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The Appeal Podcast Episode 3: Turning Users Into Dealers and Overdoses into Murders

Guest Zachary A. Siegel is a journalist covering the opioid crisis.

Students learn to put together a Naloxone spray gun in a class on opioid overdose prevention held by non-profit Positive Health Project in New York City.
Illustration by Anagraph / Photo: Spencer Platt/Getty

The Appeal Podcast Episode 3: Turning Users Into Dealers and Overdoses into Murders

Guest Zachary A. Siegel is a journalist covering the opioid crisis.

Prosecutors and law enforcement agencies have been bringing murder charges against people who supply friends and family with drugs. As the opioid epidemic marches on, efforts to curb heroin and prescription drug abuse through increased arrests and harsh sentencing look just as misguided as earlier phases of the so-called “war on drugs” that began in the 1970s. Journalist Zachary A. Siegel joins us to explain the disturbing evolution of the drug war in the era of opioid abuse.

The Appeal is available on iTunesSoundcloud and LibSyn RSS. You can also check us out on Twitter.


Adam Johnson: Hi, welcome to The Appeal, a podcast on abolition, reform and everything in between. I’m your host Adam Johnson. Today’s topic is the criminalization of addiction and the opioid crisis as a pretext for more lawmaking and prosecution. Our guest is Zachary Siegel, a Guggenheim fellow at John Jay College of Criminal Justice and a contributor to The Appeal.

[Begin Clip]

Zachary Siegel: Drugs are like usually a container for like hysteria and fear. I mean we saw in that, I wasn’t around at this time, but we saw it in the crack cocaine crisis. I mean crack became a container to hold so much hysteria and xenophobia and urban plight and fear.

[End Clip]

Adam: Thanks for joining us Zachary.

Zachary Siegel: Thanks for having me.

Adam: You wrote a piece in The Appeal back in March titled, for those at home, “In an Upstate New York Community Wracked by Overdoses, Prosecutor Pursues Users in Homicides Cases.” It’s such a cliché but there are so many cities and small towns like this throughout the country. You focus specifically on how the heroin epidemic or pandemic or however you want to define it has been met by law enforcement officials and prosecutors in what you describe, I think very thoroughly, as a kind of haphazard and overly punitive manner which is something we’ve seen time and time and time again since the rise of the heroin epidemic, as it were, five some odd years ago when it really sort of came into the cultural zeitgeist as something we had to tackle. The thing I liked most about the piece was you put a human face on it. So I want to talk about that human face, Richard Gaworecki of Union, New York. Can you tell us about his situation and what you found in the reporting of his case and what this says about the broader approach to the war on drugs?

Zachary Siegel: So I never actually spoke to Gaworecki himself, but I spoke to one of his friends and also one attorney in Broome County and you know this town it’s pretty small and like everyone sort of knows everyone’s business. That’s really the sense I got after talking to a few people who live there and one of Richard Gaworecki’s friends is, he was a 27, 28 year old guy and there was just like a small group of friends from high school, they’re all in their late twenties now, but they were all using heroin together and in this sort of social network basically whoever has money that day is the person buying the drugs. Right? And then that will then turn into a transaction between friends. So like if I have ten bags of heroin well, ‘You get a couple, you get a couple and, you know, give me whatever you can now and just know that next time I need heroin, you’re going to be able to get me.’ And that’s just sort of how these relationships work. It’s a self-preservative and, and, and survival. And so in this friend group, one day the batch of heroin is maybe extra potent. Maybe there’s illicit fentanyl in it. And one member of this friend group, um, his name, Nicholas McKiernan, he fatally overdosed. And then, uh, at the scene, the police look at his phone and it’s very obvious that Richard Gaworecki sold him the heroin and so this is just one case and there’s many like it where a close friend or a romantic partner or a friend of a friend is basically charged with killing their friend. And um, yeah, like you said, it’s very punitive and it’s very harsh and I think it’s emblematic of this sort of just-do-something attitude about the overdose crisis, like it’s been going on for so long that at this point it’s like people just need to look as though they’re doing something and apparently charging friends with murdering their friends is that something in this case.

Adam: Let’s back up here and set the table. What is the broader heroin epidemic as it’s sort of generally understood from a macro scale and how have the Obama and Trump White Houses responded to it in general and how have states and local prosecutors responded to it in general?

Zachary Siegel: Yeah, I mean that’s actually like a really good question that few people really stop to think about. So in my reporting, I’ve actually stopped calling it an “opioid epidemic” for various reasons. One of those is in epidemiology there’s always a causative vector of any epidemic, so it’s like HIV or Ebola, the virus, when you come into contact with that, you get sick and you might die. With opioids however, almost every single American has taken one at one point in their life for surgery or their wisdom teeth or whatever and the majority of us don’t get addicted to it. The majority of us don’t seek out more after we get a prescription and the majority of us don’t overdose and die. And so to say that opioids are the causative vector in the epidemic just doesn’t really make a whole lot of sense in epidemiological terms. And so I just call it an “overdose crisis” because that’s what’s happening. People are overdosing and I think there’s so many reasons why and obviously very potent drugs are causing that overdose. But, um, I think broadly people really don’t understand that starting around 2012, the heroin in the United States began to be contaminated with illicitly manufactured fentanyl. And this stuff is super potent and it’s by and large seen as a poisoned by people like drug users don’t want this stuff in their drugs, but there it is and it’s killing people. And so, so many people are dying because so many users haven’t adapted to that new market. And so that’s like the big problem right now is fentanyl is killing more people than heroin. It’s killing more people than prescription painkillers. And so the, one of the major problems I see on like a federal health policy level is all the attention was pointed at pharmaceutical companies and their marketing and prescription painkillers and the CDC took it upon themselves to write prescribing guidelines in the hopes that doctors would ultimately prescribe way fewer opioids then they were. And since 2011 the amount of prescription painkillers out there has dramatically declined and the rate of prescribing among doctors has also declined since about 2011. But the overdose rates have exponentially risen since then. And that sort of, there’s a lot of debate about like, did reducing the supply of painkillers push people to the illegal market and cause more overdoses. Um, it’s, there’s so much like problems with proving causality in any one direction there, but um, that’s definitely one thing people think. And at this point that’s been like the major solution here is to reduce the reservoir of prescription painkillers and control the drug supply. That’s usually how America responds to any sort of drug problem. It’s, let’s get rid of the drugs. And so far that’s obviously not working and Trump is obsessed with his border wall and things that’ll keep drugs out and just is patently absurd on the face of it. Like that wall is not going to keep drugs from coming into the States.

