Are You Positive?

by Stephen Davis

  Chapter Twenty-Nine

  For the first time in the entire month, the courtroom is packed with press wanting to hear the closing arguments from both sides and await the jury’s verdict. All the major TV networks are there, represented by their local channels. GNN is there as well. Sarah recognizes Dr. Frank Keating, GNN’s chief health correspondent, standing in the back giving final instructions to his camera crew. It’s obvious Sarah isn’t going to be able to give The Arizona Tribune a scoop this time, as she did in the AIDS trial. At least she has the deal with Campbell for an exclusive interview as soon as the trial is over.

  Sarah takes a long look around. Campbell appears rested after the weekend break; he also seems confident and composed. Wilson, on the other hand, looks a little tired, like he was up the entire weekend preparing and practicing his closing. Truth is that he spent a lot of time with Armand, who was still in jail for contempt of court, also waiting for the trial to be over.

  As the judge enters through his private door, he stops suddenly, apparently surprised at the crowd. He also didn’t expect TV cameras and quickly thinks about whether he will allow them to stay. Why not? If neither of the attorneys objects, I’ll let ‘em be.

  For Sarah, it’s the end of a long road that started in Phoenix almost six months ago. It really began more than twenty years ago when her brother had been diagnosed HIV-Positive; but in the last six months, she had learned the true cause of his death – which wasn’t HIV. Still not answered, though, is the question of whether he had actually been HIV-Positive. From everything that has come out in this trial, she can’t imagine that he was.

  Her biggest concern now, however, is the fate of this defendant, and the hundreds of others who will surely be facing similar trials in the months ahead as more states pass laws making it a crime to have sex with someone if you are HIV-Positive. How many more lives will be lost, how many countless thousands ruined, until this tragedy will come to an end? She says a little prayer that this jury will set a precedent with their verdict today that will echo throughout the world and stop this insanity.

  She doesn’t have to wait long. The judge is eager to get going.

  “Mr. Wilson, are you ready with your closing argument?”

  Wilson rises and tries hard to look strong and authoritative. “I am, Your Honor.”

  “Proceed.”

  The lawyer’s lectern has been turned so that it faces the jury box rather than the witness chair. Wilson makes his way there with a binder in his hand, which he opens, takes in a deep breath, and begins.

  “Ladies and gentlemen of the jury, this has been quite a trial. But it’s time to put away all the emotions and confusions of the past few weeks and look solely at the facts. And the fact is that Tyree Johnson, that man right there,” pointing to the defendant, “carries a deadly virus in his blood called HIV, the virus that causes AIDS. You heard Mr. Johnson’s own doctor tell you that. You heard him say that Mr. Johnson tested Positive on two ELISA tests and a Western Blot test. You heard him tell you that Mr. Johnson’s viral load was over 9,000, and that his CD4 cell count was fast approaching 200 – that he, too, was on his way to getting full-blown AIDS. And you heard all of that confirmed by one of the world’s leading AIDS experts, Dr. Michael Saag from the University of Alabama at Birmingham, the Senior Clinical Editor of the Journal of AIDS Research and Human Retroviruses and a panel member of the International AIDS Society for the United States.”

  Wilson stops for a minute to catch his breath and reminds himself to slow down. He’s been glancing down at his notebook from time to time, clearly reading parts of his statement, as many lawyers do.

  “Friends of Tyree Johnson then testified that the accused was fully aware that he was HIV-Positive, and yet admitted to them he had sexual relations with the victim, Beth Ann Brooks – not one time by mistake, but many times, intentionally, over the course of three to four months. None of these friends ever saw Mr. Johnson buying condoms, either; and you heard one of those friends suggest that Mr. Johnson was trying to give Miss Brooks HIV so she would die with him. Mr. Johnson’s doctor also told you he has refused to take the antiretroviral medications that could save his life. What more motive do you need than the defendant’s own death wish and his desire to take others with him when he goes?”

  Sarah had missed all this testimony by the State’s witnesses because the trial had already started when she first arrived in Greenville, and some of it came as a surprise to her. Wilson is definitely doing a good job – a better job than she expected – and she wonders whether it will be enough to sway the jury.

