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Exact culprit hard to identify in deaths involving multiple drugs

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Friday, Feb. 2, 2018 9:30 PM

Perhaps partially in response to the “opioid epidemic,” some prosecutors are eager to throw the book at drug dealers. Because of a 2014 Supreme Court opinion, medical examiner testimony can be a hindrance.

Marcus Burrage sold heroin to Joshua Banka, who died after taking the heroin along with other drugs from other sources. Burrage was indicted for selling heroin and also for Banka’s death on the grounds that it “resulted from” the heroin.

The Controlled Substance Act imposes a 20-year mandatory minimum prison sentence on the seller when a death “results from” the use of an illegally-sold drug.

Burrage was convicted, the 20-year minimum sentence was imposed and lawyers argued the meaning of the phrase “results from” all the way to the Supreme Court.

Banka died of a drug overdose. One of the drugs was the heroin Burrage sold him. But when multiple drugs are detected in the body of a dead person, there’s no way to sort out the relative contribution of each of the drugs to death.

Even when one drug is present at a much higher concentration, science can’t prove that death “resulted from” that drug alone, while the others were irrelevant. There’s no way to be sure that the victim would have survived taking one of the drugs if not for the others. There’s no way to prove that a given drug was the “last straw,” without which the person would have lived.

The courts want medical examiners to practice “evidence-based medicine,” but we don’t have much scientific evidence on which to base opinions about multi-drug intoxication. It simply isn’t an option to give increasing amounts of combinations of drugs to lots of people to determine the amounts and proportions required to kill them.

The problem is somewhat analogous to the death of a person shot multiple times by multiple people when none of the wounds is individually lethal. Medical examiners deal with that problem by listing all of the gunshot wounds in a composite cause of death. Courts don’t seem to have a problem with that. Everybody gets convicted.

Most medical examiners apply a similar composite certification when multiple drugs are detected in an overdose death. We certify “overdose of” or “intoxication by” followed by a list of the detected drugs.

In the Burrage case, the medical examiner could say that heroin was one of the drugs in the combination that caused Banka’s death. It would be impossible to say that Banka would have died if he’d taken only heroin. It would be impossible to say that Banka wouldn’t have died from the other drugs if he hadn’t taken heroin.

At the original trial, the judge ruled that Burrage was subject to the 20-year mandatory sentence if heroin was a “contributing cause” of Banka’s death. The Eighth Circuit Court of Appeals agreed; the Supreme Court did not.

Traditionally, phrases such as “results from” require proof of “but for” causation, the Supreme Court opinion said. By that tradition, the imposition of the 20-year minimum sentence would require proof that Banka would not have died “but for” the heroin Burrage sold him.

The justices said they couldn’t give “results from” an unusual meaning for this particular case. They reversed the lower court decision to impose the 20-year sentence.

When multiple drugs are involved, no honest medical examiner or toxicologist can provide the proof required by the Supreme Court’s interpretation of “results from.” The science won’t allow it.

Perhaps this is an issue Congress should revisit.

Dr. Carol J. Huser, a forensic pathologist, served as La Plata County coroner from 2003-12. She now lives in Florida and Maryland. Email her at chuser@durangoherald.com.

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