Adam: Yeah. What’s interesting is how much he’s really tapped into this id, this kind of rural white id that the reason why there’s a drug problem, which I’m happy to sort of acknowledge that there is a drug problem, anyone who’s from the middle or a small town in different parts of the country knows, that we all know people who are addicted to heroin, people we went to school with so forth, is because he connects it to, you know, to MS-13 and to all these sort of, whatever the Fox News, racist Boogeyman is.

Zachary Siegel: Yeah. Drugs are like usually a container for like hysteria and fear. I mean we saw that in the, I wasn’t around at this time, but we saw it in the crack cocaine crisis.

Adam: Yeah.

Zachary Siegel: I mean crack became a container to hold so much hysteria and xenophobia and urban plight and fear.

Adam: Yeah. I think that what’s interesting is that his approach takes sort of some vague; he does this a lot, right? Where there’s a sort of a notion of something that’s real and then he warps it into this distorted right wing version that doesn’t do anyone any good. And so from your estimation, what has the kind of punitive, even more so than usual, because obviously Obama wasn’t really that much better in many ways, approach on a federal level, has it had on your sort of average heroin addict as it were or drug addict? Is it, are people looking at longer jail sentences? Are they looking at more severe punishment for simple, simple possession?

Zachary Siegel: Well I think it really is actually dependent on where you are and so geography is playing a really big role in this. So if you’re a drug user in like San Francisco or Chicago or the Bronx or like any of these big urban hotspots, not much has really changed. I mean there’s always been a sort of like weird policing in these hotspots where cops know that there’s an open air drug market and they sort of just let it carry on. Like the cops know they’re outmatched, they cannot police this, these open-air markets. And so they just kind of, as long as there’s not a lot of violence and they’re contained, they kind of just let them exist. And so the new phenomenon is rural like beat cops and you know, places like in Broome County, upstate New York, like a heroin crisis is new to them to some extent.

Adam: Right.

Zachary Siegel: And so their policing is, it looks quite different. And if you look in states like Pennsylvania or New Hampshire or places where there’s, you know, mostly like young white men using heroin, you actually see that a lot of the jails are filled with young white men and a lot of them are actually getting these very harsh sentences like drug-induced homicide or drug delivery resulting in death. I think in Pennsylvania, like the median age for who has this charge is like a 28-year-old white guy. And so that’s definitely like something interesting when we talk about the war on drugs and racist policing its like, well that’s definitely true, but it could also be true that young white guys are now getting really harsh sentences to.

Adam: Yeah. That’s why disparity conversations without a broader framework can be somewhat misleading.

Zachary Siegel: Yeah. And so I, I’ve heard from people like, like attorneys who, and public defenders, who are representing people who get charged with drug-induced homicide that, you know, and one of them like I can quote just saying like “We’re in Jeff Sessions’ world,” like that’s what this person said.

Adam: Yeah.

Zachary Siegel: And so now prosecutors and US attorneys and, and you know, they’re emboldened to, to crack down and be harsh and the like, let’s execute dealers rhetoric is, I mean, it sounds maybe farfetched to people, but that’s actually already sort of going on. Like in Florida, a young black teenager sold illicit fentanyl that killed I think like a white kid or a white woman, I don’t know, and um, he got charged with first degree murder and could potentially face the death penalty. And the like, sort of like medieval story here is that they might actually execute him with fentanyl.

Adam: Wow.

Zachary Siegel:  It’s such a sort of biblical story of punishment.

Adam: Right.

Zachary Siegel: And, and so, yeah, I think at the federal, like when the president says like, ‘Get tough on dealers,’ and the Department of Justice and Jeff Sessions take that up, I mean I think there’s a real effect on sort of the local prosecutors and DAs and things like that.

Adam: Yeah. Because I mean obviously the federal government doesn’t necessarily control it directly, but there is a broader signal that’s sent. Um, this is something that we see a lot of times when things change hands. It’s a sort of cultural attitude. I remember when Trump first came into office, people were like, ‘Oh, you know, ICE is not going to be that much different,’ and now ICE I think case after case after case have shown they’ve, they’re doing what they were doing before, but in a more, way more cowboy way, way more aggressive way and that, that there is certainly a measurable difference there. And I, and I know that, I mean you have someone like Jess Sessions who wants to keep marijuana a Schedule I drug and keep it illegal. Um, which is something that I think less than 30 percent of the population in general supports and that attitude is still very prevalent, that sort of punitive attitude. And that seems to be like they’re trying to now transfer that over with the criminalization becoming less popular. Almost like they’re trying to transfer over this whole addict as drug dealer/murderer. One of the numbers you gave was that the, the specific county that you discussed, Broome County, that of the 95 overdose deaths, 84 of them were being investigated as potential homicides.

Zachary Siegel: I found that shocking.

Adam: Yeah.

Zachary Siegel: Like, and I’m just thinking, you know, how many of these overdoses were just a friend giving a friend a bag that turned out to be too potent? And I bet a lot of those cases are sort of like this Gaworecki case where a circle of friends are sort of just using and dealing to each other. And I, I don’t know the answer to that, but my hypothesis is like a lot of them because it’s very hard to actually catch the bigger dealers. That’s why we so often see like the lowest hanging fruit getting charge.

Adam: Yeah. The line between dealer and user is obviously not very clear all the time. Can you talk about how prosecutors are attempting to obscure that line and is there any kind of hard data that’s done that shows what percent of dealers are either addicts themselves are extremely small time in their, in their scope?

Zachary Siegel: To that last question, I think it’s really hard to tell like how many users are also dealers. I think like the world of drug addiction is really just shades of grays and, and really like on any given day a user is also a dealer or vice versa. And really the, the, like the true “dealers” quote unquote are people who supply like whole regions, right? And so like to catch the, you know, the major traffickers, that’s sort of what they call them, takes a lot of work, a lot of investigating, a lot of time and resources and usually collaboration with multiple agencies. And so those investigations are sometimes successful and they net some cash and they net some heroin but like never enough to cause like a drought or anything like that. And so the, the, yeah, it’s really hard to really tell like who’s who in drug using and drug dealing networks. But to the other question like how are prosecutors blurring that line? Um, so basically there’s just this, there’s been a trend over the last decade or so that overdose scenes are actually homicide scenes. And so what they do is, the first thing is they go for the phone and so people are often just like, by the way, technology has changed drug dealing, you know, it’s really like ordering an Uber or a Lyft. I mean you just text a dealer and they dispatch a driver and usually you just meet up with whoever’s there and you get your drugs. And so that’s like probably more of like an urban delivery system. And so in places like Broome County or more rural areas friends just text friends being like, ‘Hey, do you have bags of heroin?’ Like the language is not coded in any way.