  “You then heard another well-credentialed AIDS expert, Dr. Stephen Shiboski, testify about the transmission of HIV through heterosexual intercourse. I would remind you that Dr. Shiboski was one of those responsible for the longest and largest study concerning heterosexual transmission of HIV, called the Padian study, while he was at the University of California, San Francisco. Dr. Shiboski clearly stated that while the chances of transmitting HIV from a male to a female were about one in one-thousand, it didn’t mean that you could safely have sex 999 times before transmission would occur. It could, in fact, happen the first time, or the second time, or the tenth time. Even Mr. Campbell’s own so-called expert witness admitted this.”

  Wilson seems to have hit his zone. His presentation is forceful, clear, understandable, and very persuasive.

  “In the case of Mr. Johnson and Beth Ann Brooks, we don’t know exactly how many times they had sex before the transmission of HIV occurred, only that it did. We know that it did because you also heard Beth Ann Brook’s doctor tell you that she became infected with HIV from Mr. Johnson, verified by testing positive on two out of three ELISA tests and on two Western Blot tests. She also had a viral load of over 78,000, and a CD4 cell count of 158 – which is why her doctor immediately put her on antiretroviral therapy to try to save her life. Tragically, although her viral load and CD4 cell count improved over the next few months, it was too little, too late. She died on June 27, 2005.”

  Wilson bows his head in a moment of silence. Was that a sincere gesture in memory of Beth Ann Brooks, Sarah wonders, or just a show for the jury? Whatever it was, it had its effect.

  Wilson looks up again and continues. “You heard the County Coroner testify that Beth Ann Brooks died of AIDS. You have seen her family,…” and he points to the Brooks in the front row they have occupied from the start of the trial, “…her mother and father, and her sister – here at this trial every day, grieving for their loss, and praying for justice to be done. Imagine losing a daughter in the prime of her life, deprived of the joy and happiness that could have been hers if that man,” and Wilson points again at Tyree Johnson, “had not murdered her.”

  Campbell is about to object to these inflammatory remarks, but thinks twice and stops himself before he has completely left his chair. The jury may feel sorry for Wilson and the position he’s been put in by Armand, and I don’t want to come across as a bad guy trying to attack him. Besides, I have all the facts on my side, so I think I’ll just let it go. Campbell sits back, as if he had simply been readjusting his seat.

  When Wilson hears Campbell’s chair squeak on the floor, he looks over and has a momentary fear that Campbell will catch him at his game. But when Campbell doesn’t stand, Wilson regains his confidence and turns back to the jury.

  “Now, you’ve heard from all of our expert witnesses, leaders in their field, experts in HIV and AIDS, who represent the overwhelming majority of credible scientists and doctors and researchers in the world. On the other hand, with very few exceptions, the defense has offered you a collection of what are known as AIDS ‘denialists’ – a very small minority in the scientific community who don’t even believe that HIV causes AIDS, many of whom have never worked in the AIDS field or treated an AIDS patient or watched someone die from AIDS. Most of them really don’t have any credentials to speak of, other than maybe having a paper they wrote once published in an obscure magazine no one ever he
ard of. Their list even included someone who teaches logic, and another one who teaches statistics. Ladies and gentlemen, what were they doing here? AIDS and HIV belong to science, not philosophy or psychology. So when you decide who you’re going to believe – their expert witnesses, or ours – I think the choice will be a very easy one for you to make.”

  Campbell is impressed. Although he’s certain that Armand wrote most of this and simply had Wilson memorize and practice it over and over again in the last two days, Wilson is doing an excellent job of delivery. He doubts Armand could have done any better.

  Wilson appears ready to wrap it up. “In a few minutes, you’re going to be alone in that room,” pointing at the door to the jury deliberation area, “with a very important decision to make. Did the defendant, Tyree Johnson, sleep with Beth Ann Brooks knowing he was HIV-Positive? Did the defendant infect Beth Ann Brooks with his HIV, causing her to get AIDS? Did he in fact murder Beth Ann Brooks in a way that was more cruel, more drawn out, more painful than if he had taken a gun and shot her in the head?”

  “Objection.” Campbell can’t let that one go. “Your Honor…”

  The judge interrupts. “Mr. Wilson, tone it down.”

  Wilson takes a second to regroup and then delivers his last plea. “Ladies and gentlemen, you have to do the right thing, not only to bring justice for Beth Ann Brooks and her family, but to send a message to all the other HIV-Positives out there around this country who think they can get away with having sex with whomever they want and let the chips fall where they may. I’m asking you to hold Tyree Johnson accountable for what he did to Beth Ann Brooks and tell the world that this must stop, here and now. I have every confidence, when you examine all the facts and rightfully assume the responsibility that has been placed on your shoulders, that you will find the defendant guilty of first-degree murder.”

