AI
Monday, February 19, 2018 9:59:46 AM
Prosecutors push to hold drug dealers accountable for overdose deaths
Kyle Rodriguez, above, was 23 when he fatally overdosed on heroin. A friend, Maxwell Gaffney, is accused of selling the drugs to him and has been charged in connection with the death. (Family photo)
The worsening opioid crisis has prompted county and federal prosecutors to begin to hold drug dealers accountable for overdose deaths in San Diego.
A task force is forming to evaluate each new death to determine if charges, such as murder, are appropriate.
Law enforcement is being encouraged to treat overdose scenes as potential murder cases to preserve evidence.
Two cases have been filed so far. A young man in Ramona is facing a federal charge, distribution of heroin resulting in death, on allegations that he sold heroin to a friend who overdosed. And a Poway man is charged with murder, accused of knowingly selling a pill as oxycodone when it was in fact fentanyl.
Such prosecutions pose thorny questions, including whether dealers should be held culpable for deaths when the users ultimately made the personal decision to take the drugs.
Here’s the full story:
It had taken almost year of sobriety, but that glow that had been dimmed by years of heroin abuse had come back into Kyle Rodriguez’s eyes.
“A spark,” his mother recalled, “like he’s realizing he could do a lot more.” At 23, he had a steady job, a girlfriend he was talking about marrying and a rekindled relationship with his father that had been splintered by smack.
It makes his heroin overdose death all the more maddening, his family says.
On Feb. 17, 2017 — one year ago Sunday — Rodriguez was found collapsed in the bathroom of his parents’ Ramona home, surrounded by pieces of foil, a plastic straw and a lighter.
“What made him use that night, I have no idea,” said his mother, Sheila Scruggs-Rodriguez. “I ask myself why, why, why?” Prosecutors don’t know why, but they say they know who.
Maxwell Joseph Gaffney, a pal from Rodriguez’s school days, is accused of selling the fatal dose and has been charged in San Diego federal court with distribution of heroin causing death. The felony carries a mandatory sentence of at least 20 years in prison.
It is a rare case in San Diego, but many more are expected to be heard in local courtrooms in the near future as the opioid crisis continues to grip the nation and the justice system seeks to hold dealers accountable for the scores of deaths.
The U.S. Attorney’s Office and District Attorney’s Office are putting together a countywide task force to evaluate each overdose death to determine what types of charges can be brought against distributors.
“We want to send a message to drug dealers — if you sell drugs and the user dies from those drugs, you will be prosecuted,” said Interim U.S. Attorney Adam Braverman.
Because the state doesn’t have a specific charge for such cases, many cases are expected to fall under the same federal statute that Gaffney is facing: distribution resulting in death.
But some cases could rise to murder, said Terri Perez, chief of the district attorney’s Major Narcotics Division.
That is the charge against Alfredo Lemus, a Poway man who is accused of falsely advertising oxycodone pills to a victim who overdosed in 2016. The little blue pills were actually full of fentanyl, a drug that is 50 to 100 times more powerful than morphine and deadly in small doses.
Prosecutors are now working with law enforcement agencies on developing protocols to investigate overdose cases as potential murders, preserving evidence at the scene and asking the right questions early on.
There will be no shortage of opportunities.
In 2016, 544 people died of unintentional drug and alcohol overdoses in San Diego County, according to Medical Examiner’s Office data. About half of those deaths are attributed to opioids, including heroin, fentanyl and prescription drugs such as oxycodone.
But such prosecutions aren’t without their controversy, or thorny questions. What level of culpability should dealers face when the users ultimately made the personal decision to take the drugs? And is this an effective way to address the drug crisis?
Case specific
Prosecuting drug dealers in overdose deaths isn’t new, but it is a tactic that has been dusted off lately and used with vigor in many places around the country, mainly the Midwest, South and Northeast, which have been especially ravaged by the opioid crisis, according to the Drug Policy Alliance.
In San Diego, overdose deaths have not been typically investigated as crimes until now. “We’re taking it slowly, but there’s a huge need to address these issues,” said Stacey McReynolds, assistant chief of the district attorney’s Major Narcotics Division.
The task force will “roundtable” each overdose death and analyze the unique factors to determine what charges, if any, are appropriate.