Adam: Right.

Zachary Siegel: If you get this phone, you essentially have the whole story. And so without the phone they really can’t, um, you know, say you’re a dealer. But so what they will do is the overdose victim who’s now dead, they take that person’s phone and usually the “dealer” quote unquote, or that person’s friend, might not know that they’re dead and the cops start texting from that dead person’s phone-

Adam: Oh wow.

Zachary Siegel:  And then they’ll, basically what that does is prove that this person is a dealer. Like they didn’t just sell one time, they sold multiple times.

Adam: Oh wow.

Zachary Siegel: That’s one way at least they show that this person is a dealer.

Adam: It seems like there’s a general trend in a lot of the stuff we talk about in the show, which is that there’s this problem that society has that is a legitimate problem whether it’s trafficking are or you know drugs or even violence, guns and then there’s this response that’s just let’s just make something illegal and put someone in jail and it doesn’t even matter sometimes who exactly that is. Just somebody needs to go to jail. And I guess when you, when you see these small towns and the sheriffs are responding to the news reports, right? They’re responding to I’m sure they’re responding to earnest panic about drugs. I mean people forget like during the sixties when a lot of the harsh drug sentences were passed like drugs were an actual problem. Like in the eighties, drugs were a major problem. They tear families apart. Like they’re really, they’re very bad. Right? But we, it seems like the first arrow in the quiver we reach for is to just start making stuff more illegal. In the county that you, that you profile the DA, Steven Cornwell, he’s just constantly posturing about how much he’s keeping people safe and keeping the poison off the streets and it’s almost like you kind of understand why he’s doing this if he thinks it’s helping people, but it’s like no one factors in the 10, 20, 30 year prison sentences people are having to, having to face as part of this equation of suffering. And like it doesn’t factor in. Maybe this is sort of a, I don’t know, not in your wheelhouse, but like if you were to talk to someone, if someone is listening and they, let’s say they lost a daughter to drugs or they were negatively affected by drugs and they want to quote unquote “do something,” right? Because that’s always what we want in this culture is to do something. What can we do that isn’t that instinct? Just stop putting people in jail as your first response to everything? What should be the approach that we take to this? Something we can all admit as an actual problem. Now obviously there’s other countries that have done much better and much more humane alternatives. Can you give us some of the sort of more like maybe to be prescriptive here a little bit?

Zachary Siegel: Yeah, I mean, I, I’m, this is actually one area where like okay being prescriptive because there’s so much data and so much evaluations in, in real world settings that show like that all policies aren’t created equal. Some actually do work better than others. And I think right now in America we’re sort of reckoning with, um, like an internationalist perspective on what helping a drug crisis actually looks like. And just in Canada alone, there are, uh, several, they’re called supervised injection facilities or safe consumption sites. I mean people are trying to really tweak the language to make it sound more and more palatable but basically medical supervision for pretty entrenched drug users. So like people in San Francisco who’ve been maybe using heroin for years and years and years, um, give them a safe space to inject under medical supervision and start linking them up with healthcare and services that might actually steer them away from using drugs later down the road once they’re ready. So that’s definitely one thing that’s actually looks like it might come to fruition in America soon. There’s a lot of political, uh, mobility behind safe consumption spaces or supervised injection facilities, whatever you want to call them. I mean, so that’s like, you know, people call that ‘a public health approach’ and that also includes giving drug users a sterile injection instruments like needles and cookers and, and distributing naloxone, the overdose reversal drug, I mean these are all things that, you know, keep people alive and sort of the saying is like ‘you can’t recover if you’re dead.’ And so at this point with illicit fentanyl just really killing people at a rapid clip, it makes sense to implement policies that are really only concerned with keeping people alive. At like a baseline that’s what these policies do. And then once you realize, ‘Okay, now that we can keep people alive, what do they need? How do we get them help? What is it that might entice them to stop using drugs and maybe get into treatment?’ And really I think it’s like pretty obvious. We need like maybe a jobs program like I think like the biggest things to tackle this overdose crisis is not controlling drug supply and, and, and enforcement and interdiction. It’s like people probably need healthcare and a job and maybe they’ll feel much better about their place in society.

Adam: Yeah I know that there is some, some studies that have shown, yeah, I mean that addiction is not some fixed thing that we have from birth and we’re just addicts. That it is highly coordinated with, with being isolated and being cut off from relationships and that having a city or a town that has all the jobs leave and the centers of town degrade and you know that these things obviously will coordinate with drugs. And this is true in African American and white communities alike.

Adam: Right. I mean, I think there’s like in places like Broome County maybe, or wherever; I mean there might be just like a collective loss of like human dignity. It’s like how do you go home and say a robot is doing my job now and like what do you do when society just really doesn’t value your existence? I mean, that’s, that’s like a very harsh reality to confront and retreating into like drinking or doing drugs is a comfortable way to cope with that. And so that might be like one sort of cultural thing going on at, at, uh, at, in really a lot of these places.

Adam: So somebody by the name of Tana Ganeva, who was a former colleague of mine at AlterNet, she wrote a great piece in The Intercept about the way in which we, the changing racial aspects of the heroin issue, we won’t say epidemic.

Zachary Siegel: Yeah, I read that. It was really, really good.

Adam: Yeah. And one of the things that I think was interesting, and people may not know this, that amongst African Americans, uh, heroin overdoses have increased, they’ve tripled since 2010. Um, that it’s increasingly becoming an African American problem as well as a white problem. I mean you can’t talk about drugs without talking about race. Obviously, in this country, they’re wedded at birth. Can you talk about how the changing racial dynamics affect the political way we talk about it at all and what it means when we talk about how to come up with non punitive solutions?

Zachary Siegel: Yeah well I think to backtrack a little bit into sort of the early waves of the overdose crisis so it’s like come in three waves. So the first wave was prescription painkillers in the late nineties and the early aughts, and then heroin and now illicit fentanyl. And right away the first wave of prescription painkillers was really framed as innocent victims, innocent patients getting addicted by their doctors who were duped by greedy capitalist big pharma. Like that was really the narrative that took hold. And so right away there was a wave of sympathy for these like white middle class people with healthcare who got surgery for some reason.

