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Breaking: False HIV diagnosis extremely common in military prosecution cases

Tuesday, December 03, 2013 by: J. D. Heyes
Tags: HIV testing, false diagnosis, military prosecution

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(NaturalNews) It's a sad day in America, the most diverse experiment in democracy ever attempted, when individuals are persecuted, and their lives ruined, for politically motivated reasons.

The HIV virus carries a special stigma that can often lead to stereotyping and demonization. As if that weren't bad enough, there is new evidence suggesting that so-called HIV tests are not even accurate and that tens of thousands of Americans may have been wrongly "diagnosed" - and persecuted - because of it.

Here is the story of just one case, recently unearthed by Office of Medical and Scientific Justice, an advocacy group that says this problem could be the next major upheaval in the U.S. military:

He was a top-performing Staff Sergeant with the Air Force, but since 2011 David Gutierrez has languished in a small cell at Fort Leavenworth prison, proclaiming his innocence to anyone who will listen. When he is released in 2018, his punishment is not over: he must register for life as a sex offender and will be dishonorably discharged from the military.

But now, in an unprecedented development initiated by the Office of Medical and Scientific Justice (OMSJ), Gutierrez' case has the potential to make history when the U.S. Court of Appeals for the Armed Services decides whether the evidence used to convict him of assault "likely to produce grievous bodily harm" was "insufficient."

Lifestyle aside, false positive doesn't warrant a conviction

When he was a Technical Sergeant at the 22nd Maintenance Squadron, McConnell Air Force Base, Gutierrez was consistently a top performer. He was given stellar evaluations by superiors for managing the service and repairs for the 22nd Refueling Wing.

But it was his unconventional personal life that ultimately affected his 20-year military career. Military members are routinely tested for HIV - every two years. Gutierrez tested positive in 2007 and then again in 2010.

The OMSJ said he was healthy and had no symptoms of illness commonly associated with AIDS, and now, six years later, he still doesn't.

"When he and his former wife began to join swinger parties, he did not inform his multiple sex partners that he had tested HIV positive. Not a good guy, one might conclude, but as with most stories, there is much more beneath the surface," the OMSJ said its report.

The advocacy group came to be involved in Gutierrez' appeal in 2011 through the HIV Innocence Group; since then, the non-profit organization's legal and medical experts have been successful in a handful of other military cases "by establishing that the science underlying HIV tests and testing protocols is flawed and unreliable. In every OMSJ case, prosecutors were forced to withdraw all HIV-related charges after learning the many problems with HIV testing."

In the OMSJ's most recent case, in November 2013, an airman at Seymour Johnson AFB in North Carolina was also facing eight years in prison, but his defense team successfully argued that, according to FDA-approved labeling, the results from the airman's tests did not provide reliable evidence, with any degree of scientific certainty, that he had ever been infected with HIV. As such, prosecutors were forced to withdraw all charges against him.

"Based on these and other cases, OMSJ believes that hundreds - if not thousands - of service members may have been improperly tested and misdiagnosed as HIV-infected since the 1990s," the non-profit organization says.

Historically bad testing procedures


Based upon these unreliable HIV tests and reckless testing practices that deviated from published military and Defense Department directives, officials at the US Military HIV Research Program (MHRP) may have improperly tested and misdiagnosed thousands of healthy and honorable service members who lost their careers or have been subjected to dangerous human drug testing experiments on behalf of the US Government and pharmaceutical industry, while some - like SSgt. David Gutierrez - received lengthy prison sentences in a maximum security lock-up.

How can this be? Is testing technology in this day and age so bad? Apparently so, the organization says.

As for Gutierrez, the nation's highest military court, which is located in Washington, D.C., will examine his case on Dec. 16 to see whether the evidence against him is sufficient to convict. If successful, "this single case has the potential to remap the entire landscape of HIV testing and prosecution throughout the United States military - and possibly the U.S.," the OMSJ says.

Gutierrez's case encompasses a set of core problems within military HIV testing and has added to widespread misunderstanding among most medical providers who administer and evaluate said test results, the OMSJ noted in its report.

"These same problems have appeared in every military and civilian case OMSJ has undertaken, which to date numbers more than 50 cases since 2009," the groups says. "With the assistance and support of the HIV Innocence Group, defense attorneys have begun to force prosecutors to find medical experts willing to testify under oath about the accuracy and reliability of HIV tests and their diagnoses. Few can."

In two of the organization's most recent cases, top HIV experts from the Balboa Naval Hospital and Walter Reed Army Medical Center were unable to explain how defendants were competently diagnosed with HIV.

"And when the government prosecutors pushed charges against Marine Corps Cpl. RL and Army Sergeant TD, they lost," said the group.

Tens of thousands wrongly prosecuted?

The good news is, there is hope. The OMSJ says it is possible that HIV testing will be seen, eventually, for what it is: inaccurate, and based on unsupported science. Defense attorneys who had once expected to plea bargain their mostly black and homosexual clients - groups associated with the highest rates of HIV infection - are beginning to understand that the science behind HIV testing is suspect.

As for Guiterrez, the OMSJ reports, "On December 16, when the military appeals court reviews the HIV evidence in [his] case, 'with any luck,' says his attorney, Kevin B. McDermott, 'we will soon see the end of HIV test results being used as a basis to convict a serviceman for aggravated assault.'"

The group says as many as 40,000 people in Massachusetts alone may have wrongly been sent to prison by just one chemist [http://www.bostonglobe.com].





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