Clark Baker Loses In Federal Court: AIDS Denialists Continue 100% Losing Streak

HIV/AIDS Denialists have an abysmal track record with the legal system. Whether they are using the courts to silence their critics (see cases below) or using anti-science tactics as a defense strategy in criminal exposure cases, they are losing every time. I know this from personal experience on both fronts. In September of 2013 Clark Baker, creator of the HIV Innocence Group, filed a lawsuit against me in a Texas Federal Court. Mr. Baker did not like that I had a created a website, HIV Innocence Group Truth, providing detailed documentation that his “group” is not what he presented to the public.

Mr. Baker has been firmly planted on the denialist side in the pseudo-debate against the established HIV science since at least 2008. At that time he published Gallo’s Egg, a report he considers “the most important criminal racketeering case of my investigative career.” Baker goes on:

“The investigation I call Gallo’s Egg took me from America’s “War on Cancer” (1971-1981) to the early history of HIV and AIDS. It reaches from the cities of West Hollywood and San Francisco to the continents of Africa, Asia, and Australia. It led me to the steps of the National Institutes of Health, the Los Alamos National Laboratory, and some of America’s most prestigious universities and research centers. It involves hundreds of billions of dollars of misdirected tax-supported funding and some of the most financially successful pharmaceutical companies in the world.”

Baker immediately insinuated himself in the upper echelon of the denialist camp with that report. As you can see, Baker is a prolific writer with a flair for melodrama. He operates many websites and does not try to hide his disdain for anyone in the orthodox camp. You can experience some of his vitriol here, here and this one about me.

Baker is also a 20 year veteran of the LAPD (with a dubious past) and is now a private investigator. Always the self-promoter, at one time he even billed himself as Christine Maggiore’s personal private investigator.

In 2009 Mr. Baker put his law enforcement experience to use and created The HIV Innocence Project supposedly to help people accused of HIV related crimes. Mr. Baker chose the name HIV Innocence Project in a wily attempt to gain credibility via name recognition with the legitimate Innocence Project. When the Innocence Project found out they informed Mr. Baker he was infringing on their name and asked him to change the name. After two requests Mr. Baker finally complied and thus the HIV Innocence Group was born.

Baker’s HIV Innocence Group has a unique Winning Strategy:  He employs tactics based on denialist belief and pseudo-science.  Denialists do not believe that HIV has ever been properly isolated and therefore the tests cannot detect antibodies specific to HIV. Baker calls HIV science “incoherent gibberish” and says “no one – not even the so-called experts – have the training or expertise to competently diagnose an HIV infection.  To do so requires HIV tests that are designed to do nothing more than market HIV as a disease”. Because of this dubious “strategy” and outrageously biased comments, I felt that Mr. Baker was not trying to help people as he claims, but rather manipulating the courts to further his AIDS Denialist agenda.

HIV Criminalization laws are so heinous that if Mr. Baker’s unique strategy was indeed a winning strategy, I might be inclined to keep my thoughts to myself. But that is just not the reality of this so called strategy. Mr. Baker has lost all 5 cases that have actually gone to trial and 4 of those losses resulted in lengthy prison sentences for the defendant.

Andre Davis: 32 year sentence

Nushawn Williams: remains confined indefinitely

Craig Lamar Davis: 10 year sentence

Lt Colonel Kenneth Pinkela: 272 days in prison

Sgt Tarence Dixon: case dismissed for technical reasons having nothing to do with denialist testimony

In addition, there was The Parenzee Case that went all the way to the Australian Supreme Court. AIDS Denialist tactics and “experts” were used as a defense in that case as well. The presiding Justice John Sulan was less than impressed with the denialist “experts” and shot down all the pseudo-science brought by the defense.

 Dr. Seth Kalichman, editor of the peer reviewed journal AIDS and Behavior and author of Denying AIDS says: “There is not a single case where AIDS Denialists actually accounted for an acquittal or dismissal. Despite their trying, AIDS denialists in courts have failed in the US, Canada, Europe, and Australia.”

Not only is this a losing strategy, it also flies in the face of the strategy used by legitimate advocacy groups working diligently to overturn these antiquated laws.  Alison Yager with the HIV Law Project put it very succinctly:

These laws are frequently based on outdated understandings and unfounded fears of HIV transmission risks. They do not prevent HIV transmission or promote public health, but instead foster environments of hostility and brutality toward people living with HIV.

The REPEAL Act of the U.S. Congress also relies on the current science of HIV to change these laws.

Despite the fact that advocates have been fighting to change these laws for two decades, Mr. Baker makes the outrageous claim that his efforts are the only motivating factor to change these laws. And he did it all in nine months.

