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Listen to Document: Death Resulting

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Sara Plourde
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NHPR

Two friends share drugs. One survives, one overdoses and dies. Is that murder?

Amid the deadliest drug crisis in history, America is often answering “yes” to that question. Prosecutors are increasingly treating overdose deaths as homicides. Some see justice and accountability in convictions under so-called “death resulting” laws — others see a new and widening front in America’s failed War on Drugs

In Death Resulting we hone in on one of these cases and meet a young man facing a 20-year sentence for his friend’s death. Along the way, we examine the forces that shape that case — from a cycle of generational trauma and addiction to the racist origins and current impacts of these prosecutions.


Transcripts: Episode 1 | Episode 2 | Episode 3 | Episode 4


Episode 1: The Crime

An early morning drug deal in a hotel bathroom ends in tragedy. Josh is charged under the federal death resulting law — a new and growing strategy for prosecutors — and faces a sentence of two decades or longer. With little doubt that Josh would be found guilty, his attorney prepares a desperate case for the judge that the punishment doesn’t fit the crime.

Episode 2: Launching A War

In 1986, racist fears and the death of a basketball star prompt Congress to lay down the legal foundation for the War on Drugs. Today most Americans see that war as a failure. But buried deep in that 35-year-old law was the death resulting law — a penalty little used until the opioid epidemic, and now disproportionately impacting people of color.

Episode 3: A Normal Member of Society

Death resulting laws seek to punish a single person — the drug dealer —for an overdose death. But the laws all but ignore what pushed that dealer into this terrible position in the first place. In this episode we tell the story of everything in Josh’s life that pushed him into the hotel bathroom where Liz overdosed on drugs he gave her. And we examine a broader definition of “guilt” to find a system that failed Josh at every step of the way.

Episode 4: You Gotta Have an Opinion

Attorneys for the federal government and Josh collide in a dramatic courtroom debate that traces the history of Josh’s family, the War on Drugs, and the ethics of death resulting laws themselves. In the end, a judge hands Josh a sentence. And we ask you to decide if this outcome is justice.


Transcript - Episode 1: The Crime

CONTENT WARNING: A quick warning before we get started. This podcast is about drugs and addiction, and so it includes some heavy content. In this episode you’ll hear descriptions of drug use and of a fatal overdose, as well as some curse words. So, take care of yourself and whoever’s listening with you.

...

This story is going to go a lot of places. The halls of Congress. A federal prison. The NBA draft…

But there’s only one place it can start. And I’ll warn you: it’s the part that’s hardest to listen to.

It starts with a drug deal at a Best Western in Manchester, New Hampshire.

Josh Cook: A friend of mine, Liz, hits me up and on Facebook and she's like, hey, I got some money and I wanna buy some dope.

This is Josh Cook. In this moment at the hotel he’s 20. He’s selling fentanyl to support his own addiction to opioids and meth. He’s living in someone else’s room at the hotel.

His friend Liz is 33 years old. She’s been messaging Josh for days, trying to set up a time to buy fentanyl from him.

Josh and Liz have been friends for a few years. In one message, Liz calls Josh “family.”

JC: So I'm like, ‘all right, I got you.’

Liz messages Josh early in the morning to set up a buy. She gets to the hotel around 9am. Josh tells her to come in the back entrance of the hotel. They meet in a stairwell.

JC: And then I'm like, ‘so do you got the money?’ And she's like, ‘yeah yeah I got the money, just let me see the drugs.’ So I show her and she's like, ‘before I buy it, can we - can I just do some? Because I'm really sick.’

According to Josh, Liz is in withdrawal.

She’s also six months pregnant.

JC: And she hits me with the ‘well you know, if the baby withdraws, it's going to die from withdrawal. So I need this to, I need this to get right so my baby don't go sick.’

I’m like, ‘fine, I’m going to do some anyways so just take a little bit.’ And so she drags me into the women's bathroom and I go to the stall by myself and I start doing my shot. And she stays outside by the mirror because she shoots up her neck.

