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)
Scranton — It’s always risky 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.
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.
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. That was well after he had already filed his initial complaint.
When attorney 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.”
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’
When Neal doggedly 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, which he found irrelevant, and also a contrary ruling by the Ninth Circuit Court of Appeals which had ruled that new information could over-ride the exhaustion requirement (a case he said was, unlike her citations, germaine to Abu-Jamal’s case), he had decided to reject the DOC’s arguments.
At another point, the judge noted that Neal, in an earlier hearing before a federal magistrate, 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 (prison) 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 his 1982 death sentence for the fatal shooting of a Philadelphia 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. His appearance marks 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 unseemly effort that for years regularly featured raucous protests by white cops carrying signs saying things like “Fry Mumia!”). Meanwhile others, including political 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 witness lying, prosecutor misconduct 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.
(Note: For one clear example of why Abu_Jamal’s trial was a travesty, see the short video at the bottom of this column or click here.)
In his current struggle to obtain medical treatment, Abu-Jamal, considered in much of the world and many in the US 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, including Britain’s largest trade union UNITE.
Abu-Jamal was not transported 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.”
The judge said that any refusal of a Hep-C screening test in 2001 0r 2002 would be irrelevant to his case, but in fact even a refusal of a screening test in 2011 should have no bearing either, since when he did permit a test in 2012, after being moved from his death row cell as SCI Green, and tested positive, the DOC didn’t offer any treatment anyhow.
Friday’s hearing moved on to the questioning of an expert witness for Abu-Jamal, internist 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, he and his family and attorneys 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 is 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 to see him nonetheless as an ordinary prison visitor and was able to visually examine and to question Abu-Jamal about his conditions. Based on that examination, he said the conditions appeared to be caused by his Hep C infection.
Harris 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. He 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 have showed treating the underlying Hep-C infection has the effect of ending the skin problem. Harris said that Abu-Jamal’s sudden diabetes onset was also likely caused by his Hep-C.
The hearing will continue this 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, president of Correctional Medical Associates, a subsidiary of Corizon, a Tennessee company that provides medical services to prisons in many states and counties, including in New York and Pennsylvania.
Abu-Jamal’s legal team may want to question Cowan, if they can, about the many states and counties that have dropped Corizon because of its record of shoddy care offered to prisoners. The company has been in the news lately for having its contract cancelled for with New York City’s giant Riker’s Island jail because of some horrific malpractice and neglect cases that caused the deaths of over a dozen prisoners in recent years. Dr. Cowan was one of two Corizon executives who testified in hearings over canceling that contract.
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 attributable to his company’s neglect, incompetence and malpractice, and with being “evasive” in responding to questioning by city councilmembers.
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 New Jersey Attorney General’s Office. 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 copped a guilty plea to one lower count of corporate misconduct in the case and was sentenced to 3 years of probation and 200 hours of community service and was ordered to make restitution of $100,000 to the embezzled hospital, according to a 1995 obituary article in the New York Times. In the state’s indictment, Jay Cowan, then a medical student in Washington DC, was accused of posing as a salesman to receive the $87,785 in bribes from the insurance company, which he then deposited in his father’s account. The charges reportedly carried a potential jail term of 40 years for the father and 20 for the son. It is not known at this point how Jay C. Cowan’s case was ultimately concluded.
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 reportedly suffer the same life-threatening 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.