The Fentanyl Files: Dealing Resulting in Death: A Conversation with Chief Defender Tim Sledd

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[00:02:59] of drug abuse and death. Our new recurring series, The Fentanyl Files seeks to get at

[00:03:05] the heart of a crisis that is claiming lives across the United States of America. Fentanyl

[00:03:11] is a highly potent synthetic opioid according to the Centers for Disease Control and Prevention.

[00:03:16] Fentanyl has played the biggest role in the wider opioid epidemic since about 2016. It's

[00:03:23] cheap and accessible for dealers who get it through a pipeline that originates with precursors

[00:03:29] in China that gets sent to Mexican drug cartels who then manufacture the drug and traffic it

[00:03:36] into the United States. Fentanyl is dangerous because it takes very little of the substance

[00:03:42] to kill a person. It can be mixed into other drugs like heroin or cocaine or pressed into pills.

[00:03:48] According to the CDC, 150 people die daily from synthetic opioid overdoses including those linked

[00:03:55] to Fentanyl. Sometimes those struggling with drug addiction succumb to Fentanyl overdoses.

[00:04:01] Others simply ingest a pill or a drug that they're not aware contains Fentanyl.

[00:04:06] Young people experimenting with drugs are especially susceptible to this.

[00:04:11] Legislators around the country are seeking to combat the epidemic of Fentanyl deaths.

[00:04:16] Indiana's law on dealing in a controlled substance resulting in death went into effect

[00:04:21] in 2018. That holds that when the controlled substance is used, injected, inhaled, absorbed,

[00:04:28] or ingested results in the death of a human being who used the controlled substance,

[00:04:34] commits dealing in a controlled substance resulting in death a level one felony.

[00:04:39] We feel that Fentanyl deaths are somewhat under covered in the true crime space

[00:04:44] and we hope this recurring series sparks more conversations on this issue.

[00:04:48] Chief Deputy Prosecutor of Delaware County, Zach Craig has convicted a number of dealers

[00:04:54] in Fentanyl death cases as he fights for victims and their families. Melanie Pochek lost

[00:04:59] her young nephew Zachary to Fentanyl overdose and has spoken out on her family's experience

[00:05:04] ever since. Today we'll be talking to someone who can give us a completely different legal

[00:05:09] perspective. We'll be speaking with Timothy Sled, the Chief Public Defender of Lawrence County

[00:05:15] in Indiana. He has another view of how law enforcement can better deal with the Fentanyl

[00:05:20] crisis and prevent more unnecessary deaths. My name is Anya Cain. I'm a journalist.

[00:05:26] And I'm Kevin Greenlee. I'm an attorney. And this is The Murder Sheet.

[00:05:31] We're a true crime podcast focused on original reporting, interviews and deep dives into murder

[00:05:36] cases. We're The Murder Sheet. And this is The Fentanyl Files,

[00:05:42] Dealing Resulting in Death, a conversation with Chief Defender Tim Sled. To start off

[00:06:32] with Tim, I know our listeners are probably pretty familiar with you at this point, but

[00:06:36] could you just start by telling us again a bit about yourself and your professional

[00:06:40] background? Let's see. In the year 2001, I moved back to Indiana after my first year of law school.

[00:06:46] So summer of 2001, right before 9-11, I was starting law school here in Indiana again.

[00:06:54] I had a passion for criminal justice. My undergrad degree is in criminal justice.

[00:06:59] And I began working for the Indiana Federal Community Defenders doing federal criminal

[00:07:04] defense work as an intern while I was in my second and third year of law school,

[00:07:08] right after 9-11 happened, right after there was the anthrax scares and all of the bomb

[00:07:14] hoax scare stuff that was going on then, along with guns and child porn and all of the other

[00:07:21] things that the federal government deals with. I was helping the defense lawyers there.

[00:07:27] After law school, I went to grad school at Indiana University in the criminal justice

[00:07:31] department while I practiced privately doing federal criminal defense work.

[00:07:37] I then moved to Bedford, Indiana and became a contract public defender and had to

[00:07:43] hone my shingle. Was in private practice. I was a judge for a year after one judge died

[00:07:49] and they needed to do an election cycle. And I was juvenile referee, juvenile law judge.

[00:07:54] And then I became the chief deputy prosecutor in Lawrence County for six years,

[00:07:59] took hiatus, moved to San Diego, opened a Brazilian Jiu-Jitsu gym,

[00:08:03] moved back to Indiana, was in private practice. And in 2022, I became the chief public defender

[00:08:11] in Lawrence County. So back to Bedford, completely different other side of the courtroom

[00:08:16] and I managed the public defender agency here. I have my own caseload, seven lawyers under me,

[00:08:21] five staff members. We handle the indigent defense in Lawrence County.

[00:08:26] LESLIE KENDRICK Absolutely. I guess to kick off the subject we're going to be talking about,

[00:08:31] can you explain to us your understanding of fentanyl and specifically the fentanyl crisis,

[00:08:38] why it's so dangerous and how it's affected your community and practice? You've been on

[00:08:43] both sides of this prosecution and defense and so we'd be really curious to get your

[00:08:47] perspective on this particular drug. BARRY FISHER Yeah. So unfortunately,

[00:08:52] in my career, I've gone from witnessing the basic drug problem in a community being weed and

[00:09:01] alcohol to the opioid crisis that started with methadone and Oxycontin and the pills

[00:09:09] that were coming from pharmacies, legitimate medicines that were being illly prescribed.

[00:09:15] And as a young prosecutor having to go to a lot of overdoses because hydrocodone addicts

[00:09:22] were going to pain management clinics and being given methadone. And the toxicology of those two

[00:09:28] drugs are significantly different. And the conditioning a person has on hydrocodone to take

[00:09:34] a number of pills at a particular time, if you do that with the same

[00:09:39] methadone pill, you overdose. So that was a problem in our community.