My Legal Troubles

I began following Mr. Baker’s group in 2010 and was immediately skeptical. Mr. Baker was listing half a dozen cases each month at his website and claiming a 100% success rate. I did not believe it was possible to have 100% success rate with such a high volume of cases right out of the gate so I began looking into the cases specifically. I will not go through the cases here. I have written a summary of cases documenting the ways that Mr. Baker was deceiving the public about his services:

·               Charges dropped due to defendant testing negative with the very tests Mr. Baker claims are                    worthless

·               Cases won by legal precedent that had nothing to do with the science of HIV

·               Direct emails from attorneys verifying that Mr. Baker was not involved in their case at all

I have documented 25% of the cases showing Mr. Baker is being less than truthful or even telling outright fabrications. My site is so successful that Mr. Baker took notice and began a systematic attempt to shut me down.

I was writing my blog under a pseudonym. I had learned some years back that using my real name opened me up for all forms of harassment. I had a previous blog where I took AIDS Denialists to task. I wrote that blog under my real name. Soon my employer was receiving phone calls trying to get me fired. My mother also received a caller who said he was going to sue me and take away her house in the process. This caller also told my mother that I was psychotic and would kill her in her sleep. These calls came from Clark Baker. I knew that I would have to protect myself in the future so I wrote my new blog under a pseudonym. It did not work. Mr. Baker petitioned the domain service, Domains by Proxy and discovered my identity.

In September 2012 Mr. Baker filed arbitration against me claiming Trade Name Infringement because my site, HIV Innocence Group Truth, incorporated the name of his copyrighted group. I represented myself in that arbitration and won. Not only did I win, Baker was also found guilty of Reverse Domain Name Hijacking.

“The Panel finds Complainant has engaged in reverse domain name hijacking because it was clear Respondent was legitimately using Complainant’s mark to make a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.  Complainant clearly knew this before it began this proceeding.  Complainant did not disclose this obvious fact in its Complaint.”

Here are the rest of the findings of the Panel:

(1)                       the domain name registered by Respondent is not  identical or confusingly similar to a                            trademark or service mark in which Complainant has rights

(2)                       Respondent has rights or legitimate interests in respect of the domain name

(3)                       the domain name has been registered and is not  being used in bad faith.

When the ruling came down and Mr. Baker had lost so resoundingly, I knew he would be angry. I waited about three weeks and called him on the telephone. I had hoped we could resolve this like mature adults and move forward. That phone call did not turn out as I had hoped. Mr. Baker was still very angry and told me that because the ruling was not binding he was planning on a lawsuit. As a matter of fact he told me his attorneys were already preparing the paperwork. At one point during this short phone call Mr. Baker said something I am sure he now regrets. He told me that he was suing me so he could depose Dr. Robert Gallo. I actually laughed at that point, prompting Baker to spew a few expletives and hang up on me.

The part about deposing Dr. Gallo seemed to be a very strange comment that I thought about quite a bit. I soon found evidence showing that perhaps Mr. Baker was using me to get to Dr. Gallo. In a radio interview on The Robert Scott Bell Show dated July 14, 2011 Mr. Baker said the following:

1:22:56 CB: Actually Robert Gallo received a subpoena on one of our cases as well as last year. As did Sam Broder who is behind the AZT debacle and both of them basically forwarded their subpoenas to the NIH. The NIH stonewalls such subpoenas they don’t listen to State subpoenas. They simply ignore them. And it cost so much time and energy we basically learned in our future subpoenas to them they will be Federal Subpoenas. And Federal Courts don’t let the NIH ignore such things.

Sure enough Mr. Baker made good on his promise to sue me, and in Federal Court, no less. From Mr. Baker’s direct comment to me on the telephone as well as this interview quote, I am certain this lawsuit was meant not only shut to me up, but to also play out his wild conspiracy-theory-fantasy of deposing Dr. Gallo. This fantasy may have been fermenting since 2008 when Baker first wrote Gallo’s Egg.

In that same radio interview Mr. Baker also made a statement that confirmed my original belief: He did not start the HIV Innocence Group to help people, but rather to further his AIDS Denialist agenda via the courts:

1:19:42: CB: When I first got involved in this, I had a bunch of MDs and PhDs who are Shills for the Pharmaceutical Industry tell me that I don’t know what I am talking about and refused to answer my questions. So I figured if we got involved in criminal cases we can force prosecutors to prove that HIV tests detect HIV and we can force prosecutors to prove HIV attacks cells and causes AIDS.

Getting an Attorney

I must admit that I was somewhat shocked to be served with a lawsuit. But I had to recover quickly and figure out what to do. I only had three weeks to find a pro-bono attorney and file a reply. This did not seem fair. After all, Baker and his attorneys had all the time in the world to craft a suit. They even had the benefit of just having gone through the arbitration. Well, not really when you consider that Baker hired new attorneys. He must have fired the law firm that specialized in Trade Name Infringement Law, The Trademark Company, LLC, Virginia, USA.  I am sure Baker blamed the law firm for losing to a Lab Tech with no training or experience in law. I doubt it even crossed Baker’s mind that his case simply had no legal ground to stand on.