A fentanyl case may get more attention than methamphetamine sold to a chronic user, for example. Was the dealer lying about the make-up of the drug? Did the dealer actively inject the user? Did the distributor witness the death but decide not to call 911 for help? Was the victim an adult or minor?
“It’s going to be very case specific,” Perez said as to the charging determinations. “Not everybody will be charged with murder,” McReynolds added. “The process is very indepth and lengthy.”
The case against Lemus will be the office’s first in a long time, if not ever.
On Nov. 16, 2016, Richard Summerfruit, 26, was found in distress a car in Poway and rushed to the hospital, where he died. He had smoked half of a blue pill stamped with M-30 — the mark of a 30 mg Percocet oxycodone pill, according to a brief filed by Deputy District Attorney Jorge Del Portillo.
But it wasn’t Percocet. His toxicology results found fentanyl in his system instead, and a sheriff’s crime lab test of the pill found it to be fentanyl and 4-ANPP, a fentanyl analogue, the court records state.
Facebook messages show communications with Lemus earlier in the day and the day before discussing the sale of “percs,” the documents say. The victim wrote he’d rather pay for the “30s” and asked if he should just “cruise up to the door.”
Summerfruit’s girlfriend told investigators that he’d struggled with addiction and, after a recent attempt to sober up, appeared to be back on drugs a few days before his death. She said she confiscated a blue pill from his car that deputies later discovered to be fentanyl.
Deputies concocted a sting to buy more drugs from Lemus. They pulled him over for a traffic violation in January 2017 and found several drugs in his car, including cocaine and oxycodone, according to the court filing. They released him, and a few days later sent undercover officers to buy drugs from him, including blue pills. The pills tested to be fentanyl, 4-ANPP and cocaine.
He was arrested on Feb. 21, 2017, and placed in a holding cell with two jail operatives who discussed drugs.
In the recorded conversation, Lemus admitted to “pushing” the “Perc 30s” and said he was getting the ones from Mexico “so they’re cut with fentanyl,” according to prosecutors.
He then bragged he was selling up to $3,000 in drugs a day, mainly the pills.
“S**t’s dangerous though,” he said, adding someone “died off them pills.”
He also admitted to selling someone a pill at his house and that the person later died in an alley, the records state. He said he knows people who are serving prison “for, like, 12 years, just for having them pills. It’s like having a manslaughter.”
Prosecutors argue that Lemus was aware of the danger and potency of fentanyl, and knew that a pill had killed a customer, yet he continued to sell to undercover officers — a “conscious disregard for human life” that warrants a murder charge. Plus, there was no indication the victim knew he was purchasing fentanyl, Del Portillo added in his brief.
The murder theory is similar to charging a repeat DUI offender who has been previously arrested and warned of the dangers, yet does it again and kills someone, prosecutors said.
Lemus’ defense attorney Timothy Richardson declined to comment on the case at this time. It is set for trial this summer.
The District Attorney’s Office acknowledged there is no “silver bullet” fix for the drug crisis and said it is helping develop an prevention program aimed at middle-schoolers.
“It’s impacting people from all walks of life and ages, we’re seeing lots of young people dying. … This type of epidemic touches everyone,” Perez said.
Addicted
In Ramona, the epidemic has crushed two families in particular.
Rodriguez spent much of his childhood on the back of a dirt bike. He raced motocross competitively and traveled most weekends to one track or another with his family.
One day when he was 14 or 15, he and his friends ditched school and were goofing off at a friend’s house when he crushed his foot in an ATV accident.
He was prescribed painkillers. His mother suspects this was the beginning of the end.
She later learned that a friend of his had been getting large amounts of morphine sulfate tablets from his mother to sell to others. Rodriguez started taking the powerful prescription opioid, and when that ran out, heroin was next.
“About 17 he came to me, told me he was using heroin,” his mother recalled. It was a cry for help. A wicked cycle of sobriety and relapses followed.
“He’d go to a counselor, go on Saboxone, get caught up in the same group of kids and it’d always go downhill from there,” Scruggs-Rodriguez said.
Saboxone is a medication commonly prescribed to opioid addicts that blocks cravings and allows users to function normally without creating a high.
The drugs caused his relationship with his father to disintegrate. When he was 18, he was arrested for throwing a bowling ball at his father during a fight. His father didn’t want to press charges but the felony stuck.
In 2012, Rodriguez and two others were arrested on suspicion of heroin possession in a Ramona alley.
