Kelly Duda: Bad Blood

Kelly Duda originally wrote this piece for Index on Censorship.

Kelly Duda is an activist and producer and director of the documentary “Factor 8: The Arkansas Prison Blood Scandal”. Duda travelled to Italy to offer his services as a prosecution witness in a trial about blood contamination. As a result, he now faces charges himself.

As I was looking at possible photos to accompany this piece, it triggered a flashback…

It’s 2 December 2017. I’m on a red-eye from Los Angeles to Rome. After years of email exchanges, Stefano Bertone, an Italian attorney, has asked me to testify in a criminal trial in Naples. Despite the inevitable wear and tear of long-distance travel and the economic burden of not being paid for my time, I want to help. So I have agreed.

The defendants, Duilio Poggiolini, the former head of the pharmaceutical department of the ministry of health, who’d been previously convicted of taking millions in bribes from Big Pharma, and 10 representatives of the Marcucci Group – an Italian drug company and fractionator – are being tried on manslaughter charges for supplying Italians with blood products that were tainted with HIV and viral hepatitis, resulting in illness and death.

“Fractionation” refers to the general processes by which blood plasma proteins are separated into different blood products, including anticoagulants to treat haemophiliacs. A total of 2,605 Italian haemophiliacs were infected in the 1980s and 1990s with HIV and hepatitis from contaminated blood products.

Because of my work as an investigative reporter in the USA exposing the Arkansas prison blood scandal, and my subsequent documentary, Factor 8, I had valuable information for the prosecution.

For three decades, the state of Arkansas profited from blood collected from prisoners at the Cummins Unit facility. From 1978 until 1985, Health Management Associates (HMA), founded by Dr Francis “Bud” Henderson, ran the plasma programme for the state. Inmates were paid peanuts to give blood twice a week – blood that was sold on the global market. HMA and the state pocketed millions. There was but one major problem: disease.

Many of the state’s inmates were infected with viral hepatitis and HIV/ Aids. As a result, thousands of unwitting victims in countries worldwide, including Italy, received medications made from this contaminated source and died as a result.

On the 14-hour flight, I don’t eat and can’t sleep. From the airport, it’s a 90-minute train ride to Naples. After exiting Piazza Garibaldi and using my Google Maps app to find our hotel, out of nowhere a figure rushes me and violently snatches my smartphone, running off down a dark, rainswept alley.

“A reporter greets me in English: ‘Welcome to Hell’ – not exactly what I’m expecting”

The next morning, after still not having eaten anything, my partner Sarah and I head to a small press conference where I meet reporters and one of the victims. Together, we walk to the courthouse, which looks like a post-World War II Soviet Union building.

Once inside, we’re surprised to realise there’s no heat. Inside the courtroom, the chairs are threadbare. A reporter greets me in English: “Welcome to Hell” – not exactly what I’m expecting. Meanwhile, the defence side of the room is filled with corporate lawyers, grinning and yucking it up, without a care in the world.

Before the proceedings start, Sarah uses my SLR camera to record some video footage. Two weeks earlier, we’d been given permission to shoot my testimony. However, within minutes, the defence objects and the prosecutor, Lucio Giugliano, doesn’t push back. So the judge, Antonio Palumba, orders us to stop filming. Bertone turns to me and says in English: “He [Giugliano] doesn’t want the world to know what’s going on in his courtroom today.” You can imagine my surprise.

Bertone and Ermanno Zancla are acting as civil attorneys for the victims who are attached to the prosecution, which is allowed in Italy. Both have successfully represented tainted blood victims in other civil proceedings, and over the course of many years have been able to build a criminal case for this prosecution.

(There’s no jury, and criminal trials can last for years. This allowed Guelfo Marcucci, known as the “father of Italian fractionation”, to escape final prosecution before his death in 2015. He denied using prison blood from the USA in blood products.)

The drug company’s lawyers object to me testifying, and again Giugliano rolls over. But this time, Bertone vigorously counters the objections. What’s going on? I’ve flown across the Atlantic, and I’m jet-lagged, hungry, sleep-deprived, not getting paid and have already lost my cell phone – and all for this?

