Pubdate: Mon, 11 Oct 2004 Source: Daily Herald (IL) Copyright: 2004 The Daily Herald Company Contact: http://www.dailyherald.com/ Details: http://www.mapinc.org/media/107 Author: Tona Kunz MOTHER WANTS CHARGES FILED When Nathan McIlvaine of St. Charles got out of the Kane County jail, going on a drug binge seemed unlikely. He was broke, had no car and no place of his own to shoot up. Then a 33-year-old friend came along and offered the 19-year-old solutions to all his problems along with a ride toward Chicago to buy heroin and cocaine. What some would call helping out a friend, McIlvaine's family views as murder. They want the former St. Charles man prosecuted for making McIlvaine's overdose possible in August of 2004. The vehicle for doing that is a sporadically used state law that was revised in January 2002 to give a mandatory, minimum six-year sentence to anyone who delivers a controlled substance that causes death. "I told the police, 'I don't care what you say. That guy is guilty of drug-induced homicide,'" said his mom, Linda. "He paid for the drugs. His car was used. It was his house they used in." That is exactly the type of help the controversial revised law, the first of its kind in the nation, aims to stop. Before January 2002, prosecutors had to show delivery of bulk quantities of a drug to charge someone with drug-induced homicide in an overdose death. That ruled out nearly every case, because users simply weren't buying that much to ingest at one time, prosecutors said. Now delivery of any amount of a drug that leads to death can send a person to jail for six to 30 years. Removing the drug threshold was intended to untie prosecutors' hands. Yet almost since its very first use in Will County in May 2002, new entanglements emerged. Suburban prosecutors have taken drug-induced homicide cases to court 11 times with mixed success. Six people were convicted of drug-induced homicide, four pleaded guilty or were convicted of a lesser charge and one Lake County trial is still going on. The underground culture of drug use spawns less-than-forthcoming witnesses, if any. That can leave police struggling to determine where the drugs changed hands and who supplied the lethal dose. Where the drugs were delivered sets the stage for which county prosecutes the case. Determining if the lethal dose came from the deceased's private stash or someone else can mean the difference between an accident and a homicide. In McIlvaine's case, the Kane County coroner said he died from a fatal mix of ethanol, cocaine and heroin. Friends told police they found him dead in the basement of a St. Charles home the next morning. Before charging someone with his death, prosecutors have to weigh the chance that a jury may be reluctant to place 100 percent of the blame on someone other than McIlvaine. The defense could easily raise doubts in jurors' minds without witnesses who saw one of the home's owners give McIlvaine the drugs that caused him to overdose. That type of shadowy detail on the victim's death creates judicial nightmares. "They present challenges to prosecution and law enforcement," said DuPage County State's Attorney Joe Birkett, who lobbied for the law change. "These cases are not easy to investigate." St. Charles police have driven as far away as Minnesota to question the man with McIlvaine the night he died. Drawing a correlation between his actions and McIlvaine's death, however, is a bigger journey, and one officials are not prepared to end anytime soon. "It is an ongoing investigation," said Kane County First Assistant Prosecutor Bob Berlin. "At this point, we have not charged anyone, nor has any other jurisdiction charged anyone. But the investigation is still ongoing." To make investigations easier and provide better evidence for prosecutors to work with, officials throughout the suburbs have embarked on an education campaign. Coroners, police, paramedics and emergency room staff must learn a new way to look at overdoses. Several counties have added new language in their homicide and questionable death protocols to address the amount and type of evidence now needed in overdose cases. State's attorneys have held seminars with doctors to reinforce the message that patient privilege laws no longer apply in fatal overdoses, so all information gained in treatment must be turned over for possible use in a homicide trial. Some counties also have discussed making an explanation of the new law a part of programs like Drug Abuse Resistance Education, hoping it will scare teens into thinking twice about supplying friends. Most prosecutors say it's too early to know if the law is having the desired effect as a deterrent but feel it will chip away at the suburban drug problem over time. "I think it does and will continue to have an effect," Birkett said. "It just takes education. You have to use it and talk about it." Deterrence rather than successful prosecution seems a more realistic goal for the new law's use. Birkett said the evidence rarely amounts to more than a reasonable doubt needed to convict in front of a jury. Police seem to agree. Berlin said Kane County law enforcement officials rarely suggest or push for the charge. Birkett called DuPage's one successful use of the charge a rare example of the textbook way the law should play out in court. Marvin Howard, 41, of Carol Stream was accused of teaching a 15-year-old neighborhood boy how to use heroin for the first time and buying it for him. The boy overdosed and died. Howard confessed to his part in the death and two teens who partied with the pair testified against him in exchange for a lesser charge of felony delivery of drugs. The stars don't align like that on many cases, prosecutors said. Or even if they do, emotion gets in the way. Often prosecutors struggle with who deserves to face the sentence. Lake County has been a leader in leveling drug-induced homicide charges, but officials say the chance to use the charge arises much more often than it is used. On several occasions, lesser charges of delivery have been applied or a plea deal struck after it became clear the death was the result of partying gone horribly wrong with friends as opposed to a dealer selling drugs to a stranger. "It's been by agreement with family members of the victim who say the victim was using drugs with friends," Waller said. Whether to use the new law against friends or just use it to punish dealers has been a difficult line to walk and one that raised eyebrows at the American Civil Liberties Union of Illinois. Representatives there feared the law was too broad and disproportionately punishing recreational users. Although, the overall constitutionality of the law was challenged and upheld in a DuPage court in December 2003, no one has challenged the use of it against non-drug dealers yet. It's a use that ACLU spokesman Ed Yohnka still has qualms about. He speculates a challenge hasn't risen to the Supreme Court level yet on a case of like-aged friends who often use drugs together because savvy defense attorneys often get the drug-induced homicide charge dropped early on in trial. The charge is most often replaced with a charge of delivery of a controlled substance, which carries a shorter prison sentence. That reluctance to charge friends with homicide could throw a wrench in any possible prosecution of McIlvaine's death. McIlvaine knew well the man his mom alleges gave him the fatal dose and had partied with him previously. Linda McIlvaine isn't sure she would call the pair friends because her son and other buddies had sold the man fake drugs recently to make a quick buck. She wonders if his death was retaliation for the bogus drugs. Even if it wasn't, she said the man must be prosecuted to send a message. Without a deterrent to supplying drugs, few teens will ever escape the grip of peer pressure and drugs, she said. Although still drinking, McIlvaine had been clean from other drugs for at least two weeks before going into jail on a DUI charge. The morning before he died, he called his mom to tell her he was getting his life straight. Linda doesn't believe Nathan would have used that day without help or prodding. "I just don't want this to happen to anther mother, because losing your son is the worst thing that can happen to you," she said. - --- MAP posted-by: Derek