Is Blood Thicker Than Due Process?

The Politics of HIV Testing

A BILL TO authorize HIV testing for alleged sex offenders is back in the Minnesota Legislature. State Rep. Dave Bishop (R-Rochester) has introduced legislation under which people charged with sex crimes could be forced to undergo HIV testing at the victim's request. It is the fifth year in a row that such legislation has been proposed.

Current law permits involuntary testing of sex offenders, but only after the accused has been convicted of a crime. Previous attempts to expand testing have failed amid opposition from civil libertarians and HIV advocacy groups. "I don't think that there's a great deal of difference in taking somebody's blood for a blood test, or fingerprints, or pictures for a mug shot, or a line-up," counters Bishop.

At least one Minnesota prosecutor would agree. Last year Jim Martenson, an assistant county attorney in Rochester, used a standard search warrant to get a blood sample for HIV testing from a man charged with a number of violent crimes, including the abduction and rape of a Rochester woman. Martenson says had the man tested positive--he didn't--he could have been prosecuted for criminal transmission of HIV in addition to the other offenses with which he was charged. The man was recently sentenced to 120 years in prison.

"I've never heard of a search warrant being used for that purpose," says Michael Adams, an attorney at the national office of the American Civil Liberties Union. "When you're talking about not only searching somebody's body, but extracting blood from them, you are infringing on their right to privacy. [And] that is the last area in which you want to run the risk of search warrants being improperly granted."

Meanwhile the Bishop bill, which in its original version attracted criticism from the Minnesota AIDS Project, is stalled while its author and MAP try to hammer out new language. "I think I'm getting into a situation where I don't know enough to proceed," says Bishop, "so I'm going to wait for somebody who does."

STUPID AD CAMPAIGN?
TRY THROBINEX

FROM THE PEOPLE who brought you a picture of a woman athlete with a bulging crotch and the cow-ass-kissing tribesman comes War of the Worlds Part Duh. Tucked into last Thursday's Star Tribune was what appeared to be a handwritten note that read: "We borrowed your Star Tribune. Hope we got it back before you woke up.--Zwortnik & Earl."

While most readers recognized the duo as the aliens from Fallon McElligott's ad campaign for the Strib Online, some subscribers had the bejesus scared out of them. "My father, who's retired, got his paper two hours late that day and the note freaked him out," says one customer. According to Strib consumer communications manager Kathy Wisser, the paper logged at least 500 complaints about the insert. "Callers fell into three groups," she said: "those who had service problems in the past, people who thought their neighbors had taken their papers, and people who were frightened because they don't know who Zwortnik & Earl are."

BLACKBALL YOUR NEIGHBORS!

NUISANCE LAWS--ORIGINALLY designed to clamp down on trashy yards and foul odors--are getting ever more popular with local politicians. A couple of years ago the Legislature made it possible for county attorneys to shut down properties where police--or, really, anyone--had logged "behavioral incidents" involving gambling, prostitution, or drugs. Last year lawmakers allowed community groups to sue landlords over such incidents. And this year, the Hennepin and Ramsey County attorneys are pushing for greater authority to evict tenants and shut down properties.

One of their proposals would allow tenants to claim their lease has been violated if there are drug "incidents" in another apartment--or even, potentially, in another building owned by the same landlord. Another provision would allow landlords to evict tenants over drugs, prostitution, and gambling complaints, regardless of whether the tenants were ever convicted. The county attorneys also want state money for things like "tenant/landlord education"; "restorative justice" (making offenders help the neighborhoods they bothered); and, of course, yet more coordination among housing inspectors, block clubs, cops and prosecutors.

The one thing no one's figured out yet is whether ever-broader nuisance laws will hold up in the courts. The only challenge so far has come from Minneapolis landlord Robert Zeman, who settled his case last year. But in Florida, a law similar to Minnesota's has been struck down on the grounds that if government shuts down someone's building, it must pay compensation. Assistant Hennepin County Attorney Pat Diamond says his office hopes that judges here won't go that route. CP

PUBLIC DOMAIN

Only a culture in deep decline could have produced a document like the recent New Yorker essay by judge Alex Kozinski. He cast the dissenting vote on a three-judge panel that stayed the execution of a murderer named Thomas Baal. The Supreme Court overruled the stay, quoting Kozinski's dissent in its ruling. Kozinski's New Yorker essay, a first-person "Personal History" called "TINKERING WITH DEATH," documents the judge's experience. Excerpts follow:

The case officially landed in my lap just as I was leaving the office for dinner at a friend's house. I arranged with the two other judges who had been selected to hear the case for a telephone conference with the lawyers later that evening. Nothing stops the conversation at a dinner party quite like the half-whispered explanation, "I have to take this call. It's a stay in a death case. Don't hold dessert."

I woke with a start and sat upright in the darkness. He must be dead by now. The thought filled my head and gave me a weird sense of relief.

Brutal facts have immense power; they etched deep marks in my psyche. Those who commit such atrocities, I concluded, forfeit their own right to live. We tarnish the memory of the dead and heap needless misery on their surviving families by letting the perpetrators live. Still, it's one thing to feel and another to do. It's one thing to give advice to a judge and quite another to bethe judge signing the order that will lead to the death of another human being--even a very bad one. Baal was my first.

I finally plunged into a deep sleep from which I awoke long after the execution was over. I was grateful not to have been awake to imagine in real time how Baal was strapped onto a gurney, how his vein was opened, how the deadly fluids were pumped into his body. Lethal injection, which has overtaken the electric chair as the execution method of choice, is favored because it is sure, painless, and nonviolent. But I find it creepy that we pervert the instruments of healing... by putting them to such an antithetical use. It also bothers me that we mask the most violent act that society can inflict on one of its members with such an antiseptic veneer. Isn't death by firing squad, with mutilation and bloodshed, more honest?

It's late Saturday night. Another execution is scheduled for next week, and the machinery of death is humming through my fax. And, despite the qualms, despite the queasiness I still feel every time an execution is carried out in my jurisdiction, I tinker away. I do it because I have taken an oath. But there's more. I do it because I believe that society is entitled to take the lives of those who have shown utter contempt for the lives of others. And because I hear the tortured voices of the victims crying out to me for vindication.

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