All told, the public defender’s office had taken on six fentanyl murder cases in the last several months that were pending, and each one followed the same pattern: An addict sold, distributed or shared drugs that directly resulted in someone’s death, which technically met the definition for first-degree murder and the possibility of a lifetime prison sentence in Oklahoma and an increasing number of other states.
Gov. Greg Abbott of Texas signed a law this month to reclassify fentanyl overdose deaths as “poisonings,” and Arkansas passed a “death by delivery” bill in April to charge some overdoses as murders in an effort to deter anyone from selling or even sharing fentanyl. Prosecutors in Alaska, California, Florida and at least a dozen other states were beginning to pursue new murder cases against any defendant who fit under the wide-ranging definition of a fentanyl dealer: a 17-year-old in Tennessee who, after graduation, shared fentanyl in the school parking lot with three of her friends, two of whom died; a husband in Indiana who bought fentanyl for his disabled wife, who overdosed while trying to numb her chronic pain from multiple sclerosis; a real estate agent in Florida who threw a party and called 911 when one of her guests overdosed; a high school senior in Missouri who gave one pill to a 16-year-old girl he met at church and warned her to “only do a quarter and then do the other quarter if you don’t feel it.”
A group of Republican senators, including one from Oklahoma, introduced a bill in February to charge fentanyl traffickers and dealers nationwide with felony murder in what Senator Marco Rubio, Republican of Florida, called a “simple, common-sense step to help turn the tide and protect our communities”
But, as Mai studied Askins’s file, he saw that the Oklahoma City police officers in that case hadn’t tracked the fatal dose of fentanyl back to a cartel manufacturer, or to a drug trafficker, or to a big-time dealer, or even to the street-level dealer known as “Suge” who had sold the fentanyl to Askins and Drake and whose name Askins had given to the police at the scene. Instead, they arrested and charged only one person, Askins, who had a criminal record of nonviolent drug offenses. His file showed that he had depression, anxiety and PTSD from being raped by a neighbor when he was 9. His current address was listed as “transient,” and he’d told officers that he supported his own addiction by reselling food he found in dumpsters and donating plasma twice each week.
Mai left private practice and took a 40 percent pay cut to become a public defender in his home state because he wanted to work cases like this. He had imagined himself fighting for the underdog, standing and delivering in front of a jury like his idol, Clarence Darrow, whose trial victories helped advance the civil rights movement. But the realities of Mai’s job meant managing 80 or 90 cases at once — small-time copper thefts, drug deals and domestic disputes that typically ended with his clients cutting deals and pleading guilty to lesser charges. In his almost two years as a public defender, he had never once taken a case to trial.