DRUG CASE TESTS FELONY-MURDER LAW

Deaths From Drug Use -- Efforts To Hold Dealers Responsible Are On The Rise

A Kansas man faces first-degree murder charges in the fatal overdose
of another man in a Hays motel.

"This is a product liabilities act for illegal drugs. If you have
product liability for legal items, why not for illegal items?" Daniel
Bent, a former U.S. attorney in Hawaii who drafted a drug-dealer
liability act No one is accusing David Knapp of intentionally killing
Frank Brown.

But Knapp faces first-degree murder charges because prosecutors think
he supplied a fatal dose of the painkiller fentanyl to Brown, who
overdosed on the drug and was found dead on Halloween in a Hays,
Kan., motel room.

Although the case is unusual, Kansas law allows prosecutors to pursue
murder charges against someone when that person commits a felony and
someone else dies, even if the offender did not mean to harm anyone.

"It's not a victimless crime. ... Somebody's getting it (the drug).
Somebody's supplying it and they know it's illegal and sometimes it
has unforeseen circumstances," said Ellis County Attorney Tom Drees,
the prosecutor in Knapp's case.

Many states, including Missouri, have felony-murder laws that are
commonly applied to botched robberies, rapes and kidnappings.

Drees said that filing a charge of first-degree murder, which
otherwise requires intent and premeditation, in a drug overdose case
may be unusual because "in most drug transactions, it's difficult to
trace who supplied what to whom."

The case, while unusual, also points to increased efforts nationwide
to punish drug suppliers for overdose deaths.

Knapp's attorney, Paul Oller, said his client denies the allegations
against him. Oller questions applying the felony-murder law to the case.

"We certainly dispute what they say they can prove," Oller said. "But
even if they can, at what point in time does distribution become use
and at what point in time do people (who use drugs) become
responsible for their misdeeds?"

Brown, 46, of Gorham, Kan., was found dead in a room at Budget Host
Villa motel. The murder charge was filed last month against Knapp,
also 46. The Hays resident is also charged with drug distribution,
possessing cocaine and threatening a witness not to report Brown's
death. His preliminary hearing is May 2.

Kansas' felony-murder law includes a list of other so-called
inherently dangerous felonies that can bump a case up to first-degree
murder if someone dies.

The difference could mean a sentence of a few months or years behind
bars to 25 years to life in prison.

Wyandotte County District Attorney Jerome Gorman, who had not
reviewed the Knapp case, said he had used the felony-murder law to
enhance charges in drug cases involving slayings over drug sales and
one involving a fatal explosion at a methamphetamine lab.

Gorman said he was unsure whether the law could be applied to cases
not involving selling or making drugs.

"I think that the way the statute is written, just because you hand
someone drugs and they die, it doesn't apply," he said. "But if
you're a manufacturer or distributor or seller of some sort, that's
where it kicks in."

Drees would not comment on the details of the Knapp case and would
not say whether Knapp was accused of selling fentanyl to Brown or
providing it some other way. Court records do not make that clear.

Oller said he knew of nothing to support the allegation that a drug
sale was involved.

"It involves four people in a motel room and who provided what to who
is certainly a question," he said.

Oller called the application of the felony-murder law to Knapp's case
"quite novel."

"When I read that statute, I envision the guy with 47 pounds of
cocaine in his trunk who gets into a high-speed chase (with police)
and someone dies," Oller said. "Otherwise you could theoretically
hold anyone responsible, the guy who gives another guy two grams of
cocaine and two weeks later the second guy snorts it and dies."

Drees and others say more needs to be done to hold drug suppliers
responsible for the deaths of the users.

A prosecutor in New Castle, Pa., has said he might file homicide
charges in the death of Erica Million, a 16-year-old who earlier this
month apparently took the painkiller oxycodone and died.

District Attorney John Bongivengo has said that if lab tests confirm
that Million overdosed on oxycodone, he will file third-degree murder
charges against the boy who allegedly sold Million the pills at school.

Legislators in 14 states have passed variations of a drug-dealer
liability act, which is designed to allow the families of drug users
and drug-addicted babies, and the institutions that treat them, to
file civil lawsuits against drug dealers.

Some of the laws even include a provision that allows for a lawsuit
against any drug dealer, even if that person did not sell drugs to
the user, if that person was dealing the drug during the period of
time the user was harmed. Kansas and Missouri do not have such laws.

Authorities say they have seen an increase in deaths from the abuse
of potent prescription drugs such as fentanyl.

Fentanyl is an analgesic that is stronger than heroin, said Erik
Mitchell, a forensic pathologist in Topeka who performed the autopsy on Brown.

Fentanyl comes in a patch that is applied to the skin to control pain.

Mitchell said it is not uncommon for drug users to cut open the
patch, squeeze out the gel inside and sniff it, smoke it or burn it
on a piece of foil and inhale the fumes.

"On the street it's referred to as foilers," Drees said. "We're
finding more and more aluminum foil with burn marks on one side and
residue on the other."

Mitchell said drug abusers often do not realize how much medicine is
inside the patch and that heating fentanyl speeds its delivery,
making it more potent.

Daniel Bent, a former U.S. attorney in Hawaii who drafted the model
drug-dealer liability act, argues that it is fair to hold suppliers
of illegal drugs responsible for the harm caused by what they distribute.

"This is a product liabilities act for illegal drugs," Bent said. "If
you have product liability for legal items, why not for illegal items?"