Opioid crisis: Prosecution trend is charging dealers with death after ODs
LITTLETON, N.H. >> He knew he was in trouble even before he read the text message: "Did u hear what hapnd 2 ed?"
Ed Martin III had been found dead in the bathroom of a convenience store, slumped over on his knees with a needle and a residue-stained spoon in his pocket. He'd mainlined fentanyl, an opioid up to 50 times more powerful than heroin. A pink plastic bag of white powder sat on the sink.
Michael Millette had heard. The overdose death of his friend, just 28, brought tears to his eyes. But he was scared, too. He was Martin's dealer, the man who'd sold him his final fix.
In panic, Millette fled to Vermont. But within a day he was back, selling again. He needed money for his own habit.
Now, though, police had a tip that "Mike on Main Street" had been Martin's dealer. Undercover officers began watching his furtive deals on a pedestrian bridge behind his apartment; they secretly photographed his visitors. After he sold drugs to an informant, they swooped in and arrested him.
That's when Millette earned a dubious distinction: He became one of a growing number of dealers around the nation to face prosecution for the fatal heroin and fentanyl overdoses of their customers. He was charged not just with drug dealing, but with causing Martin's death.
Maximum penalty: life behind bars.
In many states, including Ohio, Maine, West Virginia and New Jersey, authorities grappling with an alarming surge in opioid abuse are filing homicide, involuntary manslaughter or related charges against dealers. They argue the overdose deaths should be treated as crimes leading to stiff sentences that deter others — and deliver a measure of justice.
"We need to send that message that you can't sell things that are the functional equivalent of poison," says New Hampshire Attorney General Joseph Foster, whose state has witnessed an explosion in drug-related deaths in recent years.
Millette always feared he'd get caught one day. But, he says, "I never really expected or thought anybody would get hurt or die."
"I think about Ed every day," he adds, sitting in a box-sized interview room in the New Hampshire State Prison for Men. "I would have rather had it been me, truth be known. I would have rather been the one that OD'd instead of being locked up in this place."
Then, his deep-set green eyes tearing up, he reconsiders. "Maybe, I would be dead by now ... if I didn't get caught."
Crime rise in rural drug world
Littleton is the essence of New England charm, with a white clapboard inn that has welcomed visitors since they arrived by stagecoach, a 19th-century opera house and even a bronze statue of Pollyanna, the fictional optimist whose author was born here.
But beyond the postcard image is the crime blotter police Capt. Chris Tyler sees every day.
In recent years, he says, drugs have been linked to 85 to 90 percent of the major crimes — burglary, theft, armed robbery, forgery, identity fraud.
Last year, a convenience store was hit four times by different armed robbers. All needed money or anything they could trade for drugs, Tyler says. They didn't get much, and two robbers even apologized to the clerk.
"There was a common theme: 'I'm unemployed. I've burned all my bridges. I can't afford the drugs anymore.'... People are just that desperate," he says.
When heroin first took hold here around 2013, Tyler explains, "there was just a general sense of denial. That was something that happens in big cities where people fall between the cracks. It wasn't going to happen here. But unfortunately it has."
It's not just heroin, but cocaine, fentanyl and a resurgence of crystal methamphetamine. In one seven-month stretch last year, there were three overdose deaths, all connected to fentanyl. In May, a police informant was fatally shot; he'd allegedly cooperated in identifying dealers in the area.
In New Hampshire, drug-related deaths have soared from 163 in 2012 to a projected 478 this year. Fentanyl is increasingly the culprit. From 2011 to last year, deaths caused solely by the synthetic opioid exploded from five to 161, according to the state coroner's office. In that same period, the number of deaths caused by fentanyl combined with other drugs, including heroin, rose from 12 to 122.
Littleton, population 5,900, is small enough that Tyler can name the local dealers. But being able to identify these seven men, he says, is a far cry from building a case against them.
Millette and Martin were both known to police.
Martin had been jailed for about five months in 2013-2014 for forgery. His father, who owns a home and commercial cleaning company, went to police after his son cashed thousands of dollars of his business checks, presumably to buy drugs or pay off drug debts.
Meanwhile, Millette, 55, had been linked to another young man's fatal fentanyl overdose, but the witness wasn't credible so police didn't pursue the claims.
Millette insists he never was a big-time dealer, just a desperate addict. But Tyler notes he peddled fentanyl, heroin and cocaine to more than 30 customers. His strongest stuff was called "the fire."
Millette says he wasn't sure what he'd sold Martin, only that it was stronger than heroin. He never tested what he sold.
"If he's going to do it to a friend, who else will you do it to?" Tyler says. "He was somebody who needed to be stopped."
Millette conjures the good life he once had.
"I had my own house. I had a family. I was doing great," he says in the tiny prison interview room. "I just got hooked on the drugs."
It started long ago. Millette, who worked as a logger, says he was a "good ole country boy" who enjoyed beer and dabbled in marijuana and cocaine. After a serious logging injury, he received a prescription for Percocet. When it ran out, he bought the painkiller on the black market. But at $30 a pill, he says, he couldn't afford it and switched to heroin, which offered a cheaper, faster high.
"I had to have it every day or I would be sick," Millette says. He quit, but relapsed. Several other attempts failed. He once made it to the door of a residential treatment center, clothes in hand, but turned away.
"I hit rock bottom. I lost everything," he says, including custody of his daughter, now 17. His three older kids stayed away. "Nobody wanted nothing to do with me," he says. "They'd given me enough chances."
Millette's life turned into a dead-end cycle of dealing — maybe $500 worth of heroin a day — then buying dope for himself.
So too, Ed Martin III moved from marijuana to harder stuff. Drugs became all-consuming.
