DRUG LAW DEBATABLE, BUT IS IT EFFECTIVE?

Seventeen months ago, prosecutors and sheriff's detectives decided a
new approach was needed to stem a rise in heroin-related deaths in
Hillsborough County.

They wanted to send a message by escalating the prosecution of drug
traffickers. So, they dusted off an old law and began charging small-
time suppliers with first-degree murder.

The courtroom scorecard since then is mixed: Five cases brought under
the controversial law brought five convictions. Four of the
convictions, however, were on lesser charges.

Just as unclear, even after prosecutors' biggest legal victory to
date, is whether the message is being heard by anyone other than the
defendants.

``People who are doing drugs together, that's probably the last thing
on their minds,'' sheriff's Lt. Rod Reder, a department spokesman,
said of last week's first-degree murder conviction of Jose Francisco
Pena. ``But hopefully, [cases] like this will help.

``The public that is using heroin and distributing heroin needs to
know that it faces what happened [to Pena],'' Reder said.

Pena was sentenced to life in prison Tuesday in the fatal overdose of
Mirranda Fernandes, a 22-year-old waitress whom Pena had supplied
with heroin and the drug ecstasy in September 1999.

Pena, 29, was charged under a state law enacted in the 1970s in
response to a surge in heroin use. But the law was rarely invoked in
Hillsborough until 1999, when five people, including Pena, were
charged with murder.

Defense lawyers criticize those prosecutions, calling the defendants
recreational drug users and not the law's intended targets - major
drug distributors.

To date, Pena is the only defendant convicted as charged.

Of the four others, one was found guilty of third-degree murder and
sentenced to community control. Another pleaded guilty to
manslaughter and got probation, and two others have pleaded guilty to
third-degree murder and await sentencing.

Before trial, Pena was offered a chance to plead guilty to third-degree murder.

As to why Pena has been the only defendant convicted of first-degree
murder, some point to what he did after Fernandes overdosed:
Prosecutors said he dumped her body on a curb.

``There's no doubt it's one of the worst things a jury can hear
because it shows a total disregard for human life,'' Tampa lawyer
Richard Escobar said.

Escobar represents Janine Tillemans, one of the two defendants
awaiting sentencing for third-degree murder. Tillemans was accused of
injecting her husband, Daniel, with a fatal dose of heroin.

Karen Stanley, felony bureau chief for Hillsborough's new state
attorney, Mark Ober, said Pena's conviction won't affect the
prosecution of other cases under the controversial law.

``We look at them on a case-by-case basis,'' Stanley said.

There are no cases pending.

Last year, there were 19 heroin-related deaths in Hillsborough,
according to the medical examiner's office. In some of those deaths,
other drugs were involved.

In 1999, there also were 19 deaths in which heroin was the cause or a
contributing factor.

Neither the sheriff's office nor Tampa police could say whether
filing murder charges in overdose deaths has brought a drop in the
heroin trade.

The cases are tough to investigate, sheriff's Cpl. Mike Conigliaro
said. Often it's difficult ``to get the whole truth'' because the
defendant, victim and witnesses are friends.

Prosecutors in Central Florida, where the heroin trade is among the
nation's busiest, have used the law to charge a handful of suppliers
with first-degree murder in the past few years. As in Hillsborough,
the law was taken out of mothballs in response to burgeoning heroin
use.

``We've never gotten a conviction as charged,'' said Lisa Roberson,
spokeswoman with the Orange-Osceola state attorney's office.

``They've all pretty much pled out'' to lesser charges, she said.
``Usually, we're trying to get to the people who gave them the
drugs.''

But that's the very problem with the law as it is being applied, Escobar said.

``Its focus was major drug dealers who are moving dope,'' he said.
``The real danger in applying this law across the board is what you
call overcharging.

``I'm hoping [Ober's] administration will understand the spirit of
the law and apply it with a little more restraint,'' he said.

``The law is controversial,'' Reder said. ``But our job is to enforce
the statutes.''