Preview: Death Resulting Ep 1 - The Crime

Podcast: Bear Brook
Source: whisper-base
Language: en
Duration: 2164s
URL: https://chrt.fm/track/C9668A/stitcher.simplecastaudio.com/bc53232d-d115-4799-937b-75b732433fa2/episodes/717ba839-47bc-4cc4-8b06-2a7f67735a66/audio/128/default.mp3?aid=rss_feed&awCollectionId=bc53232d-d115-4799-937b-75b732433fa2&awEpisodeId=717ba839-47bc-4cc4-8b06-2a7f67735a66&feed=RGpV1rjX
Fetched: 2026-03-03 05:04:38

Hey there, it's Jason Moon, host of Bearbrook. I'm here to tell you about my latest project. It's a series called Death Resulting. It's the latest season from the document team at New Hampshire Public Radio where I work. Like Bearbrook, it's another story about a crime and the criminal justice system. But unlike Bearbrook, this story is not about who did the crime or who the victim is. It's about this other more philosophical question. Should we consider that act a crime in the first place? It's a story about fatal drug overdoses and how more and more often prosecutors are treating them like murder cases. I hope you'll listen. A quick warning before we get started. This podcast is about drugs and addiction and so it includes some heavy content. In this episode, you'll hear descriptions of drug use and of a fatal overdose as well as some curse words. So take care of yourself and whoever's listening with you. This story is going to go to a lot of places. The halls of Congress, a federal prison, the NBA draft. But there's only one place it can start. And I'll warn you, it's the part that's the hardest to listen to. It starts with the drug deal at a best Western in Manchester, New Hampshire. A friend of mine lives, hits me up and on Facebook and she's like, hey, I got some money and I want to buy some dope. This is Josh Cook. In this moment at the hotel, he's 20. He's selling fentanyl to support his own addiction to opioids and meth. He's living in someone else's room at the hotel. His friend Liz is 33 years old. She's been messaging Josh for days, trying to set up a time to buy fentanyl from him. Josh and Liz have been friends for a few years and one message Liz calls Josh family. This message is Josh early in the morning to set up a buy. She gets to the hotel around 9 a.m. Josh tells her to come in the back entrance of the hotel. They meet in a stairwell. And then I'm like, so I do got the money and she's like, yeah, I got the money just let me show you the drugs so I show her and she's like, before I buy it can we just do some because I'm really sick. According to Josh, Liz is in withdrawal. She's also six months pregnant. And she hits me with the wall, you know, if the baby withdraws, it's going to die from withdrawal. So I need this to get right so my baby don't go sick. I'm like, finally, I'm going to do something anyway so just take a little bit and so she drives me into a women's bathroom and I go to the stall by myself and I start doing my shot and she stays outside by the mirror because she shoots up in her neck. So she does her thing and she comes in the stall with me and I'm like, can we please hurry up and get out of here? Like I'm sketching out because I'm high on meth and she's like, yeah, she went. She's already there, she's not talking to me, she's fully responsive. When you do don't, you nod out. So she starts like, on her feet, she starts nodding out and I'm like, Liz, wake up, let's get out of here. And she's like, yeah, I'm fine, I'm fine, I'm fine. And she starts like leaning forward and I'm like, Liz, like snap out of there. You alright? And then her lips start turning purple and I'm like, oh my god, I'm like, Liz, she keeps telling me like, I'm alright, I'm alright, I'm like, you don't look alright. And then she leans forward a little more and like drops to me and like, like rest her head on the freaking toilet dude. Paramedics try to revive Liz for more than 20 minutes. At 10.57 am on February 6th, 2018, they pronounce her dead. I've listened to that story many times now and it never gets any easier to hear. Josh knows that too. Like, I know the story sounds like I hate Halloween because it makes me sound like a really messed up person. The day Liz died, Josh was arrested at the hotel by local police and taken to jail. At first, he was charged with simple drug possession. But months later, federal prosecutors took over the case. They decided that what Josh did was much more serious than that. They charged Josh with distribution of controlled substances resulting in death. Often that charge is just called death resulting. It's a crime with a mandatory minimum sentence of 20 years in federal prison. In the eyes of prosecutors, Josh didn't just give his friend Liz drugs. He killed her. Are they right? What happened to Liz in that hotel bathroom happened to tens of thousands of Americans last year. From April 2020 to April 2021, more than 100,000 Americans died of an overdose. It's like a small city died. Was it because of a public health crisis or a wave of murders? Okay. All right. I want to ask a little. You got to have an opinion. What's your opinion? From the document team at New Hampshire Public Radio, this is death reserved. I'm Jason Moon. I got interested in Josh's case because it's not your typical crime story. It's not a who-done-it. The major facts are not in dispute. Josh admits he gave Liz the drugs that killed her. Instead, there's a different, tougher kind of question here that drew me in. Do that be a crime? Is an overdose really a