So she does her thing and she comes in the stall with me and I'm like, can we please hurry up and get out of here? Like I'm sketching out cause I’m high on meth. And she's like, ‘yeah chill out.’ She already did her shot, she’s talking to me. She's fully responsive. And when you do dope, you nod out. She starts, like, on her feet she starts nodding out.

I'm like, Liz, wake up, let's get out of here. And she's like she's like, ‘yeah, I'm fine. I'm fine. I'm fine.’ And she starts like, leaning forward. I’m like, ‘Liz, snap out of it. Are you alright?’ And her lips start turning purple. And I’m like ‘oh my god.’ I'm like, ‘Liz.’ She keeps telling me, ‘I’m alright, I’m alright.’ I’m like ‘you don't look all right.’ And then she leans forward a little more and like drops to a knee and like rests her head on the freakin toilet, dude.

Paramedics try to revive Liz for more than twenty minutes. At 10:57am on February 6th, 2018, they pronounce her dead.

I’ve listened to that story many times now. And it never gets any easier to hear.

Josh knows that, too.

JC: Like I know this story sounds. Like I hate telling it because it makes me sound like a really messed up person.

The day Liz died, Josh was arrested at the hotel by local police and taken to jail. At first he was charged with simple drug possession.

But months later, federal prosecutors took over the case. They decided that what Josh did was much more serious than that. They charged Josh with distribution of controlled substances resulting in death. Often... that charge is just called “death resulting.” It’s a crime with a mandatory minimum sentence of 20 years in federal prison.

In the eyes of prosecutors, Josh didn’t just give his friend Liz drugs. He killed her.

Are they right?

What happened to Liz in that hotel bathroom happened to tens of thousands of Americans last year. From April 2020 to April 2021, more than 100,000 Americans died of an overdose. It’s like a small city died. Was it because of public health crisis or a wave of murders?

JC: Ok, alright, am I allowed to ask - you gotta have an opinion, what’s your opinion?

From the Document team at New Hampshire Public Radio, this is Death Resulting. I’m Jason Moon.

...

I got interested in Josh’s case because it’s not your typical crime story. It’s not a whodunit. The major facts are not in dispute. Josh admits he gave Liz the drugs that killed her.

Instead, there’s a different, tougher, kind of question here that drew me in: should that be a crime? Is an overdose really a murder?

Right now seems to me a good time to ask. The War on Drugs turned 50 this year. And a majority of the country now agrees - that law and order approach of criminalizing addiction - didn’t work. (Something many Black Americans have been saying for a long time). Today, politicians on both sides repeat the same adage: ‘we can’t arrest our way out’ of our drug problems.

But... look, despite the rhetoric, America has not left the War on Drugs behind. We’re still very much arresting our way - if not out of - then through the current overdose crisis. As a reporter, I get the press releases with the mugshots every day. Mugshots of people like Josh Cook.

The first time I talked to Josh, he’d been sitting in jail for about two years - waiting to be sentenced for Liz’s death.

JC: And I mean, I don’t know. If they give me what they want to give me, I’m not gonna be home until I’m 30-something. So, I don’t know, it’s pretty stressful. I’m like losing my hair just thinking about it.

Aside from the stress, jail is pretty boring according to Josh. He talks on the phone with his parents. They send him money so he can watch TV on his jail-issued tablet.

He tells me he just watched a show called Under The Dome. It’s about a small town that gets trapped inside a mysterious bubble. I ask Josh if he picked the show because he, too, is trapped inside.

JC: (laughs) Maybe, maybe subconsciously.

Josh is white. He’s from New Hampshire.

Josh spent almost his entire teens caught up in the juvenile justice system. He started using drugs when he was 11. By 12, he was assigned a juvenile probation officer.

Here’s a quick story from Josh’s teenage years that will tell you a lot about how he grew up.