[00:09:44] So I've witnessed that from prosecutor's side and then methamphetamine resurged. The

[00:09:49] resurgence of that was mostly around the one pot method, people cooking their own meth and

[00:09:54] backpacks and garages. And then that became problematic or hard for them to do so the

[00:10:03] trafficking of the better product from Mexico or Central America, California started happening

[00:10:12] around the time that I left the prosecutor's office. And then when I came back to practicing

[00:10:17] law in the state of Indiana in 2016, 2017, we were hearing heroin. I was hearing heroin,

[00:10:23] clients that were polysubstance abuse, disordered with heroin, methamphetamine.

[00:10:32] And it blew my mind because heroin was kind of like a movie star drug. When I was growing up,

[00:10:38] I didn't hear about it here and coming up as a prosecutor, that wasn't happening here,

[00:10:43] but was pretty common. Fentanyl took the stage, the front edge of the stage within the last

[00:10:53] three years as being something we're seeing a lot of people addicted to reading a lot about

[00:10:58] deaths from overdoses, then pill presses, which are kind of a part and parcel with

[00:11:07] trafficking, fentanyl started to be targeted. And we would hear about people possessing

[00:11:13] large quantities of pills that were pressed here or believed to be pressed here.

[00:11:19] I would talk to prosecutors like, we're looking for the pill press. We want the pill press.

[00:11:23] We're one step behind the press. So I've watched this progression. I feel like an old

[00:11:27] man talking about going from the good old days of weed and Mad Dog 2020 to now we have

[00:11:36] all pharmaceutical, not even real pharmaceutical, pseudo pharmaceutical grade dope that even kids

[00:11:46] are getting addicted to at a very young age, getting access to dying from experiencing

[00:11:53] grave addiction. So that's my experience with it professionally.

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[00:14:44] today. So of course back in 2018, Indiana passed a law of healing resulting in death.

[00:14:52] The cause for some pretty heavy penalties for people who supply

[00:14:56] drugs to someone who subsequently dies. And I'm just curious, how has this law

[00:15:04] affected things? What's your general opinion of this law?

[00:15:08] I have to say that I 100% believe fentanyl is bad. It's evil. Doctors should be the only

[00:15:16] people that do anything with fentanyl. I also have a great deal of compassion and

[00:15:24] sympathy for surviving family members of folks who die from fentanyl overdoses,

[00:15:30] whether they wanted the fentanyl or whether they got slipped the fentanyl or whether they

[00:15:35] got slipped a cocktail of something that has fentanyl. I get it. This is not marijuana.

[00:15:47] It's not even alcohol. Even though one really interesting thing to do is compare alcohol deaths

[00:15:53] to fentanyl deaths and look at how we craft laws around that. But later topic to discuss.

[00:16:01] The dealing resulting in death statute makes a lot of sense if you're operating from the perspective

[00:16:10] of a decedent's family or somebody who wants to run on a tough on crime stance, which is

[00:16:19] hugely popular in Indiana, specifically hugely popular in a red county. The law makes a lot

[00:16:25] of sense. The statute actually reads and the case law breaks down that in order to be guilty

[00:16:31] of it, you have to have delivered a controlled substance to a person. The person has to have

[00:16:37] used that controlled substance and that controlled substance has to have been the actual

[00:16:42] and proximate cause of your death. Now, to a layperson, that's all word soup. But what that

[00:16:52] means to lawyers is that if you deal somebody a controlled substance and they take the controlled

[00:17:01] substance you use, it has to be the thing that kills them. There has to be some foreseeability

[00:17:11] that it would kill them. If I have a bottle of Advil and I have no reason to think any of

[00:17:18] the Advil pills are fentanyl and I give you an Advil pill and it turns out to be

[00:17:24] somebody at Advil is trying to commit world murder and gives a fentanyl pill and I kill

[00:17:30] somebody with that fentanyl pill, I am not guilty because it's not foreseeable that the

[00:17:35] Advil pill that I give you is the thing that killed you. Likewise, if I sell you heroin

[00:17:44] that has fentanyl in it and xylazine in it and you're scared of the heroin, the fentanyl,

[00:17:50] the xylazine I'm giving you so between the time that I sell that to you, you go and you

[00:17:56] trade that xylazine, heroin, fentanyl mix for what you think to be a hydrocodone pill

[00:18:02] which turns out to be a pressed fentanyl pill and you die. I'm not guilty of that.

[00:18:08] Even though what I gave you is a part of the cause of your death, the law won't allow

[00:18:14] me to be convicted of giving you the heroin, fentanyl and xylazine because you decided to

[00:18:21] go someplace and get a different drug from somebody else that killed you. So I understand

[00:18:30] how we get to the reaction of creating a level one felony. 20 to 40 years is the sentencing

[00:18:40] range offense for dealing drugs killing somebody. That makes sense if you're sitting

[00:18:47] in Indianapolis and you are a legislator and your neighbor had a kid overdose on dope

[00:18:53] and you're angry about it, it makes sense to write a severe sanction for this and come up

[00:19:00] with this law. But then you also have to look at how is it applied and what is its impact?

[00:19:08] That's where for me the answer to Kevin's question is going to differ somewhat from

[00:19:15] other guests you've had that have a more prosecutorial viewpoint on this.