murder? Right now seems to me a good time to ask. The war on drugs turned 50 this year, and a majority of the country now agrees that law and order approach of criminalizing addiction didn't work. Something many black Americans have been saying for a long time. Today politicians on both sides repeat the same adage that we can't arrest our way out of our drug problems. But look, despite the rhetoric, America has not left the war on drugs behind. We're still very much arresting our way, if not out of, then through the current overdose crisis. As a reporter, I get the press releases with the mug shots every day. Mug shots of people like Josh Cook. The first time I talk to Josh, he'd been sitting in jail for about two years, waiting to be sentenced for Liz's death. Aside from the stress, jail is pretty boring, according to Josh. He talks on the phone with his parents. They send him money so he can watch TV on his jail-issued tablet. He tells me he just watched a show called Under the Dome. It's about a small town that gets trapped inside a mysterious bubble. I ask Josh if he picked the show because he too is trapped inside. Maybe subconsciously. Josh's white, he's from New Hampshire. He spent almost his entire teens caught up in the juvenile justice system. He started using drugs when he was 11. By 12, he was assigned to juvenile probation officer. Here's a quick story from Josh's teenage years that will tell you a lot about how he grew up. When he was 14, Josh kept failing his probation officer's drug tests. So they sent him to a group home for kids with behavior issues. His first week in the group home, Josh ran away. The story of us can cause pretty funny actually. Josh and another boy stole a car. He was in minivan that belonged to the group home. They snagged the keys and drove an hour away to Manchester, the state's biggest city. That's where I'm from. I was like, I can find a place to go. We're driving in the middle of the day through Manchester and I'm in a passenger seat because I don't even know how to drive. And we cut off my dad in traffic out of nowhere. The person we decided to cut off is my dad and he makes eye contact with me as we're doing it. He's like, what the hell? All he knows is I'm missing right now. That's what the program told him was I'm missing. So he immediately starts following us and gets on the phone with my probation officer. And all of a sudden there's like 10 cops chasing us. It was crazy. He was in the newspaper like Keen's car and stolen car incident and I blew it up when really we were just running away from our program. That was basically Josh's teens, juvenile jail, group homes, all for drugs and drug-related charges. And then once he aged out was more of the same, adult jail, more drug charges. Now that Josh is back in jail awaiting sentencing, it's almost like returning to his childhood. Sometimes he feels stuck there. I've been in jail most of the time now. So sometimes I catch myself and I still feel like I'm 14. Like everything stops. I'm impulsive. I'm easily influenced. I'm a little kind of 23. I haven't grown up, but sometimes I catch myself and I'm like, well, I feel like I'm still 14 years old. Josh told me he feels awful about what happened to Liz. He says her death was the worst thing that could have happened. But to Josh, serving a minimum of 20 years in prison for her overdose is crazy. I get high and I shared my drugs and somebody died, you know, it sucks, but it's not like that people, this happens to people every single day and it's like what happens when you do drugs. People that I could have died, you know, definitely could have died many times. Josh says he's overdosed seven times once in a McDonald's bathroom. He's right that for so many people living with opioid addiction, overdose is just another fact of life. But that doesn't really matter under the death resulting law. And that leaves Josh and his attorney with a huge challenge. So audio is okay. Murat Erkin is Josh's court appointed attorney. Murat is how I first learned about Josh's case last year. I got an email from his office who was long, passionate, almost desperate. It said the federal prosecutors were hypocritical, their position morally indefensible. The email finished with the public needs to know about this case. I think that this probably might be one of the most absurd and perverse prosecutions that I've experienced as an attorney. Murat has shoulder-length hair. The day we talk, he has it in a short ponytail. Josh likes Murat. One time he said Murat was a quote, beast. Like a lot of defense attorneys, Murat has a talent for cussing in a way that makes him seem disarming. Lock up the pharmaceutical companies, those individuals who would shit their pants if they had to go to jail, right? Go deter them by locking them up in a minute. Murat says Liz is not Josh's victim. They're both victims of addiction. Josh has been a drug user more than half his life. He's been suffering opioid addiction since he was 16. He wasn't some kingpin drug dealer. He couldn't even afford his own place. Sharing and selling drugs is a normal part of many drug users' lives. All of the government's rhetoric for its justification for incarcerating individuals as a salve to the drug crisis. The underlying premise is that drug dealers are praying upon victims. Well, now you're prosecuting the victim. Part of Murat wanted to take Josh's case to trial, to have it out with prosecutors, and then let a jury