Fatal drug overdoses rarely lead to prosecutions in Allegheny County
Eleven months after her daughter was found dead in a bathroom in Point State Park, Jeanna Fisher has not stopped believing that someone will pay for her overdose.
“There were the things I couldn’t control, or help her with in life,” said Ms. Fisher, of Whitehall, whose quest for details of the last days of Marley, 28, led her to form the group Pittsburgh Won’t Forget U. “But in her death, this is the last thing I can do — I can solve her case.”
A man found unconscious nearby got probation for illegal possession of controlled substances, but no one has been charged for selling the drugs that killed Marley. The grieving mother has pushed police, prosecutors and the attorney general to investigate further, saying recently that a prosecution “would give me some peace.”
For those who have lost loved ones to the opioid epidemic, peace is an uncommon find.
Last year in Pennsylvania, 261 people were criminally charged with dealing drugs that caused deaths. Around 20 times that number died from overdoses.
The likelihood that a given overdose will result in the weighty charge of drug delivery resulting in death is much greater in some places than in others. Last year in York County, for instance, there were 121 verified fatal overdoses, and 27 cases of drug delivery resulting in death charged in state court — a ratio of one case for every 4.5 bodies. In Allegheny County, there were nine such cases charged in state court, versus at least 654 drug deaths — one defendant per 72 victims.
“Historically, police have
looked at drug overdoses as being accidental deaths,” said Allegheny County District Attorney Stephen A. Zappala Jr. He said he wants them treated as crimes.
“Somebody has to want to investigate them,” he said, estimating that half the county’s local police departments have no interest in doing that.
On the other hand, federal prosecutors in Western Pennsylvania were much more likely than their counterparts in the central and eastern parts of the state to file charges of drug distribution resulting in death. In the federal system, a conviction on that charge carries a 20-year mandatory minimum sentence, and a maximum of life.
The charge “is one of the best tools we have to get people to cooperate against their dealers, to provide us with the information that’s on their cell phones, and then to continue to use that to go up the chain to attack an organization, rather than just a oneoff, street-level dealer,” said U.S. Attorney Scott W. Brady. His small corps of federal prosecutors, though, can only do so much.
There’s a practical reason for chasing dealers like the one who sold the mix of heroin, fentanyl and carfentanil — known on the streets as Gray Death — that killed Marley, said Ms. Fisher. “Who knows how many people they killed the week before Marley died, or the week after?”
Too many dealers
A charge of drug delivery resulting in death is “a much bigger hammer” than a simple distribution charge, said Beaver County District Attorney David J. Lozier. A first-time heroin dealer might get a short jail stay, he said. A longtime, high-weight dealer can get a maximum of 15 years in state prison. But if that dealer is convicted of causing a death, the maximum is 40 years.
His office and the state attorney general’s office have created a team that scrambles for every drug death, he said. In addition to collecting drug evidence, cell phones and witness accounts, they try to reach the dealer and arrange a buy before news of the death gets around. Match the drugs bought with the drugs on the scene or in the deceased, and you’ve got a strong case.
Beaver County had roughly one-eighth the number of fatal overdoses as did Allegheny County last year, but brought the same number of drug death prosecutions. Allegheny County ranked second in the state in overdoses — behind Philadelphia — but tied for ninth in drug death cases filed.
Mr. Zappala said that’s not for lack of trying. In January 2017, his office held four trainings for suburban police, telling them to investigate overdoses as homicides. Around 50 of the 118 municipal police departments sent investigators for training. Mr. Zappala’s office has also provided a disc to departments that includes everything an officer needs to pursue such a case.
“We’ve tried to make it as easy and user-friendly as we can for the departments,” said Assistant District Attorney Rachel Newman, one of four prosecutors dedicated to these cases.
Her unit receives immediate notification when a suspected overdose death is reported by the county medical examiner. Within a day, Ms. Newman and other staff follow up with the local police department. They ask what evidence was collected at the scene, and about any background that’s been gathered about the victim.
She gave several reasons why prosecutions might be lower in Allegheny County. In other places, she said, there are investigators dedicated to responding to every overdose death.
There are also fewer dealers in smaller counties, resulting in fewer suspects for a given death, she said. Here, officers sometimes find dozens of contacts in a victim’s phone showing they bought drugs from multiple sources in one day. “The volume is so high here, we can’t say this one drug dealer is selling this one stamp bag,” she said.