Adam: Oh, I see. As opposed to like the “crack head” who is morally-

Zachary Siegel: Exactly. So like right away there was like a sympathy that was elicited this drug crisis in a way that there rarely was for other crises and like, not to pick apart that whole narrative because there’s some truth to it, but that’s just right off the bat something really interesting that really framed where we are now, which is, you know, young white people dying from heroin. And now what’s happening is because the heroin is tainted with illicit fentanyl communities like the Westside and Southside of Chicago, the Bronx, San Francisco, places where heroin has been endemic, where like it’s just been there since post Vietnam and never left, now we’re seeing this population starting to die off because they’ve been doing heroin for so long and now the heroin is more potent and again, behavior needs to adapt to face a sort of changing drug supply. And so now that the like, so-called ‘urban’ users are, are dying um, I haven’t really seen that get picked up too much and, or really changed the narrative overall. I think people like to say addiction doesn’t discriminate or that you know it’s an ‘equal opportunity disease’. Like I hear all these things like addiction is a thing that spans race, class, gender, like everyone is potentially a susceptible to it. And maybe that’s true to an extent, but really the people who are most susceptible to it are probably the people who are most marginalized and oppressed or people who lack financial opportunity or people who’ve experienced serious, serious trauma in their lives. And I just think we need to sort of do away with the like innocent white victim narrative to really confront what’s happening in communities where people are dying from overdoses and, and the reality is people are in pain whether it’s physical or emotional. And we need to ask why is there so much pain? Why do people demand this drug so much today? What’s going on?

Adam: Yeah. There’s kind of this frustration on the part of a lot of African American activists when they saw the kind of sudden response and moral outrage over the opioid crisis as a, as it’s described when there was only reactive or punitive kind of top down approach to the crack epidemic in the eighties and nineties, which was, you know, it was real and of course the response isn’t to have the same response, right? The response is to have an equal one. Um like-

Zachary Siegel: Right. Like will the public health policies that really do help people, will those be extended to people in the South and Westside of Chicago or Harlem? Like will that sympathy be extended to them? We’ll see.

Adam: And these, you know, there’s so many of these cities and towns that have just been completely left for dead. I mean they’re total sacrifices zones and the rates there are so high. Let’s say for the sake of argument we live in a civilized country where we actually try to solve problems instead of throwing everyone in jail. There would be a public health response to this; we would treat it as a public health issue. The issue of people getting addicted to opium via legal painkillers, as you mentioned, did sort of help create the white victim image that was popularized but we definitely don’t want to dismiss that altogether. That actually is a problem. Can we talk about the prevalence of opium, legal opium in prescriptions? I know that one statistic I heard said that there are more people addicted to prescription pills, painkillers than people who are addicted to cocaine, crack and heroin combined, which of course doesn’t surprise me. Um, and if you just look at the sheer amount of numbers of painkillers out there, now there have been, that has gone down, but can we talk about how much that actually does serve as a gateway drug? I mean, anecdotally, I know people in my circles who that’s absolutely been the case. Uh, but obviously that’s just anecdotal.

Zachary Siegel: Right. I mean there’s definitely something going on there. Like, I don’t want to dismiss the fact that opioids are actually addictive drugs and if you get a wisdom tooth pulled, you don’t need a 30-day supply of these things. You might need two days tops or you might just be fine with ibuprofen. So what I think what was going on with the overprescribing was people would be sent home after having like very minor surgery or like a very minor injury with like way more of these drugs than they really needed to go home with. And then, you know, I think one of the big problems was if you give so many people this drug then you’re giving so many people who have all sorts of baggage and other problems access to a drug that will make them feel really, really good. And maybe I think that was part of the problem here is like if you have any sort of mental health condition, if you have like depression or anxiety and all of a sudden you take an opiate and you feel really good, sort of like its really interesting. You’re like, ‘Oh my God. Like I finally feel okay. I finally feel at home in my own skin,’ and then clearly that drug a doctor prescribed to you is being used in the wrong way and like, how is the doctor supposed to know that you were going to react like that? Right. So that was definitely like one thing going on with the over prescribing and it’s definitely real that like Purdue Pharma had false and misleading marketing and it’s definitely true that, you know, this drug was way, way, way overused and prescribed to tons of people who didn’t probably need it. But then there’s also a population of patients who are on chronic opioid therapy who do need these drugs and are relatively stable on them. And as a result of the prescription pendulum swinging from this very liberal position to now a very restrictive one, now they’re being, um, they’re sort of bearing the brunt of that policy now. And so whenever I talk about prescription painkillers, I just want to make sure that people do know that these drugs are used everyday in hospitals and by people in pain and that they’re like a medical necessity. But we need to strike a balance in how many we give people and when we give it to them and, and things like that. So it’s a really complicated issue of like understanding what addiction is and what epidemiology is and how we study like drug epidemics. I mean it’s like when I first started to report on this, I had no idea how many layers there was to this thing.

Adam: Yeah. Because if I’m of a certain disposition or, or wealth and I’m an addict, I go to some rehab center, but if you know the other 80 percent who don’t have those resources, they’re invariably just going to end up in jail at some point either for quote unquote “dealing” and getting someone killed or for just possession alone, which is why the whole like addiction is colorblind or addiction is not, it’s kind of a BS talking point.

Zachary Siegel: Yeah. Politicians love to say that. Like Chris Christie, he says that all the time.

Adam: Well yeah. Are there any states or cities or DAs even or god forbid, police sheriffs approaching this a little differently in this country that you think is maybe not perfect or something you would promote necessarily, but it’s less punitive that we can kind of look at and say, ‘Okay, well that’s, that’s a better way to do things?’

Zachary Siegel: Uh, yeah, yeah, definitely. There are people out there who really, really like beat cops to police chiefs to DAs. Like there are people out there who really do want to sort of treat people with addiction, not as criminals, but as human beings and like reflect their dignity back to them. And I was actually shocked, so I was at the John Jay College of Criminal Justice for this like couple day symposium and one of the panels was about the opioid crisis and this police chief from Burlington, Vermont, Brandon del Pozo, um, anyway, so he’s a police chief in Burlington, Vermont and he said to the crowd, ‘I would prescribe buprenorphine outside of my police station if I could.’ And so this a drug that, it’s referred to as like medication assisted treatment, but basically if people who are addicted to opioids have access to drugs like methadone and buprenorphine, the risk of overdosing, the risk of dying, the risk of relapsing, is all dramatically reduced, like huge, hugely, like by 50 percent or more. And it’s, basically if we get this drug out there and more available than it is right now, we’ll see overdose rates start to go down. So yeah.

Adam: Can you talk a little bit about that? For people who aren’t familiar, what are the programs that exists to reduce overdoses and to kind of help out people who are addicts in a way that is non punitive, can you talk about those programs and what they are and what these other medications are?

