argue to exclude evidence such as medical records and photos that discuss and show injuries to Fernandis but don't show injuries to his client that he says resulted from a physical altercation. In seeking to quash, Galen will argue that Fernandis suffered the lip injury by biting his own lip, not from Allen's actions.
One argument for dismissing the charges is that the HIV virus cannot be transferred by saliva.
The Detroit-based American Civil Liberties Union has filed a brief in support of dismissing the biological substance charge, contending that it was created to punish for bioterrorism, not for the circumstances of this case.
The ACLU says it believes this is the first time a terrorism law in Michigan has been used to prosecute someone due to his HIV status.
Assistant Macomb prosecutor John P. Hunt said he objected to the ACLU joining in the case.
April 27 had been scheduled as a trial date, but that was changed to the final pretrial.
Accused HIV biter's attorney says video helps his case
■ But his accuser says it won't
The attorney for an HIV-positive man accused of biting his male neighbor's lip wants to use as evidence TV news video that could give reason to believe the alleged victim bit his own lip.
James Galen, attorney for Daniel Allen of Clinton Township, told a judge Thursday the video shows Allen's accuser, Winfred Fernandis, biting down on his own lip during an interview with a reporter from WJBK-TV (Channel 2), bolstering Galen's claim.
Galen wants Judge Peter J. Maceroni to approve his hiring an expert to try to match Fernandis' bite marks with his own lip wound and/or scar.
"I will blow it (still photo from the video) up as big as a doorway and have it sitting there as an exhibit," Galen said outside the courtroom following a pretrial in Macomb County Circuit Court in downtown Mount Clemens. "I challenge the complaining witness to bite down on his lip in front of all the news media and see if his bite mark doesn't match his' teeth."
Fernandis, 29, later Thursday scoffed at Galen's claim. He said when he was interviewed, his lip was still sore. "It was sore and I was babying it," he said. "It had nothing to do with me biting my lip all the time." Fernandis said his bite "doesn't even match" the scar from Allen's bite. "I can't wait until this goes to trial so he gets what he deserves," he added.
A review of what is believed to be the 1-minute, 43-second video on www.myfoxdetroit.com by a Macomb Daily reporter indicates that Fernandis twice during the interview appears to curl in his lower lip and touches it with his teeth but doesn't appear to bite down.
Galen offered the evidence to assistant Macomb prosecutor John Hunt, who said he would view it.
A pretrial was scheduled for July 15. Allen, 45, of Clinton Township, faces two 10-year felonies, assault with intent to maim and assault with intent to do great bodily harm. A third charge, using a biological substance as a weapon, punishable by up to 15 years in prison, was dismissed earlier this month by Maceroni.
Allen is accused of attacking Fernandis, in front of Allen's home on Sharkey Street, in a confrontation over a football thrown on or near Allen's lawn; it was part of a long-simmering dispute between Allen and his neighbors on the street near 15 Mile Road and Gratiot Avenue. Allen claims he has been targeted because he is gay, but Fernandis denied that and that Allen has unnecessarily called police on him.
Fernandis says Allen bit him while bear-hugging him. Allen said he does not recall biting Fernandis and has countered that he was attacked by Fernandis and his family, although none of them has been charged. Allen has photos of his injuries.
Hunt reiterated an offer in which Allen would plead guilty to the bodily harm offense in ex-change for dismissal of the maim charge. Under sentencing guide-lines, the range Would be from probation up to six or nine months in jail.
Allen said he doesn't want to plead guilty.
The recent dismissal of the biological substance was a victory for several gay-rights and civil liberties organizations because they contended Allen was a victim of bias by prosecutors. They said the charges demonstrated unwarranted fear and ignorance about people afflicted with HIV.
Maceroni in his June 2 ruling said Allen's HIV-positive status alone does not prove unlawful intent and the lack of blood evidence meant the virus could not have been transmitted.
By HEIDI Roman
C & G Staff Writer
MOUNT CLEMENS —Civil rights organizations and the gay community have been keeping a close eye on a local HIV-positive man's fate after he was charged as a bioterorrist for allegedly biting a neighbor's lip.
The defendant, 45-year-old Daniel Allen of Clinton Township, said the dismissal of the charge by Macomb County Circuit Court Judge Peter Maceroni is a victory for all gay people and those with HIV. Maceroni approved a motion to quash the charge June 3, saying there is not enough evidence to support it.
Allen still faces two felonies for the neighborhood dispute that took place outside his home on Sharkey Street Oct. 18, 2009, but the bioterrorism charge was the most severe.
Allen is accused of assaulting his neighbor, Winfred Fernandis. The charge of using a harmful biological device, a 15-year felony under an anti-terrorism law, was added after Allen admitted that he was HIV-positive.
"(Maceroni) made a good decision because it gives people an opportunity to get tested and not be afraid, not fear being a terrorist," Allen said after learning the charge was dismissed.
He's gotten much support from the gay community, Lambda Legal Defense and Education Fund and the American Civil Liberties Union of Michigan, which filed a brief in his support. They claimed that charging a person with HIV as a terrorist creates an unfair stigma against the disease.
"HIV is not a death sentence," said Allen, a busboy at a local restaurant. "Lots of people are living with HIV, and I'm one of them. I'm not dying, I'm living. I'm living every day with HIV."
He believes it was ignorance about HIV that caused what would have been a simple assault case to turn into such a big ordeal — one that has garnered national attention.
Last year's incident between Allen and Fernandis was not the first. Police had been called to the street on prior occasions for disputes between the two, and between Allen and Fernandis' father, who also lives on Sharkey Street. Allen said both men have discriminated against him because he's gay.
Fernandis, 29, declined to comment on those specific allegations, but maintains that he was attacked unprovoked.
"There's two sides to every story," he said.
Allen's defense attorney, James Galen, claims his client was the one who was attacked, and says Allen was severely beaten during the incident.
With the bioterrorism charge dropped, Allen is still facing two 10-year felonies: assault with intent to maim and assault with intent to do great bodily harm. Assistant Prosecutor John Paul Hunt says he and Galen are trying to negotiate a plea deal.
Galen believes they'll be asked to plead guilty to reduced charges, but didn't know if they would accept a deal.
"I always keep an open mind, but my client is not guilty," he said.
But Galen said Allen might consider pleading guilty to a misdemeanor — even though he swears he's innocent — just because of "the risk of a black, gay man with HIV facing a jury."
"We're a working class community," Galen said. "A lot of Catholics, a lot of Caucasians. I shouldn't be saying this in public, but there's a lot of people who won't talk about it."
If the case did head to trial, Galen said he plans on hiring dental experts specializing in bite marks to try to prove that Fernandis actually bit his own lip.
Four months ago, Galen and Allen set up the Daniel Allen Defense Fund and have so far collected $700 to use to hire expert witnesses, Galen said. He's reaching out to civil rights organizations and the gay community for further financial support.
In the event that the case does not proceed to trial and no expert witnesses are necessary, Galen said, the funds would be donated to a gay rights or civil rights organization.
A pretrial conference in the case is set for June 24.