decide. But the federal death resulting law can be a real nightmare for defense attorneys. For one thing, it's what's known as a strict liability law. It doesn't require the state to prove anything about Josh's mindset that he acted maliciously. All they have to show is that he gave Liz the drugs and that she died from taking them. Josh and Liz's messages over Facebook and the medical examiner's report make a strong case for that. And then there's the mandatory minimum sentence. If he lost a trial, Josh would get at least 20 years. This is the nature of minimum manatories. I mean, they are designed to strip the person charged of the ability to put the case to a jury. Because I mean, the consequences are so extreme. If you risk a trial, you risk it all. So rather than fight it out with prosecutors. Josh's lawyer is negotiating with him, trying to get the lightest sentence he can for Josh in exchange for a guilty plea. I should say, I reached out to several family members of Liz. They either didn't respond or declined to be interviewed, not of respect for Liz and her family. We're not going to use her last name in this story. I did speak with acting US attorney John Farley. It's his office that brought the death resulting charge against Josh. We have an individual who died and who's and who's unborn baby died as a result of Mr. Cook's conduct. And as a society, we have to have some way of acknowledging that human life has value. John Farley is a veteran of the war on drugs. He spent 25 years at the Department of Justice. He's prosecuted drug cases in California, Texas, Puerto Rico, Boston. These days, he's the top federal prosecutor in New Hampshire. I talked to John in his office in a big gray federal building in Concord, the state capital. John wears a black suit, white shirt, red tie, an outfit that indicates correctly that there will be no cussing in his interview. A number of years ago, we started working with our state attorney general jointly to look at overdose scenes as crime scenes as potential murder investigations. John says his office started charging more death resulting cases around 2016. At the time, New Hampshire was one of the state's hardest hit by overdose death. Fentanyl has been such a deadly, deadly scourge on our community. We don't charge this charge every day. It's something that we do somewhat infrequently. But it has been charged much more frequently in the last few years because of the large number of fentanyl overdose deaths that we've been seeing. Not surprisingly, John doesn't see any hypocrisy in charging death resulting cases. He says we already punish people for other kinds of reckless conduct that kill someone, like a drunk driver who hits a pedestrian. And John says doling out that punishment is really important. He says something you'll hear from a lot of prosecutors, especially when it comes to death resulting charges, that these charges send a message, a warning that deters people from selling more deadly drugs. I think the deterrent message that Congress wanted to send is that no one should be selling drugs. It's incredibly substances and we don't want people selling poison on the street. Do you think that deterrents works? A lot of people say, look, these are people in addiction. They're not reading your press releases when you charge someone with death resulting. They don't know. And even if they did, they're in addiction and that's not how the brain science of addiction works. They're not making rational choices. This is a little bit like trying to find the bell that didn't ring. We don't know who was deterred because they are the ones who don't commit the crimes. So we've had cases where people are concerned about doing drug transactions in New Hampshire because they're worried about the sentences that are judges imposed versus in other states nearby. So there are deterrent effects out there. I'm certainly not going to suggest that every drug trafficker does that, but there are certainly some that do. So John says he knows of cases where the prospect of a long prison sentence deterred someone from selling drugs. He didn't offer specifics, but even if he's right, according to the Department of Justice itself, that's the exception. In 2016, the DOJ published a paper saying that long prison sentences do not deter future crime. So as an argument for pursuing death resulting charges, the idea that the minimum mandatory sentence deters anyone just doesn't hold much water according to John's own agency. But John has another reason why death resulting charges are worthwhile, one that's more philosophical. He says they match the seriousness of the crime. She did not deserve to die and we as a society have to think about and different people can have different opinions about what value to place on that human life. The more I talked with John, the more we returned to this idea that Liz's death requires something just as serious on the other side to balance the scales. The prosecutors working under John eventually offered a plea deal in Josh's case. They offered to drop the death resulting charge and its 20 year mandatory minimum. In exchange, Josh would have to plead guilty to a lesser charge, distribution of a controlled substance. And the judge would sentence him to between 13 and 17 years in prison. I don't say I shouldn't do time because I definitely feel like I should be held accountable for the things I've done. But doing this much time is crazy and I feel