The Daily - Assigning Blame in the Opioid Epidemic

Episode Date: July 3, 2018

United States prosecutors are looking to hold people criminally accountable for overdose deaths. They’re settling on unexpected targets: other users. Guests: Annie Brown, a producer for “The Daily,” speaks to Kimberly Elkins, whose fiancé, Aaron Rost, died of a fentanyl overdose; Krista Powell, Mr. Rost’s sister; and Rosa Goldensohn, who has reported on the opioid crisis for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, as the opioid epidemic rages on, U.S. prosecutors are looking for somebody to blame. My colleague Rosa Goldenson has been reporting on their unexpected target. It's Tuesday, July 3rd. On a day when Aaron Ross would go hunting, he would wake up early, maybe with the sun,

maybe before, get up, get in his orange overalls and orange pants and a matching hat, grab his bow, and he would head out the door of his little apartment in his small town of Hibbing, Minnesota, to go out looking for deer. These are his passions, hunting, being outside, fishing, which is good because that's pretty much what there is to do up there, especially if you don't have a lot of money. And he'd spend a few hours out there in the outdoors in the fresh air, and then he would come home to his apartment

that he shared with his fiancée, Kimberly Ann Elkins. I mean, he never actually got anything, but he enjoyed hunting, fishing a lot. You mean like he never actually shot anything? Not with his bow. So he just brought it out there with him, just for looks? Yeah, I guess so. The Daily's Annie Brown spoke to Kim Elkins. I wondered if you could actually describe for me

what Aaron looked like the first time you met him. When I met him, the day I met him, I remember he had a green sweatshirt on and faded jeans and the cutest smile I had ever seen. And he looked like a big teddy bear. I knew that I was in love with him when I didn't ever want him to leave. When he would go back to his apartment and all I'd want to do was call him and be like, come back. Kim is older than Aaron. She's 48 to his 36. They've both been born and raised in this area.

And when they come to find each other, they're inseparable. We didn't have a lot of money or anything, so we didn't go out and do a lot of stuff. But I was pretty sick at the time, so he would take care of me. And when you say that you were sick at the time, what do you mean? I have a lot of chronic pain issues with my back and my hips. And I have fibromyalgia and I have days where I can't walk very good. And so she's prescribed prescription fentanyl patches, that synthetic opioid, that she uses to allay some of this pain.

And when I was real sick and having bad days and stuff, Aaron would go and get my patches for me and help me put them on. Usually I would sit down on the bed and he would open them and then stick it to either my upper arm or my upper chest. But other times they would split the patch. They have a little pocket in them with gel inside. And if you cut that open, you can scoop it out of there. You can eat it. You can water it down a little bit and you can shoot it up. Most of the time

we would eat it. Tastes terrible. It smelled like rubbing alcohol. Tastes kind of like rubbing alcohol. And that was to get a much more potent hit of that synthetic fentanyl and to get high. They both had a long history of using drugs and using opioids. Kim came to them during her first marriage many years before, and both of them had been using for many, many years. On and off, trying to stop, sometimes restarting. And the two of you would use together frequently. Oh, yes. Like, if one of us had something, the other one had it. And the two of you would use together frequently.

I wonder, Kim, if you would tell me about what happened on that Saturday in December of 2015. I can't tell you much about what happened that day because I can't remember anything. On December 5th, 2015, it's a Saturday. Aaron wakes up early. He's headed out. It's a hunting day. So he's in his orange gear, getting his bow. Kim's up with him. He is going to say goodbye to Kim, but first she takes a patch, one of her fentanyl patches. She rips it. She gives part of it to him.

She keeps part of it for herself. They both squeeze the gel out, swallow it. He sticks that half patch in his mouth. He's going to head out and she stays home. And what happens next? In the middle of the day, Kim's adult son, Adam, comes to the house to check on them. He opens the door and right in the front hallway lying there is Aaron, fully dressed, holding his bow and not breathing. He comes further into the house, looking for his mom, and finds her at the top of the stairs, passed out,

gurgling slightly. They've both overdosed. All I know is I woke up in the hospital in ICU. For about three times, I'd fall asleep and wake up, and my poor son, I would ask him right away where Aaron was. Because any time I was at the hospital or anything was going on with me, I went to the doctor or anything, Aaron was always with me. And I'd wake up and ask where he was.