Even a thorough investigation can prove fruitless if the toxicology report later shows that the deceased took a slew of substances — say, heroin, fentanyl, cocaine and prescription drugs. Results come back months after the death because, according to Allegheny County Medical Examiner Karl Williams, labs are struggling to analyze seemingly endless new variants of fentanyl, and “are overworked because of the [opioid] crisis.”
Overwhelming volume
Pittsburgh Police are grappling with “the overwhelming number of heroin and opiate overdoses that are occurring in our city daily and the impact it has on families as well as police officers,” city Narcotics and Vice Cmdr. Reyne Kacsuta wrote to Chief Scott Schubert on Feb. 7, 2017. “Responding to these calls for service is causing a drain on available public safety resources.”
Narcotics detectives have complained that the difficult overdose cases are taking up most of their time. The brass, though, isn’t backing off.
“The priority in the narcotics office is to investigate the overdose death cases,” said Cmdr. Kacsuta, in a February interview. The city bureau has added five detectives to its narcotics unit since late 2016, she added, declining to provide a total number.
Suburban departments, with fewer detectives, have the the option of calling in the Allegheny County police. That’s happening less frequently, though, said county police Superintendent Coleman McDonough. His office was called in on 55 overdose investigations last year, down from 65 in 2016 -despite an increase in drug deaths.
Why? Maybe improved training “gave local officers a little more confidence” to handle investigations on their own, he suggested. He’s worried, though, that there may be another explanation: “The volume of fatal and nonfatal ODs is such that it is so overwhelming” that some departments may be throwing up their hands.
Attorney General Josh Shapiro’s office brought 10 drug death cases last year, including two each in Allegheny and Westmoreland counties, and one in Beaver County.
The U.S. Attorney’s Office for the Western District brought 33 drug death cases last year, outstripping the state’s other two districts for the third year in a row.
“With 1,400 overdoses in southwestern Pennsylvania,” said Steve Kaufman, chief of the Criminal Division of the Office of the U.S. Attorney for Western Pennsylvania, “the federal government cannot respond to all of them.”
‘That guy’s still walking’
In Philadelphia, where the number of drug deaths for 2017 is expected to top 1,200 when the toxicology reports are done, prosecutors last year pursued just three cases of drug delivery resulting in death, according to the Administrative Office of Pennsylvania Courts. The office of Philadelphia District Attorney Lawrence S. Krasner declined to comment.
Smaller counties, by contrast, are embracing the “hammer.”
“[T]he way we’ve been able to solve a lot of these, is through electronics,” said Lancaster County District Attorney Craig Stedman, whose county tied with York for the most drug death cases last year. “When you’ve got the text message, ‘I’ll give you the heroin, I’ll meet you here,’ then 15 minutes later the guy is dead, you’ve got a case.”
He has assigned one prosecutor to handle all drug death cases. “He’s made some links that we otherwise might’ve missed.”
“These prosecutions allow us to take someone off the street who could be one less person that’s out there killing people through drug dealing,” said York County District Attorney David Sunday.
He emphasized the need to be realistic with grieving families. “We tell them that there’s a very high likelihood that this case may not be prosecuted,” he said.
Ms. Fisher said she got responses from law enforcement only after she started taping up flyers about Marley, and talking with the press. Now she’s weighing a civil suit against the man found nearby.
She’s not after the man’s money. A lawsuit could allow her to access phone data and police records, and conceivably compel depositions regarding the investigation, said attorney Steve Barth, who is working with Ms. Fisher.
“Is the system working? Is the system not? Are there areas where investigation needs to be increased or changed?” Mr. Barth asked. A lawsuit “is not a solution to the opiate problem, but it allows closure for that family, and it also allows that family to see what happened to that loved one.”
Even when criminal charges are filed, justice is slow, and rarely entirely satisfying.
Lynn Stasik, of Carrick, lost her son, Matthew, 31, almost three years ago. Almost a year later, Justin Robinson, 32, of Carrick, was charged in federalcourt with drug distribution resulting in that death. He pleaded guilty in May, and his sentencing is scheduled this month.
“I hope that it will show all of the other drug dealers that you cannot keep doing this, because your luck’s going to run out,” Ms. Stasik said Thursday.
“People tell you that it gets easier as time goes by. They’re lying,” she added. Caring for her orphaned granddaughter, she’s constantly reminded of her lost son. Mr. Robinson’s family, she said, doesn’t know that feeling.
“That guy’s still walking and breathing. His family can still visit him,” she said. “My son is dead.”