Pubdate: Tue, 05 Apr 2016
Source: New York Times (NY)
Copyright: 2016 The New York Times Company
Author: Joseph Goldstein


The 55-year-old crack addict counted his change outside a Harlem 
liquor store. He had just over a dollar, leaving him 35 cents short 
of the cheapest mini-bottle.

The 21-year-old heroin addict sat in a McDonald's on the Lower East 
Side, wondering when his grandmother would next wire him money. He 
was homeless, had 84 cents in his pocket and was living out of two canvas bags.

Each was approached by someone who asked the addict for help buying 
drugs. Using the stranger's money, each addict went to see a nearby 
dealer, returned with drugs, handed them over and was promptly 
arrested on felony drug-dealing charges. The people who had asked for 
drugs were undercover narcotics officers with the New York Police Department.

A review of the trials in those cases and two others illuminates what 
appears to be a tactic for small-scale drug prosecutions: An 
undercover officer, supplying the cash for the deal, asks an addict 
to go and buy $20 or $40 worth of crack or heroin. When the addict - 
perhaps hoping for a chance to smoke or inject a pinch - does so, he 
is arrested.

In the case of the 21-year-old at the McDonald's, the undercover 
officer was an unkempt woman who gave the impression she was about to 
experience withdrawal, the 21-year-old testified. In one of the other 
cases, an officer allowed an addict to use his cellphone to call a dealer.

It is impossible to determine how widespread this law enforcement 
tactic is, but the four recent cases reviewed by The New York Times 
raise troubling questions about the fairness and effectiveness of the 
way the Police Department uses undercover officers. Officers neither 
arrested nor pursued the dealers who sold the drugs to the addicts. 
Instead, the undercover officers waited around the corner or down the 
block for the addict to return with the drugs before other officers swooped in.

The department's tactics and prosecutors' pursuit of such cases have 
drawn criticism from defense lawyers and juries. In interviews - and, 
in one instance, in a letter to prosecutors - jurors have questioned 
why the police and prosecutors would so aggressively pursue troubled 
addicts. The 21-year-old man and the 55-year-old man were both 
acquitted of the felony charges.

The tactic would seem at odds with the public positions of some of 
the city's top politicians and law enforcement figures, including 
Mayor Bill de Blasio, a Democrat, and the Manhattan district 
attorney, Cyrus R. Vance Jr., who have expressed support for reducing 
prison and jail populations by finding ways to treat mental health 
problems and addiction.

"We all talk a lot in this city about the public health crisis of 
drug addiction, and yet we take a very regressive approach to locking 
people up," said Tina Luongo, who heads the Legal Aid Society's 
criminal practice.

Last year, nearly 5,000 people were charged in New York City with 
dealing small quantities of heroin or cocaine, and in 2014, just over 
6,000 people faced such charges. But the number of those that 
involved buy-and-bust cases against addicts is unknown. A vast 
majority of drug-dealing charges end in plea deals, so there are few 
trials during which such distinctions might emerge.

The 55-year-old crack addict, Reginald J., agreed to speak to a 
reporter on the condition that only the first letter of his surname 
be used when identifying him. In an interview, he articulated one of 
the issues with these sting operations: It is tough for addicts to say no.

"For him to put the money in my hands, as an addict, let me tell you 
what happens," he said. "I like to think I could resist it, but I'm 
way beyond that. My experience has shown me that 1,000 times out of 
1,000 times, I will be defeated."

At one trial in January, a defendant testified that he had shown an 
undercover officer track marks on his arm. At another trial, in 
December, the defendant testified that he had even told an undercover 
officer about his desire to get clean. "You know what? We got to stop 
getting high," the man, Mitchell Coward, testified. "That's what I told him."

Joan Vollero, a spokeswoman for the Manhattan district attorney's 
office, which prosecuted three of the four cases reviewed by The 
Times, declined to say whether the office considered such sting 
operations to be appropriate. But she did say that in some cases, 
addicts who pleaded guilty to felony drug-dealing charges were 
steered toward treatment instead of prison.

