Judge rejects state’s arguments to reject case: Abu-Jamal Gets Federal Court Hearing Seeking Order to Treat His Hepatitis-C Infection
by Dave Lindorff - This Can't Be Happening
December 19, 2015
Scranton - It’s always dangerous to try to second-guess how a judge will ultimately rule, simply based on that judge’s comments during a court hearing, or on which side’s attorney has objections over-ruled more frequently.
Photo showing part of the serious skin rash suffered by Mumia Abu-Jamal, traced to his untreated Hep-C infection. Prison lawyers sought unsuccessfully to have it barred as evidence at his hearing, claiming it was 'inflammatory'
Having said that, Federal District Judge Robert Mariani, during a hearing Friday to consider a request by state prison inmate Mumia Abu-Jamal for a preliminary injunction ordering the state to provide appropriate treatment for his active case of a potentially fatal Hepatitis C viral infection, showed impatience and even annoyance with the state’s efforts, both at the prison and including in court, to continue refusing treatment and to delay any legal hearing on the issue.
The proceeding began in a packed courtroom in the William J. Nealon Federal Building and US Courthouse here with consideration of a motion by Laura Neal, an attorney for the Pennsylvania Department of Corrections (DOC) to have Abu-Jamal’s appeal summarily rejected on the grounds that he had allegedly “not fully exhausted” administrative grievance remedies concerning his lack of medical treatment by the DOC and that he had specifically not asked in his initial complaint for treatment for Hep C.
The second in a three-part series on Mumia Abu-Jamal's fight to force the Pennsylvania prison system to treat his active Hep-C infection, and that of thousands of other infected state inmates, and on the raging Hepatitis-C epidemic in the nation's prisons. (Click here  for Part I)
Judge Mariani pointed out from the bench that the DOC, despite Abu-Jamal’s displaying grave signs of a mystery skin ailment that had turned the skin on most of his body into what prison doctors described as “elephant skin,” and despite his sudden development of type-2 diabetes, which within a few weeks of onset had raised his blood glucose to a life-threatening level, causing him to collapse into unconsciousness, and despite having known since a prison screening blood test in 2012 that he had contracted Hep C, had not, at that point, even conducted a test to look for signs of the active virus in his blood until May of 2015, well after he had filed his initial complaint.
When Neal continued to insist the Abu-Jamal had not exhausted his grievance option, and later that he had not named the specific doctors involved in his care at the prison, the judge said,
“What he (Abu-Jamal) asserts is a lack of diagnosis and an absence of medical care. If you say that to exhaust (his grievance remedy option) he has to name every doctor involved, that’s a tortured argument.”
When Attorney Neal plowed on, citing three Appeals Court rulings by the Third Circuit (which includes Pennsylvania) in prisoner appeals cases relating to their treatment in prison which had been rejected because of failure to exhaust administrative appeals, Judge Mariani called a recess. An hour later he called court back into session and said that, after reviewing those cases, and also a contrary ruling by the Ninth Circuit Court of Appeals which had found that relevant new information could over-ride the exhaustion requirement, he had decided to reject the DOC’s arguments.
At another point, the judge noted that Neal, in an earlier state court hearing, had acknowledged that Abu-Jamal had exhausted his grievance. He said, “You’ve agreed to that. Would you like me to read back the transcript now?”
“No, your honor,” a chastened Neal replied.
Judge Mariani said, “What we have here ladies and gentleman is ongoing complaints after (Abu-Jamal’s) initial complaint. His needs and condition are so serious that they led to his hospitalization. He has Hep C, of which the hospital is undeniably aware of and which he has not been treated for. Based on my reading, I find that exhaustion has occurred. Let’s move to the preliminary injunction.”
That ruling by the judge paved the way for Abu-Jamal, who has been serving a sentence of life in prison without chance of parole since 1982 death sentence for the fatal shooting of a police officer was overturned on constitutional grounds, to testify about his medical case and the DOC’s alleged willful neglect of his grave condition and his active Hep C infection. It would mark the first time Abu-Jamal has testified in a courtroom since his arrest and incarceration on December 9, 1981.
Abu-Jamal’s case has long been a source of raging controversy. It has seen groups like the Philadelphia local and the Pennsylvania statewide Fraternal Order of Police lobbying for his execution (an effort that for years regularly featured raucous protests by white cops carrying signs saying things like “Fry Mumia!”).
Meanwhile others, including activists, civil liberties organizations and even Amnesty International, have denounced his trial and the entire appeals process as a sham, tainted as it was by judicial bias, prosecution-induced witness lying and even improper interference by several of the state’s successive governors, one of whom, Ed Rendell, had been the district attorney overseeing Abu-Jamal’s initial trial.