When he was 14, Josh kept failing his probation officer’s drug tests. So they sent him to a group home for kids with behavior issues. His first week in the group home, Josh ran away.

JC: The story of us getting caught is pretty funny, actually.

Josh and another boy stole a car. It was a minivan that belonged to the group home. They snagged the keys and drove an hour away to Manchester, the state’s biggest city.

JC: Cause that's where I'm from. I was like ‘I can find us a place to go.’ We’re driving in the middle of the day through Manchester and I'm in the passenger seat because I don't even know how to drive. And we cut off my dad in traffic.

Out of nowhere. Like the person we decided to cut off is my dad. And he makes eye contact with me as we're doing it. He's like, what the hell? All he knows is I'm missing right now. That's what the program told him was I’m missing. And so he immediately starts following us, gets on the phone with my probation officer. All of a sudden there's like ten cops chasing us. It was crazy. It was in the newspaper like “teens caught in stolen car incident,” like blew it up when really we were just running away from our program.

That was basically Josh’s teens - juvenile jail, group homes, all for drugs and drug-related charges. And then once he aged out, more of the same - adult jail, more drug charges.

Now that Josh is back in jail, awaiting sentencing -- it’s almost like returning to his childhood. Sometimes he feels stuck there.

JC: I’ve been in jail most of this time now, so sometimes I catch myself and I still feel like I'm 14 years old, like everything stopped. I'm impulsive. I’m easily influenced still. I’m a little kid but I'm 23. I have grown up, but sometimes I catch myself and I'm like, ‘wow I feel like I'm still 14 years old.’

Josh told me he feels awful about what happened to Liz. He says her death was the worst thing that could’ve happened.

But to Josh, serving a minimum of 20 years in prison for her overdose is crazy.

JC: I get high and I shared my drugs and somebody died, you know, it sucks, but it's not like that - this happens to people every single day. And it's like, what happens when you do drugs, you know, people die. I could have died, you know, definitely could have died. Many times.

Josh says he’s overdosed seven times. Once in a McDonald’s bathroom. He’s right that for so many people living with opioid addiction, overdose is just another fact of life.

But that doesn’t really matter under the death resulting law. And that leaves Josh - and his attorney - with a huge challenge.

Murat Erkan: So audio is okay?

Jason Moon: You sound good. I’m recording now if that’s okay with you.

ME: Fine.

Murat Erkan is Josh’s court-appointed attorney.

Murat is how I first learned about Josh’s case. Last year I got an email from his office. It was long, passionate -- almost desperate. It said the federal prosecutors were ‘hypocritical,’ their position ‘morally indefensible.’ The email finished with “the public needs to know about this case.”

ME: I think that this might be one of the most absurd and perverse prosecutions that I’ve experienced as an attorney.

Murat has shoulder-length hair. The day we talk he has it in a short ponytail. Josh likes Murat. One time, he said Murat was a, quote, “beast.”

Like a lot of defense attorneys, Murat has a talent for cussing in a way that makes him seem disarming.

ME: Lock up the pharmaceutical companies. Those are the individuals who would shit their pants if they had to go to jail, right??

Murat says Liz is not Josh’s victim - they’re both victims of addiction. Josh has been a drug user more than half his life, he’s been suffering opioid addiction since he was 16. He wasn’t some kingpin drug dealer. He couldn’t even afford his own place. Sharing and selling drugs is a normal part of many drug users' lives.

ME: All of the government’s rhetoric for its justification for incarcerating individuals as a salve to the drug crisis - the underlying premise is that drug dealers are preying upon victims. Well now you’re prosecuting the victim.

Part of Murat wanted to take Josh’s case to trial - to have it out with prosecutors and then let a jury decide.

But the federal death resulting law can be a real nightmare for defense attorneys.

For one thing it’s what’s known as a strict-liability law. It doesn’t require the state to prove anything about Josh’s mindset - that he acted maliciously. All they have to show is that he gave Liz the drugs and that she died from taking them. Josh and Liz’s messages over facebook and the medical examiner’s report make a strong case for that.