My interpreter, whom Bertone has hired out of his own pocket, tries to translate as the lawyers continue arguing. After a lot of back and forth, the judge rules that I will testify. Phew.

But now the defence objects to any of my recorded interviews from my documentary being used as evidence. This time Giugliano jumps out of his seat and agrees with them. This evidence is crucial as it will provide the link between the Cummins Unit in Lincoln County, Arkansas, and Italy. Why is the prosecutor siding with the drug company’s lawyers?

After another lengthy debate, the judge decides that he’ll make his ruling after hearing my testimony. I would find out later that Giugliano had already told Bertone that he could see no connection to Arkansas. What he really meant was that he didn’t want to see any connection.

As things progress, it’s Bertone, not the prosecutor, who asks me questions. As we destroy the defence’s case, point by point, the smiles on the faces of the defence attorneys disappear. At various points, Giugliano tries to block Bertone’s line of questioning but is overruled by the judge.

Through my testimony, I’m able to establish that 1) the blood from Arkansas was known to come from a high-risk prison population; 2) US state and federal health officials, as well as Big Pharma, knew there had been severe regulatory problems with the Cummins blood programme; and 3) tainted blood from Cummins was exported to Italy and was even subject to two unsuccessful US Food and Drug Administration (FDA) recalls in August 1983.

Finally, at the end of more than four hours of testimony, Giugliano decides to ask me a few questions, all designed to discredit me. He fails.

The judge decides he wants to watch an excerpt of my interview with Henderson of HMA. In the clip, Henderson explains that after the recalls, he’d travelled with officials to Rieti, Italy – the headquarters of AIMA Plasmaderivati, the processing plant for Marcucci’s only fractionation centre for its haemophilia treatment products. The clip is played for the entire courtroom. The reporters are stunned.

Next, I submit a letter in which Henderson admits that HMA paid a $250,0000 settlement as a result of the recalls. Though exhausted, I prepare myself for a tough cross-examination. To my surprise, the defence attorneys pose only two questions.

The first attempts to establish that very little was known about the health hazards of blood-borne diseases at the time of the recalls in late 1983. However, I inform them that in the USA, health officials knew in the 1960s that prisoners were at high risk for having viral hepatitis, and that high levels of liver enzymes were present in 30 to 60% of the prison population. In December of 1982, because of the growing Aids crisis, the FDA asked US fractionators to exclude plasma collected at prisons.

The second question attempts to assert that there was no test for hepatitis C or HIV at the time. I assure them that surrogate tests for antibodies and surface antigen tests of hepatitis B were used by the industry in screening blood. Also, researchers knew that previous exposure to hepatitis-B was considered a significant indication of possible infection with Aids. So if you failed either test, you were automatically disqualified.

However, because the Cummins blood programme was often run by inmates, there were always ways to get around the rules and fake the test results, if an infected inmate wanted to donate.

After that, the defence folds. Game over. Or so I believe…

“I assume this is some kind of wounded ego thing – until I see the back door open and the police coming for me. Apparently, I’m now being accused of multiple crimes.”

As the proceedings come to a close, I ask Bertone, the first lawyer for the victims, if I can speak to the prosecutor. With his assurance that it’s OK, I ask the interpreter to accompany me. Sarah, camera in hand, follows.

As we approach the table, Giugliano sticks out his hand. I shake it and tell him: “In my country, what you did today as a prosecutor would be disgraceful.” He pauses and then yells at the judge. He exclaims to the court that I have just committed a crime and that he wants me arrested.

I’m confused. I assume this is some kind of wounded ego thing – until I see the back door open and the police coming for me. Apparently, I’m now being accused of multiple crimes.

Meanwhile, the defence attorneys spot Sarah shooting the video, so they want her thrown in jail, too. The police seize my passport and order Sarah to delete video files off her camera. It’s sheer chaos. A lot of confusion. A lot of shouting in Italian.

By now, Bertone and Zancla have become my defence attorneys against the prosecution. I feel like I’ve entered The Twilight Zone as the prosecutor is trying to jail his own witness – me.