It wasn’t until the year before his death that sobriety seemed real. He finished an intensive six-month residential treatment program called CRASH. He began working with his father as a concrete mason, took pride in his appearance and health, and fell in love, his mother said.
“We let our guard down,” she said.
In fact, a week before his death, Rodriguez’s older sister recalled having a conversation with her husband about how refreshing it was not to have to worry about Kyle anymore.
“We don’t have to worry about getting that phone call,” said Kendra Bodkins, 32.
The night of Feb. 16, 2017, Rodriguez and his girlfriend went to a concert in San Diego, where they drank a few beers. They returned home to his parents’ house about 1:30 a.m.
He got ready for bed, then told his girlfriend he was going to the bathroom.
About 10 minutes later, she heard a thud from behind the locked door. She rushed outside and peered through the bathroom window to find him collapsed on the floor. Her screams woke up his parents. His mother, a former registered nurse, performed CPR. Attempts by paramedics to revive him were unsuccessful.
A lighter, pieces of tin foil and a plastic straw — the tools needed to smoke heroin — were found on the floor and in the sink, according to the Medical Examiner’s Office report.
As the sheriff’s deputy was leaving the home, the family offered him Rodriguez’s cellphone, saying evidence of the drug sale had been found on there.
The alleged text conversation between Rodriguez and Gaffney is reproduced by prosecutors in a court document.
Early in the exchange, Rodriguez told Gaffney he ran out of “subs,” referring to Saboxone.
“im like sick cuz ive been taking subs so long and now im out I cant think straight...” Rodriguez texted Gaffney, according to the transcript.
Gaffney responded that he just picked up some “subs” and agreed to sell some to Rodriguez, who admitted he’s “been out of the game awhile,” the document says.
They agreed on a price of $70, and Gaffney then offered to “hook” him up with “a little extra B,” the records show.
Both cellphones were sharing the same cell tower about 7 p.m. that evening, according to court records.
Gaffney and Rodriguez were classmates who were merely acquaintances until they began running together in the same drug circle in Ramona, Rodriguez’s family said. Gaffney, too, has struggled with addiction for years, his mother, Carrie Foye, said in a brief interview after a recent court hearing.
In 2013, Gaffney was one of 19 teens and young adults arrested at Ramona High in an undercover sheriff’s sting targeting drug sales at four high schools, according to authorities.
He was 19. He was charged with heroin possession, possession of heroin with a firearm, and sale and possession of marijuana for sale. He was arrested again a few months later, this time with methamphetamine. He pleaded guilty to possession of heroin and methamphetamine and was sentenced to three years probation and ordered to attend a residential drug treatment program.
Gaffney was “devastated” by Rodriguez’s death, said his attorney, Thomas Matthews.
Gaffney’s mother said her son had been doing well lately. He went to live temporarily with his father in Japan and was enjoying the change. He had been sober for the past three months and had wanted to obtain a visa that would allow him to go to school there, she said.
On Jan. 29, shortly after he deboarded his flight home from Japan, he was arrested at San Diego International Airport in the case. He has pleaded not guilty.
Matthews said the case is “grossly overcharged.”
“This is an unfortunate attempt to hold my young client criminally liable for the poor choices of his adult, long-time friend,” the lawyer said. “This is a very sad situation for everyone, but criminal charges are completely improper.”
Gaffney remains in custody and has not argued for bail at this time.
The prosecution conjures a mixture of emotions for the Rodriguez family — guilt, sadness, anger, hope.
“I know my brother chose to use, he made that choice, he decided to pick it up and use it. Nobody forced him,” said Bodkins, a nursing assistant at a San Diego hospital. “But if Max was his so-called friend and knew he’d been clean, if he didn’t sell it to him, maybe he’d still be here.”
“The heroin epidemic is all over the country,” Bodkins added. “I think if dealers were held more accountable for what they are doing then I think maybe it would get people to think twice, help start getting it off the streets and help clean people up.”
His mother shares the same hope, but sometimes reflects on what her son would think of the whole thing: “He’d be like ‘Just let it go.’”
Debate
The high-profile case involving a Google executive’s overdose death in 2013 prompted some to question the value of such prosecutions.
