Pubdate: Mon, 19 Feb 2001
Source: Tampa Tribune (FL)
Copyright: 2001, The Tribune Co.
Contact:  http://www.tampatrib.com/
Forum: http://tampabayonline.net/interact/welcome.htm
Author: Gary Sprott of The Tampa Tribune

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.''
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