  Wilson looks at each juror one by one, pleased with his performance and fairly certain he had won their hearts and minds. When he has made eye contact with the last juror, he straightens up, closes his notebook, and says, “Thank you.”

  Sarah notices that Wilson avoids looking at Campbell as he makes his way back to his table and sits down. That’s odd. After such an impassioned closing, and a good job of delivering it, she wonders why he wouldn’t stand proud and face his opponent. Oh, well; no use speculating at this point.

  Campbell doesn’t wait for the judge to invite him to close. He gets up, buttons his coat, and heads to the lectern. He doesn’t bring anything with him, ready to deliver his statement without needing any notes, and his opening line surprises the jury.

  “Ladies and gentlemen, Mr. Wilson deserves a great deal of respect. He was put in a very difficult situation, and I, for one, believe he did a remarkable job summarizing his case for you just now. Unfortunately, the facts that Mr. Wilson has implored you to consider simply are not on his side.”

  Campbell is looking at the jury the whole time he is talking, going from one juror to another, right down the line.

  “Let’s look at those facts, and let’s talk first not about the defendant, but about Beth Ann Brooks. In order to find Mr. Johnson guilty of murder, you have to decide beyond a reasonable doubt that Miss Brooks’ tragic death was a result of having AIDS. It’s true that her cause of death is listed as AIDS, but you heard that’s standard operating procedure for someone who has been diagnosed with HIV, no matter what they die from.”

  Campbell leaves the lectern, walks to the jury box and leans on the railing.

  “However, the County Coroner later admitted that she actually died of liver failure; and you heard undisputed testimony that liver failure is not a result of any recognized AIDS illness. It is, however, an acknowledged side effect of the AIDS drugs she was taking. You also heard undisputed testimony that these AIDS drugs have been the leading cause of death for HIV-Positives in this country for five years. To find the defendant guilty of the murder of Miss Brooks, you’re going to have to decide beyond any reasonable doubt that Beth Ann Brooks died from AIDS and not the drugs she took of her own volition. Despite all the facts that prove otherwise, you may still think that’s possible. But are you positive?

  Sarah notices that Mrs. Brooks and Beth Ann’s sister are crying, and they move to hold each other. Dr. Brooks is still sitting like a statue, as he has the entire trial. Sarah wonders, are they themselves questioning how Beth Ann died? It would be a very difficult thing for the family to give up the idea she was a victim of Tyree Johnson, especially since it was Dr. Brooks who insisted his daughter be tested for HIV in the first place, and then urged her to take the lethal HIV medications. What an awful thing to be going through, which Sarah understands only too well.

  Campbell is back at the lectern. “Even if you decide that Miss Brooks died from AIDS, where’s the proof that she was infected with HIV from Mr. Johnson? There is no such proof. Ms. Brooks never had an HIV test prior to the one she tested Positive on, so there is no proof of when she became HIV-Positive. It may well have been before she ever met the defendant. There’s simply no way of knowing for sure.”

  He pauses for a moment, collecting his thoughts for the next section.

  “But there’s a bigger problem with this. You heard expert witnesses – lots of them – testify that HIV is not transmitted through heterosexual intercourse. I’ll remind you of the largest and longest study of its kind, the Padian study, done by so-called mainstream AIDS experts, that found no transmission of HIV from an HIV-Positive partner to an HIV-Negative partner in their entire live study group over a six-year period. None! The State has simply not provided you with any scientific evidence proving beyond a reasonable doubt that the defendant infected Ms. Brooks with HIV while they were making love. To believe he did, you have to either ignore or disbelieve Dr. Padian’s study. I realize this flies in the face of everything you have heard from the AIDS Industry and the mass media for about twenty years; and you may still think that it’s possible. But are you positive?”

  One of the TV cameras makes a loud sound, and the entire courtroom looks around to see what happened. A cameraman raises his hand in apology and picks up something off the floor. Campbell lets a few seconds go by to allow everyone to refocus.

