LAWYERS SAY DRUG WAR'S TACTICS DRAW ADDICTS INTO SERIOUS CRIMES

The first time the man in the camouflage pants asked Steven Flowers to
score him some drugs, Mr. Flowers sent him packing. It was 2 a.m. and,
sitting on the stoop of his Harlem apartment house, Mr. Flowers spat,
"I don't sell no crack." He even used a curse or two to make his point.
But the man came back just minutes later, this time offering to share
the drugs, and Mr. Flowers, who has been hooked on crack for the last
10 years, took the stranger's offer. He also took the stranger's $20
bill. He used it to purchase two glassine packets of crack down the
block and, hiding the doses in his mouth, brought them back to the man
he figured was a fellow crack addict.

What happened next on that morning nearly a year ago, lawyers for the
indigent say, happens all too often to impoverished addicts in
neighborhoods infested by the drug trade. The man in the camouflage
pants was not an addict but an undercover narcotics officer. And Steven
Flowers, a 45-year-old handyman, was arrested not on a misdemeanor
charge for possessing crack cocaine but on the far more serious felony
charge of selling it to the police.

While the officers who arrested Mr. Flowers that day eventually
arrested his dealer too, the Legal Aid Society, which represented Mr.
Flowers, has said his case illustrates a troubling trend in the Police
Department's efforts to eradicate street-level drug sales.

As the city's war on drugs has driven narcotics bazaars off public
sidewalks and into dark lobbies, narrow hallways and private rooms,
undercover teams have started depending on the tactic of drawing
addicts into making drug deals and then arresting them as sellers,
several lawyers for Legal Aid have said. The lawyers have criticized
the practice, saying it involves drug addicts in serious crimes that
they otherwise might not have committed. The police, on the other hand,
say that anyone who helps a drug sale occur -- particularly someone who
gets a tip or a cut of the drugs -- is a dealer, plain and simple.

There are no official statistics on the number or frequency of these
cases, meaning that any assessment of how often this actually happens
largely rests on the anecdotes of police officers and Legal Aid lawyers
who, naturally, have competing interests and agendas.

While Legal Aid readily acknowledges that some street people do,
indeed, work for drug dealers, several lawyers for the group have said
that scores of the drug-dealing cases that cross their desks these days
involve addicts who were given money by the police to purchase drugs.

The lawyers have also pointed to cases in which undercover officers
staked out methadone clinics, asking heroin addicts to sell them a
bottle of methadone, then arresting them as dealers. They said there
were even a handful of cases in which people ran off with the $10 or
$20 bills supplied by the undercover officers and were then arrested
and charged with theft.

"If this happened just once or twice, I'd say our clients weren't
telling the truth," said Roy Wasserman, an appellate lawyer with the
criminal appeals bureau of Legal Aid. "But we hear this scenario over
and over again. I don't doubt that the cops would like to make arrests
higher up the food chain. But maybe it's the end of the shift. Maybe
they have a quota to fill. These are easy busts. They seem to be making
felonies where they don't exist."

The police, of course, have a radically different view of the practice.

"If you go over to somebody and say, 'I'm looking for drugs' and they
say, 'Hold on, I can get you some,' then they're a dealer," said Deputy
Chief Thomas P. Fahey, a police spokesman. "Arresting them is not an
unacceptable practice."

Under state law, possession of an illegal drug is a misdemeanor that
carries a maximum sentence of a year in prison. But the crime of drug
distribution -- which requires only that a controlled substance pass
from hand to hand, regardless of whether anything of value is given in
exchange -- is a felony that carries a minimum penalty of one to three
years in prison for people with clean records and four and a half to
nine years for those with prior felony convictions.

Because many drug users caught up in buy-and-bust operations are
accused of the more severe charge of distribution, the majority decide
not to go to trial and risk being slapped with hard prison time,
lawyers for Legal Aid have said. Mr. Flowers's case is unusual in that
he did challenge the charges brought against him and was eventually
acquitted at trial.

At the trial, which took place in June in State Supreme Court in
Manhattan, Mr. Flowers's lawyer, Kim Dvorchak, employed what is known
as the agency defense -- a strategy that seeks to convince the jury
that the defendant was acting as an agent of the buyer and not as a
seller.

Mr. Flowers was acquitted of drug dealing, Ms. Dvorchak said, largely
because he was able to convince the jury that the undercover officer
had sought him out and that he did not work for one seller and had
tried several dealers he knew in the neighborhood before being able to
buy the two packets of crack on East 120th Street. Although Mr. Flowers
had a prior conviction, it was for possession and not for selling
drugs.

H. Richard Uviller, who teaches criminal law at Columbia Law School,
said that agency cases "border on the metaphysical" because defendants
like Mr. Flowers are, in some sense, both sellers and buyers. "A guy
like this is brokering for both," Mr. Uviller said. "There would be no
sale if not for the buyer's instigation, but there would also be no
sale if this guy didn't know where to get the drugs or how to make the
deal."

Hovering above the debate is the case of Patrick M. Dorismond, an off-
duty security guard fatally shot in March by undercover officers in
Midtown who approached him for drugs. Some critics of the Police
Department have said that the death of Mr. Dorismond and the arrest of
people like Mr. Flowers are the result of the authorities keeping up
pressure to arrest drug suspects but scraping the bottom of the barrel
in terms of the good cases that can be made.

"Are you creating the incident by making arrests like this or
addressing the incident?" asked Aaron Rosenthal, a former police chief
who now teaches criminal justice at Pace University. "You may get a lot
of lambs this way, but it seems like the wolves are going to stay
free."

On Saturdays, many clinics in New York City that distribute the heroin
substitute methadone hand out two bottles of the drug to addicts
because they are closed on Sundays. The extra bottle is meant to get an
addict through the weekend until the clinics reopen Monday morning.

Three years ago, the Manhattan office of Legal Aid represented a woman
arrested for selling her extra bottle of methadone to an undercover
officer, dressed in rags, who stood outside a clinic on Essex Street on
the Lower East Side and asked the addicts there to sell him drugs, said
Ariella Shuster, the lawyer who handled the case.

Ms. Shuster, who has been working with Legal Aid for nearly a decade,
refused to provide the woman's name but said the undercover officer who
approached the woman hounded her to sell him the methadone. The
officer, Ms. Shuster said, offered to pay the woman $20, then $40,
telling her that he was suffering from withdrawal. After four or five
requests, the woman finally sold. She was arrested for dealing minutes
later.

"Of all the methadone sales we get, I'd say 80 percent have that fact
pattern," said Ms. Shuster, who won an acquittal for her client after
convincing the jury that the woman had been entrapped by the police.
"There are some people who do go out to sell their methadone, but 90
percent aren't hawking. If a cop never approached them, they never
would have sold."

Bridget Brennan, the citywide special narcotics prosecutor, said
through a spokeswoman that her office assesses each case on an
individual basis and would decline to prosecute whenever it appeared a
defendant was being charged with a more serious offense than was
merited. But other prosecutors who specialize in drug cases have
defended the practice of approaching addicts while making drug arrests,
saying that many addicts do, in fact, work as go-betweens or lookouts
for established dealers in their neighborhoods.

To Mr. Flowers, however, the experience of arrest, trial and acquittal
has produced nothing more than a lingering sense of caution.

"I know everything about the streets -- I know every spot on them," he
said recently in an interview. "But I don't talk to people anymore.
People walk up to me, say, 'Hello?' or 'Who's working?' It don't
matter. I just stand there, looking the other way."