Lambda Criticizes Ohio Supreme Court Ruling in Jimmy Bird Case

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Dissenting judge compares spit by a man with HIV to assault 'with a powder puff, water balloon, or a jelly doughnut'
May 6, 1998

(CHICAGO, May 6,1998) Refusing to address the medically unsupported claim that spit can transmit HIV, the Ohio Supreme Court Wednesday upheld a man's conviction on a charge of assault with a deadly weapon for spitting at a police officer, Lambda Legal Defense and Education Fund said.

Only one judge addressed the HIV issues raised in the case of Jimmy Bird, and he firmly rejected the notion that the spit of a person with HIV poses any danger to others. Bird is infected with the human immunodeficiency virus.

"The fact that the indictment calls something a deadly weapon does not make it so," wrote Justice Paul Pfeiffer in his dissent. He called Bird's spitting no more dangerous than an assault "with a powder puff, a water balloon, or a jelly doughnut."

Ruling on technical issues in the case, the court voted 6-1 against the appeal by Bird, who was imprisoned after he pleaded "no contest" following his arrest for disorderly conduct in 1993.

Although Bird, now 41, has said he was trying to clear his mouth of pepper spray during his arrest, he was charged with felony assault when prosecutors learned he had HIV. Sentenced to three-to-15 years in prison, Bird has served more than three years of that sentence.

Heather Sawyer, Lambda Midwest Regional Office staff attorney, who argued the HIV aspect of Bird's appeal, said, "The bottom line with this ruling is that a man is behind bars merely for spitting. No person should be imprisoned for activity that clearly is not criminal. Bird's conviction and sentence violate state and federal law."

Lambda AIDS Project Director Catherine Hanssens said, "It is a travesty that this court would ignore the law's definition of a deadly weapon and endorse incarceration for a harmless act. Saliva has never been shown to transmit HIV, and the spit of someone with HIV could never be a deadly weapon. Through this ruling, the Court supports a grandstanding prosecutor's end-run around the law in order to make what would be at most a rude act into a felony when the person doing it has HIV."

In its ruling, the Court said, "It is unnecessary to decide whether the (human immunodeficiency) virus may be communicated through saliva and whether saliva may be considered a deadly weapon."

A state court of appeals had upheld Bird's conviction, and Sawyer and David Strait of the Franklin County Public Defender's Office argued the appeal for Jimmy Bird before the Supreme Court on February 18.

Lambda, now celebrating its 25th anniversary, is the oldest and largest lesbian and gay legal organization. With a headquarters in New York, Lambda has regional offices in Chicago, Los Angeles, and Atlanta.

(State of Ohio v. Jimmy Lee Bird, No. 97-0376)

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Contact: Peg Byron, 212-809-8585 x 230, 888-987-1984 pager; Heather Sawyer, 312-663-4413


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