[00:19:20] Nothing is going to bring the decedent back. My experience is and I've listened to DEA

[00:19:29] task force members say this, is that many of these, most of the overdose deaths are not

[00:19:37] happening from a cartel dealer giving a person a drug and them overdosing. It's

[00:19:44] happening way down the chain and it's happening addict to addict and it's often,

[00:19:52] and one addict is cutting out of another addict's batch for him or herself as well

[00:19:59] and they're overdosing. So the culpability there to me is less than a murder. I

[00:20:08] will listen to the podcast from the chief deputy prosecutor and I understand his position but

[00:20:13] he, one of the things he closed with is I think we need to up the sanction to be more like

[00:20:17] murder. And I just say hold on, hold on, murder is different. Murder, you have an intention

[00:20:26] to kill and we hold that to be the highest level. We hold attempted murder to be the

[00:20:32] next highest level. This crime right now is the same as attempted murder where you have to show

[00:20:38] actual intent to kill somebody and so it's a grave sanction and the concern that I have

[00:20:49] is the ripple effect that this sanction has on the pragmatic approach to fighting the war on

[00:20:55] drugs. What do I mean by that? I have many law enforcement friends and a trial that I just had,

[00:21:04] I had the uncomfortable job and task of taking a detective friend of mine who's a drug detective

[00:21:11] and putting his case through a wringer. It's hard to do. I respect him. I love what he does.

[00:21:19] I want him to pull bad, bad drugs off the street. As a defense lawyer, I'm not out here

[00:21:25] jumping up and down saying let's abolish drug laws. Let's do drugs. I mean, I might say that

[00:21:35] but at the same time, I want this to be done right and fentanyl is really bad

[00:21:40] but squashing these addict, quote unquote dealers and they are dealers. Under Indiana

[00:21:47] law, if you hand somebody something, you don't have to get money back for it. You're a

[00:21:50] dealer. If I give you an Advil, I'm an Advil dealer. It's not against the law but

[00:21:54] that's how minimal it takes for you to be considered a dealer, delivery.

[00:22:01] But to squash the addict level dealer which is where most of the nexus between the death

[00:22:08] and the defendant is, is squashing essentially a foot soldier of the enemy with a $200,000 bomb.

[00:22:19] You completely annihilate another human being and so maybe that's just, I'm not going to say

[00:22:25] that's not just if one of my kids dies and I find out that they got their dope from a dealer,

[00:22:30] I'm going to be very upset and I'm going to want heavy, heavy sanction and punishment.

[00:22:36] As a citizen who's paying tax dollars to fight a war on drugs, specifically fentanyl,

[00:22:42] it's not grown in Indiana. This thing has to come from some place that we know where it

[00:22:47] comes from. We know how it gets here. I've deposed DEA agents and I've talked to toxicologists

[00:22:53] and I've had trial after trial and we know where this stuff is coming from.

[00:22:59] We know how it gets here. It's traffic. Why are we dropping $200,000 bombs on addict level,

[00:23:08] often homeless friends? I mean even in one of your podcast or in the podcast that I listen to

[00:23:17] about one of the individuals that died, it was his buddy.

[00:23:22] Then some of the anecdotes that the chief deputy prosecutor was talking about, again,

[00:23:28] they're kind of like their friends. We're not going up the food chain to really

[00:23:34] choke out fentanyl. We're spending a lot of resources on squashing low level

[00:23:41] sharers or co-participants in this. That doesn't lessen the value of the person's life who died.

[00:23:49] I don't want to do that, but what it does do is law enforcement gets incentive from closing

[00:23:57] cases and they get incentive from closing big cases. When you make squashing a low level

[00:24:03] sharer an F1 felony, you de-incentivize moving up the chain. If you're looking at a dealing

[00:24:14] resulting in death case and you make the first handoff back up the chain toward the manufacturer,

[00:24:24] you make the next handoff significantly bigger than the handoff before that.

[00:24:32] Okay. The person who dealt to the addict may only be guilty of a level six felony.

[00:24:38] If, for example, they measure fentanyl in drug deals by tenth of a gram or half a tea,

[00:24:44] half a tenth of a gram under Indiana's law, that could be a level six felony,

[00:24:52] six months to two and a half years. If a cop sees that, interrupts that, boom.

[00:24:57] But the exact same conduct of handing somebody that dope and then them dying is a level one

[00:25:05] felony, 20 to 40 years. Seems odd. If you're a law enforcement officer, if you can close an

[00:25:15] F1 felony with a review of a phone, an interview of a suspect and you're done,

[00:25:22] that feels really good. Why go upstream? Because if you're going to go upstream,

[00:25:28] well, I'm going to go upstream and chase a level six felony.

[00:25:30] The other problem that we have that this highlights for me is a problem with

[00:25:37] decentralized and de-organized, disorganized law enforcement between federal, state and

[00:25:42] international entities. You want to fight fentanyl, you've got to engage in choking

[00:25:50] fentanyl off. Local police officers who are working in the town are going to be your data

[00:25:56] collectors. They're going to be bringing resources, information, intelligence from

[00:26:03] street level users. You're going to gather that just like you would gather information

[00:26:08] on a terrorist organization or child pornography ring and you're going to track that back

[00:26:15] and to the source city, Indianapolis, Louisville, Evansville, Cincinnati,

[00:26:23] up in Delaware County as the chief deputy, Dayton, Ohio.

[00:26:28] Okay, you know there's a source city, turn up the heat, squeeze, and then you get that next

[00:26:34] level dealer and you squeeze, look at their phones, look at their internet traffic,

[00:26:42] wiretaps, pole cameras, all the things we know they use to track it to where they get at

[00:26:50] California or Nashville, Tennessee or Louisiana, where are they getting it? Texas. Then you start

[00:26:57] these create pinch points and you chase it just like you chase anything else to nip it in the

[00:27:02] bud. It's not marijuana, it's not growing in people's backyards. This is stuff that's being

[00:27:06] trafficked in and we know it's being trafficked in. We know how it's being trafficked in.