Alix Tichelman, a call girl who advertised to wealthy clients online, was charged with manslaughter for injecting Forrest Hayes with heroin aboard his yacht off Santa Cruz. Hayes went into distress almost immediately, and Tichelman was captured on surveillance camera at first trying to revive him, then stepping over his body with a glass of wine in hand and removing all traces of her presence before leaving. She did not call 911.
She pleaded guilty in a deal that reduced the charge to involuntary manslaughter and was sentenced to six years prison. After serving her sentence she was deported last April to Canada.
The case prompted debates about what level of culpability drug distributors should have when consenting adult users are involved, especially if the distributors are addicts themselves.
They are just some of the questions that juries will have to consider as they hear such cases.
The Santa Cruz prosecutor said later that the victim’s family never wanted the case charged.
Lindsay LaSalle, senior counsel at the Drug Policy Alliance, a nonprofit that advocates for drug policy reform, said there is no evidence to suggest overdose death prosecutions are having an effect on reducing overdose deaths.
Instead, such prosecutions are dissuading people from calling 911 to report overdoses, for fear they may be criminally charged, said LaSalle, who authored a recent report on the subject. That is despite so-called Good Samaritan laws that have been passed in several states that protect drug users from minor charges, such as simple possession, should they report an overdose.
“Unfortunately, people find themselves in a catch 22 … People who have called, done the right thing, stayed with the victim, provided the victim with medical care, and they are still prosecuted. The reverse situation are people who make the calculation not to call 911. That fact they did not call 911 is used as an example of special culpability,” she said.
The Alliance argues that government resources should be used on proven public health policy aimed at prevention and rehabilitation, rather than on a “very short-sighted supply side tactic.”
“The purported rationale for prosecutions that it’s going to deter the behavior, that the severity of the sentence will impact whether or not a dealer continues selling — the research doesn’t bear out that theory at all,” LaSalle argued.
She points out that the person who ends up being prosecuted is often the last person who touched the drug, usually a friend or family member, certainly the lowest person on the chain and often selling to support their own addiction.
“It really is quite tragic when you step back and look at it,” she said. “One family has suffered an unspeakable tragedy, losing their son or daughter. Another family is about to lose the same thing and have a child incarcerated potentially for a lifetime.”
http://www.sandiegouniontribune.com/news/courts/sd-me-heroin-death-20180217-story.html#nws=true
Kyle Rodriguez, above, was 23 when he fatally overdosed on heroin. A friend, Maxwell Gaffney, is accused of selling the drugs to him and has been charged in connection with the death. (Family photo)
The worsening opioid crisis has prompted county and federal prosecutors to begin to hold drug dealers accountable for overdose deaths in San Diego.
A task force is forming to evaluate each new death to determine if charges, such as murder, are appropriate.
Law enforcement is being encouraged to treat overdose scenes as potential murder cases to preserve evidence.
Two cases have been filed so far. A young man in Ramona is facing a federal charge, distribution of heroin resulting in death, on allegations that he sold heroin to a friend who overdosed. And a Poway man is charged with murder, accused of knowingly selling a pill as oxycodone when it was in fact fentanyl.
Such prosecutions pose thorny questions, including whether dealers should be held culpable for deaths when the users ultimately made the personal decision to take the drugs.
Here’s the full story:
It had taken almost year of sobriety, but that glow that had been dimmed by years of heroin abuse had come back into Kyle Rodriguez’s eyes.
“A spark,” his mother recalled, “like he’s realizing he could do a lot more.” At 23, he had a steady job, a girlfriend he was talking about marrying and a rekindled relationship with his father that had been splintered by smack.
It makes his heroin overdose death all the more maddening, his family says.
On Feb. 17, 2017 — one year ago Sunday — Rodriguez was found collapsed in the bathroom of his parents’ Ramona home, surrounded by pieces of foil, a plastic straw and a lighter.
“What made him use that night, I have no idea,” said his mother, Sheila Scruggs-Rodriguez. “I ask myself why, why, why?” Prosecutors don’t know why, but they say they know who.
Maxwell Joseph Gaffney, a pal from Rodriguez’s school days, is accused of selling the fatal dose and has been charged in San Diego federal court with distribution of heroin causing death. The felony carries a mandatory sentence of at least 20 years in prison.
It is a rare case in San Diego, but many more are expected to be heard in local courtrooms in the near future as the opioid crisis continues to grip the nation and the justice system seeks to hold dealers accountable for the scores of deaths.