Eventually the judge rules in my favour – I’m not going to prison. However, I’m still detained and questioned further by the police. I’m forced to secure legal representation while in Italy in case the authorities come back for me.

By now, the sun has set. It’s dark outside. And I still haven’t eaten…

The next day, Bertone and Zancla ask for Giuliano to be sanctioned and “replaced by a magistrate who really plays the role of the prosecution”. Giuliano is not removed. Fast-forward to 19 April 2019. Three weeks after the Court of Naples finds the defendants not guilty, I am informed that I’ve been under criminal investigation in Rome for the past eight months. On 13 November, I’m further notified that I will be tried under two indictments in a criminal court in Rome beginning on 11 December on the charges of “outrage”, of violating penal code 343, and of offending the honour or prestige of a magistrate, punishable with up to three years in prison.

It turns out that not only do the Marcuccis have a considerable business empire made up of pharmaceutical companies such as Kedrion, with a marketplace in 100 countries including the USA, but they have deep political ties to the Italian government with Senator Andrea Marcucci (son of Guelfo) being close friends with former health minister Francesco De Lorenzo. He was once considered the right-hand man to former Prime Minister Matteo Renzi.

The Marcuccis are also known for threatening journalists with lawsuits, and tried to force one of the few reporters at my hearing, Andrea Cinquegrani, to remove his online coverage for The Voice by threatening legal action.

My case is indicative of a general campaign against journalists in Italy.

The use of criminal lawsuits and strategic lawsuits against public participation (SLAPPs) against the media in Italy has been described by the European Centre for Press and Media Freedom as a “daily emergency for journalists”. In addition, 21 Italian journalists are currently under round-the[1]clock police protection because of serious threats or murder attempts by the mafia and other criminal organisations.

Regular citizens’ rights to freedom of speech also must be upheld and cannot be threatened by the misuse of the penal code. As the Italian Supreme Court has previously ruled, magistrates are not immune to criticism or questioning.

After two delays during the coronavirus pandemic, my criminal trials are set to begin next January. Three reporters’ rights groups will be helping me with my defence: Media Defence, Free Press Unlimited and Ossigeno per l’Informazione.

Innocent Italians were poisoned by dirty prison blood from the USA. Seeking justice for them, I travelled a long way to share my testimony.

The guilty went free but now I’m facing jail time. How is this justice?

I look forward to my day in court to prove that you can’t get away with burying the truth by retaliating against journalists.

Freedom of the press in Italy

Press freedom in Italy is among the worst ranking in Europe.

Despite the Italian constitution enshrining freedom of the press, both organised crime and aggressive politics pose a threat to journalism. 21 Italian journalists are currently under police protection because of serious threats or murder attempts by the mafia. This is the second highest number of journalists under police protection in the world, after Colombia. Violence against reporters in particularly prevalent in Rome and the surrounding areas, and in the South.

Representatives of the authorities have also shown hostility towards journalists.  Between June 2018 and August 2019, under the coalition government of Cinque Stelle and Lega, the situation was particularly grave. The Deputy Prime Minister, Matteo Salvini, threatened to withdraw police protection provided for investigative journalist, Roberto Saviano. This, despite the serious and repeated threats made against him. Additionally, government officials launched a policy to do away with public funding for the press.

Index on Censorship asked Lucio Giugliano, the prosecutor in the case, for a response to Kelly Duda’s article, the prosecutor in the case. In mid-September, Giugliano said: “In the Italian legal system, it is the only the public prosecutor who may maintain ‘personally, or through a specifically delegated magistrate of the office, relations with the media’, and ‘it is forbidden for the magistrates of the public prosecutor to issue statements or provide information to the media about the judicial activity of the office’. Therefore, in spite of myself, I am not authorised to make any statement on the matter.”

Case update

In December 2022, the Court of Rome acquitted Kelly Duda of the charge of contempt. He was defended in court by lawyer Andrea Di Pietro on behalf of Ossigeno per L’Informazione, in collaboration with Media Defence.

To read more stories like this, keep an eye on our “Hope and Resilience” series. Our piece on Claudia Duque’s fight against state surveillance in Colombia can be found here.

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