State Attorney Melissa Nelson broke new ground in May with an unprecedented drug prosecution that gained national attention. But it was not the kind of attention Nelson has grown accustomed to receiving.

 

The same types of academics who endorsed Nelson’s policies on juvenile justice, the death penalty and wrongful convictions criticized the decision by the new state attorney to bring murder and manslaughter charges in the fentanyl overdose of an 18-year-old woman.

This prosecution in Clay County could be an indication that amid an epidemic of opioid abuse Nelson intends to be harsh on drug dealers. In an interview, she said she will seek first-degree murder charges, which carry a minimum of life in prison, for overdose cases when appropriate in order “to keep the public safe from those responsible for this deadly crisis.” This, she said, is the “legal response to the loss of life.”

Yet experts say these prosecutions won’t make the public safer. “It is exactly the opposite of what we generally think of as best practice,” said Jonathan Caulkins, a drug-policy expert at Carnegie Mellon University, when the charges were announced.

Beyond the policy questions, there are concerns over the legality of such a prosecution. While Florida’s murder statute allows prosecutors to go after drug dealers in overdose cases, the statute lists what drugs apply, and fentanyl isn’t specifically listed. Just last week Gov. Rick Scott held a ceremony to celebrate the addition of fentanyl to the law, but that addition will only affect cases after Oct. 1 and won’t impact Nelson’s murder prosecution.

If prosecutors think fentanyl applies under the old law, “they are frankly wrong,” said Paul Doering, a pharmacology professor at the University of Florida who has testified for prosecutors. Other legal experts also said the defense may have a chance to dismiss the murder charge.

‘SHE’S NOT BREATHING’

Last November, Ariell Brundige and her boyfriend, Tyler Hamilton, finished a shift together at Cracker Barrel and asked another friend to pick them up.

Brundige told Hamilton she wanted to try heroin, he later told police. The friend who was driving, Christopher Williams, asked for a cell phone. A guy who went by “Lucky” said he could supply the drug, according to Williams’ and Hamilton’s statements to police. They agreed Brundige should use only a small amount, according to the two men’s statements.

As Brundige was sleeping, her breathing grew labored, according to the police reports. Her boyfriend Googled what to do in the case of a heroin overdose. At 4:14 a.m., Williams called 911. Hamilton began chest compressions.

“My friend’s girlfriend,” Williams told the dispatcher, “she’s not breathing.”

The dispatcher asked for their number, and Hamilton interrupted. “She’s not breathing.”

Twice, the dispatcher asked what Brundige was doing before she stopped breathing. “Was she doing drugs or anything?”

“No,” Williams said. “We picked her up from work from Cracker Barrel.”

The dispatcher advised Hamilton on how to perform CPR, and then she asked Williams again if Brundige used heroin or any other drug. “Not that we know of,” he said.

The police arrived, and Brundige died.

Later, police said, a toxicology report found she had a lethal dose of fentanyl. The police and prosecutors never said if she also had heroin or any other drugs. If she took other drugs, that could make it harder for prosecutors to prove that it was the fentanyl that killed her. The police report also never described when or how Brundige took the drugs.

Police spent six months investigating her death as a homicide before announcing a murder charge against Trumaine Muller and manslaughter charges against Williams and Hamilton. Each has pleaded not guilty. Muller, police said, was the man called Lucky, and the drug deal was as good as murder.

MURDER-BY-OVERDOSE LAWS NOT NEW

In 1982, Florida first expanded its first-degree murder statute to include drug dealers. If prosecutors can prove that the “opium or any synthetic or natural salt, compound, derivative, or preparation of opium” that caused someone’s death was sold by a specific dealer, then that dealer can be convicted of first-degree murder, which carries a minimum of life. Over time, the law was updated to name specific drugs that qualify, but fentanyl wasn’t named until the latest bill, which will only affect future cases.

To prove Muller committed murder, prosecutors must show he sold the drugs Brundige took, that the drugs weren’t later tampered with and that Brundige died as a result of those drugs. But they’ll also need to argue that fentanyl qualifies under the law.

Doering, the pharmacology professor, noted the law doesn’t mention opiates or opioids, and opium is a different substance. “Fentanyl is not a derivative of opium.”

In 2009, the 4th District Court of Appeals threw out a murder conviction for a similar reason. The victim died of a methadone overdose, and at the time, methadone wasn’t listed in the statute. Even the prosecution’s pharmacologist testified that methadone couldn’t be a synthetic of opium since “there was no such thing as a synthetic of opium because it is not feasible to synthesize opium,” the court opinion noted.

Muller’s attorney, Michael Bossen, said he’ll wait for evidence from the prosecutors and a chance to interview their witnesses, but he plans to ask a judge to dismiss the murder charge.

Nelson discussed her office’s policies, but she wouldn’t discuss Muller’s case or why she believes the law applies. Days after announcing the arrest, Clay County Sheriff Darryl Daniels appeared on a news show and said the charge was possible thanks to a new law. But at that point, the fentanyl bill wasn’t even a law because Scott hadn’t yet signed it.