The U.S. Attorney’s Office and District Attorney’s Office are putting together a countywide task force to evaluate each overdose death to determine what types of charges can be brought against distributors.
“We want to send a message to drug dealers — if you sell drugs and the user dies from those drugs, you will be prosecuted,” said Interim U.S. Attorney Adam Braverman.
Because the state doesn’t have a specific charge for such cases, many cases are expected to fall under the same federal statute that Gaffney is facing: distribution resulting in death.
But some cases could rise to murder, said Terri Perez, chief of the district attorney’s Major Narcotics Division.
That is the charge against Alfredo Lemus, a Poway man who is accused of falsely advertising oxycodone pills to a victim who overdosed in 2016. The little blue pills were actually full of fentanyl, a drug that is 50 to 100 times more powerful than morphine and deadly in small doses.
Prosecutors are now working with law enforcement agencies on developing protocols to investigate overdose cases as potential murders, preserving evidence at the scene and asking the right questions early on.
There will be no shortage of opportunities.
In 2016, 544 people died of unintentional drug and alcohol overdoses in San Diego County, according to Medical Examiner’s Office data. About half of those deaths are attributed to opioids, including heroin, fentanyl and prescription drugs such as oxycodone.
But such prosecutions aren’t without their controversy, or thorny questions. What level of culpability should dealers face when the users ultimately made the personal decision to take the drugs? And is this an effective way to address the drug crisis?
Case specific
Prosecuting drug dealers in overdose deaths isn’t new, but it is a tactic that has been dusted off lately and used with vigor in many places around the country, mainly the Midwest, South and Northeast, which have been especially ravaged by the opioid crisis, according to the Drug Policy Alliance.
In San Diego, overdose deaths have not been typically investigated as crimes until now. “We’re taking it slowly, but there’s a huge need to address these issues,” said Stacey McReynolds, assistant chief of the district attorney’s Major Narcotics Division.
The task force will “roundtable” each overdose death and analyze the unique factors to determine what charges, if any, are appropriate.
A fentanyl case may get more attention than methamphetamine sold to a chronic user, for example. Was the dealer lying about the make-up of the drug? Did the dealer actively inject the user? Did the distributor witness the death but decide not to call 911 for help? Was the victim an adult or minor?
“It’s going to be very case specific,” Perez said as to the charging determinations. “Not everybody will be charged with murder,” McReynolds added. “The process is very indepth and lengthy.”
The case against Lemus will be the office’s first in a long time, if not ever.
On Nov. 16, 2016, Richard Summerfruit, 26, was found in distress a car in Poway and rushed to the hospital, where he died. He had smoked half of a blue pill stamped with M-30 — the mark of a 30 mg Percocet oxycodone pill, according to a brief filed by Deputy District Attorney Jorge Del Portillo.
But it wasn’t Percocet. His toxicology results found fentanyl in his system instead, and a sheriff’s crime lab test of the pill found it to be fentanyl and 4-ANPP, a fentanyl analogue, the court records state.
Facebook messages show communications with Lemus earlier in the day and the day before discussing the sale of “percs,” the documents say. The victim wrote he’d rather pay for the “30s” and asked if he should just “cruise up to the door.”
Summerfruit’s girlfriend told investigators that he’d struggled with addiction and, after a recent attempt to sober up, appeared to be back on drugs a few days before his death. She said she confiscated a blue pill from his car that deputies later discovered to be fentanyl.
Deputies concocted a sting to buy more drugs from Lemus. They pulled him over for a traffic violation in January 2017 and found several drugs in his car, including cocaine and oxycodone, according to the court filing. They released him, and a few days later sent undercover officers to buy drugs from him, including blue pills. The pills tested to be fentanyl, 4-ANPP and cocaine.
He was arrested on Feb. 21, 2017, and placed in a holding cell with two jail operatives who discussed drugs.
In the recorded conversation, Lemus admitted to “pushing” the “Perc 30s” and said he was getting the ones from Mexico “so they’re cut with fentanyl,” according to prosecutors.
He then bragged he was selling up to $3,000 in drugs a day, mainly the pills.
“S**t’s dangerous though,” he said, adding someone “died off them pills.”
He also admitted to selling someone a pill at his house and that the person later died in an alley, the records state. He said he knows people who are serving prison “for, like, 12 years, just for having them pills. It’s like having a manslaughter.”