In his current struggle to obtain medical treatment, Abu-Jamal, considered in much of the world to be a political prisoner, has won support in the form of resolutions and appeals sent to the DOC’s Secretary of Prisons John Wetzel, Pennsylvania Governor Tom Wolf, and John Kerestes, the superintendent of SCI Mahonoy, the prison where Abu-Jamal is held. These appeals have come in from such organizations as the San Francisco Labor Council, the United Steelworkers Union Local 8751 in Boston and the New York Metro Local 10 of the American Postal Workers Union, as well as by thousands of individuals around the US and the globe.
Abu-Jamal was not brought from jail to the courtroom to testify Friday. Instead, he was 70 miles away in a room in the SCI Mahonoy prison, where he spoke via video cam, with his image displayed on a screen mounted on the wall to the left of the judge. The arrangement made for some absurd difficulties when the DOC’s attorney tried to ask Abu-Jamal in cross examination about documents she had placed into the record, but which, while supplied to his attorneys in the courtroom, were not available to him. A court clerk would hold a page up to a video cam in the courtroom, and then the judge would ask if Abu-Jamal could read it. Usually the reply was, “I can see the paper but I can’t read it.”
Abu-Jamal’s testimony was clear and steady, even under cross-examination, and even featured some touches of his wry wit, as when he noted, in his response to a question from DOC attorney Neal grilling him as to why he had refused Hep C blood screening tests in 2001, 2003 and 2011, “I never agreed to blood tests while I was on death row, because I didn’t trust the doctors.”
Friday’s hearing moved on to the questioning of an expert witness for Abu-Jamal, a Dr. Joseph Harris from New York City. After Abu-Jamal had begun suffering from his skin rash, his type-2 diabetes, anemia, dramatic weight loss and other unexplained symptoms, Abu-Jamal and his family and attorney had tried to get the state’s prison authorities to permit him to be seen by a private specialist at his own expense. Although there was a precedent for this -- convicted millionaire murderer John Du Pont -- was allowed to be seen by his private physicians -- the state denied Abu-Jamal’s request. But Harris came in nonetheless as an ordinary prison visitor and was able to visually examine and to question Abu-Jamal about his conditions, and based on that said they appeared to be caused by his Hep C infection.
Harris, an New York City internist, asserted that the standard of care for Mumia's present condition is a new antiviral drug for hepatitis C which has a 95% cure rate in persons with Abu-Jamal’s genotype. Harris said that in his opinion Abu-Jamal’s skin ailment is Necrolytic Acral Erythema (NAE), a condition that he testified is emblematic of an active Hepatitis C infection . He also cited evidence that studies showed treating the underlying Hep-C infection had the effect of ending the skin problem. Harris said that Abu-Jamal’s sudden diabetes was also likely caused by his Hep-C.
The hearing will continue on next Tuesday beginning with cross-examination of Dr. Harris by DOC attorney Neal. There will be several other witnesses for Abu-Jamal, after which the state will present its own expert witness, a Dr. Jay C. Cowan.
Abu-Jamal’s legal team may want to question Cowan, if they can, about his role with his employer, Tennessee-based Corizon, the nation’s largest for-profit prison health care contractor. Corizon has been in the news lately for having its contracts cancelled with prisons in a number of states because of concerns about the quality of care provided, including some horrendous cases of medical malpractice and neglect.
Just recently New York City cancelled its contract with Corizon at its giant Rikers Island jail. Dr. Cowan was one of two Corizon doctors who testified in hearings over canceling that contract. Corizon was blamed by the state for at least a dozen “preventable deaths” of Rikers prisoners in its care since its contract with NYC began in 2001 -- including many that involved failures to perform simple and obvious tests that could have saved lives, like a chest X-ray for a prisoner complaining of chest pain. Dr. Cowan is president of Correctional Medical Associates, a unit that provides the actual physicians for prison care, in New York as well as in Pennsylvania.
During New York City Council hearings into Corizon’s contract with Rikers, which ultimately led to termination of the company’s contract, Cowan was accused of being callous towards the prison deaths, and with being “evasive” in responding to questioning by city counsellors.
In 1990, Dr. Cowan and his father, Dr. James R. Cowan, former president and chief executive of the United Hospitals Medical Center from 1982 to 1989, were indicted by the US Justice Dept. According to that indictment, the father and son “conspired to solicit bribes of $87,785 from an owner of Professional Consulting Services, a medical malpractice insurance agency.” The elder Cowan in 1992 pleaded guilty to a count of corporate misconduct in the case and was sentenced to probation and community service and ordered to make restitution of $100,000 to the hospital, according to a 1990 article in the New York Times . It is not known at this point how Dr. Jay C. Cowan’s case was resolved.
Abu-Jamal’s current case before Judge Mariani, if successful in forcing the state to treat his Hep-C infection, could open the door for care being received by many more of the estimated 8-10,000 prisoners in the state who suffer the same infection. So far, Pennsylvania, unlike other states like New York, has refused to provide the medicine, which while costly, at an estimated $84,000 per 12-week treatment, is probably cheaper over time than the costly hospitalization of prisoners who have to be treated for the disease’s side effects or who ultimately die of its ravages.