I made many inquiries to attorneys but they either wanted a large retainer or were simply too busy. My time was running out fast. Then an anonymous savior suggested I write to Ken White at PopeHat.com. I did and within 36 hours Mr. White had fired up the PopeHat Signal. Very quickly a coterie of attorneys had come to my rescue! I was amazed and humbled that many attorneys and legal students had volunteered to take on this bully of free speech.  My Legal Dream Team is headed up by Paul A. Levy and Gill Sperlein.  Neal Hoffman and Gary Krupkin are local counsel.

The team got together and quickly replied to Baker’s suit and beat the deadline. Baker’s suit was nothing special and our reply lead to his defeat. (All our documents and Ruling can be found here.) But it was not as simple as that. After we filed our reply, Baker filed a First Amended Complaint (FAC). This does not seem fair either. To me, if someone is going to initiate a lawsuit, their original documents should be solid. But Baker not only “amended” his complaint, it was like a whole other suit. Originally he cried about trade name infringement and business disparagement with many of the same case laws that did not support his arbitration complaint. But the “amended” complaint veered sharply into conspiracy theory territory. (Not to mention that he went from claiming I had cost him $100K to a cool One Million Dollars in less than two months!)

The Conspiracy Theory

Baker’s FAC suggested a deep conspiracy theory and he decided to try the case in the court of public opinion on his blog:

“…it may come as a surprise to know who Robert Gallo, the co-discoverer of HIV, is friends with. His circle includes a convicted embezzler, a perjurer and identify thief, and two profs detractors for decades. And in every situation, they attack the individuals, not the questions they raise. The revelations surfaced in an email that connects the academic and corporate ties related to a defamation lawsuit brought by Clark Baker, founder of the Office of Medical and Scientific Justice (OMSJ), against Jeffery Todd DeShong, an AIDS activist in Texas. DeShong denies working with anyone else in these endeavors and claims he works for free. But it’s simply not true. Supporting documents in the lawsuit show that DeShong works with this group of people – all funded directly or indirectly by the pharmaceutical industry, the National Institutes of Health (NIH) and National Institute of Allergy and Infectious Diseases (NIAID). The evidence illustrates how this multi-billion dollar industry and government agencies fund proxies like DeShong to ruin the lives and reputations of scientists, journalists and private citizens whose only “sin” is to question the industry views about HIV, AIDS and antiviral drugs.” 

As ridiculous (and creepy) as that sounds to you and me that is the way these denialists truly think. That was just a smidgen. The FAC contained about 180 supplemental pages of unsubstantiated ramblings. But this belief in a secret cabal jibes perfectly with what Celia Farber wrote about the suit she filed against one of her critics, Richard Jefferys of Treatment Action Group:

“By persisting, we want to lay bare the embedded attack machinery that is used against those who expose the pharmaceutical empire.  It operates like a shadow state, fully equipped to destroy the professional as well as private lives of citizens doing their jobs—journalists, scientists, doctors, or academics. These are professional, well paid squads that never rest, never let up, and are accountable to nobody. “ 

Of course there is no orchestrated take down of Clark Baker and I am not a shill programmed by others for such a ridiculously nefarious purpose. The truth is Clark Baker is just not that important.

The Judgment

Here is the Federal dismissal. In this document, the judge dismissed the trade name infringement for several reasons most notably that Baker failed to allege facts demonstrating a plausible likelihood of confusion. Hence formulaic recitations of the elements of a cause of action supported by mere conclusory statements do not satisfy Rule 8.

·               The marks are not confusingly similar

·               The word “truth” differentiates the sites

·               Defendant has not created a site attempting to fool readers into believing the sites are                           affiliated

·               DeShong has made no effort to create a website that could pass as Bakers

·               Baker and DeShong do not offer similar goods or services

·               Baker’s allegations of actual confusion pertain to a hypothetical potential client instead of                       recounting any actual experience of a potential client

Those are just some of the highlights and many of them are almost identical to how I defended myself in the arbitration. The arbitration panel agreed with me as a matter of law. You would think Baker would have learned from his past mistakes. But seeing as he has already filed his intent to appeal this decision, it seems learning is not Mr. Bakers strong suit. The judge also left the other points for a State Court to decide saying they would be better served there. However, this judgment came down on a Friday and Baker filed the intent to appeal the very next Monday. To me, that is further proof that Baker still has the fantasy of deposing Dr. Gallo. Who has laid the real egg, Mr. Baker?

Coda

Here are a few other examples of AIDS Denialists trying to silence their critics and losing.

 Farber V Jefferys

Rath V Goldacre & The Guardian

Rath V Treatment Action Campaign

Rath V Rees

Ruggiero V Anonymous

Myles Power and false DMCA by House of Numbers producers

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