Prosecutors argue that Lemus was aware of the danger and potency of fentanyl, and knew that a pill had killed a customer, yet he continued to sell to undercover officers — a “conscious disregard for human life” that warrants a murder charge. Plus, there was no indication the victim knew he was purchasing fentanyl, Del Portillo added in his brief.
The murder theory is similar to charging a repeat DUI offender who has been previously arrested and warned of the dangers, yet does it again and kills someone, prosecutors said.
Lemus’ defense attorney Timothy Richardson declined to comment on the case at this time. It is set for trial this summer.
The District Attorney’s Office acknowledged there is no “silver bullet” fix for the drug crisis and said it is helping develop an prevention program aimed at middle-schoolers.
“It’s impacting people from all walks of life and ages, we’re seeing lots of young people dying. … This type of epidemic touches everyone,” Perez said.
Addicted
In Ramona, the epidemic has crushed two families in particular.
Rodriguez spent much of his childhood on the back of a dirt bike. He raced motocross competitively and traveled most weekends to one track or another with his family.
One day when he was 14 or 15, he and his friends ditched school and were goofing off at a friend’s house when he crushed his foot in an ATV accident.
He was prescribed painkillers. His mother suspects this was the beginning of the end.
She later learned that a friend of his had been getting large amounts of morphine sulfate tablets from his mother to sell to others. Rodriguez started taking the powerful prescription opioid, and when that ran out, heroin was next.
“About 17 he came to me, told me he was using heroin,” his mother recalled. It was a cry for help. A wicked cycle of sobriety and relapses followed.
“He’d go to a counselor, go on Saboxone, get caught up in the same group of kids and it’d always go downhill from there,” Scruggs-Rodriguez said.
Saboxone is a medication commonly prescribed to opioid addicts that blocks cravings and allows users to function normally without creating a high.
The drugs caused his relationship with his father to disintegrate. When he was 18, he was arrested for throwing a bowling ball at his father during a fight. His father didn’t want to press charges but the felony stuck.
In 2012, Rodriguez and two others were arrested on suspicion of heroin possession in a Ramona alley.
It wasn’t until the year before his death that sobriety seemed real. He finished an intensive six-month residential treatment program called CRASH. He began working with his father as a concrete mason, took pride in his appearance and health, and fell in love, his mother said.
“We let our guard down,” she said.
In fact, a week before his death, Rodriguez’s older sister recalled having a conversation with her husband about how refreshing it was not to have to worry about Kyle anymore.
“We don’t have to worry about getting that phone call,” said Kendra Bodkins, 32.
The night of Feb. 16, 2017, Rodriguez and his girlfriend went to a concert in San Diego, where they drank a few beers. They returned home to his parents’ house about 1:30 a.m.
He got ready for bed, then told his girlfriend he was going to the bathroom.
About 10 minutes later, she heard a thud from behind the locked door. She rushed outside and peered through the bathroom window to find him collapsed on the floor. Her screams woke up his parents. His mother, a former registered nurse, performed CPR. Attempts by paramedics to revive him were unsuccessful.
A lighter, pieces of tin foil and a plastic straw — the tools needed to smoke heroin — were found on the floor and in the sink, according to the Medical Examiner’s Office report.
As the sheriff’s deputy was leaving the home, the family offered him Rodriguez’s cellphone, saying evidence of the drug sale had been found on there.
The alleged text conversation between Rodriguez and Gaffney is reproduced by prosecutors in a court document.
Early in the exchange, Rodriguez told Gaffney he ran out of “subs,” referring to Saboxone.
“im like sick cuz ive been taking subs so long and now im out I cant think straight...” Rodriguez texted Gaffney, according to the transcript.
Gaffney responded that he just picked up some “subs” and agreed to sell some to Rodriguez, who admitted he’s “been out of the game awhile,” the document says.
They agreed on a price of $70, and Gaffney then offered to “hook” him up with “a little extra B,” the records show.
Both cellphones were sharing the same cell tower about 7 p.m. that evening, according to court records.
Gaffney and Rodriguez were classmates who were merely acquaintances until they began running together in the same drug circle in Ramona, Rodriguez’s family said. Gaffney, too, has struggled with addiction for years, his mother, Carrie Foye, said in a brief interview after a recent court hearing.