  “Mr. Wilson made a big deal in his closing statement that Mr. Johnson’s friends never saw him buy condoms. This is how absurd some of these accusations can be. Were Mr. Johnson’s friends with him 24 hours a day, every time he went to a drug store or a grocery store? What if their agreement was that Beth Ann Brooks supplied the condoms? Or what if they agreed that Mr. Johnson didn’t have to wear a condom when he made love with Miss Brooks? We know for a fact, from her own doctor’s testimony, that Ms. Brooks was on birth control. We also know for a fact from Mr. Wilson’s own expert witness that condoms cannot stop HIV from passing through them. Unfortunately, we’ll never know for sure what Mr. Johnson and Miss Brooks agreed to concerning the use of condoms, and any testimony along these lines is complete speculation.”

  Campbell feels badly that he has to deal so publicly with Beth Ann Brooks’ private life, but there was no way around it. He simply could not let certain things Wilson said go unchallenged.

  “Mr. Wilson also mentioned that one of the friends who testified suggested the defendant had a death wish; but remember that under cross-examination, that witness admitted it was he and not the defendant who said that to Mr. Johnson, and not the other way around. This alleged ‘death wish’ was the best the State could do to come up with a motive of why the defendant would murder Beth Ann Brooks. No other motive has been suggested; in fact, there’s no evidence of any motive at all – no testimony about problems between Mr. Johnson and Miss Brooks, and no psychiatric testimony that Mr. Johnson is mentally disturbed enough to harbor such a death wish and want to take others with him when he dies. Without a motive, we have no murder. In your sadness for the death of Beth Ann Brooks, you may want there to be a motive; but are you positive there really is one?”

  It’s time for what Campbell h
opes will be the deciding factor for the jury, if for some reason they are still wavering at this point.

  “Ladies and gentlemen, by far the biggest decision you have to make is whether the defendant, Tyree Johnson, is actually HIV-Positive, and possesses and used the only murder weapon possible in this trial – a virus known as HIV. You heard almost three weeks of testimony from a lot of our expert witness questioning the validity of the tests that diagnosed the defendant with HIV infection. Mr. Wilson praised his own expert witnesses, but he didn’t seem to like mine very much. But I would remind you that they were accepted by this court as experts, as Mr. Wilson’s were, and should enjoy equal standing with them. Mr. Wilson also chided me for calling a logic expert, and a statistical expert, claiming that we should be dealing with science instead. I’m not entirely sure why he would have such a problem with that; as far as I know, science has always been based around logic and statistics – at least until HIV came along.”

  Campbell couldn’t help himself. He had to get at least one zinger in there.

  “And I want to point out something I’m sure you already noticed. The State’s expert witnesses gave you their opinion – but that was all. My expert witnesses gave you their opinion as well, but also gave you hundreds of scientific studies to back up everything they said. You never heard one of Mr. Wilson’s experts cite a scientific study – not one scientific study. Frankly they can’t, because the studies that would support their opinions don’t exist. They can only repeat the HIV party line that has been handed down to them over the years, like religious beliefs, which apparently none of them has taken the time to prove through their own research. So when you start to talk amongst yourself about who said what, if you’re confused about what is actually the truth, remember that you have all these scientific studies my experts made available to you to read for yourselves and decide who you’re going to trust. Mr. Wilson needs you to believe that Mr. Johnson was and is infected with HIV beyond a reasonable doubt, but are you positive?”

  Campbell takes a deep breath. He feels like he has presented the best case possible, and a very convincing case, and there’s nothing else he can do now. It’s time to turn this over to the twelve people who will ultimately decide the fate of Tyree Johnson.

  “Ladies and gentlemen, what I do agree with Mr. Wilson about is that you have a huge responsibility, to this particular defendant first, but also to the other defendants in similar trials that are bound to come after him. Your decision will set a precedent and have a major impact for many years into the future. I am confident that we have given you all the information, all the expert testimony, all the scientific studies you need to find this defendant not guilty, for any number of reasons. The judge will tell you that you have to be sure, beyond all reasonable doubt, that Mr. Johnson murdered Beth Ann Brooks. After all you’ve heard and all you’ve learned and all that you now know, I ask you: Are you positive?”

  Chapter Thirty

  If you were a member of this jury, would you find Tyree Johnson guilty or not guilty of first-degree murder?

  You can cast your vote by going to AreYouPositive.org

  “It is bad enough that people are dying of AIDS,

  but no one should die of ignorance.”

  ~ Elizabeth Taylor

  “All that is necessary for the triumph of evil is

  for good men to do nothing.”

  ~ Edmund Burke