PUBLISHED:July 24, 2017

Health Justice Clinic overturns client’s conviction under outdated HIV law

Fighting HIV stigma is an important mission of Duke Law’s Health Justice Clinic, which does so by seeking justice while treating clients with dignity and respect. Anderson Phillips ’17 had the opportunity to do both over the course of two semesters in the clinic in its first criminal case.

Phillips represented Cory*, a young man who sought to set aside a conviction for violating North Carolina’s HIV control measures – laws enacted early in the AIDS epidemic that require people living with HIV to disclose their diagnosis and use a condom in all sexual encounters. Cory had been living with HIV for several years and was doing well and had no detectable virus. But after he visited the health department for treatment of new symptoms, public health officials charged him with violating control measures based on their belief that he had developed a separate infection after failing to use a condom.

Cory was arrested and spent a harrowing night in jail; denied bail the next day, he pled guilty rather than face the prospect of weeks of detention while he awaited trial. Phillips first heard Cory’s story over a year later after enrolling in the clinic for the fall 2016 semester.

“He talked me through his emotions during the entire ordeal, including how scared he was while spending the night in jail, and how terrifying the courtroom was, with an unsympathetic judge and essentially nobody there to explain to him what was happening,” Phillips said. “I learned how the public health violation made job searching exponentially more difficult, the fact that potential employers asked him to explain what the conviction was for, essentially requiring Cory to reveal his HIV status as a condition of employment.” In fact, Cory had an offer for a great job, but when the employer saw his criminal record, it was withdrawn.

The Health Justice Clinic normally handles only civil matters, but clinic faculty felt a stigmatizing conviction for an outdated crime that was making it difficult for a young man to earn a living was unjust. Phillips was eager to help, and Clinical Professor Hannah Demeritt, who had previous experience in criminal defense, agreed to supervise his efforts to set aside the conviction through a Motion for Appropriate Relief (MAR). The clinic enlisted the help of criminal defense lawyer Jonathan Strange, who agreed to assist with the MAR and make the connection with a local assistant district attorney on whose recommendation a judge might grant it.

“[Strange] structured my work with him as a mini-externship, so that I would get as much out of it as possible,” Phillips said. “He let me take the lead on drafting Cory’s MAR based on his guidance. Maybe a week or two after it was filed … we met with the ADA. I took a deep breath and steeled myself for battle before giving about a two-minute explanation of Cory's situation and why the MAR was justified to help Cory get the conviction off his record.

“At the end of my speech, the ADA just nodded, turned to Strange and asked, ‘OK, that sounds good, so what do you want me to do?’”

On Dec. 15, Phillips and Strange went before the judge to plead Cory’s case. “She took a bit of convincing to sign the MAR, but eventually agreed,” Phillips said. “Cory was overjoyed. All in all, easily one of my best law school experiences.”

Clinical Professor Allison Rice, who directs the Health Justice Clinic, said the case “has cemented our resolve to change the laws that criminalize people with HIV and contribute to HIV stigma. Such precautions were reasonable before the development of effective drugs to fight HIV, but the rules haven’t been modernized to reflect advanced medications that suppress the virus so that it can’t be detected in the blood or transmitted sexually.” Rice and Carolyn McAllasterColin W. Brown Professor of Law and director of Duke’s HIV/AIDS Policy Clinic, are working with the North Carolina AIDS Action Network and the North Carolina Division of Public Health to modernize the state’s HIV laws based on current science so that cases like Cory’s could not be prosecuted in the future.

Phillips, who is going on to a clerkship with Judge Mark Davis of the North Carolina Court of Appeals, said the experience reminded him of why he chose to pursue a law degree. “Law school dwells so often with hypothetical problems that it becomes easy to forget that lawyering is a service profession, one that helps actual humans resolve actual legal issues,” he said. “My work with Cory helped me reconnect with that goal. For that, I'll always be grateful.”

*Name has been changed to protect client confidentiality.