She died in a city park, her fiance by her side.
Millie Harvey had snorted heroin and her last words were, “Baby, something is wrong.” Her fiance, Matt Dauzat, couldn’t help her because he, too, overdosed on the same drug concoction that killed 28-year-old Harvey. A man on a bicycle saw two bodies convulsing on the ground and called 911.
Dauzat didn’t die, so he was able to identify the dealer who sold them the heroin, which they didn’t realize was laced with the deadly additive fentanyl. The next day, the dealer was arrested.
It appeared to be an open-and-shut second-degree murder case like so many fentanyl-related death cases across the South appear to be.
But it wasn’t.
In the end, murder wasn’t even part of the outcome.
‘Resulting in the death of’ rather than murder
Second-degree murder charges aren’t sticking in fentanyl cases in Louisiana, Tennessee or Mississippi, even though laws were rewritten in the last five years to make them easier to prosecute.
In the three states, trials have ended with juries throwing out the second-degree murder charge and convicting defendants for recklessness, which carries a far shorter prison sentence. Or, in Mississippi, an appeals court threw out a second-degree murder conviction from a 2014 case, chilling district attorneys’ pursuit of those prosecutions.
Life without the possibility of parole is the required sentence for all murder cases in Louisiana, no matter the degree. In Tennessee, second-degree murder usually carries a 15- to 25-year sentence.
Fentanyl dealers, however, are often pleading to 5-10 years, or, in the most recent case (March 17), a jury chose recklessness instead of second-degree murder in Williamson County, Tenn., and the drug dealer was sentenced to less than a year in county jail.
In another Williamson County case, Kiara Danye Henderson pleaded guilty to second-degree murder in the death of Jacob Gormsen. Henderson was sentenced to 15 years in prison. The case didn’t involve fentanyl, but assistant District Attorney Carlin Hess said it was the first of its kind in which a drug dealer was convicted of second-degree murder.
In Mississippi, fentanyl distribution resulting in death has become a first-degree murder crime and requires a 20-years-to-life sentence and a $1 million fine. That bill, named “Parker’s Law” for Parker Rodenbaugh, a college student who died of an LSD overdose in 2014, was approved April 19 by the Legislature.
On March 28, drug dealer Carlos Allen was sentenced to life (124 years) in the 2021 fentanyl death of Austin Elliott. That outcome is rare.
Plea bargains for lesser sentences are the most common outcomes in fentanyl cases. The words in the plea bargains usually become “resulting in the death of” rather than murder.
Overdose deaths have risen more than 70% during the past five years in Alabama, Arkansas, Louisiana, Mississippi and Tennessee, according to the Centers for Disease Control and Prevention data analyzed by The Tennessean.
Those five states combined reported nearly 4,100 overdose deaths in 2016. By 2020 — the most recent year on record — the same states reported nearly 7,000 overdose deaths.
Fentanyl is the driving force behind the increase. While not every state tracks overdose deaths by drug, in Tennessee, the synthetic opiate went from being a cause of one out of six overdose deaths in 2015 to four out of six in 2020.
Prosecutors and defense attorneys interviewed for this story agreed juries tend to believe murder is a violent act and deserving of harsher penalties than slipping someone a drug that they willingly consume.
“The person who distributes drugs should not be as culpable as the person who committed a violent crime,” said Chad Guillot, a Louisiana defense attorney. “Come on man, this is not intentional.”
Juries are tasked not to think about sentencing, but they still do, said Rapides Parish assistant District Attorney Brian Mosley, who handled the Harvey murder prosecution that resulted in a plea bargain.
“I’ve learned a lot about the attitude of juries toward drug use,” Mosley said. “They aren’t as sympathetic toward the victim who uses drugs.”
In Alabama, prosecutors don’t go after drug dealers for murder, instead settling for distribution charges for much more lenient sentences. In Alabama, murder cases must include the intent to kill.
By the nature of their business, drug dealers don’t have the intent to kill. They want their clients to come back to buy more.
Bodies piling up; charges getting reduced
The laws in Louisiana and Tennessee are clear. A person who distributes a drug in combination with fentanyl that causes the death of another human being is guilty of second-degree murder.
For fentanyl and carfentanil (an even more lethal version of fentanyl) cases, proving only the transaction occurred and the person who took the drug died is what the law requires.
The legislatures in both states changed the laws in 2018 after fentanyl overdoses began to spike.
