SAN DIEGO — On the day that Joshua Banka died, he smoked marijuana, then injected crushed oxycodone pills he had stolen from a roommate. Later, he injected some heroin that he’d bought with his wife from a dealer.
Banka’s body was discovered hours later, along with a stash of other drugs at his Iowa home and in his car, including alprazolam, clonazepam and hydrocodone.
The heroin dealer, Marcus Burrage, was charged with his death.
But, who’s to say whether the heroin, and not the other drugs, was what killed him? Two medical experts at Burrage’s trial certainly couldn’t.
It’s why the U.S. Supreme Court ultimately overturned Burrage’s conviction — and 20-year prison sentence — and set a legal standard that prosecutors must meet before bringing similar charges.
The 2014 decision is among a small collection of case law — some of it going back to the crack-cocaine epidemic of the 1980s and ‘90s — that is now being analyzed with renewed interest in the face of the opioid crisis.
Last year, an estimated 72,000 Americans died of drug overdose.
In an effort to combat the rising tide of fatalities, prosecutors around the country have increasingly turned to laws that haven’t been used in years to charge drug distributors with the deaths.
For many defense lawyers, even seasoned ones, this was new territory.
To help them catch up, Northeastern University’s Heath in Justice Action Lab is compiling a playbook of sorts on how to adequately defend these cases. The tool kit includes a listing of cases such as Burrage v. United States that are incredibly specific to this type of law that many general practitioners may not have encountered before.
The guide, written with help from legal minds across the country, probes questions such as: What happens if a friend was merely sharing, not selling, the drugs that killed someone? What if two friends pooled their money together to buy drugs and one dies? What if someone sold a user oxycodone and didn’t realize it was a counterfeit pill containing fentanyl?
Besides being a practical defense tool kit, its authors say it aims to ask larger questions, too, including whether prosecutors are targeting friends and low-level dealers who are addicts themselves versus bona fide, career drug dealers and their leaders.
“The rise in these cases is spurred on by the real need in communities looking for decisive action to address the crisis,” said Leo Beletsky, a professor of law and health sciences at Northeastern in Boston, as well as an adjunct professor at University of California San Diego. “But instead of investing in what works, they are doubling down on what never works, which is beating people over the head with huge penalties.”
Generally referred to as “drug-induced homicide” cases, these prosecutions are being brought throughout the U.S. under a variety of state laws — from murder to manslaughter to other more specifically tailored measures — as well as the workhorse federal law: distribution of drugs resulting in death.
A report by the Drug Alliance Policy noted that such overdose prosecutions have spiked nationally in response to the deepening opioid epidemic, from 363 in 2011 to 1,178 in 2016.
“It’s such a new phenomenon as far as being brought in significant numbers,” said Alex Kreit, a Thomas Jefferson School of Law professor in San Diego and drug law expert who helped author the guide.
In San Diego, law enforcement countywide has developed a new protocol for overdose fatalities that includes processing crime scenes with the precision of a homicide case and investigating the source of the fatal dose.
The U.S. Attorney’s Office here has brought charges in at least five fentanyl or heroin overdose deaths since last year, and the county District Attorney’s Office has brought at least two cases — a charge of murder against a drug dealer and charges of child endangerment likely to produce great bodily harm or death against a couple in the death of their infant son.
Beletsky, faculty director at Northeastern’s Health in Justice Action Lab, began researching these cases over a year ago, mapping the growing number of prosecutions across the country.
“Looking at the cases themselves it became clear a lot of people were not getting adequate defense,” he said. The professor also began receiving calls from family members of defendants as well as defense lawyers asking for help understanding the law involved. He began compiling more information and sending it out piece meal. He figured something should be done on a larger scale.
The initial version of the tool kit was published Oct. 12 free for download. It is intended to be a living document, to be updated as feedback from other experts comes in and expanded to address issues such as trial and jury techniques, cellphone searches and good Samaritan laws.
Possession vs. distribution
The toolkit describes two primary ways to defend such cases.
One is the joint-user defense, which is possible when the case involves a user who was potentially sharing drugs with the accused.
The key issue is determining at what point the user took possession of the drug.
Several federal courts have held that a financial transaction does not need to occur for someone to be guilty of distribution, and that a person buying drugs and later sharing it with friends was not sufficient to invoke to the joint-user defense.