Zachary Siegel: Yeah. Yeah. So a really good example I like to use is what happened in France. So France in like the late nineties and early two thousands they were having like a really, really bad HIV and heroin crisis. And what they did was institute what’s called a low threshold model for accessing medication treatments. And so basically any doctor could prescribe these drugs to just about anyone who wanted them on demand. So basically these two drugs were like methadone and buprenorphine and so both of these drugs are what are called opioid agonists or half agonists. So that means they actually activate the receptor, which means to some extent there’s, there might be possible euphoria if you don’t really have a tolerance, but if you do have a tolerance for opioids, that means your receptors are basically like satiated, like they don’t crave the drug because they are active. And so the, when you’re in withdrawal, your opioid receptors are just like so thirsty for opioids that they make you feel like complete crap without it. And so access to these drugs, um, reduces the risk of overdosing and relapsing. And so any program that makes this drug easier to obtain would see favorable results. And like Vermont, again, they have a pretty innovative model to get people access to these drugs. And we can talk more about that but like basically we need to fold addiction treatment into primary healthcare. Like for some reason, if I have addiction, I can’t go to my regular doctor and be like, can you treat me? Because they’ll be like, ‘I don’t know what to do.’ So then you have to Google best rehab or something like that and then you get sent to like South Florida and could be potentially preyed upon. I mean there’s a whole sort of fraud and, and, and huckster, snake oil salesman facet to addiction treatment that bafflingly is thriving right now. But um, basically, yeah, we need to actually treat this like a chronic medical condition.

Adam: Yeah. It’s the whole we need to treat drugs as a, as a health crisis, not a criminal one. You know, it’s interesting to me, I feel like that’s kind of been the consensus now for going on 20 years and yet we still have the same laws and no democrat wants to be on record as opposed to anything except for the most token cannabis reform.

Zachary Siegel: Yeah.

Adam: It is shocking how much capture that the war on drug ethos still has on our political class when you consider, I mean obviously that’s because certain power structures want it and it’s deeply racist, but even granting that, given that the radical swings in public approval, you think there would be some kind of lax on that, but there isn’t.

Zachary Siegel: There’s so much fanfare around Larry Krasner in Philly, I mean, this guy, he came out and straight up said criminalizing crack cocaine was a big mistake. And to even get a politician to say that, I don’t even know. I don’t know many people who have said that, uh, like maybe in retrospect people will be like, ‘Oh yeah, like we definitely shouldn’t have had crack cocaine carry a one hundred to one sentence compared to powder cocaine. Maybe that was bad.’ But like, it even just saying like the most patently obvious, uh, thing is hard. Like for politicians when it comes to drugs because they’re so afraid to appear soft on crime or whatever.

Adam: Right. If somebody is listening and they themselves are struggling with heroin addiction or know someone who is, what are some of the best tools and resources they can use? Based on the sheer numbers it’s likely that many of the listeners will have that in their lives and I want to try to be a little bit constructive here.

Zachary Siegel: Yeah, I think it really depends where you are. But if, if I, like I’ll just say I’ll just talk about myself because I don’t want to like tell other people what to do. Like I’m not a doctor and I don’t want to prescribe like medical advice, but like-

Adam: Of course not.

Zachary Siegel: If I today had an opioid addiction and I really wanted to stop and there was genuine motivation within me that like what I’m doing is really, really bad and I’m hurting the people I love and I really need to get help. I would probably find an addiction psychiatrist near me who could give me an assessment. And a psychiatrist board certified in addiction can prescribe medications like buprenorphine, probably not methadone, you’d have to go find a clinic and those are pretty hard to find and there’s usually a weight list and it’s very bureaucratic and, and like, uh, not the best constructed system. But I would just find a psychiatrist who takes Medicaid or takes my insurance, whatever, and just get assessed. Like see a medical professional who can tell you what is going on with you and help you decide the best course of treatment. You probably don’t need to pay $20,000 to fly down to Florida and live inside a fancy residential treatment center that has a chef and a masseuse by the beach. Like I don’t know any other condition where like that’s the draw for treatment, but we sell treatment like a vacation resort and I would avoid those places at all costs because they’re, its not delivering medicine or healthcare. It’s like this weird faux treatment that, um, I don’t think does people much good. That’s my personal opinion about that kind of thing. But if, if I’m struggling, I would honestly just find someone who could, a medical professional with, with prescribing privileges, like a real doctor-

Adam: Right.

Zachary Siegel:  To try and help me figure out what’s wrong with me and what treatments would work.

Adam: Yeah.

Zachary Siegel: And I think that’s the first thing that I would do if I really needed, um, if I was really ready to like stop using and get treatment. But in the interim, if I’m using and I’m, I’m in, I’m not interested in quitting and are not ready to give it up, it sounds weird, but I would just tell people in my social network like, hey, you should probably carry naloxone because I’m using heroin and I might overdose and you might be the one nearest me who could revive me. Like, it’s so counterintuitive because heroin use is so secretive and no one likes to tell other people that they’re doing it. But if you really want to stay alive, you can’t be using it alone and in secret.

Adam: Zach, thank you so much.

Zachary Siegel: Yeah, thanks for having me on. This was, this was fun.

Adam: That was Zachary Siegel, a Guggenheim fellow at John Jay College of Criminal Justice and a contributor to The Appeal. I’m your host Adam Johnson. This is The Appeal Podcast. It is produced by Florence Barrau-Adams with executive producer Sarah Leonard. Thank you so much for listening. We’ll catch you next week.


A Melee Broke Out On The Subway—and then the Bronx DA Prosecuted One Of Its Victims

Walliris Velez thought the worst was behind her after she was slashed in a subway car, but then came an arrest and an attempted murder charge by the Bronx DA.

Walliris Velez standing at the Bronx subway platform near where her assault took place.
Photo by George Joseph.

A Melee Broke Out On The Subway—and then the Bronx DA Prosecuted One Of Its Victims

Walliris Velez thought the worst was behind her after she was slashed in a subway car, but then came an arrest and an attempted murder charge by the Bronx DA.

Four years ago, Walliris Velez’s mother warned her to stay away from the Puerto Rican Day Parade, afraid of what could happen if the crowds—which in years past have ballooned to over 1 million attendees—got rowdy. “My mom doesn’t like crowds,” Velez remembers, “because she’s always watching the news and thinks bad things could happen. She’s very overprotective of us.”