My son would start to cry, and he'd be like, Mom. And that's what I remember the last time I think I asked him was him crying and saying, Mom. And I'd be like, oh, yeah. And it sinks in. Adam, her son, takes her back to his house and takes care of her for a couple weeks. And then she finally is like, I got to go back home. I got to face this and take care of myself. And she opens the house.

She takes every pill she can find and washes it down with cheap vodka. Tries to kill herself. And she wakes up again in the hospital with her son by her side. Crying, he said, Mom, can we please be done with this now? He said, because I can't take it anymore. And so I said, I promise. She is going to get sober, and she is going to recover and get some help.

So she checks into a nearby treatment center and she's starting to get some help. She's got a social worker. And one day she's talking to her social worker. Going over paperwork and two police cars pulled into the parking lot and we looked at each other and she said, isn't it a nice feeling to know that they aren't here for you? And I said, oh my gosh, yes. But they called my name and I walked out and the two men were standing there

and they said, are you Kimberly Elkins? And I said, yes. And they said, put your hands behind your back. You're under arrest for third-degree murder. And I said, what? No, no. And I kept moving away from the policeman, and he said, come here. You are under arrest. And I said, for what?

And he said, third-degree murder. And I said, oh, cool. I didn't hurt anybody. You have the wrong person. And they arrest Kim for the murder of Aaron Ross. We'll be right back. So Kim and Aaron overdose together. How is Kim being charged with Aaron's murder? A lot of it has to do with a famous basketball player

in the 80s. Lenny Bias. Named Len Bias. Len Bias, definitely a future star in the ACC. Len Bias was a phenom at the University of Maryland. Len Bias with 29.

Oh, my. And he makes a steal and a jam. What a play by Bias with 29. Oh, my. And he makes a steal and a jam. What a play by Bias. Holy cow. And had captured the hearts of people around the country. He was one of the top NBA draft picks. The Boston Celtics select Len Bias at the University of Maryland. There he is, Len Bias.

He had a great career at Maryland. And two days later... A local success story took a tragic turn this morning. Len Bias, the Maryland University basketball star, on his way to becoming a world champion Boston Celtic... Len Bias, the Maryland University basketball star on his way to becoming a world champion Boston Celtics. Len Bias is partying with some friends. He's using cocaine. 22-year-old Len Bias, star forward from the University of Maryland basketball team, is now dead. And he has a heart attack and dies. No matter who you are, the shock of Len Bias' untimely death, I think, is very difficult to absorb. It's hard to believe. It was the cover

of the New York Times. It was the cover of the Washington Post, his smiling face. It's huge news. This is big-time college basketball, and an athlete has died mysteriously, and there are a lot of reports today that drugs may have been involved. And it becomes emblematic of what's increasingly at that time considered the drug epidemic. It is as dangerous as any terrorist that we face. It is serious. Today, there's a new epidemic. Smokable cocaine, otherwise known as crack. Crack. Crack.

A drug so pure and so strong, it might just as well be called crack of doom. This is a war. Len Bias becomes this symbol of the drug epidemic and its destruction. And the villain in that becomes his friend. It was Brian Tribble. Brian Tribble. Called 911. He's got an emergency.

Who provided the cocaine and was using it with him. And Tribble is charged with providing the cocaine. He's acquitted. But this inspires a flurry of bills and laws that reframe the person who provided drugs in an overdose death as the killer. So even if someone didn't intend to harm this other person, or even if they were doing the drugs together, they can be held criminally accountable for the other person's death? Absolutely. If they intended to cause the death, it's just regular murder. This is for people who do not intend to cause a death, but they are being held responsible

for the death of someone who voluntarily used drugs and overdosed. Police here are cracking down on crack dealers, searching for those selling the newest and most potent drug in town. So these laws were kind of born in a moment of crisis, what politicians were calling crack epidemic in the late 80s. But the reason I started doing this reporting now is because we're in what they're calling the opioid epidemic. And I started to notice from local news reports resurgence of this particular tactic, more and more of these kinds of homicide charges being filed. And I decided to try and start actually counting and tracking and seeing how big that resurgence was. I only knew generally you're talking about opioids.

You don't mind if Fred says, oh, well. Great, yeah. I mean, I'm particularly focusing, I'm interested in the Len Bias kind of laws, the third degree that you guys have here. So I spent the last year looking at this and trying to collect data on how much these prosecutions actually were increasing.

Hello? Hi, David. Tell me about the story you're working on. Why this trial? All trials in America. I talked to 15, nearly 20 district attorneys, prosecutors across the country who are doing these cases. These reckless homicide drug delivery cases.