[00:27:11] We know who has the incentive to traffic it. The other, kind of gone off a little bit on

[00:27:19] a tangent here, but the other thing that I think is really justice for these victims

[00:27:23] and their families, and we will know if we're winning the war on fentanyl by asking the

[00:27:30] prosecutors, how are your seizures? How are the forfeiture funds coming? Because if you're

[00:27:38] fighting this international business, there's money. These people are not dealing fentanyl

[00:27:45] for the fun of it. I've had a DEA task force officer say that he's heard on a wire cartel

[00:27:52] people saying, we want our product to be good because we want people to buy it and we're not

[00:27:56] even too concerned that some people may die in the process so long as we know our stuff's good

[00:28:01] and they know our stuff's good, they're going to buy it from us. Buy, buy, buy, dollar sign,

[00:28:05] dollar sign, dollar sign. We're dealing with a for-profit business

[00:28:11] and guess what? You go far enough up the food chain, you start seeing houses and nice cars

[00:28:17] and semi trucks. You know what those things do? When they're forfeited to the government

[00:28:23] in a raid, they create revenue. This is not new. It's not new to federal law enforcement.

[00:28:29] The first prosecution I ever did was a methamphetamine trial where the methamphetamine

[00:28:35] dealer was up the chain a bit and he had $117,000 in a safe in his house. No job,

[00:28:44] dealt meth, $170,000. Guess where that money went? It got forfeited and it went to the

[00:28:49] government and the government used it for fighting, presumably fighting crime. Justice

[00:28:54] for these victims would be to not hit the homeless guy with an F1 felony and squash them

[00:29:02] but use the, and I'm not saying they shouldn't be sanctioned for being involved in the drug

[00:29:06] but I'm just saying your first offense there is an F1. Your second offense in the chain is

[00:29:12] an F6. Something doesn't make sense there and then you discourage the police to go

[00:29:19] and get into the pockets. Think of it like this, if a bar over served somebody

[00:29:26] and they either kill somebody or get killed going home, we have the Dramshops Act law

[00:29:35] that the family can sue the bar. Why? Because businesses hate to lose money

[00:29:44] and that's how you get them to not over serve people. You want to put the pinch on cartels

[00:29:49] and do justice for these victims, start hitting seizures. Well, you know what's going to happen

[00:29:55] when you incentivize hitting the money is the street level offender is not going to be the end

[00:30:02] of your investigation. The guy that has to take the $20 off of the person seeking a little

[00:30:13] bit of dope to get his $10 out of that so he can use, he doesn't have a $200,000 car or house

[00:30:22] or a semi truck but if you dig in his phone then you find who he's getting it from. You dig in

[00:30:28] that person's phone and not too far out of here you're going to hit a sore city and when

[00:30:33] you hit a sore city you're going to find assets. When you find assets you can seize them.

[00:30:41] When you can seize them, you can sell them. When you can sell them, you can create funds

[00:30:45] and foundations and you can fund better law enforcement. If law enforcement is going to

[00:30:49] say we don't have the manpower of the money, guess where you can get it?

[00:30:53] You don't get it from the homeless guy that's sharing with somebody in a tent who falls out.

[00:31:00] You get it from going up the chain. Some of this is common sense to me that we are

[00:31:06] losing the war on drugs because we haven't decided to change the approach. We're fighting

[00:31:13] fentanyl like we fight marijuana when there's a whole lot of an easier way to

[00:31:21] hit pinch points harder than we do.

[00:31:24] My question is zooming out completely to a more international setting so our understanding,

[00:31:31] correct us if we're wrong, is that this is coming from the precursors are coming from China,

[00:31:35] those are the Mexican cartels who then traffic it across the border and it

[00:31:39] kind of spreads out from there. My question for you is I imagine that would be very hard

[00:31:44] for local law enforcement to combat across the United States because it's this massive

[00:31:48] international apparatus that you're up against. Why have we not seen more aggressive actions,

[00:31:54] in your opinion, at a national level to deal with this crisis given that it, as you've noted,

[00:32:01] it seems like it would be possible to maybe be more aggressive either stopping this before

[00:32:07] it even comes into the United States? I would say that with what I know,

[00:32:13] I know that we have used military assets to try and curb some of the international influence

[00:32:19] of fentanyl into Central America and North America, Mexico, but Central America also

[00:32:25] because I don't think China and the cartels are just operating out of Mexico. I think

[00:32:34] they've got ports and they're doing their input down there in lots of different ways.

[00:32:43] I think what we have is we have a disorganization and an ill-designed structure

[00:32:52] of attacking this from where we're attacking it predominantly from the bottom up, which does

[00:32:58] make it difficult. It's much harder to go from a dead body to the kingpin and the head of the

[00:33:05] cartel than it would be to collect the intel and hit a bigger truck, hit a bigger mule,

[00:33:15] and then keep it from coming in. I've been concerned that when I listen to

[00:33:19] drug task force agents say that they're sitting in Indiana buying kilos of fentanyl from cartels

[00:33:28] in Mexico and having them shipped here. That seems extremely dangerous because why would we

[00:33:37] want to do that? Why aren't we hitting it higher up if we can be doing that?

[00:33:44] I tend to be a classic conservative that I think minimal government intrusion into people's

[00:33:56] lives is important, but I'm also in being a classic conservative believe that our government's

[00:34:01] purpose is health, safety and welfare. Part of safety and health is if there's something we

[00:34:07] need to be fighting domestically, I think it's why can't we do some concerted efforts

[00:34:13] utilizing tools that we have for fighting terrorism to fight this form of terrorism?

