Charges of attempted murder--in what was believed to be the first case of its kind in the nation--were dismissed Tuesday against a male prostitute accused of selling AIDS-contaminated blood.
While deploring Joseph E. Markowski's apparent "conscious disregard for human life," Los Angeles Superior Court Judge Ronald S. Coen ruled there was no evidence, as required by law, that the 29-year-old transient specifically intended to kill anyone.
"Unfortunately, I am bound by the dictates of the courts . . . to apply the law, which . . . shows and states that the defendant must . . . specifically intend to kill some person," Coen said, agreeing with defense arguments. "That has not been shown."
Coen also dismissed a charge of assault with a deadly weapon, noting that "there is no such crime as attempted assault" and no evidence that anyone received a tainted blood product because of Markowski's actions.
As a result of the ruling, all that remains of the highly publicized case are two counts of attempted poisoning of a medical product, which together carry a maximum penalty of 3 1/2 years. Trial was set for Jan. 6.
"Three and a half years is better than nothing," said Dist. Atty. Ira Reiner, who attracted national attention when his office filed the 10-count felony complaint last summer. "But someone who engages in this type of conduct ought to receive a life sentence."
Markowski, who has tested positive for antibodies to the AIDS virus, according to court testimony, is accused of selling his blood June 22 to Plasma Production Associates, a private firm near downtown, and attempting to do so again June 25 before he was intercepted by police and arrested.
Originally, he was also charged with attempted murder for two separate sexual encounters with a another transient, but Los Angeles Municipal Judge Alban I. Niles dismissed those counts in September after the alleged victim refused to testify at a preliminary hearing.
Reiner said he had been aware from the outset that the case rested on a "close legal question" of whether specific intent to kill could be demonstrated, as opposed to an implied intent.
"We were out on the frontier on that charge," Reiner told reporters. ". . . I can understand both sides of that argument."
Defending his decision to file the case, he said: "Our position is that of an advocate. We felt that in terms of the protecting the public, the strongest charge should be filed."
Markowski's attorney, Guy E. O'Brien, said, "I don't think there was any question from the beginning that (attempted murder and assault charges) were inappropriate, and I think the district attorney's office realized that even as they filed the case."
Reiner said he will renew efforts to persuade the Legislature to pass a bill to specifically outlaw the sale of AIDS-tainted blood.
In response to a question, Reiner also lashed out at private centers that pay for blood, which is used to make such products as gamma globulin, albumin and an anti-clotting factor that is used to control bleeding in hemophiliacs.
Under California law, blood that is used in transfusions must be donated, not bought.
"These blood plasma centers are a disgrace," the district attorney said. "They're buying blood from the dredges, from street people who are intravenous drug users in significant numbers that sell plasma or blood for more drugs." But Reiner stopped short of recommending that plasma centers be put out of business.
At Tuesday's hearing, Markowski, looking paler and thinner than he did at his preliminary hearing, showed no emotion. O'Brien said his client's only comment when the major charges were dismissed was: "Am I going to see the doctor?"
O'Brien said Markowski's mental condition has deteriorated since his arrest, but he is not currently suffering from AIDS "as far as we know."
At the attorney's request, Coen scheduled a Dec. 11 hearing to see if the defendant, who is in a Central Jail unit for inmates with communicable diseases, should be moved to a mental ward.