One pill can kill but jury must decide if it's murder

Over two years ago in February 2021, Riverside County District Attorney Mike Hestrin held a press briefing and expressed a firm commitment to crack down on fentanyl suppliers when their products kill. Alongside Hestrin was Riverside County Sheriff Chad Bianco, as the pair of lawmen vowed to go so far as to charge fentanyl dealers with second-degree murder when a user overdoses and dies from using their product. Last week, Hestrin continued his efforts to make good on that promise as prosecutors from his office began the County’s first second-degree murder trial in connection with a fentanyl death. According to DA’s Office spokesperson Brooke Beare, People vs. Vicente David Romero is “the first of 23 cases that are moving forward through the justice system right now related to fentanyl-related deaths.”

Fentanyl has become the poster child for this country’s opioid crisis. Drug overdose is now a leading cause of death among Americans and synthetic opioids like fentanyl have accounted for the majority of the more than 75,000 deaths reported by the U.S. Centers for Disease Control Prevention in 2022. According to the U.S. Drug Enforcement Administration, fentanyl is manufactured in foreign labs, typically in China, and then smuggled across the U.S.-Mexico border by cartels. The drug is 100 times stronger than morphine and ingesting just one pill in one’s first use can be fatal. And all it takes to consume a potentially-lethal dose is two milligrams – think: powdered sugar on the tip of a pencil. Given how cheap the drug is and given its potency, dealers are mixing fentanyl into other street narcotics and prescription drugs, often unbeknownst to the user. In most instances buyers are unaware that the pill they have purchased from a dealer even contains fentanyl — they believe they are buying Vicodin, Oxycodone, Percocet, or some other drug.

Since 2001, Fentanyl has been responsible for 6,000 deaths in California, according to the latest data. And Riverside County has been particularly ravaged by the drug. In 2016, the county reported just two fentanyl related fatalities. But by 2021, that number had jumped to almost 400 — a 200% increase. Last year, local public safety officials confirmed more than 500 fentanyl deaths, a plain indication that the problem continues to trend in the wrong direction.

For that reason, law enforcement officials like Hestrin and Bianco have struggled to find effective ways to curtail fentanyl use and penalize fentanyl dealers, especially when their sales lead to overdose deaths. Hestrin and other District Attorneys throughout the state are, thus, increasingly bringing second-degree murder charges against suppliers given that a conviction can carry with it a 15-year prison sentence, obviously a much harsher penalty than for mere narcotics possession or distributions.

Last month, Placer County District Attorney Morgan Gire announced that his office had secured the state’s first fentanyl-based second-degree murder conviction, a 21-year-old man pleaded guilty to providing Fentanyl to a 15-year-old girl who died shortly after consuming the synthetic opioid.

But, of course, securing a guilty plea and convincing a jury to render a guilty verdict are two very different things. Second-degree murder is the killing of another person that is willful and malicious, but not premeditated. In other words, an intentional act that one knows can result in death, but was not planned ahead of time. Classic examples include shooting a gun into a crowd of people in the heat of a moment, killing someone. Or sucker-punching a drunk person who falls to the ground and dies after hitting their head on the sidewalk.

The challenge for the Riverside prosecutors will be whether they can convince a jury of the defendant’s intent to kill – that the defendant knew that the fentanyl he possessed was deadly and that he went ahead and supplied it to the decedent anyway, maliciously. In opening statement, the prosecutor told jurors that the defendant bought six pills the previous day and “knew that [the victim] Kelsey King had never taken fentanyl, it was actually something he asked her.”

An argument like that appeals to what prosecutors hope is a universal truth – particularly one held amongst the 12 jurors before them – that we all know narcotics are inherently dangerous and, so, there should be no surprise when supplying them has deadly consequences.

But the defense opening centered on lack-of-intent and accident-by-mistake themes that are common defenses in these types of cases. Romero’s defense attorney described the defendant and decedent as “two lost souls, experimenting with drugs, not cautious with what they’re doing.” In other words, Romero’s attorney contended that the evidence would show that Romero certainly did not intend to kill his friend and that the overdose was an accident after the pair ingested what they thought was Oxycodone.

An argument like that appeals to another universal truth – that we all make our own choices in life and, so, must be accountable for our own actions.

We will soon find out which of these universal truths was the prevailing principle amongst the Romero jurors. Will they hold the defendant expressly accountable for supplying a drug that he reasonably should have known could cause death even upon first use? Or will they exonerate him for his friend’s accidental overdose and impliedly hold the victim accountable for her own willing drug use?

To be sure, prosecutors’ case in this particular instance would be stronger had State Senate bill 350 – dubbed “Alexandra’s Law” – passed and become law. Alexandra’s Law was introduced last year by State Senator Melissa Mendez (R–Lake Elsinore) as an analog to what is known as the “Watson murder rule,” a law that requires individuals convicted of DUI to sign a document acknowledging that driving under the influence can lead to serious injury and death. Then, if that individual commits another DUI offense that results in death, there is a legal document that makes it easier to try that person for second-degree murder and prove their “implied malice” given the defendant’s own prior acknowledgment of the deadly consequences.

The same would be true under Alexandra’s Law had it been voted into law, but the bill failed after it was denied a full House vote by members of the Senate’s Public Safety Committee. The law would have required a similar process for convicted fentanyl dealers – a signed acknowledgment that opioids can kill – which prosecutors would then have at their disposal to establish “implied malice” if that same dealer’s narcotics sales resulted in an overdose death.

Alexandra’s Law was named in memory of 20-year-old Alexandra Capelouto, who died in December 2019 from fentanyl poisoning after she bought and took what she thought was an oxycodone pill from a drug dealer.

Regardless of whether Alexandra’s Law is the right statutory approach, and regardless of whether an increase in the number of fentanyl-based second-degree murder charges is the right deterrent, everyone on both sides of the issue can agree that fentanyl is a major problem that needs a major solution, and quickly. According to the DEA, the agency seized more than 58 million fentanyl-laced fake pills and more than 13,000 pounds of fentanyl powder in 2022. And critically, six out of every 10 pills tested by the DEA – pills marked to appear as Xanax, Adderall, or some other prescription drug – contained lethal amounts of fentanyl. Hence, the agency’s “One Pill Can Kill” campaign to educate Americans. But for far too many victims’ families, that message is too little, too late.