Chicago Tribune (CT) - TUESDAY, February 13, 1996 Edition: LAKE SPORTS FINAL Section: METRO LAKE Page: 1 Word Count: 1,014
Teresa Jimenez, Tribune Staff Writer.

But whether the charge will stick won't be determined until March 11, when the results of Merritt's test for the human immunodeficiency virus are released in court.

Attorneys in the case cannot reveal whether Merritt, 45, of Chicago, has tested positive for the virus because of a gag order issued by Lake County Judge John Goshgarian to protect Merritt's privacy.

Assistant State's Atty. Suzanne Fitzgerald can say only that the criminal transmission charge has not been dropped since Jan. 6, when police arrested Merritt for allegedly biting an employee at Sam's Club in Gurnee while trying to flee the store.

On that Saturday afternoon, the employee--a young man in his 20s--noticed Merritt heading for the exit after being questioned about what appeared to be a forged check, and he stepped in to block the customer's way, authorities said.

Merritt bit the employee's arm, leaving teeth marks and drawing blood, authorities said. He also scratched another employee, court records show.

That afternoon, authorities said, Merritt acknowledged having HIV.

But Merritt refused to give authorities a blood sample to verify whether he had the virus until the grand jury ordered it on Jan. 12, court records show. He is being held in Lake County Jail on a $50,000 bond.

The transmission law has stirred controversy since it went on the books in 1989. Just two years ago, the Illinois Supreme Court upheld the law after hearing arguments that it was too unclear.

The law allows state prosecutors to charge someone who is aware that he or she is HIV positive and engages in activities--including intimate contact, donating blood or sharing dirty needles--that could transmit HIV. If convicted of the felony, a person could be sentenced to 3 to 7 years in prison.

At the time, the American Civil Liberties Union questioned what the law meant by "intimate contact," which representatives said could refer to a sweaty handshake or an HIV-positive mother who breast-feeds her child.

Attorneys say prosecuting unusual cases such as Merritt's can often be tricky.

Prosecutors first must show that the suspect knew he had HIV when the incident occurred. That part is easy, attorneys say. Medical records will have dates of tests and doctor visits.

The hard part comes with the second half of the law.

"You have to show he intended to transmit AIDS. The defense can say the man was just acting out in anger (when he bit the employee)," said Tom Scorza, a law professor at the University of Chicago. "It would be an easy case (to prosecute) if he said out loud, 'Oh, yeah? Then I'm going to give you AIDS.' "

Prosecutors admit they rarely charge spitters and biters for criminal transmission of HIV.

Three years ago in Cook County, an HIV-infected man visiting University of Chicago's Bernard Mitchell Hospital stuck a syringe with his blood into a nurse. Trannie Blue, 37, was originally charged with criminal transmission of HIV, but the charge was later changed to attempted murder.

Blue died of AIDS-related illnesses before the trial. The nurse did not get the virus.

Similar cases have resulted in hefty penalties in other states. In Texas vs. Curtis Weeks, a prison inmate was convicted of attempted murder in 1989 for spitting in a guard's face and received a life sentence. The guard never tested positive for HIV, but Weeks died last year of AIDS-related illnesses.

In the State of New Jersey vs. Gregory Dean Smith, an inmate was convicted in 1990 of attempted murder and aggravated assault for biting a sheriff's officer. He received a 20-year prison sentence.

Assistant State's Atty. Jeff Pavletic said that in Lake County over the past two years, there have been a few cases involving the criminal transmission of HIV, but none involving biting or spitting.

AIDS activist groups argue that the laws create a separate class of people, punishing them for having a fatal illness.

In a case such as Merritt's, activists also question the law's appropriateness, because scientists have yet to prove that the virus can be transmitted through saliva.

"It creates hysteria that biting transmits HIV," said Roger Leishman with the ACLU. "Say there's a chance in a million that biting could transmit HIV. Those sorts of odds don't justify this intrusive law."

Dr. Frank Palella, an infectious disease specialist at Northwestern Memorial Hospital, said the chance of transmission is slim.

"Is it possible? Yes. Is it likely? Probably not," Palella said. In a situation such as Merritt's, the biter would have to have blood in his mouth and break the skin of someone else, Palella said.

"There would have to be some kind of blood to blood contact," Palella said. "Saliva has never been associated with transmission."

The risk is tiny, said Dr. Andrew Kaplan, director of the Retrovirology Laboratory at UCLA. A person pricked with a needle from an HIV-positive person has a 1 in 300 chance of contracting the disease, and the odds in a biting situation would be considerably smaller, he said.

If there were a possibility of transmission, the victim would have to wait six months to get a conclusive test result. And it has not been proved that taking the HIV drug AZT immediately after being exposed to the virus prevents someone from getting it, though it does narrow already slim odds, experts said.

Some legal experts argue that lawmakers can't ignore the threat of AIDS, especially when it is used as a weapon.

"I sympathize with (AIDS advocates). They want no special notice of HIV people at all. They see it as a slippery slope," said law professor Scorza. "But if you look at it the other way, the state wants to protect people from HIV. It is within its right to do that. It gives people greater notice about what the law is."

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