In the death of Millie Harvey in Louisiana, drug dealer Kendrick Davis was charged with second-degree murder by the Rapides Parish District Attorney’s Office. Just before jury selection began, Mosley’s expert witness said they weren’t certain if the fentanyl or the heroin caused the death.
Because Davis’ liberty was at stake, Mosley allowed Davis to plead to recklessness and a five-year sentence (the final year in a locked drug rehabilitation program).
“The penalty for second-degree murder is too harsh,” Mosley said.
Bodies have been piling up since 2016 in the small southern city of Alexandria and so have corresponding second-degree murder charges.
Jakelynn Ammons, 19, was found dead in a hotel parking lot. Colby Knapp, 21, was found dead in the passenger seat of his friend’s car. The dealers who sold them the drugs — Taurnena Foster and Derrick Berry — were charged with second-degree murder.
In the end, each of the Alexandria dealers were sentenced to lesser drug charges.
Mosley handled all of those cases. In the Ammons case, Mosley interviewed the jury after they threw out his second-degree murder charge and convicted of recklessness. There wasn’t a debate, he said. All 12 jurors agreed a murder had not happened.
“There’s a stigma,” Mosley said. “She (Ammons) made the choice to use drugs.”
In Tennessee, attorneys will be watching the second-degree murder case of Patrick Goolsby, which is scheduled to begin on April 20.
Goolsby is accused of supplying heroin laced with fentanyl to Jennifer Jacobs, 45, of Smithville, Tenn., on May 18, 2020. She died four days later.
“It is a difficult case to prove,” said District Attorney General Bryant Dunaway (District 13), who is overseeing the Goolsby prosecution. “Tying the deliverer of the drugs to the death is the hard part. It’s an enormous challenge.”
Goolsby’s defense attorney, Mingy Ball, said the second-degree murder charge “isn’t right.”
“A drug addict has multiple sources of drugs,” Ball said. “In those four days, who else did she call?”
Ball said she doesn’t believe the prosecution can prove it was Goolsby who sold Jacobs the lethal drugs. Murder, she said, is an overcharge.
“They need to have restrictions on what they can charge,” Ball said. “Murder is a far stretch.”
The outcome of this case may impact other prosecutions.
“If juries convict, that’s going to tell us what the citizenry thinks,” Dunaway said.
District Attorney Lisa Zavogiannis (District 31) said she has four pending second-degree murder cases lined up for this year.
She is not yet entertaining the idea of plea bargains, she said, because she wants to see how other Tennessee jury cases turn out.
“I want to see what the community thinks of it (the second-degree murder charge),” she said. “I notice other prosecutors are amending them down to reckless homicides.”
Zavogiannis said the fentanyl overdose epidemic requires district attorneys to go “strong” after drug dealers.
“We need to take a strong stance,” she said. “We investigate every case as if they are a second-degree murder case. We’ve got to do something.”
‘We have to keep trying’
Prosecutors believe if they keep trying these cases, the public’s attitude toward drug users and drug dealers will change, Mosley said.
Over the years, juries’ attitudes toward drunk drivers got less tolerant.
“You just have to keep trying,” Mosley said.
In Alabama, assistant U.S. Attorney Bob Becher wants his state’s Legislature to change the laws like Louisiana and Tennessee — removing intent from the definition of murder in fentanyl cases.
Becher is a federal prosecutor, and he approaches fentanyl cases as conspiracies in which cell phones are used.
“Alabama can do the same thing,” said Becher, whose jurisdiction is the Birmingham area. “You’ve got to do something.”
Becher said he has accepted plea bargains from “a dozen” drug dealers, in which they have agreed to 10-year prison terms for causing death in a fentanyl case.
“I’ve got two dozen more waiting,” he said.
Local district attorneys’ hands are tied, Becher said.
“In Alabama, getting murder convictions is almost impossible (in fentanyl cases) because you’ve got to show intent,” he said. “Accidental death is as far as it goes.”
Millie inspired new bill in Legislature
Lilly Harvey, Millie’s mother, has organized walks across Louisiana to alert people to the dangers of fentanyl. She also established the Millie Mattered Facebook group, which has almost 2,000 members.
Harvey tries not to use the word “overdose” or “accidental” when describing what happened to her daughter and so many others whose photos are on the banners she carries.
She uses the word “poisoning.”
She said she believes if people start seeing fentanyl deaths as poisonings, their attitudes will change.
Language isn’t the only thing she’s trying to change.
She wants to change the law.
“I wasn’t going to sit around and cry for Millie,” Harvey said.
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