[00:34:20] You could take me out onto an extreme with conspiracy theory that I think we are being

[00:34:25] poisoned disproportionate to other countries. In researching before coming on this podcast,

[00:34:31] I wanted to know whether or not there was any data that I could show that would prove

[00:34:35] that other than just my anecdotal thoughts. There is. You look at an international

[00:34:40] drug overdose data pool set, Canada is the next highest after us for fentanyl toxicity

[00:34:47] overdose deaths per capita largely attributed to American fentanyl going to Canada.

[00:34:54] And they are the second to us. They only have a third of the deaths that we have per capita.

[00:35:03] The next one under that is a continent and the continent has less than 10% of the deaths

[00:35:12] that we have. So you could go on a conspiracy theory and say, hey, we are being poisoned,

[00:35:19] intentionally poisoned. And I don't know whether that's true, but what I can tell you is

[00:35:23] we have eyes, ears and capability of lawfully observing and anticipating movements of

[00:35:31] this sort of tactic and intercepting it and destroying it before it gets to

[00:35:39] tent city Bloomington, tent city Indianapolis, a budget in share fest between

[00:35:46] nearly homeless people who are addict. And I do want to say quickly that I disagree with

[00:35:52] the chief deputy prosecutor's position that people who are sharing or taking a portion of

[00:35:59] their dope and selling it to a friend are not addicts. I think that misses a huge population

[00:36:06] that even the DEA guys will tell you that it's happening. A lot of these end users

[00:36:13] are supporting their habit, they're sharing or selling a very small amount. And so addiction

[00:36:19] services is something that we're not funding in a very robust way. We're not funding that.

[00:36:24] We're not seeking to intervene in opioid addictions as strongly as we need to be,

[00:36:29] obviously, because we're having people die like crazy. You will not hear me say caveat imp tour

[00:36:35] you know, that these victims are they're seeking it out. So that's just part of it.

[00:36:40] You know, sadly, I hear law enforcement officers who are worn out, who are tired of

[00:36:46] administering Narcan, who are tired of fighting harder to save somebody's life than that person

[00:36:52] necessarily was behaving to want to save their own. I hear them often get calloused to it,

[00:36:58] which hurts investigations. But if we incentivize moving upstream,

[00:37:04] then we can choke it off better. If we incentivize attacking upstream,

[00:37:10] we can do a better job. If we're going to fight this by shooting the foot soldiers with massive

[00:37:17] missiles, then we're going to have splashy headlines that make politicians who have to

[00:37:22] be tough on crime feel good. And we will have solace to victims' families that the person

[00:37:31] that dealt them their child's lethal dose is not going to be able to do it for some period

[00:37:37] of time. But I want to make sure that the listeners understand the gravity of this F1,

[00:37:43] this level one felony in Indiana, it's 20 to 40 years. That's not enough if you think it's

[00:37:52] murder, right? That's not enough if you think it's attempted murder. But if you look at what

[00:37:57] the impact of other crimes on people are, you take for example, child molestation,

[00:38:04] child has a lifetime of trauma that they then have to deal with. Starts out as a level three

[00:38:11] felony, you know, in the garden variety example of its level three felony. The top number of

[00:38:20] a level three doesn't hit the bottom number of the level one. Burglary, you know,

[00:38:26] when I was a prosecutor, that was one of the crimes that I went after the hardest was

[00:38:31] breaking and entering the people's residence because when a person doesn't feel safe at home,

[00:38:35] where do they feel safe at? And, you know, that's a level four felony.

[00:38:40] And we're talking a 12-year maximum, the person has to be a hardened criminal to get that.

[00:38:46] So I understand how we get to assigning a level one felony to a death case.

[00:38:53] But every other level one felony has a specific intent to do lasting, grave harm to a person.

[00:39:03] And every other dealing case where you have a small quantity has a far less draconian

[00:39:10] result. And so we will stock our prisons full of what are really low-level offenders that had

[00:39:17] a bad outcome of their action that we will warehouse, that we will impede from recovery

[00:39:28] and then will cost us money and won't serve the ends of the war on fentanyl because

[00:39:36] you take that guy out and person knocks next door or that goes to the tent right next

[00:39:42] to the tent that this guy used to have. I mean, it seems a drastic waste.

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[00:41:25] One thing I wanted to ask you is to zoom back in on your own work on this without

[00:41:30] going into any details or specifics. As a defense attorney, how do you defend in these

[00:41:38] overdose death cases or death by dealing or dealing causing death? I guess how do you

[00:41:44] approach those? What is some of your experience with that been like?

[00:41:49] Yeah, so I just had a dealing resulting in death trial a couple weeks ago, not guilty

[00:41:55] verdict. My approach to these is the science. There's two different routes the science goes.

[00:42:02] First, you have the toxicology and then you have the cell phone data. Again,

[00:42:11] because we've made this a level one felony offense, I've been underwhelmed by the

[00:42:19] investigation that occurs. There's a body, there's an autopsy, there's a toxicology result that's

[00:42:26] done, there's a phone dump and then there's tracking back to who the police may believe

[00:42:31] is the dealer. But again, as I told you earlier, they have to prove that the stuff

[00:42:37] that the dealer sold was the stuff, the actual and proximate cause of the person's death.

[00:42:44] And intervening causes is something I'm looking into. Did law enforcement

[00:42:53] take out all the intervening causes? In my trial, my client confessed to dealing heroin

[00:43:00] to the decedent. There's a video of the decedent going into the apartment complex that my

[00:43:07] client lived at, at the time after some Facebook messages to get heroin.

[00:43:14] She was a heroin addict. She had been in recovery for two years. My guy was her plug prior to

[00:43:21] her recovery. Her life circumstances led her down the path of relapse.

