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In Brief: Judge Refuses to Withdraw Plea of AIDS Convict
By Kelly Flaherty
The Recorder, March 2, 1999

An Alameda County Superior Court judge denied a request Monday to recall the sentence of a prisoner with AIDS who says ho pleaded guilty to second-degree murder in order to get adequate medical care.

Last November, Judge Vernon Nakahara denied a motion to withdraw the plea and sentenced Benjamin Legree to 18 years and eight months in prison. But Nakahara agreed to revisit the case if Legree had not been sent within 120 days to the Vacaville medical facility, which has a special HIV unit for prisoners suffering from end-stage AIDS.

After assurances Monday that Legree's health remained fairly stable and that he would be sent to Vacaville this week, Nakahara denied Deputy 1'ublic Defender Kimberly Kupferer's motion to recall Legree's sentence. He also denied motions from an appellate attorney to withdraw the plea and allow Legree released on bail pending appeal.

"He is scheduled to go to Vacaville this week," said Deputy District Attorney Eric Von Geldern. "Now this will be purely an appellate issue." Von Geldern added that Nakahara called the decision one of the most difficult of his career.

Legree was in the advanced stages of AIDS and medical personnel had given him six months to live when prosecutors offered to let him die in a hospice if he pleaded to second-degree murder.

But the hospice care combined with a new regime of anti-viral medication improved Legree's health. After 18 months in the hospice, prosecutors and the victim's family insisted that Legree begin serving his prison term.

Kupferer and appellate attorney Lawrence Gibbs argued that Legree was forced to waive his right to a trial in order to receive adequate medical care.

Doctors had testified that a lapse in Legree's complex drug regimen could prove fatal.

"We should be ashamed that he should ever have been put in a position to trade one for the other," Kupferer said last week.

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