On June 7, 2014, as Velez, then 27, made her way back from the parade on a packed northbound 5 train, her mother’s fears were realized. “A group of loud people barged in, everyone turned around, and one of them, the girlfriend slapped her boyfriend,” Velez remembers. “I said to myself, ‘They should leave that at home.’” The boyfriend caught Velez’s gaze and told her, “Mind your fucking business.” Velez says that when she tried to respond, “he mushed my face, I looked at him like, ‘Are you serious?,’ then they all jumped me.”

Velez, who was slashed by the one of the melee participant’s glasses during the fight remembers seeing only wildly swinging arms and feet as she hit the subway train floor. Friends carried an injured Velez off the 5 train at the 149th Street-Grand Concourse stop; but when she attempted to climb the station stairs, she passed out. Later that day, at Lincoln Hospital in the Bronx, she was visited by NYPD detectives. Velez told the police that she had just defended herself during the subway attack; she recalls that an officer offered to drive her to the precinct to press charges against her attackers. She took up his offer but after waiting for hours in the precinct, a separate officer came and placed her under arrest. “You’re getting arrested, one of the girls is pressing charges,” she said the officer told her. “I was confused,” Velez remembers, “what just happened?”

The next day, a police officer reported that Velez had struck one of the attackers with a closed fist—charging her with multiple assault and gang assault charges and criminal possession of a weapon. In the fall of 2014, the Bronx District Attorney’s Office tacked on a charge of attempted murder in the second degree. Velez entered a not-guilty plea and assumed the case, even though it included gravely serious charges, would end with prosecutors dropping it or a not-guilty verdict at trial. Video surveillance footage from the subway, a police radio call, NYPD detective notes and a knife found on one of her accusers all pointed to the fact that she was a victim, not the perpetrator, of the Puerto Rican Day Parade altercation. But the case against Velez took three and a half years to resolve, and her attorney claims that the Bronx District Attorney’s Office office withheld this key evidence that could have exonerated her.  

Indeed, in late December of 2017, Velez was acquitted on all charges in Bronx County Supreme Court. But the case had devastating personal consequences for Velez, a single mother who struggled to keep her fast food job as the legal proceedings dragged on. In the months before the trial, she says she was forced to send her two daughters to Puerto Rico because she couldn’t make ends meet. Six months after she was acquitted, her daughters are still on the island.

Kristin Bruan, Velez’s public defender and a staff attorney at the Legal Aid Society, told The Appeal that police and prosecutors often don’t use the wide discretion they have when bringing cases against low-income defendants like Velez. “They didn’t have to arrest her,” said Bruan. “When it’s Eric Schneiderman, they investigate him before they arrest him, but when it’s a poor person of color, they take a complainant at their word and arrest the person, there’s something wrong there. … It sends a message that there’s no such thing as ‘innocent before proven guilty.’”

Bruan says that Velez was put at further disadvantage when discovery materials—pretrial evidence about the case gathered by the prosecution—were not shared with the defense until the fall of 2015, more than a year after Velez entered a not-guilty plea. Also, the state did not turn over exculpatory evidence that was favorable to Velez until 2016 and 2017, according to court documents. Such evidence included a knife that was recovered from one of the accusers; medical records indicating that one of her accusers was released into police custody the day of the incident; the arresting officer’s memo book in which he reported that at least one of Velez’s accusers was identified at the perpetrator at the crime scene; a police radio call describing another one of Velez’s accusers as one of the perpetrators; and a subway surveillance video that corroborated information in the radio call.

Velez pointing to the staircase where she remembers passing out after the attack.
Photo by George Joseph.

During pretrial hearings in the summer of 2017, Velez’s attorneys say that prosecutors continued to withhold exculpatory evidence such as a detective’s notes identifying Velez as a victim in the subway melee.

The detective scratch notes that identify Velez as a “victim.”
Source: Kristin Bruan of the Legal Aid Society.

Bruan says that Velez’s case is emblematic of the plight of poor defendants in New York’s criminal justice system. New York’s “Blindfold Law”—which allows prosecutors to withhold discovery until the day a trial begins—along with the fact that a small fraction of cases go to trial makes prosecutors the “gatekeepers of the evidence in question” and leaves “no doubt that Brady violations are rampant and that the vast majority are never uncovered.” Brady violations refer to 1963 Supreme Court decision requiring prosecutors to disclose materially exculpatory evidence in the government’s possession to the defense.

The Bronx District Attorney’s Office did not respond to requests for comment on Velez’s case nor its policies on turning over evidence to defense attorneys.  

When the case finally went to a jury on Dec. 22, 2017, Velez was consumed by anxiety. “I was really scared, I couldn’t eat, stand still, I used to cry every single night,” Velez remembers. The morning the verdict came down, Velez said goodbye to her 13-year-old son for what she thought could be the last time seeing him as free woman. “‘Today they tell me if I come back home,’” Velez recalled telling him. “He starts crying. I said, ‘You gotta be tough, don’t worry, you’re going to be OK.’ I didn’t want to cry, jumped in a cab and went to court.”

After the not guilty verdict was returned that day, Velez went home and found her son praying. “He wrote letters, saying ‘God please help my mom,’” Velez says.

Prayer letter written by Velez’s son the day of the verdict
Provided by Walliris Velez.

Though Velez was victorious at trial, she says she has not forgiven the Bronx District Attorney’s Office for the trauma its tactics inflicted on her family. “My cop friends were telling me the DA doesn’t care about who’s getting charged,” she says. “At the end of the day they go on [living their lives]. Everybody else gets screwed.”

Her travails in the criminal justice system have made Velez perpetually wary of prosecutors from the Bronx DA’s Office. Velez believes “they’re people you can’t trust. I will never trust the DA, never, it was a horrible experience. … What they put me on wasn’t right. They accused me of things I did not do, building up a case against me they [weren’t] sure themselves about.”

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‘I didn’t lay down’: How a California man convicted of murder may have saved his own life

Death penalty mitigation offers juries a chance to see defendants in a different light.

Ernesto Martinez as a boy
Photo courtesy of the Martinez family

‘I didn’t lay down’: How a California man convicted of murder may have saved his own life

Death penalty mitigation offers juries a chance to see defendants in a different light.

The odds were stacked against Ernesto Martinez. Last fall, he was on trial for a capital offense in a place that has distinguished itself as a leader in condemning people to death: Riverside, California, a populous county just south of Los Angeles. For two out of the past three years, juries there have handed down the highest number of death sentences in the country, with five last year. According to the Death Penalty Information Center’s annual report, Riverside and two other jurisdictions—Clark, Nevada and Maricopa, Arizona—together imposed over 30 percent of the country’s death sentences in 2017.