[00:43:29] She reaches out to my guy and she sets up a heroin buy, but she's concerned.

[00:43:33] She doesn't want strong heroin. He may watch this, and I hope he doesn't take offense at

[00:43:39] this, but if she's concerned about what she's getting from him, it makes sense.

[00:43:44] He doesn't seem like a chemist. He's probably not the most reliable indicator of strength

[00:43:51] of what she's going to get. But they set up a dollar amount and a weight amount

[00:43:59] and basically a timeframe. So she dies. She dies and she dies of acute fentanyl overdose.

[00:44:07] And she doesn't have heroin in her system and she doesn't have xylazine in her system.

[00:44:13] Months passed because the police didn't view her as a victim. They viewed her as an overdose.

[00:44:25] They didn't investigate. Her family investigated. They got on her phone and they found

[00:44:31] the Facebook message between her and my client. They turned that into the state police,

[00:44:35] and the state police, months later, tracked the Facebook back to my client and arrested him

[00:44:43] after presenting that to a judge and making it look like probable cause.

[00:44:48] My guy was compliant, gave a full confession to dealing heroin. The police knew when they took

[00:44:55] his interview that she didn't die of heroin because police also knew that in her bra,

[00:45:00] she had another substance in a paper pack. They didn't ask that paper pack be tested.

[00:45:06] They didn't tell my guy that she died of fentanyl and didn't have any heroin in her

[00:45:09] system, which they knew. We get to that information through trial prep. I deposed

[00:45:16] the detective, again, a friend of mine who I appreciate his work. But I asked him,

[00:45:23] what was the stuff in her bra? We don't know. It didn't get tested.

[00:45:27] Well, that question caused it to get sent off to get tested. It got weighed and it got tested,

[00:45:35] and it was heroin, xylazine with a small amount of fentanyl in it.

[00:45:42] I then deposed the scientists, the Department of Toxicology, and I said,

[00:45:46] I go, where would heroin show up here? Well, she didn't have any heroin in her system.

[00:45:51] Where would xylazine show up here if she didn't have any xylazine in her system?

[00:45:55] Deposed and then in trial, examined the state lab person who had the substance that was found

[00:46:01] in her bra and it tested that. It was a blended substance. It was not a blueberry muffin where

[00:46:09] a blueberry could have fallen out. She just got unlucky and got the pure fentanyl.

[00:46:13] It wasn't the K. A blueberry muffin can fall apart and you get the separate parts.

[00:46:19] This was a blended substance. The weight, my guy confessed before being told any facts,

[00:46:28] confessed to cutting into her half a tea. What was in her bra was approximately

[00:46:36] half of a half a tea. So the jury believed and the science bore out that

[00:46:46] she was probably scared of my guy's stuff. It had been bad for her in the past.

[00:46:52] But he was her first source. So she went and got that from him. She then took something else

[00:46:59] and how she got to that something else, we don't know because there was an improper and

[00:47:04] weak initial investigation. I have ideas that I'm not going to put out here because that

[00:47:10] would be accusing somebody who's not under investigation nor going to get charged.

[00:47:15] But she took fentanyl and she took a massive dose of fentanyl. She had 71 nanograms in her

[00:47:22] blood, 71 nanograms per milliliter. Three to 20 can be lethal. The pathologist said that

[00:47:28] typically deaths around here in the teens, nanograms in the teens, sometimes 25, 71 was

[00:47:34] well enough. Three times the limit or three times what you would expect.

[00:47:39] When I look at these cases, my job is there's a citizen that's been accused of something

[00:47:47] by the government and the government bears the burden of proving beyond a reasonable doubt

[00:47:52] each essential element. My guy admitted to dealing a drug to her.

[00:48:01] In jury selection, I had to make sure that the jurors knew that that's not enough to convict.

[00:48:10] It had to be the stuff he sold or that killed her. So there was an education process with

[00:48:15] the jury. There was an education process even with the court to a certain extent on making

[00:48:20] sure the court understood and instructed the jury appropriately on proximate causation and

[00:48:25] actual causation. Intervening cause being a problem. The cell phones are, they're a wealth

[00:48:33] of data. But when a law enforcement officer has confirmation bias and wants to close their

[00:48:42] case at a level one felony, maybe they don't pull the cell phone towers.

[00:48:48] Tsk. She went after she left buying the heroin that was in her bra that my clients sold her

[00:48:53] to find out where she got the stuff that killed her. Maybe they don't get the cell phone

[00:49:00] GPS data out of her phone. I don't know why. They have it.

[00:49:04] I don't know any defense lawyers personally that say we should just let this stuff run rampant.

[00:49:10] None of them. I mean, we have clients that are dying of this. I sat next to a lady in January

[00:49:17] who I can't sit next to anymore because she's overdosed to death. We don't want that.

[00:49:23] Our job is to make sure that people who are accused by the government

[00:49:27] are actually guilty if they're convicted and if they're going to be convicted that the

[00:49:32] state meets its burden of proof in the process. So two paths of science I attack and

[00:49:39] look into do they have the chemistry and then do they have the linkage?

[00:49:46] The linkage typically comes from looking at alternate sources

[00:49:51] from phones. There was an alternate source in this phone that was not investigated.

[00:49:55] Not sure why, but they got an F1 charge. They just didn't get an F1 conviction nor

[00:50:00] should they because my client was not guilty of that.