like that should be held for people like king constaters or something. Not somebody who couldn't even, could barely support his own habit. That's how Josh and his attorney Murat feel about the deal, but they also know they don't have much of a choice. So they're taking it. I think this is part of why Murat reached out to me in the first place. He felt Josh was getting bullied into an unjust plea deal and that the only thing left to do about it was get mad and maybe get other people mad too. In 2020, more Americans died of overdoses than any year in history. More than fatal car crashes and gun deaths combined. More than double the number of deaths in the US during the worst year of the HIV AIDS crisis. This is the opioid epidemic. The CDC says it happened in three waves. The first wave started around the year 2000 with pills. People began dying from overdosing on prescription opioids. Then in 2010, the second wave hit as users moved to heroin, fatal overdoses kept rising. Then in 2013, fentanyl arrived. Today we live in the third wave of the opioid epidemic, the fentanyl wave. Fentanyl is a synthetic opioid, originally designed to treat severe pain in cancer patients. It is very, very strong, up to 100 times more potent than morphine. Fentanyl first showed up in the illicit drug trade mixed into heroin, but now fentanyl is taking over. In some parts of the country, fentanyl is on track to replace heroin altogether. And fatal overdoses have never been higher. Josh's friend Liz is a part of that tragedy. In the face of this third wave, some police and prosecutors responded with a get tough approach. They started charging people with death resulting and using it as a threat. Here's one example. In 2017, a Florida sheriff released this video. I'm Lake County Sheriff Peyton Grinnell. Over the last month or so, I've had several phone calls from citizens in this county concern about the number of overdoses. The sheriff stands at a podium, surrounded by cops who are trying to look intimidating. Their faces are covered with ski masks and sunglasses. Their arms are crossed. But our agents can show the nexus between you, the pusher, of poison and the person that overdoses and dies. We will charge you with murder. We are coming for you, run. This charge, death resulting, has grown into a strategy to respond to fentanyl. Researchers have trained each other on how to use death resulting, with webinars and white papers. One recommends training first responders, like EMTs, to collect evidence for a homicide charge at overdose scenes. In 2018, the same year Josh was charged with death resulting, the National District Attorneys Association put out a paper that said, quote, prosecutors should treat every overdose death as a homicide. If Liz was a victim of the third wave of the opioid crisis, Josh is part of the law enforcement's strategy to stop it. Is that strategy working? One way I wanted to get at that question was to find out how many people are getting charged with death resulting, and as it turned out, there's no easy answer to that. I was a little surprised to find there's no way to get a complete count of all death resulting cases in the courts. There's a federal death resulting law, but a bunch of states have their own version of it, and each court system uses its own database, and each database might call it something different, death resulting, drug induced homicide, sometimes manslaughter. So there's no single place to find out how many people are getting charged with this. And that makes it kind of hard to know if this law enforcement strategy is working. We could talk about the amount of work that goes into it. Oh please. Okay. This is Allison McBride, a researcher and advocate with Northeastern University. She works on a team of lawyers, public health experts, and community organizers who oppose the use of death resulting laws. There needs to be more awareness. These cases are only going to increase if we continue to look at, you know, carceral approaches to the overdose crisis. Allison and her team spent years trying to answer this basic question. How often are we charging people with murder for an overdose death? And they came up with a way to track these cases, a workaround to the disjointed way data is collected in the court system. Their team uses a tool developed by MIT called the Media Cloud. It scans millions of news articles published online. Allison and her team at Northeastern used the Media Cloud to track down every news article they can find written about death resulting cases. They worked in shifts, in turns pounding away in their laptops all through the pandemic, to sort through thousands of news stories to find individual cases. Once they find those cases, they look up anything else they can find, like court records or obituaries. For each case in their death resulting database, the team tracks up to 40 characteristics, like what drug was involved, the race of the accused, the relationship between the deceased and the accused. It's a database they constantly update. It's the most comprehensive answer we have to the question of how many people are getting charged with death resulting. The data set is limited. Remember, it relies on news articles. It only captures cases that a journalist bothered to write about. For instance, Josh's case has not been written about yet, so he's not in there. This is like a relative value to what could be out there. So we don't know if Northeastern's data