And then there’s the mandatory minimum sentence. If he lost at trial, Josh would get at least 20 years.

ME: This is the nature of minimum mandatories. I mean they are designed to strip the person charged of the ability to put the case to a jury because the consequences are so extreme. If you risk a trial, you risk it all.

So rather than fight it out with prosecutors, Josh’s lawyer is negotiating with them. Trying to get the lightest sentence he can for Josh in exchange for a guilty plea.

I should say, I reached out to several family members of Liz. They either didn’t respond or declined to be interviewed. Out of respect for Liz and her family, we’re not gonna use her last name in this story.

I did speak with Acting U.S. Attorney John Farley. It’s his office that brought the death resulting charge against Josh.

John Farley: We have an individual who died, and whose unborn baby died, as a result of Mr. Cook’s conduct. And as a society we have to have some way of acknowledging that human life has value.

John Farley is a veteran of the War on Drugs. He’s spent 25 years at the Department of Justice. He’s prosecuted drug cases in California, Texas, Puerto Rico, Boston.

These days he’s the top federal prosecutor in New Hampshire.

I talked to John in his office in a big grey federal building in Concord, the state capitol. John wears a black suit, white shirt, red tie. An outfit that indicates, correctly, that there will be no cussing in his interview.

JF: A number of years ago we started working with our state attorney general, jointly, to look at overdose scenes as crime scenes, as potential murder investigations.

John says his office started charging more death resulting cases around 2016. At the time, New Hampshire was one of the states hardest hit by overdose deaths.

JF: Fentanyl has been such a deadly, deadly scourge on our community. We don’t charge this charge every day, it’s something that we do somewhat infrequently. But it has been charged much more frequently in the last few years because of the large number of fentanyl overdose deaths that we’ve been seeing.

Not surprisingly John doesn’t see any hypocrisy in charging death resulting cases. He says we already punish people for other kinds of reckless conduct that kills someone. Like a drunk driver who hits a pedestrian.

John says doling out that punishment is really important. He says something you’ll hear from a lot of prosecutors, especially when it comes to death resulting charges - that these charges send a message. A warning that deters people from selling more deadly drugs.

JF: I think the deterrent message that Congress wanted to send is that no one should be selling drugs. These are deadly substances and we don’t want people selling poison on the street.

JM: Do you think that deterrence works? A lot of people say look these are people in addiction, they’re not reading your press releases when you charge someone with death resulting, they don’t know. And even if they did, they’re in addiction and that’s not how the brain science of addiction works, they’re not making rational choices.

JF: This is a little bit like trying to find the bell that didn’t ring. We don’t know who was deterred because they’re the ones who don’t commit the crimes. So we’ve had cases where people are concerned about doing drug transactions in New Hampshire because they’re worried about the sentences that our judges impose versus other states nearby. So there are deterrent effects out there. I'm certainly not going to suggest that every drug trafficker does that, but there are certainly some that do.

So John says he knows of cases where the prospect of a long prison sentence deterred someone from selling drugs. He didn’t offer specifics. But even if he’s right -- according to the Department of Justice itself, that’s the exception. In 2016, the DOJ published a paper saying that long prison sentences do not deter future crime.

So, as an argument for pursuing death resulting charges, the idea that the minimum mandatory sentence deters anyone - it just doesn’t hold much water according to John’s own agency.

But John has another reason why death resulting charges are worthwhile. One that’s more philosophical. He says they match the seriousness of the crime.

JF: She did not deserve to die. And we as a society have to think about, and different people can have different opinions, about what value to place on that human life.

The more I talked with John, the more we returned to this idea. That Liz’s death requires something just as serious on the other side to balance the scales.

The prosecutors working under John eventually offered a plea deal in Josh’s case.

They offered to drop the death resulting charge and its 20 year mandatory minimum. In exchange, Josh would have to plead guilty to a lesser charge - distribution of a controlled substance. And the judge would sentence him to between 13 and 17 years in prison.