Just two months before a jury would decide his fate, Martinez said, nobody was working to make the argument that he should live. “Riverside County is handing out death sentences left and right,” he told The Appeal in a phone interview from prison. “It started to make sense as to why.”

It took over two decades for his case to wind into a Riverside courtroom. In 1995, when Martinez was 19, he allegedly killed a cop on the side of an Arizona highway, fled that scene, and then fatally shot a gas station clerk just over the California border. An Arizona court in Maricopa County condemned him to death in 1998. (That case is in habeas appeals.) Twelve years later, prosecutors in Riverside extradited him, even though, as the local Riverside county paper framed it in March 2017: “If Martinez is sentenced to death in California, Arizona will still get to kill him first.”

Across the country, the number of people given death sentences has fallen significantly in recent decades—from 295 in 1998 to just 39 last year. Experts attribute this decline to several factors, including the disturbing number of death row prisoners who have been found not guilty through advances in forensics, such as DNA evidence: At least 162 people on death row have been exonerated since 1973. “That has to have had a chilling effect on jurors’ willingness to impose a death sentence,” said Sean O’Brien, a law professor at the University of Missouri-Kansas City and a preeminent expert on capital defense.

And, simply put, capital defense has gotten much better. A series of U.S Supreme Court decisions since the 1970s has raised the bar for effective capital counsel. “Our prosecutors didn’t get nicer, juries didn’t change, and judges didn’t get better,” O’Brien said. “The one thing we’ve changed in Missouri is defense counsel, and it has made a huge difference.”

Chief among the improvements has been the advent of a field of professionals who develop non-legal arguments for why an individual’s life is worth saving. Mitigation specialists, as they are called, cull documents like medical and school records, building a multigenerational history of their clients that can stretch back to slavery. They talk with often-reluctant witnesses who have known defendants at different stages of their lives to reveal personal histories that often include substance use disorders, mental illness, and abuse. The goal is to create empathy, working on an underlying premise that no person is evil, though some are very damaged. O’Brien said a “significant” portion of his clients had witnessed a parent or sibling’s murder. “People tend to divide the world between murderers and victims,” he said. “That’s a completely inaccurate dichotomy.”

Jimmy Lohman, who has been a capital defense lawyer in Texas and Florida for nearly four decades, echoed that sentiment. “You cannot imagine how many death defendants were traumatized in their youth. That could range from being beaten and molested by your mother’s boyfriend to stepping over dead bodies in your housing project,” he said.

Martinez was an unusual defendant. He has an IQ higher than 90 percent of the population, according to court records, and he trained himself to be a competent litigator during the two-plus decades he has lived behind bars. Starting in 2011, he represented himself in the criminal trial in California and quickly realized he needed a mitigation specialist. A good one. Martinez’s high IQ and competence may have even made things harder since mitigation claims often hinge on a client having a low IQ or mental illness.

After taking over his own case, he fought to hire a mitigation specialist at a rate of $75 an hour, almost double the unusually low $42 an hour the court was originally willing to pay. “No competent mitigation specialist would work for that 20 years ago, much less today,” said Richard Burr, a lawyer in Houston who has worked on capital cases since 1979. The going rate is $75-$100, sometimes higher, according to several people in the field.

“I fortunately was smart enough that I didn’t lay down and let myself get killed,” Martinez said. Ultimately, he was granted the rate increase, but only three months before a jury would decide if he lived or died.

The ‘Angel of Death Row’

The art and science of mitigation investigation was born and refined in the “modern era” of capital punishment, as the years after the U.S. Supreme Court re-approved capital punishment in 1976 after a four-year hiatus are called. Starting then, courts were mandated to have two phases to a capital trial: the first to determine if a defendant is guilty of a capital-eligible charge, and a second “penalty phase,” in which the jury decides if he or she should be condemned.

Historically, defense attorneys had only gathered personal information about the defendant within the narrow bounds of what is relevant to either an insanity defense, or what is called a “mens rea” defense, meaning that the person did not plan the actions or intend their consequence. But the penalty phase, where nearly anything about a defendant’s biography is fair game, offered room for a far more robust defense.

Initially, that potential went unrealized, O’Brien said. “Lawyers stay with what they know, what they’re comfortable with.” As a result, he added, “In the first round of capital trial cases, there was a lot of neglect of the penalty phase.”

In the 1980s, a small, tight-knit community of death penalty opponents was disappointed with how lawyers were using the penalty phase, so they took up the work themselves. At the forefront of this push was Scharlette Holdman, an anthropologist by training and famously salty character who is credited with being the first mitigation specialist. She would become known as the “Angel of Death Row.” (Holdman died last summer at age 70.)

According to Lohman, the defense lawyer, the line of quality mitigation specialists can be traced directly to Holdman. “It’s almost like if you haven’t worked with Scharlette, you’re not really qualified,” he said, “or someone who was trained by her. She’s the source of all knowledge.”

Holdman had a troubled past herself. She grew up in an abusive household with a racist father. As a landlord, he described evicting his black tenants as “going niggering,” according to the journalist David Von Drehle, who profiled Holdman in his book Among the Lowest of the Dead. As a young woman, she threw herself into civil rights activism, running several chapters of the American Civil Liberties Union, and then focused her energies on the death penalty—a path that may have started as a rebellion against her father but became intrinsic to her character.

“As we in local communities began to look for mitigation, we saw it as presenting the narrative of someone’s life, and we became acutely aware that it was a very specialized, complex undertaking,” Holdman told The New Yorker in 2011. “It requires not just knowledge and skill but experience in how you search for, identify, locate, recognize, and preserve the information.”

Holly Jackson, who eventually became Martinez’s mitigation specialist, is based in Los Angeles and is a Holdman protégée. “She had the ability to build a rapport and trust within an hour because she had the life experiences, because she knew what people were going through in terms of poverty and abuse and cultural stigmas,” Jackson said. “She taught me that, that human part of it. That was the most important part. If you can’t get the witness to talk with you, to engage with you, then you’re not going to get the information you need and you’re not going to get anywhere.”

As Holdman and her peers developed mitigation investigation methods, capital defense attorneys were increasingly seeking that type of expertise. “They were two groups that were going to find each other eventually, no matter what,” O’Brien said. Over the years, the standards were refined and codified in the American Bar Association’s guidelines. Today, having a mitigation specialist on a capital case is considered a constitutional right, but securing one isn’t always easy, as Martinez’s situation illustrates.

