Judge's Action on Defendant With HIV Draws Fire : AIDS scare: Critics say Larry Stirling's order that courtroom areas where defendant coughed be mopped up displays ignorance.

TIMES STAFF WRITER

San Diego County Municipal Judge Larry W. Stirling displayed ignorance about AIDS when he ordered court workers to clean and mop the courtroom after an appearance by a forgery defendant who had tested positive for the AIDS virus, attorneys said Thursday.

Stirling's action raised concerns among some in the legal community Monday, when the unidentified 25-year-old defendant answered a bench warrant issued for his arrest. Stirling's unusual reaction to the infected man has fueled a weeklong courthouse controversy that includes private criticism of him by other Municipal Court judges.

Stirling on Thursday defended his cleanup orders, brushing aside criticism of his actions. He said that he acted responsibly, out of concern for public safety, when he ordered court workers to clean areas touched by the defendant.

"It was a perfectly reasonable response under the circumstances and not a political response," Stirling said. "All I treated was a health problem. I have a responsibility to public safety in the courtroom and believe in this case I acted responsibly."

On Thursday, Presiding Municipal Judge Patricia A.Y. Cowett said she favors an AIDS seminar in which judges could learn more about the disease and how to deal with AIDS-infected defendants who appear before them.

Cowett said she would have reacted differently under the circumstances, but declined to criticize Stirling.

Public Defender Susan P. Clemens-Guthrie informed Stirling during an in-chambers conference that her client had tested HIV positive. An HIV-positive test indicates a person has the AIDS virus but may not show symptoms of the disease.

Clemens told Stirling that her client had tested positive for the virus in an attempt to keep him out of jail, so he could get adequate medical care. However, the man was taken into custody by deputy marshals after Monday's court appearance. He remains in custody on $5,000 bail.

After the man was taken to jail, Stirling summoned a cleaning crew to mop around the chair where the man had been sitting and to spray window cleaner on the lectern used by Clemens and the banister through which the man had passed when he appeared before Stirling.

While waiting for the cleaning crew to arrive, Stirling ordered a deputy marshal to cover the banister with butcher paper so it would not be touched by others. However, the banister was cleaned before the deputy could find the paper.

After the cleanup was completed, Stirling asked a court employee in open court to find out if the AIDS virus could be killed with window cleaner and to report back to him, said attorney Marsha Duggan, also of the Public Defender's office, who was in the courtroom that day.

Stirling said he asked the woman to report to him because "I was concerned with the product they were using, and if it would be effective."

Tim Pestotnik, general counsel to the San Diego AIDS Foundation, said Stirling's actions may have violated the defendant's rights.

"The precautions he decided to take were unnecessary and prejudicial to the defendant," Pestotnik said.

He lamented the "millions of dollars and energy" that various groups have spent to educate the public about the threat of AIDS, and said he was saddened that some people still do not know how the disease is transmitted.

Although most medical experts agree that AIDS can only be transmitted through the exchange of body fluids or by sharing intravenous needles, and not sneezing, Stirling said he is convinced that people "don't know enough about how it's transmitted."

"I served in the the Legislature with Art Agnos (mayor of San Francisco) for 10 years, and heard hours of testimony on the AIDS problem. I also heard the surgeon general speak about it at length. . . . The representation that I displayed ignorance on the issue is subjective," Stirling said.

Pestotnik responded: "In this case, education starts right in the courtroom. If we have a problem in the courtroom, we want to do anything we can to educate a person on how the disease is transmitted. Something went wrong here. It's not clear to me whether he didn't understand (previous presentations on AIDS), or he chose not to understand."

Clemens and other attorneys were at first reluctant to talk about the incident for fear they would appear to be criticizing Stirling.

"I certainly don't want to appear to be criticizing the judge or the court, but it happened, and there were other attorneys present who saw and heard what happened," Clemens said.

Stirling confirmed most details of the incident, but denied that he acted out of ignorance or prejudice.

"I am not homophobic nor overreacting to people who are HIV positive," Stirling said. "Being HIV positive doesn't mean that he doesn't have a full-blown case of AIDS. If you saw this fellow, you'd think he was suffering from AIDS."

Clemens declined to say how her client contracted the virus or if he is gay, but said that "he doesn't have full-blown AIDS."

Attorney Duggan called Stirling's reaction "Neanderthal." Although Duggan and Pestotnik said HIV test results are supposed to be confidential by law, Duggan said Stirling undermined that by announcing the defendant's medical condition in open court.

"I walked into the courtroom and heard him from the bench talk to a woman supervisor," Duggan said. "He told her that he had had a guy who was HIV positive, and that's why they were cleaning."

Clemens also said that Stirling was bound by court rules against disclosing her client's medical condition in public.

However, Stirling said that Clemens never asked him to keep her client's medical condition confidential. Besides, the in-chambers conference, where it was revealed that the man had tested HIV positive, was on the record and was recorded by a court reporter, he said.

"I didn't do anything to humiliate this fellow, other than to act responsibly under the circumstances," Stirling said.

According to the judge, the defendant was "coughing profusely" and "spewing sputum" in the courtroom while waiting to be called.

"He was coughing and spewing profusely. There were clearly emissions coming from his mouth, which was transferred to his hands and the handles of the seat and things he was touching," he said. "I took appropriate precautions to make sure that the sputum he might have spit around was cleaned."

Stirling said he acted out of concern for the deputy marshals and staff in the courtroom.

"The bailiffs and staff have families too who would like to be protected," Stirling said.

He said he has presided over countless cases involving defendants who tested HIV positive without taking the same precautions he took in this case.

"This was an extensive and unique case, in regards to his spewing about whatever he was spewing about," Stirling said. "I have to tell you, they are over-blowing my response. Had you been there, I don't think you'd have thought I was going wild or overreacted."

Meanwhile, Judge Cowett said she supports a recommendation by attorney Marian Modrak to establish an AIDS seminar for judges. Modrak, an attorney with the Public Defender's office and member of the bar's AIDS subcommittee, made the recommendation earlier in the week to Cowett and other judges.

"I told her I thought it was a great idea, . . . I think that would be very helpful. The San Diego County Judges Assn. has also been approached to put on a similar seminar," Cowett said.

Cowett said the Municipal Court does not have a policy on how to deal with AIDS-infected defendants. Instead, judges depend on a policy drawn up by San Diego County Marshal Michael Sgobba. Sgobba said a contagious-disease policy used by his staff since 1988 tells deputies what to do when coming in contact with a person who has a communicable disease, including AIDS.

However, Cowett said that the marshal's policy does not address people who are HIV positive.

"But I have received no information that indicates we have to add HIV positive to the list of communicable diseases, or to do anything else as far as related procedures in view of any potential health risks," Cowett said. "I have spoken to a variety of people this week and have yet to be told there's a need to expand our procedures."

After Monday's court appearance by the man who tested HIV positive, a court employee who is also HIV positive came to see Stirling.

"The employee came in and said, 'I'm HIV positive and not infectious.' I think you have to balance the rights of that individual versus the public health and safety of all people, who also have a right to be protected," Stirling said. "As a judge, I have to be fair to all sides. Lawyers don't have to be fair. They just have a responsibility to their client."

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