JC: I don’t say I shouldn’t do time. Because I definitely feel I should be held accountable for the things I’ve done. But doing this much time is crazy, and I feel like that should be held for people with like kingpin status or something. Not someone who could barely support his own habit.

That’s how Josh, and his attorney, Murat, feel about the deal. But they also know they don’t have much of a choice. So they’re taking it.

And I think this is part of why Murat reached out to me in the first place. He felt Josh was getting bullied into an unjust plea deal and that the only thing left to do about it was get mad - and maybe get other people mad, too.

...

In 2020, more Americans died of overdoses than any year in history. More than fatal car crashes and gun deaths combined. More than double the number of deaths in the U.S. during the worst year of the HIV/AIDS crisis.

This is the opioid epidemic. The CDC says it happened in three waves.

The first wave started around the year 2000, with pills. People began dying from overdosing on prescription opioids.

Then in 2010 the second wave hit as users moved to heroin. Fatal overdoses kept rising.

Then in 2013, fentanyl arrived.

Today we live in the third wave of the opioid epidemic. The fentanyl wave.

Fentanyl is a synthetic opioid, originally designed to treat severe pain in cancer patients. It is very, very strong. Up to 100 times more potent than morphine.

Fentanyl first showed up in the illicit drug trade mixed into heroin.

Now, fentanyl is taking over. In some parts of the country, fentanyl is on track to replace heroin altogether. And fatal overdoses have never been higher.

Josh’s friend Liz is a part of that tragedy.

In the face of this third wave, some police and prosecutors responded with a get-tough approach.

They started charging people with death resulting. And using it as a threat. Here’s one example. In 2017, a Florida sheriff released this video...

[Peyton Grinnell] I’m Lake County Sheriff Peyton Grinnell. Over the last month or so I’ve had several phone calls from citizens in this county concerned about the number of overdoses...

The sheriff stands at a podium surrounded by cops who are trying to look intimidating. Their faces are covered with ski masks and sunglasses. Their arms are crossed.

PG: ...if our agents can show the nexus between you the pusher of poison and the person that overdoses and dies, we will charge you with murder. We are coming for you. Run.

This charge: death resulting, has grown into a strategy to respond to fentanyl. Prosecutors have trained each other on how to use death resulting - with webinars and white papers. One recommends training first responders, like EMTs, to collect evidence for a homicide charge at overdose scenes. In 2018 - the same year Josh was charged with death resulting - the National District Attorneys Association put out a paper that said, quote, “prosecutors should treat every overdose death as a homicide.”

If Liz was a victim of the third wave of the opioid crisis, Josh is part of the law enforcement strategy to stop it.

Is that strategy working?

One way I wanted to get at that question was to find out how many people are getting charged with death resulting. As it turns out, there’s no easy answer to that.

I was a little surprised to find there’s no way to get a complete count of all death resulting cases in the courts.

There’s a federal death resulting law, but a bunch of states have their own version of it. Each court system uses its own database. And each database might call it something different: death resulting, drug-induced homicide, sometimes manslaughter.

So there’s no single place to find out how many people are getting charged. And that makes it kinda hard to know if this law enforcement strategy is working.

Allison McBride: We could talk about, like, the amount of work that goes into it.

JM: Oh, please.

AM: Okay.

This is Allison McBride, a researcher and advocate with Northeastern University. She works on a team of lawyers, public health experts, and community organizers who oppose the use of death-resulting laws.

AM: There needs to be more awareness. These cases are only going to increase if we continue to look at carceral approaches to the overdose crisis.

Allison and her team spent years trying to answer this basic question: how often are we charging people with murder for an overdose death? And they came up with a way to track these cases. A workaround to the disjointed way data is collected in the court system.

Their team uses a tool developed by MIT called the Media Cloud. It scans millions of news articles published online. Alison and her team at Northeastern use the Media Cloud to track down every news article they can find written about death-resulting cases.

