Pubdate: Mon, 11 Oct 2004
Source: Daily Herald (IL)
Copyright: 2004 The Daily Herald Company
Author: Tona Kunz


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

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'

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

"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

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

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.
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