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A routine sentencing in a Houston cocaine case blew up when the trial judge accused the prosecutor of recklessly endangering the defendant by disclosing his HIV-positive status in front of other prisoners. U.S. District Judge Vanessa Gilmore reduced Ricardo A. Castillo’s potential seven- to nine-year sentence to just below five years for possessing 3.8 kilos of heroin, citing his “extraordinary medical condition” and the prosecution comments that she called “malicious and endangered the defendant’s safety.” But the 5th U.S. Circuit Court of Appeals recently responded by reversing Gilmore and agreed with the government that exposing HIV-positive status would make Castillo “less likely to be the victim of physical attack in prison because other inmates would want to avoid possible exposure to his bodily fluids.” U.S. v. Castillo, No. 03-20944. “I think the 5th Circuit was wrong when it agreed with the government assertion that being HIV-positive can be good in prison. It shows the level of naivet� about what goes on in prison that is pretty high,” said David Adler, Castillo’s appellate lawyer in Houston. The appeals court joined five other circuits in holding that a defendant’s HIV-positive status alone does not constitute an extraordinary medical condition warranting a lower sentence. And in Castillo’s case, the conduct of Assistant U.S. Attorney Richard Hanes was no justification either, the court held, without identifying Hanes by name. Castillo’s original sentencing hearing in 2003 included sealed documents that described his HIV-positive condition. During the hearing, the judge and defense lawyer discussed his “condition” without naming it. Only when Hanes said Castillo was a sympathetic case, but pointed to other cases denying sentence reductions even for defendants with “full-blown AIDS,” was Castillo’s status revealed. Gilmore called his remarks “completely unnecessary, thoughtless and rude,” despite Hanes’ apologies and statement that he did not know the information was under seal. She berated him saying that despite the fact Castillo’s health was under seal, the prosecutor “deliberately in open court, in the presence of many other people, including fellow prisoners of this defendant, disclosed the defendant’s status, indicating even the possibility that he might have full-blown AIDS.” She said he acted either from “stupidity or maliciously and deliberately.” ‘Unusual hostility’ The 5th Circuit stepped in with a few thoughts of its own. Chief Judge Carolyn Dineen King, joined by judges Rhesa Barksdale and Edith Clement, said that Gilmore’s “evident anger, its unusual hostility toward the prosecutor (including attacks on his personal integrity and truthfulness) . . . requiring formal objections by the prosecutor . . . would have been futile.” King concluded that Gilmore’s accusation against Hanes “is wholly unsupported by the record and is clearly erroneous.” Nancy Herrera, executive assistant U.S. attorney for the Southern District of Texas, said, “The ruling speaks for itself. HIV status is insufficient to justify [a lower sentence].” King even took a swipe at Gilmore, pointing out the judge did not order the Bureau of Prisons to take any special security precautions for Castillo, which suggests the judge was “not overly concerned about his safety.” The prosecutor can’t be faulted for failing to understand the “impromptu, implicit code system that apparently existed between the district court and defense counsel,” King wrote. Gilmore has been criticized by the appellate court before. The 5th Circuit said Gilmore went too far when she ordered the government to explain why it sought the death penalty only against one black man in a case with 11 other death-eligible defendants. That was the case against Tyrone Williams, accused of murder in the 1998 deaths of 19 illegal immigrants locked in his truck trailer. The appeals court said Gilmore acted as a “quasi-defense attorney” who was “legislating from the bench” in that case. When she was appointed by President Clinton in 1994 at age 37, Gilmore was the youngest federal judge in the nation. She was also the only African-American woman on the federal bench in Texas.

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