Have you had a lot of those? We have. I think most counties in Wisconsin have. And in 15 states where I was able to get official data, they doubled between 2015 and 2017. So what's the reasoning behind doing them? I want to be able to talk about the pros. In all these cases, you're trying to achieve the greatest impact. You're trying to create the greatest deterrence. And those things usually combine in trying to reach back and identify the source.

There's not evidence, there's not numerical evidence of any kind that it's having that kind of effect. So are we deterring anything? I hope so. I'm in a small county. I hope that there's some that kind of effect. So are we deterring anything? I hope so. I'm in a small county. I hope that there's some level of deterrence. I think they'll say, oh, you're from Twin Lakes. I'm not telling you.

I think they think, you know, they're from, you know, southeast Wisconsin by the border. I don't know. There's been a lot of homicide charges up there. I don't want anything to do with that. You think that might be going on? I think that that's a good possibility. We certainly have seen a reduction.

Do you feel like it was achieving the ends of supply reduction or deterring people from selling? You know, I really do. And, you know, I know that the numbers show that it's going up, but I am in touch with some of the... And I heard that repeatedly. I think it's working. I think it's working. So there is, I think, a disjunct often between the hopes of people in leadership and people who make policy and the reality on the ground. I don't know if zealously prosecuting drug dealers for killing kids is going to stop it. I just, I'm not convinced it will.

Do you see an impact on the street? No. But I don't give a shit. I went to see this prosecutor named Pete Orpitt in Minnesota, not far from where Kim is in prison. He was really interesting because he doesn't think that this approach will keep dealers from dealing or users from using. But the goal isn't to go, if I prosecute every guy who gives drugs to another guy and kills him, there won't be a problem anymore? No.

We're not that naive. He did it out of a sort of sense of justice and of wanting to do something about this crisis of overdose deaths. No, we're not out to save the world with that shit, Rosa. We can't. No, seriously, we can't even think about public policy on that. I look at it just on a very, very narrow view of you owe me for that dead kid. That's it. What were people around you saying about this charge? What were you hearing from your family

and from Aaron's family? Nobody could really wrap their mind around the fact that I was even getting this charge. Everyone that knows us, it just didn't make any sense at all. The only person out of this entire scenario that had anything against me at all was his oldest sister. Krista Powell. I fully understand that Kim did not give him her pain patch in any attempt to do harm.

I mean, if I get drunk and get behind the wheel and I crash into someone and kill them, that wasn't my intention. But that person's death is still on me. So Krista grew up with Aaron, and she was very close to him and feels an incredible loss. Aaron and I are about two and a half years apart. We had a couple dogs. He liked to dress his up, put a t-shirt on, bring the dog in, have popcorn, watch movies with the dog.

A real animal lover. Krista, what do you think it was growing up that brought you so close to Aaron? We grew up in a house of domestic violence. And my parents turned to addictions, and there's not a whole lot of people in your circle of friends that understand what it's like to be the child of an addict. Yeah. You know, and I was in high school, and my dad's in jail. You know, there's not anybody in your science class that really gets that. But Aaron did.

Right. It really gets that. But Aaron did. Right. And where were you when you first found out that the police were treating Aaron's death as a murder? I was actually in my kitchen, and the investigator called me just so that he wanted to let me know before I found out from the news that Kim was being arrested for third-degree homicide. And what did you think when you heard that? That it sounded really serious.

I mean, I got off the phone and I Googled it and I went, oh, okay, yeah, that's exactly what she did. So I won't lie, I was glad. You were glad she was being charged? Yes. And why? charged. Yes. And why? Because my brother lost 40 years of his life and the actions of one person caused that. Krista, what do you say to people who say that this is just what drug users do? They share drugs. And it very easily could have been Aaron who provided the drugs, and the roles could have been reversed.

Right. I mean, like I said, I know in this case that it was her prescription and she admitted giving it to him. Mm-hmm. But, yeah, you're right. And if the roles were reversed, obviously, you know, my knee-jerk reaction should be the same exact thing, you know? Right. But, you know, he is my brother, but I can't say that I would expect to want it to all go away. What do you mean? Would you want your brother charged?