[00:50:02] You have answered so many of our questions already. I guess I have one

[00:50:07] more big one and then if you have any others. This gets into what you've said about the war

[00:50:15] on drugs and some of the failures is very resonant and sort of like looking at it big

[00:50:20] picture wise versus and sort of the nuances and why we can understand why some people

[00:50:25] would want to go after people more directly, but why maybe it also makes sense for us as a

[00:50:30] country to start thinking where is this coming from? How do we stop it before it's causing

[00:50:36] deaths? One thing I would be curious about is because you've defended folks in this situation

[00:50:42] and have kind of been immersed in this, what would your message be to people who either

[00:50:49] are dealing it or are using it or are like parents of kids who might start experimenting

[00:50:55] with stuff that turned out to be fentanyl even though they didn't realize it? What kind

[00:50:59] of things would you say in terms of people being careful out there with this stuff not

[00:51:04] just from getting in legal trouble but from also possibly dying? One of the things I

[00:51:11] appreciated about the Chief Deputy Prosecutor's podcast was the anecdotal stories, the victims,

[00:51:21] the decedents and how real they were to him. That's powerful to children and I think we have

[00:51:29] to start early and start often with youth because once there's an addiction, common sense

[00:51:36] is very difficult to infiltrate. I'm talking to my clients who are heroin addicts, meth addicts,

[00:51:43] fentanyl addicts all the time. This is going to kill you. I've got a list of people

[00:51:50] that are dead who are my clients because they didn't get out of this.

[00:51:57] It's such a powerful drug, fentanyl and heroin, either one of them. The addiction is so powerful

[00:52:06] that that's too late. I think with kids, I too like the Chief Deputy grew up in the dare era

[00:52:15] where I felt like I got lied to because I had officer friendly come to the middle school and

[00:52:22] burn the little incense thing that was supposed to smell like weed and talk to us about that.

[00:52:30] I was living in this awesome bubble era of naivety in small little town Indiana where there

[00:52:38] wasn't a lot of cocaine and there wasn't heroin. There's farm people so we had weed and booze

[00:52:46] and those can have their problems too. This is not that. This is talking to kids

[00:52:55] early and often about significant irreversible or extremely difficult to reverse impacts that

[00:53:05] one experimentation can lead to. This is talking about not trusting medicine,

[00:53:13] what looks like medicine unless it's given to you by a doctor or a parent or an adult.

[00:53:22] This is parents saying to physicians, I really don't want my child to get

[00:53:29] Oxycontin or this injury or hydrocodone for their throat ache. My wife doesn't even take

[00:53:36] Novocaine when she gets a cavity filled. Pain management is a really new thing,

[00:53:43] new in the scope of mankind. We're talking less than 150 years that any of the canes,

[00:53:50] Novocaine, cocaine, any of that came into being to help reduce pain but boy, we

[00:53:58] don't want to feel an ounce of hurt. I think parents have to say there's a risk

[00:54:04] to my child getting hydrocodone for a throat ache. There's a risk on a femur break getting

[00:54:10] Oxycontin. You can go different routes and then with kids, it's almost every town paper you can

[00:54:19] find an overdose and you can show your kids this is real here. It's lethal. It's fatal.

[00:54:25] That's where it has to start. It has to start with prevention and then intervention,

[00:54:31] of course, has to be funded. It has to be scientifically based. These little 28-day

[00:54:39] clinics that are funded by Medicaid, Medicare, they try and sometimes they get through this 9-8

[00:54:46] initiative which started off being like a suicide prevention initiative where people in crisis

[00:54:52] are going to try not to criminalize them but we're going to try to move them into a

[00:54:56] mental health intervention approach. I see that as being fantastically optimistic and I'm

[00:55:05] hopeful for it if it has a drug rehabilitation intervention where they're followed up with a

[00:55:12] system of providers who, where necessary, can medically treat people through detox and

[00:55:20] the first couple years of sobriety and then can also wean them off of the medications

[00:55:25] that are needed to wean somebody. So, suboxone is a very common anti-opioid addiction substance

[00:55:33] but it too can be addictive and abused. See, the goal would be to get people off the

[00:55:39] reliance of those sorts of things but I'm just a public defender. I really don't have the

[00:55:46] solution to this problem. I just know that what we're doing isn't working. You're not

[00:55:53] going to see a decrease in deaths because one of the, here's why. There are two types of deterrence.

[00:56:03] There's specific deterrence and general deterrence. Every time you incarcerate somebody,

[00:56:10] you specifically deter that person for a limited amount of time somewhat. I mean,

[00:56:14] they can still get the dope in jail and hurt people there but for the most part,

[00:56:19] you've specifically deterred their conduct. That matters if they have conduct that's limited to

[00:56:26] them. Incarcerating a murderer is a fantastic, both specific deterrent and general deterrent

[00:56:32] because that murderer is not going to go out and commit more murders and there's not a

[00:56:37] line of murderers behind them to take their seat. There are lines and lines and lines of

[00:56:44] dealers that are waiting to become the new plug and aren't seeming to be afraid of,

[00:56:53] they're not generally deterred by the sanction that they're seeing happen to

[00:56:57] the guy in the tent over next over or the hotel room next over. It's not having a general

[00:57:04] deterrent effect. These draconianly hard, disproportionate sanctions for a dealing

[00:57:12] behavior. We have continued to ratchet up the sanction for dealing drugs since the 70s

[00:57:20] and I met with a community resource person this morning, really altruistic lady,

[00:57:25] wonderful woman, works for a church group and an organization that's trying to reach out to

[00:57:29] prisoners and this is what they're seeing. We have an increasing prison population that's

[00:57:36] aged. They've been incarcerated for a very, very long time because of drug dealing.

[00:57:41] They now have no real social security because they didn't work.