The hunt for help

In July 2017, two months before the guilt phase of his trial was scheduled to begin, Martinez petitioned the court to delay. Despite years of trying to secure a mitigation specialist, he still did not have one. The first specialist, who was supposed to do both fact and mitigation investigation, was a no-show, he explained. “I went eight months and never met this investigator,” Martinez said. That man eventually took himself off the case. A second specialist joined the case but was removed two years later because of personal legal troubles, Martinez said. A fact investigator assigned to the case, Jerry Monahan, was told by the Indigent Defendants Office in Riverside that he couldn’t help with mitigation.

So, Martinez and Monahan set out to find mitigation specialists. A capital defense lawyer in Arizona who had been following his case closely, suggested Jackson, but she was unwilling to work for the rate they were paying. “Our community has a policy: We will not go for less than certain amount or it will ruin it for everyone,” Jackson said, in reference to pay.

The judge, Charles Koosed, was not moved. “There’s no right to a mitigation expert,” he claimed at the July hearing. “If you can convince the pay panel to give you money for it, that’s fantastic. More power to you. But I’m not going to argue with you about any of this.”

The ACLU’s Capital Punishment Project, which had been monitoring all the death penalty cases in Riverside and contacted Martinez directly, disputed Koosed’s claim a month later in a friend of the court brief. “There is an indisputable, constitutional right to an adequate mitigation investigation in capital cases. This Court’s failure to grant the continuance necessary to provide for such an investigation is constitutional error,” the brief reads. It cites several Supreme Court cases and quotes an opinion written by Justice Sandra Day O’Connor in 1978:

“If the sentencer is to make an individualized assessment of the appropriateness of the death penalty, evidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.”

The brief also argued that Martinez should be provided the “funding needed to conduct a constitutionally adequate mitigation investigation.”

In the meantime, Martinez worked with yet another court-funded mitigation specialist. This one, too, didn’t work out.

It is unclear how Martinez eventually persuaded the judges to allot him a higher rate to pay for a better mitigation specialist. Jackson came on the case Oct. 10 at a rate of $75 an hour.

Around the same time, a defense lawyer, Richard Swanson, agreed to represent him during the penalty phase of his trial so he, Jackson, and the fact investigator, Monahan, set to work at breakneck speed—generally mitigation investigations take over a year, Jackson said. Martinez was convicted of murder on Dec. 4, 2017, and the penalty phase was to begin two months later.

“We worked day and night, the last couple of weeks,” Jackson said. “It was just really stressful.” One saving grace was that unlike most defendants, Martinez had been incarcerated for over 20 years—time that was both well-documented, and in his case, helped prove that he was a changed man.

The trial

During the eight days of emotional testimony, 17 witnesses revealed a portrait of a boy who was protective of those close to him but slowly devolved into a reckless teenager capable of murder after years of abuse and trauma.

Martinez grew up in a volatile home with a father who would verbally and physically abuse his children and their mother, family members testified at his trial. His mother used meth and heroin in the house when the kids were young, they said. Martinez was the second of four children and the oldest boy, and would try to physically intervene when their father was abusing their mother.

He spent a lot of time with his paternal grandmother who, a cousin explained, was one of the few adults in his life who didn’t struggle with alcohol or substance abuse. She made homemade tortillas for anyone who was around, and doted on her grandchildren. Another cousin described Martinez as his grandmother’s favorite; he would frequently retreat to the small house where she lived on the family’s property in Indio, California. She died from a stroke in 1985 when Martinez was 9 or 10. “He just closed up,” his cousin Barbara Garza told the jurors on the second day of testimonies.

Shortly after his grandmother’s death, Martinez’s family moved to a small town—Globe, Arizona. Here, both parents got sober and became devoted to attending a local Evangelical church. They took the children there five days a week. But while Martinez’s father put on a pious front at church, his sisters testified, he was still abusive and controlling at home.

In 1989, when Martinez was around 14, his best friend committed suicide. After that, “he was distant,” his younger brother Ramon Martinez said. Both figuratively and literally, “he wasn’t really around after that.”

On the seventh day of testimonies, his sister Julia Negrete took the stand and described her tumultuous relationship with her brother. In their elementary school years, they were allies, she said, trying to protect one another from abuse. But in junior high school, they took different paths and their relationship frayed. She escaped to her friends’ houses, and studied hard so she could move away—which she did when she was 17. Martinez acted out. He was in and out of juvenile hall. She couldn’t remember exactly when he left the house, “Sometimes he was there, sometimes he wasn’t. I couldn’t tell you when that happened—I didn’t track him. I didn’t care if he was there or not, to tell you the truth.”

It was important to hear testimony from his siblings, Jackson said, because they were the only people who could paint a picture of his past. “We really had to get [the jury] to know his post-traumatic stress from living in the shadow of chronic violence, so that they would understand how he would overreact,” she said.

Because his case was so prolonged, the jury could also consider Martinez’s time in prison, where he had spent over half his life. That did not universally work in his favor. In 2011, he was charged with stabbing his cellmate, but Martinez argued it was self-defense and was acquitted last December.

But the jury also learned about meaningful relationships he had formed over the years. Poignant testimony came from a 26-year-old, Michael Lopez, whose mother had briefly dated Martinez and who considered him a father figure. When Lopez was in junior high school, he began to accompany his mother when she visited Martinez in prison. Martinez talked Lopez through the aftermath of his parents’ ugly custody battle, Lopez testified, and his problems with his father.

“He’s always been supportive,” Lopez said. “He’s been instrumental in helping me to choose growth over [the] anger and bitterness that I felt in my early years.” Martinez sent him books to read, and through letters and during frequent visits, encouraged him to go to college, where he studied English literature.

After one day of deliberations, on March 1, the jury sentenced Martinez to life in prison rather than the death penalty. He later said he felt vindicated by the decision. “In Arizona, one person decided I should be executed—that I was not fit to live,” he said. “In California, 12 people decided I was.”

The Riverside County District Attorney’s Office declined to comment because Martinez’s criminal case is pending appeal.

That same month, Riverside County raised its standard mitigation specialist rate to $75 an hour “to bring reimbursements more in line with average rates in surrounding counties,” the court’s public information officer wrote in an email.

Soon after the trial, Jackson moved on to her next case. The states that have clung to the death penalty don’t seem to be changing course, so high-quality mitigation specialists remain in demand.

Lohman, the capital defense lawyer, considers them essential. “The proper way to do mitigation is that you go back as many generations as you can in a person’s life, as far back as you can go, and put together the definitive story of where this person came from,” he said. “If the trial team does their job correctly, you should never get a death sentence.”

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