But what if the user had asked the friend to buy drugs for him, supplying the money? What if he was present when the transaction happened, or sitting in the car a few feet away?
A 9th U.S. Circuit Court of Appeals case — which includes California in its jurisdiction — held that both users must be physically present and acquire the drug simultaneously. In that case, a user had given the defendant money with the request to buy heroin, but didn’t direct the defendant where to get the heroin. The defendant was ultimately found to have acted as a distributor.
A Minnesota Supreme Court case, however, found otherwise.
A wife bought heroin clearly for herself and her husband. She brought it home, used her half and then showed him where she’d hidden his half before leaving. The husband injected himself with the drug and died of an overdose.
“That the absent spouse did not exercise physical control over the substance at the moment of acquisition is an irrelevancy when there is no question that the absent spouse was then entitled to exercise joint physical possession,” the court ruled.
The court dismissed the felony murder charge against the wife.
While courts have read this opinion as one that can be applied broadly, a Minnesota appeals court recently read the ruling more narrowly, suggesting it only applied to spouses.
The tool kit argues that the mixed rulings present a problem, potentially allowing prosecutors to define possession as it suits their needs.
The guide points out a Michigan Supreme Court case that determined a man had possession and control over cocaine that he’d directed someone else to buy for him, even though he was not present at the time of sale.
“Requiring both users to be physically present at the purchase for the joint-user rule to apply lets the government have it both ways, defining constructive possession broadly when it supports a conviction … but narrowly when it supports the joint-user defense,” the authors of the guide argue.
The second area ripe for challenge on overdose prosecutions deals with causation.
Under the federal drug-induced law, a minimum element prosecutors must be able to prove beyond a reasonable doubt is that but for the defendant’s acts, the user would not have died when he or she did. It’s the standard that the U.S. Supreme Court set as a result of the Burrage case involving multiple drugs on the toxicology report.
Kreit said the causation issue in the context of these cases could bring up interesting challenges that have been typically relegated to strange law school hypotheticals.
Such a consideration may be underway in the decision of whether to charge a distributor in the 2017 death of a 41-year-old North Park woman, who prosecutors say is believed to have purchased fentanyl-laced pills from a woman known as The Drug Llama.
The user’s toxicology showed not only fentanyl, but also clonazepam, quetiapine and gabapentin.
“How sound is the science behind them saying it was this drug as opposed to this other drug?” Kreit asked.
There is another level of causation that prosecutors might be required to prove, called proximate causation. It requires proof that death was a reasonably foreseeable consequence of the defendant’s action.
Many federal circuit courts have agreed that proximate causation is not required under the federal law; the defendant’s illegal act alone is enough. Various state laws, however, do require this, including a murder charge.
In San Diego, the District Attorney’s Office has used murder once in recent history to prosecute an overdose death. According to the evidence, the victim apparently thought he was buying Percocet pills from Alfred Lemus Jr. in 2016. But the pills turned out to be laced with fentanyl, a deadly synthetic heroin.
Evidence indicated Lemus was well aware that he was selling fentanyl and that taking it could result in death, according to prosecutors. Lemus was recorded telling others in his jail cell that another customer had died in an alley after taking one of the pills.
Lemus ultimately pleaded guilty to voluntary manslaughter and was sentenced to 15 years in prison.
The District Attorney’s Office did not comment specifically about the defense strategies being disseminated but said, in general, that the office evaluates each overdose case “individually and makes charging decisions based on the facts and evidence.” Some cases that may not be charged under state law are referred to the U.S. Attorney’s Office for prosecution.
“The reason that law enforcement investigates the source of the drug that caused the overdose is primarily to prevent that same dealer from selling the same deadly substance to another person, so the first goal is to prevent future harm if we are able,” the office said in a statement.
“We are obviously not looking to charge low-level dealers, who sell drugs to support their habit, with murder. We do evaluate cases with an eye toward individuals who possess the knowledge of the dangers of the drug —specifically fentanyl — and sell it for financial gain, with no regard for the safety of the victim. Each case presents a unique set of facts and equities, and our charges reflect those.”
Five cases charged at the federal level in San Diego remain active, with one set for trial in January.