In 2013, Gaffney was one of 19 teens and young adults arrested at Ramona High in an undercover sheriff’s sting targeting drug sales at four high schools, according to authorities.
He was 19. He was charged with heroin possession, possession of heroin with a firearm, and sale and possession of marijuana for sale. He was arrested again a few months later, this time with methamphetamine. He pleaded guilty to possession of heroin and methamphetamine and was sentenced to three years probation and ordered to attend a residential drug treatment program.
Gaffney was “devastated” by Rodriguez’s death, said his attorney, Thomas Matthews.
Gaffney’s mother said her son had been doing well lately. He went to live temporarily with his father in Japan and was enjoying the change. He had been sober for the past three months and had wanted to obtain a visa that would allow him to go to school there, she said.
On Jan. 29, shortly after he deboarded his flight home from Japan, he was arrested at San Diego International Airport in the case. He has pleaded not guilty.
Matthews said the case is “grossly overcharged.”
“This is an unfortunate attempt to hold my young client criminally liable for the poor choices of his adult, long-time friend,” the lawyer said. “This is a very sad situation for everyone, but criminal charges are completely improper.”
Gaffney remains in custody and has not argued for bail at this time.
The prosecution conjures a mixture of emotions for the Rodriguez family — guilt, sadness, anger, hope.
“I know my brother chose to use, he made that choice, he decided to pick it up and use it. Nobody forced him,” said Bodkins, a nursing assistant at a San Diego hospital. “But if Max was his so-called friend and knew he’d been clean, if he didn’t sell it to him, maybe he’d still be here.”
“The heroin epidemic is all over the country,” Bodkins added. “I think if dealers were held more accountable for what they are doing then I think maybe it would get people to think twice, help start getting it off the streets and help clean people up.”
His mother shares the same hope, but sometimes reflects on what her son would think of the whole thing: “He’d be like ‘Just let it go.’”
Debate
The high-profile case involving a Google executive’s overdose death in 2013 prompted some to question the value of such prosecutions.
Alix Tichelman, a call girl who advertised to wealthy clients online, was charged with manslaughter for injecting Forrest Hayes with heroin aboard his yacht off Santa Cruz. Hayes went into distress almost immediately, and Tichelman was captured on surveillance camera at first trying to revive him, then stepping over his body with a glass of wine in hand and removing all traces of her presence before leaving. She did not call 911.
She pleaded guilty in a deal that reduced the charge to involuntary manslaughter and was sentenced to six years prison. After serving her sentence she was deported last April to Canada.
The case prompted debates about what level of culpability drug distributors should have when consenting adult users are involved, especially if the distributors are addicts themselves.
They are just some of the questions that juries will have to consider as they hear such cases.
The Santa Cruz prosecutor said later that the victim’s family never wanted the case charged.
Lindsay LaSalle, senior counsel at the Drug Policy Alliance, a nonprofit that advocates for drug policy reform, said there is no evidence to suggest overdose death prosecutions are having an effect on reducing overdose deaths.
Instead, such prosecutions are dissuading people from calling 911 to report overdoses, for fear they may be criminally charged, said LaSalle, who authored a recent report on the subject. That is despite so-called Good Samaritan laws that have been passed in several states that protect drug users from minor charges, such as simple possession, should they report an overdose.
“Unfortunately, people find themselves in a catch 22 … People who have called, done the right thing, stayed with the victim, provided the victim with medical care, and they are still prosecuted. The reverse situation are people who make the calculation not to call 911. That fact they did not call 911 is used as an example of special culpability,” she said.
The Alliance argues that government resources should be used on proven public health policy aimed at prevention and rehabilitation, rather than on a “very short-sighted supply side tactic.”
“The purported rationale for prosecutions that it’s going to deter the behavior, that the severity of the sentence will impact whether or not a dealer continues selling — the research doesn’t bear out that theory at all,” LaSalle argued.
She points out that the person who ends up being prosecuted is often the last person who touched the drug, usually a friend or family member, certainly the lowest person on the chain and often selling to support their own addiction.
“It really is quite tragic when you step back and look at it,” she said. “One family has suffered an unspeakable tragedy, losing their son or daughter. Another family is about to lose the same thing and have a child incarcerated potentially for a lifetime.”
http://www.sandiegouniontribune.com/news/courts/sd-me-heroin-death-20180217-story.html#nws=true
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