They work in shifts - interns pounding away on their laptops all through the pandemic - to sort through thousands of news stories to find individual cases. Once they find those cases, they look up anything else they can find - like court records or obituaries...

For each case in their death-resulting database, the team tracks up to 40 characteristics: like what drug was involved, the race of the accused, the relationship between the deceased and the accused.

It’s a database they constantly update.

It’s the most comprehensive answer we have to the question of how many people are getting charged with death resulting. But the dataset is limited. Remember it relies on news articles. It only captures cases that a journalist bothered to write about. For instance, Josh’s case has not been written about yet - so he’s not in there.

AM: This is like a relative value to what could be out there.

So, we don’t know if Northeastern’s dataset is a window or a keyhole onto the total number of death resulting cases. So we can’t talk in concrete quantities. But what we can see are clear trends.

According to Northeastern’s data, there’s little trace of death resulting cases through the 1970s, 80s or 90s. It was during the first wave of the opioid crisis that death resulting cases started to creep up. Then during the third wave, when fentanyl arrives, the number of death resulting cases absolutely explodes.

In fact, if you take a line graph from Northeastern showing the increase in death resulting cases, and hold it up next to one from the CDC showing overdose deaths - they both show a massive jump at almost the same time.

Which all makes sense, in a way. More deaths, more opportunities to charge death resulting.

But to find out if this approach is working - we need to know who is getting charged. Is it the “pushers of poison” that Florida sheriff described? Or someone else?

Alison and her team dug into this. They looked at the relationships between the person charged and the person who died.

AM: So, reported relationships - which might not really translate into their actual relationship - but the way that’s being conveyed through journalists is that 64% are reported as a dealer-buyer relationship, 22% of the articles are showing that they’re caretaker, family, friend, or co-user.

In other words, two-thirds of the cases involved someone getting drugs from someone who was described as a dealer.

And then, in at least 22% of cases, the relationship was much closer. In those cases, siblings, children, parents - who are often co-users - are being charged with killing their loved one.

So death resulting cases are rising. And sometimes people close to those who died are getting charged.

And then there’s one other important trend Allison and her team found.

Prosecutors were more likely to charge people of color with death resulting. And those defendants spend more time in prison than white defendants. In their data, the median sentence for a Black defendant is about 50% longer than for a white one.

This might feel sadly predictable if you know anything about the criminal system, but it’s the first time anyone’s been able to use data to show a racial disparity in how death resulting cases are prosecuted.

I asked John Farley, the U.S. Attorney in New Hampshire, if this trend was true for the cases his office prosecutes.

JF: We don’t track the demographics. We take each case on its own. And each life that is taken - we don’t track the demographics of the victims.

I think that’s worth lingering on for a second. Drug distribution resulting in death is one of the most serious drug charges we have, and neither the government officials who wield it, nor the judiciary that rules on it, knows exactly how often we’re using it. And it took a group of outside researchers to discover that the sentences are skewed against people of color.

The researchers at Northeastern made this database because they believe death resulting prosecutions are wrong. And that they make the problem worse.

They say it’s not a mystery how to stop overdose deaths. Give drug users fentanyl test strips so they know what they’re taking. Give them safe injection sites so help is nearby if they overdose. Make narcan, the overdose reversal drug, easier to get. Make addiction treatment easier to access.

Allison says, medicalize the problem - instead of criminalizing it.

AM: Threatening to put people behind bars is not going to stop people from using and having community to use with. It’s just not going to. It’s just sad to see people die and then the people that loved them are now being prosecuted.

So Josh Cook’s story is not some obscure drug case on the edges of the legal system. It’s part of a growing national trend. More than that - it’s part of a law enforcement strategy. One that - at least so far - is not stopping the deadliest drug crisis in American history.

Which, to me, makes this question - should what Josh did be a crime in the first place? - all the more important. Is an overdose really a murder?

