Defending Len Bias cases in Wisconsin

The increase in opiate addiction and overdoses in Wisconsin have led prosecutors to pursue so-called “Len Bias” Homicide cases. These cases involve the prosecution of individuals who delivered controlled substances (usually heroin) to someone who used the substances, and as a result, died.

There are strong public policy rationales behind the law – drug dealing is an inherently dangerous activity, especially heroin dealing.

However, many of those charged by the State of Wisconsin are not who we traditionally think of as “drug dealers.” Instead, they are usually addicts themselves, and happen to have had the “connection” to an actual drug dealer. We at DefenseWisconsin.com have defended cases where the accused individual used the same drugs as the victim. In one case, the accused walked the drugs from a front porch to a waiting car just feet away.

The problem with Len Bias prosecutions, and why many low-level users are prosecuted for the offense rather than traditional drug dealers, is that as the trail of delivery becomes longer, the ability for the State to prove the drugs sold by the dealer where the drugs ingested by the victim, becomes much harder. The State must be able to show the substance(s) sold/delivered were a “substantial cause” of the victim’s death, Therefore, the State is often not able to purse these cases up the distribution chain beyond the last person to touch the drugs prior to the drug’s ingestion.

We have had some success in defending these cases. Some strategies we’ve employed are:

1. Undertaking aggressive discovery.

We think the criminal defense bar as a whole doesn’t engage in aggressive enough discovery. Often attorneys will stop analyzing the case based on the police reports given over by the State. We reject this approach and instead brainstorm all of the different sources where relevant information can be found.

For instance, in a Len Bias Homicide case we defended this year, we personally prepared and served 16 different Open Records Requests to different agencies. We were seeking information on the victim’s history of hiding prescription drugs in his house to use later. Remarkably, we found a police report in a different jurisdiction pertaining to the victim’s girlfriend with a prescription hidden in her house. With this information, we were able to prepare our investigator to ask her specifically about this event – and to our surprise, she admitted that it was her boyfriend, the victim, who had actually hidden the prescriptions in her house, and she “took the fall” for him in that case. This fact was incredibly important in the ultimate resolution of the case.

2. Challenging the cause of death.

The Milwaukee Medical Examiner is very competent. However, the office is under increased stress because of its expanding workload and deteriorating facilities. See here for more information.

Like all investigators, a medical examiner will often come to the most straightforward determination of causation – and then stop questioning alternative explanations. Of course, just because someone used a controlled substance does not mean that was the cause of death. Other causes may have been glossed over or not given the attention or consideration they deserve.

More importantly, the toxicological screen of the victim’s blood can leave clues about other substances that they were using prior to their death – any number of which, or combination of which, could have caused death.

In a recent case, we were able to analyze the amount of a substance in the victim’s blood, and through diligent research on the topic, learned that the amount of that substance per milligram of blood was the lowest amount of any of the 118 people who had died of intoxication from the substance (a 5-year period in Milwaukee County).

3. Never forgetting the inherent weakness of the State’s case.

Unlike many crimes, Len Bias Homicides have an inherent weakness: juries are naturally skeptical of holding others accountable for the voluntary ingestion of controlled substances. The State of Wisconsin knows of this natural prejudice of juries. The defense does not have articulate this prejudice to the State, but rather keeping the case in trial posture and raising the State’s awareness of damaging information found during discovery will remind the State that their case, while adequate on paper, may not translate during jury deliberations.

Under no circumstances, should a Len Bias Homicide be placed in a plea/sentencing posture unless the case is negotiated to an acceptable resolution. Unless under dire circumstances, we believe a plea to a lesser charge of Delivery of a Controlled Substance, from the Len Bias Homicide (which is formally known as a Reckless Homicide under Wis. Stat. 940.02(2)) is the only acceptable outcome in a Wisconsin Len Bias case. Otherwise, we’d rather take our chances with the jury.