And once again, the Great Sovereign Nation of Texas competes with the State of Florida for which does the stupidest things.  Today’s issue is spitting.

Via Grits and Berman, this Dallas Morning News story:

Prosecutors convinced a Dallas County jury this week that HIV-positive saliva should be considered a deadly weapon.

Mr. Campbell was convicted of harassment of a public servant. Because of the jury’s deadly weapon finding, he will have to serve half of his sentence before he’s eligible for parole. The police officer, Dan Waller, has not contracted HIV.

For his efforts, Mr. Campbell was sentenced to 35 years in prison.  Now, spitting at a police officer (or spitting at anyone really) is disgusting and wrong.  It should not be tolerated, even though it’s a relatively benign act as harmful conduct goes. A bullet is deadly.  Spit is really disgusting. 

But there are two issues here that are worrisome. The first issue is that Campbell’s spittle was found by a jury to be a deadly weapon.  This harkens to that nexus of science and bias, the fear that lingers long after the reality becomes clear. 

But the Centers for Disease Control and Prevention and countless doctors say no one has ever contracted the virus from spit.

And that’s why several AIDS advocacy groups and many individuals contend that the 35-year sentence Willie Campbell received Wednesday for spitting into the mouth and eye of a Dallas police officer was excessive.

This is one of those questions that a judge should never have permitted to go before a jury for this very reason.  It’s what I call a “world is flat” question.  Should the question of fact be put to the jury of whether the world is round or flat?  If the jury decides flat, does it make it so?  Obviously not.  So if no reasonable jury can make a finding contrary to reality, then it’s a question for of law for the judge, not the jury, and should never have been submitted.

The prosecutors position, medical evidence to the contrary notwithstanding, is that there is a minuscule chance that the world “may be” flat.

But Dallas County prosecutor Jenni Morse, who handled Mr. Campbell’s case, said any risk level is sufficient for the deadly weapon finding used during the trial. “No matter how minuscule, there is some risk,” said Ms. Morse. “That means there is the possibility of causing serious bodily injury or death,” the legal definition of a deadly weapon.

What a great argument.  If only that one flowed both ways.  No matter how minuscule the possibility of innocence may be, it there is any you must acquit.  When was the last time a prosecutor offered that bit at summation?  Of course, the prosecution’s burden isn’t theoretical, but beyond a reasonable doubt.  Somehow, this argument doesn’t seem well-suited for the prosecution side.

The trend has been for the imaginative prosecutor to frame his case by taking anything available and turning it into a weapon.  In New York, the shoe worn on the foot of the person who kicked another became the weapon.  Kick barefoot and it’s no big deal.  Kick with a boot on and its a killer.  Is this what was meant by a “weapon”? 

This is just as bad, if not worse, from the slippery slope point of view.  Weapons are instrument that are created for the purpose of causing harm to others.  Weapons are things that, if used in an offensive manner, will facially cause harm to another.  Weapons are not anything and everything for which an argument, no matter how minuscule, can be crafted. 

But this particular cases blows through a more significant and problematic wall.  The medical evidence is that Campbell’s act could not transmit HIV to the officer.  As all expert witness lovers know, the jury is empowered to accept or reject expert opinion.  But here, the jury ignored medical testimony and imposed prejudice to assume medical reality.  This is where evidence disconnects from verdict.  That they can’t do.

The appeal to “common sense” is often used to overcome fact.  People adhere to beliefs grounded in bias, rumor, supposition, that has absolutely no basis in fact.  Prosecutors are taught to use this to overcome their lack of evidence, to play on the jurors’ ignorance. It’s done in almost every case.  It’s a very powerful weapon.

Here, the prosecutor played on the fear of Aids.  Even though it has been 25 years since HIV was discovered, it still scares most people as some unknown deadly plague.  It’s not that we doubt the physicians, but that we don’t trust them enough to accept their prognostications.  We’re not taking any chances. 

I don’t blame cops, corrections officers, court officers, whoever, from wearing latex gloves when handling defendants or convicts.  I see no reason why anybody should take needless chances either.  But that’s a no harm issue, since wearing gloves doesn’t raise issues of harm to the people they are handling. 

This, however, is an affirmative use of fear-mongering and ignorance.  It elevates the fears of the “common man” beyond all reason.  It allows the law to embody rank speculation because people who don’t know better are afraid and have been cajoled to give in to their fear.

The second problem with this case is the 35 year sentence. 

Mr. Campbell had served time in prison twice, labeling him a habitual offender and starting his sentence time at 25 years. While in prison awaiting trial for this case, evidence showed, Mr. Campbell bit two inmates and attacked other officers.

I supposed that the length of the sentence is a bow to the needs of the Texas corrections system to come up with some way to help seriously disturbed people rather than warehouse them and then turn them loose again.  If that’s the case, then 35 years may not be enough.  Perhaps 100 years will enable Texas to catch up with modern penal thinking.  Maybe not.