Prosecutors can now charge the dealers behind fentanyl overdose deaths. But the cases are hard to solve, and ever-growing

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Steve Sarin, of Aspen Ridge Recovery, checks results after he dipped a test strip in dissolved MDMA belonging to a concert goer in the North Parking Lot at Red Rocks on Wednesday, June 8, 2022. The test is to see whether the MDMA has been cut with fentanyl, unbeknownst to the buyer of the drug. The test came back positive for fentanyl, surprising the owner of the drug.

The number of people dying from fentanyl overdoses keeps growing in Colorado but despite a new Colorado law that gave prosecutors more muscle to prosecute fentanyl drug dealers, law enforcement has shown little success in going after suppliers of those fatal doses.

Fentanyl was responsible for more than 1,200 deaths in 2021, which is more than double the number of people who died in 2019 in Colorado. Prosecutors have only filed five cases of distributions resulting in death since last year against accused fentanyl dealers.

“I’d love to see some justice,” said Wanda Miller, whose cousin, Jairon Jackson, died of a fentanyl overdose with two family members right after his 31st birthday in October in Denver.

No arrests have been made by Denver Police in that case.

“I couldn’t get my cousin back but it would make me feel good to know that it was one less person that could do this to a family member because they know what they’re selling.”

Prosecutors say they’re frustrated, too.

Courtesy of Wanda Miller
Wanda Miller wears a sweatshirt with a picture of her cousin Jairon Jackson on it on the days she's thinking about him.

"A lot of people think: My loved one’s death wasn't investigated. The police treated it as an overdose and we never heard about it again," said Adams County District Attorney Brian Mason.

In Adams County alone, 151 people died of fentanyl overdoses in 2021.

"I think law enforcement and prosecutors need a paradigm shift in what these cases involve and what they are about and I think the shift is now happening.”

Giving state prosecutors the power in fentanyl overdoses

Last year, the majority of attention and controversy around the fentanyl reform law passed by state lawmakers was around strengthening the penalties around possession. 

Dozens of people spoke out on both sides of that debate and ultimately lawmakers strengthened the penalties and made it a felony to possess more than four grams of fentanyl. 

But, more quietly, that same measure gave state prosecutors the same power that the feds have had for years: the power to prosecute fentanyl dealers with a felony if those drugs killed someone. Previously, some district attorneys prosecuted dealers for manslaughter, but that was rare.

“We didn’t have a very usable tool before,” Mason said, noting that people always ask him to charge first-degree murder on drug dealers. “That requires us to prove that the drug dealer, after deliberation and with intent, meant to kill someone, which was hard to prove because most dealers wouldn’t have interest in killing his customers.”

But even with this additional muscle, investigators find the cases to be extremely difficult.

The witnesses are usually all dead. And even if police can usually get electronics from them, phones and computers, it’s often hard to prove beyond a reasonable doubt that those communications with alleged dealers led to the deadly pill that killed the victim.

After five people died in a Commerce City apartment in February 2022 of fentanyl overdoses, Mason marshaled an unusually high number of resources from federal law enforcement agencies and several drug task forces to find someone to hold accountable. There were press conferences and angry denunciations about what happened.

But after seven months of what Mason describes as exhaustive work, there was not enough evidence to file charges against anyone.

“We don’t have those kinds of resources for every single one of those deaths,” Mason said. “It was a true comprehensive investigation. Ultimately we couldn’t link together the elements though. We couldn’t identify one dealer who sold the drugs that were laced with the fentanyl that killed those five people.”

Just in recent months, some police agencies are starting to make the shift from treating overdose scenes as narcotics investigations into treating them as homicide cases. 

Denver Police say they have recently assigned a few drug officers, people who previously probed illegal marijuana grows, to a full-time fentanyl investigation team. Those detectives and a sergeant have started treating overdose scenes as criminal cases, a spokesman said. In northern Colorado, a group of law enforcement agencies, too, are targeting fentanyl as homicides. Two of the five cases filed statewide in 2022 and this year were out of Larimer County.

When the fentanyl law passed last year, Fort Collins District Attorney Gordon McLaughlin immediately changed how he treated overdose deaths. He asked his small team of assistant prosecutors — accustomed to four to five homicides annually — to take weekend shifts and treat fentanyl deaths like any other murder investigation. 

But there were too many deaths.

“We’ve been averaging one fentanyl overdose every five days and so treating those as homicides, both from our office and law enforcement, is an incredible lift,” he said. “Almost always these things happen in the middle of the night, we’re having people go out at all hours and stay all hours.”

In other words, the Fort Collins area murder rate went up from five to more than 75 a year. And overdose cases were not typical investigations.

“In a normal homicide there is a bang, something happened. In these, there isn’t, so tracing back the causal chain is difficult,” he said. “There is never a smoking gun.”

DAs figure out how to apply the law

McLaughlin filed the first distribution resulting in death felony case in Colorado last year against Andrea Branco, a former convenience store clerk in Fort Collins, who sold a fentanyl pill to 24-year-old Kara Gorman, who died Aug. 30, 2022, on her couch within an hour of purchasing it.

According to police documents, Gorman’s boyfriend called police after he discovered her. Investigators tracked Branco down via the text messages on Gorman’s phone and a cash payment she made to Branco’s cash app. Branco’s criminal case is ongoing in Larimer County Court. Gorman’s family didn’t return requests for comment.

Since the first months of the new law taking effect, McLaughlin has peeled back sending an assistant DA, or attending a scene himself, for every overdose death. For one, he can’t keep up. Plus, he feels like he has a sense now of which overdose deaths could be ripe for a prosecution and which deaths are likely cold cases.

“Now that we’ve learned about the collaboration we need with our local law enforcement partners. We can tell which ones have a higher likelihood of prosecution,” he said. “We can’t keep up with sending someone out every five days for eternity.”

But the reality is most of the state’s prosecutors —  even the ones with the largest offices like Denver and Adams County, which are also places with the highest numbers of deaths — don’t send assistant prosecutors to any overdose scenes. There just isn’t the capacity.

“We are attuned to it and we’re interested in pursuing these cases but what’s happening in Denver is the narcotics detectives are the ones investigating these and not the homicide detectives,” said Beth McCann, the elected DA. “If we can develop a case, we will file it.”

Screenshot from YouTube/FOX
Jairon Jackson died of a fentanyl overdose in his own apartment on Oct. 30, 2022.

Colorado Springs District Attorney Michael Allen has filed the other cases in the last year.

“You really have to have everyone pulling in the same direction. If you have that, you can take these cases on,” he said. “Unless you have a real focus on these things, you’re going to have trouble.”

'That kid is the real deal'

Jairon Jackson died in his own apartment on Oct. 30, 2022, with two of his half-siblings, Terrance King and Darren King. 

The week before, he celebrated his birthday there with all of his family. He was proud of his place and he asked his cousin to help him cook up nachos —  a family recipe. 

“Little did we expect the following week he would no longer be with us,” Miller, his cousin, said.

Ten years earlier, though, Jackson was 19 and auditioned for American Idol in Aspen. In a Youtube video, he belted out a beautiful song he wrote himself called “So Hard.”

Jackson made it to the next round because the judges were impressed he wrote a piece himself, rather than covering someone else’s music.

“That kid is a real artist,” said Jennifer Lopez, one of the judges at the time.

Randy Jackson, another celebrity judge, agreed.

“That kid is the real deal.”