Daniels’ chief of detectives, Wayne McKinney, admitted these murder cases “are very hard to pursue. The inherent nature of these cases makes it very difficult to prosecute.” Because of this, the detectives also arrested Muller on unrelated drug charges.One of those cases involved heroin laced with fentanyl. “If we can’t get the murder charge to stick,” McKinney said, “we were looking for drug charges to get on him.”

The Florida Times-Union couldn’t find any example of a successful murder-by-overdose conviction in which fentanyl caused the death.

The fact the Legislature felt it was necessary to add fentanyl to the law could bolster Muller’s defense, said Ron Wright, a Wake Forest University law professor. “The courts are going to have to settle the opium versus opiate question.”

MURDER PROSECUTIONS MORE COMMON

Wright, a Wake Forest University law professor, said using murder charges for overdoses is becoming more common. Prosecutors don’t have to worry about intent, only about what drugs killed someone. And the manslaughter prosecutions against Williams and Hamilton could be easier to prove.

While Florida’s 911 Good Samaritan law grants immunity from drug possession charges to anyone who seeks medical assistance for an overdose, the law says the people must act in good faith. Prosecutors need to prove their negligence, which may include their failure to tell the dispatcher about Brundige’s drug use, caused her death.

Still, Wright said that prosecution is unusual. Prosecutors usually focus on sellers, not on co-buyers. “I’d have to think about why you’d want to do that,” he said.

Nelson would only say that “we are not prosecuting and will not prosecute people who are seeking and [do] seek medical intervention in good faith.”

Muller’s attorney said he thinks the manslaughter charges were filed to persuade Williams and Hamilton to testify against Muller. Prosecutors need Williams and Hamilton if they hope to argue Muller sold the drugs and the drugs weren’t later tainted.

In a news conference announcing the charges, Daniels said his detectives would investigate all 49 overdose deaths from last year as homicides, and he saidhe had “more disdain” for dealers than other criminals and repeatedly told them to “get the hell out of Clay County.

“… By prison, the Medical Examiner’s Office, jail, or moving truck, whatever I need to do to facilitate their exodus from Clay County, that’s what we’ll do.”

HOW SHOULD WE RESPOND?

Florida’s medical examiners have reported a dramatic increase in fentanyl-related deaths. Fentanyl is a highly addictive pain reliever that can be 50 times more potent than heroin, experts say. Last year, the drug caused more deaths in Florida than any other drug. More than 700 people died from it in the first six months, the same number as the entire year before. And according to the Measures for Justice, a nonprofit that analyzes criminal-justice data, Clay County has the third-highest drug hospitalization rate in the state.

Nelson said she believes education and treatment is the best aid for those addicted to drugs. She has doubled the number of defendants sent to drug court, where they can have convictions withheld if they participate in treatment. But Nelson seemed to place dealers and users into separate categories. “If I’m a drug dealer and I know I’m cutting heroin with fentanyl, and I know I can be prosecuted for murder, I’m just telling you commonsensically, maybe I think otherwise about what I’m doing.

“If there’s research that shows what I’m saying is off base, I’d like to be able to look at it. I’m telling you something by my gut right now. I can’t point to research that proves what I’m saying.”

In fact, there is research that indicates when prosecutors try to push dealers away from specific drugs, it often leads to more dangerous situations. The Times-Union spoke to and read the studies of 10 academics who criticized this type of prosecution.

Leo Beletsky, a public health and law professor at Northeastern University, wrote in his most recent journal article, “Murder-by-overdose prosecutions are likely to fuel the very problem they purport to ameliorate.” Prosecutors’ focus on reducing heroin likely pushed the drug market toward fentanyl, he wrote, which is “more potent, more easily manufactured, and more deadly.”

Doering, the pharmacology professor, agreed. “You stamp out one fire, and it erupts somewhere down the line in a new fire, and you stamp that one out, and history has shown you don’t go to less toxic drugs; to the contrary, you go to more toxic drugs.”

Katherine McLean at Pennsylvania State University surveyed people who had experienced or witnessed a drug overdose, and many cited fear of manslaughter prosecution as the reason they were hesitant to call 911.

Prosecutors and lawmakers use high-profile prosecutions, Beletsky said, to prove they’re responding to a crisis. “It looks good on TV. The prosecutors, the cops and the politicians can basically check the box and say we’re doing something.” But, he said, what they’re doing will cost future taxpayers in the form of long prison sentences, and the benefits are minimal at best.

Repeated studies have found harsh sentences aren’t the best deterrent, especially not for drug dealers who are easily replaceable and particularly unlikely to perform cost-benefit analyses.

In response to those studies, Nelson said that “tragically, this death occurred in the context of a growing opioid crisis. For us, this is not an academic analysis in deterrence but the legal response to the loss of life.”

Given how difficult these cases can be, time will tell if Nelson’s prosecutors bring more murder charges in the future, and if the charge against Muller will stand.