Pubdate: Wed, 13 Mar 2002
Source: Pittsburgh Post-Gazette (PA)
Copyright: 2002 PG Publishing
Contact:  http://www.post-gazette.com/
Details: http://www.mapinc.org/media/341
Author: Jim McKinnon

MURDER CHARGE REJECTED; DRUG LAW RULED UNCONSTITUTIONAL

Third-degree murder charges were dismissed yesterday against a Beaver 
County man who still faces trial on charges that he delivered the drug 
Ecstasy that led to the death last May of a Sewickley teen.

In an opinion issued yesterday, Common Pleas Judge Jeffrey A. Manning ruled 
unconstitutional the state law that was used as the basis for filing the 
charge against the defendant, Gregory D. Ludwig, 20, of Rochester.

Ludwig still is charged with possession, possession with intent to deliver 
and delivery of the drug methylenedioxymethamphetamine. It commonly is 
known as Ecstasy, a hallucinogen that caused 16-year-old Brandy French to 
vomit, lapse into a coma and die.

Manning's ruling called into question a 1972 statute passed by the 
Legislature that says that a person who delivers a drug that causes the 
death of the recipient is guilty of third-degree murder.

However, that language does not spell out a key element -- malice, which is 
required in a third-degree murder case.

With regard to Ludwig, Manning ruled that the defendant had no malice and 
prosecutors made no attempt to prove such a state of mind.

Brandy and some friends bought the drug May 19 from Ludwig and they each 
ingested one of the pills at the X-fest rock concert that night at the 
Post-Gazette Pavilion in Burgettstown.

Brandy became ill and confused and was later taken to a friend's home in 
Bell Acres, where she continued to vomit and pass in and out of consciousness.

The complaint alleges that Ludwig committed murder in the third degree when 
he delivered, sold and distributed the Ecstasy in violation of the 
Controlled Substance, Drug, Device and Cosmetic Act, leading to Brandy's death.

At a preliminary hearing in December, Paula Wilson testified that she 
arranged the sale with Ludwig.

Brandy died on May 20 in Allegheny General Hospital.

Manning wrote that the 1972 statute is vague in that it does not 
distinguish between two historically recognized classes of crimes: Those 
that are wrong in themselves, such as murder, and those considered wrong 
because society wants their commission proscribed, such as drug trafficking.

What the Legislature accomplished was to take the socially wrong crime and 
declare that it is third-degree murder. The problem is that the act of 
delivering the drug does not include the element of malice required to be 
guilty of third-degree murder.

Manning ruled that prosecutors presented insufficient evidence, because the 
case does not address the defendant's state of mind. It did not address the 
question of whether Ludwig delivered the drug with the knowledge that it 
would or could kill Brandy.

Did Ludwig act with malice?

Thomassey argues that he did not.

"This kid did not commit murder," Thomassey said outside the courtroom. 
"You just can't redefine third-degree murder that way.

"Unfortunately, these kids want these drugs. And if there's no malice, 
there's no third-degree murder," Thomassey added.

Manning ruled that pretrial arguments presented by Assistant District 
Attorney Stephie Kapourales showed "there is simply no malice whatsoever" 
on Ludwig's part.

Besides, he added, prosecutors did not present any evidence concerning the 
dangers of Ecstasy.

"If arbitrary and discriminatory enforcement is to be prevented, laws must 
provide explicit standards for those who apply them," Manning wrote.

Manning said the court still did not condone drug dealing.

"It is abhorrent -- abhorrent to the judiciary, to the community and to any 
and all reasonable citizens of this commonwealth."

District Attorney Stephen A. Zappala Jr. said his office would "thoroughly 
review the decision" before deciding whether to appeal to a higher court or 
the state Legislature.

"Notwithstanding the well written opinion of the court, I believe that the 
Legislature intended to make it absolutely clear that if you sell drugs and 
someone dies as a result, you have committed a murder. There is nothing 
vague about that intention," Zappala said in a written statement issued 
after the judge's ruling.

"I have a settled and undeterred purpose of stopping these murders," 
Zappala wrote.

That resolve is welcomed by Brandy's family, which has filed a civil suit 
against those who did not seek timely medical help for her.

"We have mixed feelings about the decision. Obviously, we are disappointed 
that the judge dismissed the criminal charges, but we understand his 
reasons for so doing.

"On the other hand, we are gratified that the judge supported the family's 
contention that medical help obviously should have been summoned much 
sooner for Brandy."

Attorney John P. Gismondi, who represents Brandy's family, said that the 
dismissal of the criminal homicide charge has no direct impact on a civil 
suit filed against Brandy's friends and their parents who failed to seek 
timely medical attention for her.
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