I would want, yes, I would. I feel that if that was the point where he was at with his addiction, that maybe this would be the wake-up call he needed. To be charged with murder. Right. I mean, my whole point here is to advocate for another family not dealing with the grief that my family has and is dealing with. dealing with the grief that my family has and is dealing with. I don't know what else we as a society can do to deter it. But the data doesn't necessarily show that these charges are deterring people from using or borrowing drugs. So if the charge doesn't have a deterrent effect, would you still want to see people like Kim getting charged with a crime like murder?

I mean, the fact remains that, you know, someone lost a life. And, I mean, if we just didn't charge Kim because Aaron was an addict, then that meant that his death was of no importance. You know, big deal, 36-year-old healthy man died. And my brother's life meant something. My brother's life meant something. Is there a lot of pressure on DAs to do these kinds of cases? No, there's none. From the public or anything?

Public doesn't care. It reminds me of a murdered prostitute. Oh boy, that's a shame, but tough shit. She lives a risky lifestyle. What are you going to do? What do you think you're going to get? There's that attitude. And that's what they'd say with the junkie. That's why we don't do drugs. Yeah, but that's a lot of victim blaming and a lot of throwing your own moral values on it when that's not, we're getting away from our job. You know, I'm not the county moralist. You know, I'm not the county moralist.

I think that the families of people world not to see it as important, to see it as expected, to even say good riddance because that person used drugs. And so when the police and the judge and the courts and everyone suddenly cares, that means a lot to them. It's legitimating. Krista, there may be people who hear this and think to themselves,

there's so much suffering here. And that charging someone with murder who herself is suffering with addiction just perpetuates that suffering. And that true accountability when it comes to addiction lies with a whole group of people who are way up high in an industry that creates these drugs and distributes them and makes it possible for people to abuse them. What do you think about that?

I mean, I won't argue with the fact that a lot of the prescription drug issues have been created by overprescribing. And if you find a way to restructure the industry so that we aren't letting drugs get in the hands of the wrong people to be distributed to even more of the wrong people, I will jump on board. But until then, this is the only way I know how to try and save another family from the pain and grief that my family deals with. So Kim feels like the most accessible person to hold accountable here. That's one way of putting it. Rosie, when we hold people like Kim accountable in these deaths, who aren't we holding accountable? Who are we not blaming?

You know, we're not blaming the healthcare system, the insurance industry that is not adequately treating people. We're not dealing with how people are self-medicating with painkillers and the industry that has profited off that. killers and the industry that has profited off that. And we're not able to grapple with the kind of deeper why of substance use and all the kind of social and economic and personal factors that are really causing the crisis. We can't deal with that and with what some people call deaths of despair. Instead, we're looking to the person closest by who put the pills, the powder, the patch into someone else's hands that we can get our mind around. Do you think that you hurt Aaron?

I don't think so. I really don't think so. That's where I struggle really hard with trying to find the responsibility in it. And I guess as someone who used drugs, I should not have shared drugs. If we get right down to the point of law, yes, I broke the law there. I should not have shared drugs, but I shared all kinds of drugs and he shared all kinds of drugs with me. Do you think that you, do you think you're starting to internalize a little bit what the state is saying about you, that you are responsible for Aaron's death?

Yeah. Yeah. Yeah, I try to be accountable for the things that I do and that I say. Somewhere I have to try to accept that maybe somewhere something I did did cause him to die. Maybe my not being strong enough to tell him no. Knowing that we were both addicts, I don't know. Kimberly Elkins was charged with third-degree murder in the death of Aaron Ross, but pled guilty to manslaughter and is serving a four-year prison sentence in Minnesota. Here's what else you need to know today.

I had a very, very interesting morning. President Trump says he spoke with four candidates to replace Justice Anthony Kennedy on the Supreme Court as the White House races to meet Trump's deadline of announcing a pick by next Monday. They are outstanding people. They are really incredible people in so many different ways,

academically and every other way. The White House declined to say with whom the president met, but the short list of candidates is believed to include six federal appeals court judges. I think the person that is chosen will be outstanding.

Thank you very much, everybody. And President Trump's longtime lawyer, Michael Cohen, who is under investigation for secret payments to women who said they had affairs with the president, is signaling a new willingness to cooperate with federal prosecutors, even if it undermines Trump. In an off-camera interview with ABC's George Stephanopoulos, Cohen was asked what he would do if prosecutors forced him to choose between his family and Trump, who, in the past, Cohen has said he would take a bullet for.

I put family and country first, Cohen replied. To be crystal clear, my wife, my daughter, and my son, and this country, have my first loyalty. That's it for The Daily. I'm Michael Barbaro. See you on Thursday after the holiday.