Law enforcement officials said that sting operations remained a 
necessary and sensible response to neighborhood complaints about drug 
dealing and narcotics use. For instance, the McDonald's on the Lower 
East Side, where the undercover officer approached the 21-year-old 
heroin addict, was the topic of dozens of recent community complaints 
about drug dealing and drug use there or outside its doors, the police said.

"They are going to a location where there are prior incidents," Brian 
McCarthy, an assistant chief who commands the narcotics division, 
said in an interview. "And at the same locations, where there are 
community complaints," he added.

He acknowledged that the line between users and dealers was not 
always fixed. "It is common that the people we arrest are also using 
the narcotics they are selling," Chief McCarthy said, but he added 
that his team was after the dealers. "I believe that we attempt to do 
our jobs in a planned manner with the utmost integrity where we do 
get people who are selling narcotics."

Jurors and a judge expressed skepticism in the four cases. One juror, 
Seth Silverman, wrote a letter to prosecutors after the trial of Mr. 
Coward in December, saying he felt it was "approaching absurd that 
you would use the awesome power of your office to represent the 
people of New York County, along with it and the court's limited 
resources, on such a marginal case."

Since December, juries and judges in Manhattan have acquitted men of 
the main charge in three of the cases and deadlocked in the trial of 
a fourth. In each episode, an undercover investigator had approached 
men, largely at random, at locations where the police believed drug 
dealing was occurring.

The 21-year-old heroin addict at the McDonald's, Brian L., also 
agreed to be interviewed on the condition that only the first letter 
of his surname be used. He described how an anxious, unkempt-looking 
woman approached the table where he and a friend were chatting. The 
woman, an undercover officer, would later testify that she approached 
the table at random.

Brian L. "was telling me how he was homeless and he didn't have a 
place to stay, small talk," the officer, identified only as No. 279, 
testified in January.

Brian L. said that the undercover officer told him she was staying 
with her grandmother in Brooklyn and was worried she would soon go 
into withdrawal.

"I said I would help her," he testified. They walked from the 
McDonald's, at Delancey and Essex Streets, toward East Sixth Street, 
where Brian L. said he often bought heroin. About a block away, he 
told the woman and his friend to wait, at the steps of an elementary 
school. The undercover officer handed him $20. He returned with two 
bags, which he gave the officer. Minutes later, he was arrested.

He had less than a dollar in change with him and no drugs, a police 
officer later testified. After the arrest, officers logged the dozens 
of possessions, including toothpaste, winter hats and stuffed 
animals, that Brian L. carried in his two canvas bags.

His lawyer, Sam Roberts of the Legal Aid Society, asked Detective 
David Guevara, an investigator working on the case, whether any 
officers of the nine-member field team on the case followed Brian L. 
to see where he bought the drugs. The answer was no.

That was a common theme in the three other trials. In one, the 
addict, who owned no phone himself, had to use an undercover 
detective's cellphone to call his drug dealer. But after the addict 
was arrested, the undercover officer testified he could not remember 
whether he ever followed up and called the drug dealer's number, 
which was logged in his phone, to try to track the dealer down.

The jury took less than an hour to acquit Brian L. of felony charges 
of dealing narcotics near a school. Most jurors then remained behind 
to chat with him after the trial.

One juror said that what troubled the jury the most was that a 
nine-person narcotics squad - which included two undercover officers, 
several investigators and supporting officers - would bring a case 
against a single addict.

"The big underlying question is why a nine-person buy-and-bust team 
did not follow him to the dealer where he got it from," the juror, 
Scott Link, said in an interview. "Everyone was scratching their 
heads, wondering what the heck is wrong with our system."

Brian L. said that even his acquittal had come at a cost. He said he 
had lost his job at a consignment clothing shop because of the six 
days he needed to be in court during his trial.
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MAP posted-by: Jay Bergstrom