[00:57:46] The government's going to have to put them in nursing homes because they can't live on their

[00:57:50] own and we don't really have many places to go so it feels really good to lock people

[00:57:56] up for a very long time until you figure out, well, we then have to do something with them

[00:58:00] when they're elderly and that's going to cost us money. We keep ratcheting things up but not

[00:58:07] solving the problem. The dope problem, God love Nancy Reagan, but the dope problem,

[00:58:15] she didn't solve it and we didn't change much. We continue to use an old school

[00:58:22] street level approach and it's just an epic failure. Do we scrap it? No, we take what we

[00:58:31] have at the street level and we use it just like we would use the platoon of marines in Iraq

[00:58:39] who's looking for the bomb maker. What did those guys do? They went and they got intelligence

[00:58:46] off of each person they could get intelligence off of and then they reported that intelligence

[00:58:49] back to an organized centralized hub who then had a task force of people that would go the

[00:58:55] next chain up until they found the bomb maker and then they would take the bomb maker and

[00:59:00] they would try to find where's this guy getting his stuff and they would go up the

[00:59:05] stream from that. Human beings, Americans have an understanding of how to combat

[00:59:12] known directional sources of conflict which is what you can boil down fentanyl to. I mean,

[00:59:18] it's coming not from here. It's infiltrating our borders. It's being farmed out through

[00:59:24] source cities. It's then being farmed out from the next level that we know how this happens.

[00:59:31] We have the capabilities and knowledge of how to fight it. We're just not doing a good job

[00:59:35] of it and there's going to be a lot of death and there's going to be a lot of

[00:59:39] dealing resulting in death trials that make people feel good-ish.

[00:59:45] Is there anything we didn't ask you about that you think it's important for

[00:59:49] the listeners to understand about this topic or just general or just thoughts on any of

[00:59:54] this that you had that you wanted to share? I think I just want to close up with one of

[00:59:59] the things that I started with which is I take a defense approach to this and I wanted to be

[01:00:04] the counterpoint to some of the things that I've heard but that doesn't mean it's lost on me

[01:00:10] that folks are dying from this nasty toxic chemical. It doesn't mean that there shouldn't be some

[01:00:19] redress for decedents and their families and have empathy, sympathy, and just compassion for

[01:00:29] people who have lost loved ones. This does not discriminate. This is happening in a lot of

[01:00:35] communities and whether people are positioned economically well or are poor, we're seeing

[01:00:43] overdoses that are resulting in death. We're seeing fentanyl addiction. We're seeing opioid

[01:00:46] addiction and I want it to stop. There'd be nothing better than to go back to the glory days

[01:00:54] of watching body cam videos of cops taking an ounce of marijuana, throwing it on the ground,

[01:00:59] and stomping on it with their foot. If that's the worst thing that my client has to deal

[01:01:04] with, my job is to be on the other end of this and say to the accused, we have to analyze your

[01:01:12] case very, very carefully. To the pre-accused, get help. To the pre-users, don't start.

[01:01:22] And to medical professionals and pharmacy companies that want to make humongous profits off of

[01:01:29] creating opioid addicts legally. Shame on you and give us some money to do the right things with

[01:01:37] the addicts that you've created and helped spawn. That's not going to be a popular thing

[01:01:41] to say in Indiana, but there's a lot of money in those companies. I wish our politicians were

[01:01:46] like NASCAR athletes that have to wear all of their lobby, all the lobbyists that pay

[01:01:51] them their little patches on there so we can see. But when you are an insurance company or

[01:01:57] a pharmaceutical company and you pay to play, how we get here is because of pharmaceutical

[01:02:04] companies. That's how we got here. The opioid epidemic is an American business that the fentanyl

[01:02:09] problem is just a consequence that's coming from it because we're vulnerable to opioid addiction.

[01:02:17] Nicole Sade Really well said. Thank you so much,

[01:02:20] Tim, for coming on and sharing your insight with us. We really appreciate it.

[01:02:23] Tim Cynova Thank you so much.

[01:02:24] Yeah, I hope it benefits the listeners and maybe gives some ideas for questions for other

[01:02:33] people that you're going to talk to. Maybe I'm on a sort of panacea dream of how do we get

[01:02:40] here? But I foresee very, very bad days ahead before we get to good days because I don't see

[01:02:49] local law enforcement in a rural level intermingling with federal state law enforcement

[01:02:57] to move upstream.

[01:02:58] Tim Cynova We'd like to thank Tim for taking the time to speak with us.

[01:03:03] Nicole Sade We really appreciate his insight.

[01:03:06] We hope that if you happen to have any young people in your life, you take a bit of time

[01:03:09] to talk to them about fentanyl. It's normal for young people to experiment with

[01:03:13] illicit substances, but fentanyl is a unique danger. It can make a single mistake

[01:03:19] a lethal one.

[01:03:20] Tim Cynova Thanks so much for listening to the Murder Sheet. If you have a tip concerning one

[01:03:26] of the cases we cover, please email us at murdersheet at gmail.com. If you have actionable

[01:03:35] information about an unsolved crime, please report it to the appropriate authorities.

[01:03:40] Nicole Sade If you're interested in joining our Patreon, that's available at

[01:03:46] www.patreon.com. If you want to tip us a bit of money for records requests,

[01:03:55] you can do so at www.buymeacoffee.com. We very much appreciate any support.

[01:04:04] Tim Cynova Special thanks to Kevin Tyler Greenlee who composed the music for the

[01:04:09] Murder Sheet and who you can find on the web at kevintg.com.

[01:04:15] If you're looking to talk with other listeners about a case we've covered,

[01:04:19] you can join the Murder Sheet Discussion Group on Facebook. We mostly focus our time on research

[01:04:25] and reporting, so we're not on social media much. We do try to check our email account,

[01:04:31] but we ask for patience as we often receive a lot of messages. Thanks again for listening.

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