set is a window or a keyhole onto the total number of death resulting cases. So we can't talk in concrete quantities. But what we can see are clear trends. According to Northeastern's data, there's little trace of death resulting cases through the 1970s, 80s or 90s. It was during the first wave of the opioid crisis that death resulting cases started to creep up. Then, during the third wave, when fentanyl arrives, the number of death resulting cases absolutely explodes. In fact, if you take a line graph from Northeastern showing the increase in death resulting cases, and hold it up next to one from the CDC showing overdose deaths, they both show a massive jump at almost the same time, which all makes sense in a way, more deaths, more opportunities to charge death resulting. But to find out if this approach is working, we need to know who is getting charged. Is it the pushers of poison that Florida Sheriff described or someone else? Allison and her team dug into this. They looked at the relationships between the person charged and the person who died. So reported relationships, which might not really translate into their actual relationship, but the way that's being conveyed through journalists is that 64% are reported as a dealer-buyer relationship, 22% of articles are showing that their caretaker family friend or co-user. In other words, two-thirds of cases involve someone getting drugs from someone who is described as a dealer. And then, in at least 22% of cases, the relationship was much closer. In those cases, siblings, children, parents, who are often co-users, are being charged with killing their loved one. So death resulting cases are rising, and sometimes people close to those who died are getting charged. And then there's one other important trend Allison and her team found. Prosecutors were more likely to charge people of color with death resulting, and those defendants spend more time in prison than white defendants. And their data, the median sentence for a black defendant, is about 50% longer than for a white one. This might feel sadly predictable if you know anything about the criminal system, but it's the first time anyone's been able to use data to show a racial disparity in how death resulting cases are prosecuted. I asked John Farley, the U.S. attorney in New Hampshire, if this trend was true for the cases his office prosecutes. We don't track the demographics, we take each case on its own, and each life that is taken, we don't track the demographics of the victims. I think that's worth lingering on for a second. Drug distribution resulting in death is one of the most serious drug charges we have. And neither the government officials who wield it, nor the judiciary that rules on it knows exactly how often we're using it. And it took a group of outside researchers to discover that the sentences are skewed against people of color. The researchers at Northeastern made this database because they believe death resulting prosecutions are wrong, and that they make the problem worse. They say it's not a mystery how to stop overdose deaths. Drug users' fentanyl test strips so they know what they're taking. Give them safe injection sites, so help is nearby if they overdose. Make Narcan the overdose reversal drug easier to get. Make addiction treatment easier to access. Allison says medicalize the problem, instead of criminalizing it. Threatening to put people behind bars is not going to stop people from using and having community to use with. It's just not going to. It's just sad to see people die and then the people that love them are now being prosecuted. So, Josh Cook's story is not some obscure drug case on the edges of the legal system. It's part of a growing national trend. More than that, it's part of a law enforcement strategy. One that, at least so far, is not stopping the deadliest drug crisis in American history. Which, to me, makes this question, should what Josh did be a crime in the first place? All the more important. Is an overdose really a murder? When I talked with John Farley, the US attorney in Josh's case, I tried to get him to wrestle with that question. I asked him, why is this a crime? It's a crime because Congress made it a crime. At first, I thought it was kind of a flip answer, like, that's just the way it is. But I think what John was really saying was more like, yeah, it's a tough question. But the people in charge, they already voted on it. And he's right, Congress did already vote on this, and it got me thinking, what's the story behind that? How did overdoses become murders in America? He had it all until this morning when his heart gave out, and he died. That's next time, on Death Resulting. Death Resulting was created by the document team at New Hampshire Public Radio. It was reported and produced by me, Jason Moon. The executive producer is Jack Rodelico. The executive editors are Dan Barrick and Rebecca LaVoye. Additional editing by Lauren Trulgin, Todd Bookman, Felix Poon, Gabrielle Healy, and Christina Phillips. Colin Tansel-Suddith was our production intern. Fact checking by Sarah Sneath. Work, Distribution, and Promotion by Sarah Ploord. Music by me, Jason Moon. You can find more of our reporting online at nhpr.org slash document. So, that was the first episode of Death Resulting, the latest season from document at New Hampshire Public Radio. You can find the rest of the series by searching for a document wherever you're listening to this podcast.