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The Recorder, November 2, 1998

By Kelly Flaherty

When Benjamin Legree pleaded no contest last year to the 1996 murder of Thomas Jenkins in Oakland, he says he believed his only alternative was death.

He had been in Santa Rita Jail awaiting trial for three months and was on his last legs with AIDS-related pneumonia and dementia. He couldn't eat, had trouble taking medications and his already frail, 5-foot-7-inch body had shrunk to 105 pounds.

To get out of jail and into a hospice where he could get top-level medical care, Legree now says, he willingly acceded to second-degree murder. His bid was backed by three doctors who gave the inmate only a few months to live.

"When you are that sick, you would do anything," says Alameda County Assistant Public Defender Kimberly Kupferer, who represents Legree. "My client told me he would plead to the death penalty to get out and get treatment."

Legree's plea deal should have solved everyone's problems, except for one thing: He's still living.

Eighteen months of hospice care have so improved his health that prosecutors and Jenkins's family now say it's time for him to go to prison to pay for his crime. That means Legree might have come back from the brink of death only to find himself serving 15 years to life behind bars for a murder he might not have copped to otherwise.

Legree tried to withdraw his plea on Oct. 14, but was turned down by Alameda County Superior Court Judge Marshall Whiteley. A sentencing hearing is scheduled for today in front of Superior Court Judge Vernon Nakahara.

Alameda County Deputy District Attorney Eric Von Geldern, who is prosecuting the case, fully expects Legree to be imprisoned.

"In this case the guilt is palpable/' he says. "There is no doubt that he committed the crime."

Legree is accused of shooting Jenkins two years ago following a scuffle at an Oakland welfare office. According to a police report, Jenkins spft in Legree's face and the two came to blows after Legree accused him of cutting in line.

When the confrontation continued in the parking lot/ Legree puiled a gun and shot Jenkins. Legree, who already suffered from AIDS-wasting syndrome at the time, claims self-defense, saying he felt threatened when a cocaine-drugged Jenkins rushed him. But Jenkins' sister, who witnessed the killing, told Von Geldern that she pleaded with Legree not to shoot her brother.

"The sister was willing to testify in court," Von Geldern says, "that this was first-degree murder."

In addition, he says. Judge Whiteley didn't reject Legree's plea-withdrawal request willy-nilly. He says the judge had questioned Legree carefully before being satisfied that the accused knowingly and voluntarily had agreed to plead to second-degree murder.

He also says Kupferer could have asked the court to send Legree to a hospice regardless of the plea, because she already had a letter from medical personnel at Santa Rita Jail recommending his release.

"Everything was done very compassionately," Von Geldern Insists.

Kupferer disagrees, saying Whiteley made it clear he wouldn't release Legree without the prosecutor's approval, and that the DA would only cooperate if Legree pleaded to second-degree murder.

"If I had objected to the plea," she says, "he wouldn't have gotten out and gotten medical care."


After pleading, Legree was placed in San Francisco's Gift of Love Hospice, where he was nursed back to health on a regimen that included protease inhibitors.

But Kupferer says Legree's condition isn't as good as Von Geldern believes, that it's precarious. His immune system remains very weak, she says, and the drugs have not significantly beaten back the virus.

"His medical condition is like a time bomb waiting to go off," she says.

She opposes moving Legree to a prison setting because it's well-documented that any lapse in the complex drug therapy could trigger a new, and potentially deadly, infection.

Those fears are largely backed by Legree's doctor, Dennis Bouvier, director of the AIDS Care Unit at St. Mary's Medical Center in San Francisco. He says Legree is no longer responding to his medication and that his health continues to decline.

"There's no doubt in my mind that if he is reincarcerated, particularly if there is any lapse in his medical care even for a short period of time, there will be rapid clinical decline," he wrote in a Sept. 30 letter to the court. " This man is at high risk for very serious opportunistic infections and possibly death."

In addition, says Bouvier, who worked at San Quentin State Prison for six months - although not in the HIV care unit -- imprisonment poses unique problems for health care.

"I don't want to take away from what the doctors in prison do," he said in a phone interview. "They are very dedicated. But some things such as a crowded setting and less attention to drug regimens you can't overcome."

To bolster their positions, both sides have enlisted experts to testify about the care Legree would likely receive in prison.

Prisoners' rights advocate Judy Greenspan contends that the Department of Corrections cannot guarantee Legree wilt get his medications on time.

"It's not clear whether the prison system will be able to meet his needs," says Greenspan, director of San Francisco's HIV in Prison Committee.

She says Legree's chances are better if he goes to Vacaville, a mid-level security prison that boasts a specialized AIDS program and its own hospice. But even if Legree is lucky enough to be sent to Vacaville, she adds, he will go by way of San Quentin -- a maximum-security facility that serves as a reception center for prisoners first entering the system.

"San Quentin is not a good setup for medical care," Greenspan says. "He'll be in a dorm situation with a couple hundred men."

Legree could be put on a list to see a doctor and be taken off his medication while he is being processed, she says.

But Dr. Joseph Bick, head of the HIV program at Vacaville, disagrees. He says San Quentin is set up to handle prisoners with AIDS and that Legree would not be taken off his medication.

"I've been very impressed with what San Quentin has done," Bick says. "They have all currently approved anti-HIV medications available there and they have a very HIV-knowledgeable chief medical officer."

Bick acknowledges, however, that some prisoners have experienced lapses in their care when transferred from one facility to another. For example, he says, there have been problems when medical records didn't arrive on time or a prisoner failed to submit a slip to renew a prescription. But, he says, such incidents are not the norm.

Von Geldern says Judge Nakahara has visited the HIV unit at Vacaville and has indicated that he will request that Legree be sent there, despite the severity of his crime. Prisoners jailed for second-degree murder are usually sent to maximum-security facilities.

"I would be amazed if he didn't go to Vacaville ," Von Geldern says, "but the judge has said if he didn't that he would intervene."

Kupferer fears, though, that the court's good intentions may not be enough to save her client.

"It makes you wonder about the system," she says. "Why take this guy who already has a death sentence and make him go to prison?"

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