"He explained to me one time that he felt like he was a cancer to the family and everybody that he loved and he wished he could stop — but he just couldn't," says his father, also named Ed, reminiscing about his son while sitting on a swing outside the log cabin home he built.
Erika Marble, Martin's fiancee and mother of their two young sons, says Martin tried to quit but something always got in the way — no insurance, no room in treatment centers. "He felt like he was going to be a drug addict the rest of his life," she says.
Ironically, one thing did work. "He needed jail," she says, noting that he prospered while serving time for fraud. "It made him better, strangely. He was clean. He had a clear conscience. He had the counseling ... He needed to be in there a lot longer than he was."
Out and not working, Martin resorted to stealing again. He'd take valuables from his dad's house to pawn or come home with new appliances, hoping to sell them at dirt-cheap prices. Marble stashed her debit card in her underwear or pillow case to stop him from using it. He always found it.
The couple separated but reconciled. "I loved him," she says, calling Martin a caring, big-hearted man who was her soul mate. "He was a great dad, and I knew that he was better with me, than he was without me. I wanted to be there with him to get better."
Martin hoped to enter a rehab program toward the end of 2014, his fiancee says, but she worried "he wasn't going to make it until then." On Nov. 30 that year, he told her he owed Millette money and was being threatened if he didn't pay. She reluctantly gave him $180.
That afternoon, he texted Marble, saying he'd paid, adding: "i love you im sorry ..."
Hours later, Martin was dead.
When police called on his father, the news wasn't a total shock. Months earlier, he'd warned his son.
"I kind of pretty much summed up his life for him," he says, "telling him if he didn't find a way of getting out of this, he would lose his girlfriend, his children — and quite possibly his life."
The "scared straight" message hadn't worked. Neither had impending fatherhood.
"I actually got angry at him for passing," Martin says, though that feeling faded quickly. "I wanted him to be happy. I wanted him to be a good father and husband. And most of all — I wanted him to be my best friend."
Prosecutors take new route
The prosecution of Michael Millette was part of a new thrust against opioid dealing in New Hampshire.
In the spring, the U.S. attorney's office and the state's attorney general formed a task force to pursue dealers who sell opiates that result in fatal overdoses. So far, 56 cases are being investigated, says Benjamin Agati, senior assistant attorney general. In July, his office trained law enforcement throughout the state on how to identify these deaths and work with special prosecutors on investigations.
Though New Hampshire isn't ruling out filing homicide charges if needed — a strategy used in some other states — Agati says his office is pursuing dealers based on a law in which it must show they knowingly provided a drug that resulted in death.
The heightened focus on dealers, he says, partly stems from a sense among social workers, pharmacists and rehab experts that "'we can't treat our way out this. We can't do this alone. There has to be some way to stem the supply. That's one reason we're trying the new approach."
But is this the right strategy? The legal community is divided.
"I just don't think the ultimate responsibility lies with the person who sells another addict a drug," says Marcie Hornick, who was Millette's public defender. "I find it so counterproductive that they think sending these people to prison for long periods of time is going to have any deterrent effect. It's an easy fix and perhaps it satisfies part of the population. In reality, they come out and don't have the tools or skills to return to society."
But James Vara, who prosecuted the case and now is the governor's special drug adviser, rejects suggestions this is a politically motivated plan without merit. "Say that to a family who lost their child, their son, their brother, their daughter," he says. "Say that to Ed Martin's two children who are without their father as a result of this."
Is jail the right choice?
In orange jail garb with hands cuffed, Michael Millette stood in court, crying as he looked toward Martin's family.
"I just want to give my deepest apologies," he began last October, before breaking up and turning to his lawyer to continue for him at his sentencing.
He was ordered to serve 10 to 30 years in prison, and will be eligible for parole in 2022.
Martin's fiancee says at first she felt "disgusted, angry and hateful" toward Millette. But she realized there was no intent, just a terrible accident. "I know that Ed would want me to forgive you and I do," she told him at sentencing.
But Millette should be locked up, she now adds: "The less dealers on the street, the better."
Martin's father also has forgiven him. "Believe me," he says, ''if I had a choice, I'd rather have my son in jail than in the ground."
Sentencing dealers in fatal overdoses, he adds, is a "great idea. When there's a death, someone has to pay." But the elder Martin has doubts about broader implications. "He's just a small link in the chain," he says. "Are people still selling drugs in Littleton? I'm sure they are."
Tyler, the police captain, doesn't disagree, yet he's changed his outlook.
"If you asked me when the epidemic first started, I would have said, 'Arrest everybody,' " Tyler says. "But now looking at the magnitude of the problem and having a better understanding of it, treatment and rehabilitation are the better solutions."
And incarceration? "There's a place for it." Including for Millette. He was just one dealer, Tyler says, but locking him up was important.
"There was a sense of relief that finally somebody was held responsible," he says. "Is it going to stop the overall drug trade? No. But it'll keep folks from believing they can set up shop here. It ... sends a message this will not be tolerated, it will be investigated and it will be prosecuted."
The cemetery in which Ed Martin III is buried is just a half-mile from where he died. His fiancee has placed two ceramic plates there embedded with their sons' tiny handprints.
Back at the prison, Millette, who has reconciled with his own children and is working toward a high school diploma, ponders eventual freedom.
"Do I believe I should have gone to jail? Yes. Absolutely," he says. "Do I believe I should have gone to jail for as long as I have? Maybe not."
He's grateful for his second chance but skeptical about this strategy. "I could have died. Anybody could have died. And people are dying every day. It's the chance we take when we do drugs," he says. "I don't know what's going to work with this epidemic. I really don't."