When I talked with John Farley, the U.S. Attorney in Josh’s case, I tried to get him to wrestle with that question. I asked him, ‘why is this a crime?’

JF: It’s a crime because Congress made it a crime.

At first I thought it was a kind of flip answer. Like, ‘that’s just the way it is.’ But I think what John was really saying was more like ‘yeah it’s a tough question - but the people in charge already voted on it.’

And he’s right, Congress did already vote on this. And it got me thinking…

What’s the story behind that? How did overdoses become murders in America?

Basketball announcer: ...and there we get a good look at his athletic ability. Bias taking one step, going up two hands and slamming it through…

TV news anchor: He had it all. Until his heart gave out, and he died.

That’s next time, on Death Resulting.


Transcript - Episode 2: Launching A War

A quick warning before we start. This podcast is about some heavy topics - drugs, addiction, and drug overdoses. This episode also includes some swearing. So, take care of yourself and whoever’s listening with you.

Previously, on Death Resulting…

Josh Cook: Like I know this story sounds. Like I hate telling it because it makes me sound like a really messed up person.

Murat Erkan: I think that this might be one of the most absurd and perverse prosecutions that I’ve experienced as an attorney.

John Farley: It’s a crime because Congress made it a crime...

...no one should be selling drugs. These are deadly substances...and we don’t want people selling poison on the street.

...

Basketball announcer: It could be the best game of the year. The tip…

It’s 1984. North Carolina vs Maryland. A big game in the world of college basketball. A young Michael Jordan is on the court. In just a few months he’ll be drafted to the NBA.

Basketball announcer: When Michael Jordan gets the ball ten feet from the basket, there’s hardly anything a defender can do...

But he’s not the only young superstar on the court. There’s this six foot, eight inch kid from Maryland. His name is Len Bias.

Basketball announcer 1: ...Lenny Bias who’s had such a big ballgame. Double clutch and he made it!

Basketball announcer 2: Two of the finest athletes in the country, Michael Jordan and Bias going up side by side.

The finest athletes in the country. No one in the stands could truly comprehend just how important each of these guys would become in their own ways.

Len Bias was supremely talented. One of those athletes who’s hard to write about because all the cliches apply. His game was beautiful. He really did seem superhuman. And then off the court - he had the kind of hardworking, everyman, humble persona that made him relatable. He was the star - but Len Bias gave his coaches the credit.

Len Bias: ...would be able to rebound and I can do it. And when you got a coach that puts confidence and faith in you like that, you can’t go out but play - just play well.

Two years after that North Carolina Maryland game - Bias gets selected as a first round NBA draft pick.

NBA Commissioner David Stern: The Boston Celtics select Len Bias of the University of Maryland...

He’s 22. He’s about to become a professional athlete, a national celebrity.

Commentator: There he is, Len Bias. Len was sitting by his mother, she is here with him...Many people think he may be the best athlete in the draft.

But Bias would never make it to the NBA

Two days after being drafted - Bias and his friends are partying in a dorm room back in Maryland. Celebrating the start of his new life.

That night - June 19, 1986 - Len Bias died… of a drug overdose.

There are two stories people tell over and over again about Len Bias’s life. One is about basketball and the star that could’ve been. To this day, people still argue about whether Bias would’ve been better than Jordan.

The other story people tell about Len Bias is a cautionary one... about drugs. A story so powerful it inspired laws that changed the lives of thousands of people - including Josh Cook, in Manchester, New Hampshire, more than three decades later.

This is Death Resulting. I’m Jason Moon.

...

One of the places Len Bias lives on is in academic papers on US drug policy. Scholars point to his death as the origin of death resulting laws.

One of those scholars is Justin Hudson. Justin grew up learning about Len Bias through pop culture.

Justin Hudson: Where I really first heard about him, believe it or not, was an episode of Saved By The Bell.

JH: They had a don’t-do-drugs episode. And I believe A.C. Slater, the jock, mentioned Len Bias.

A.C. Slater: Hey, remember Len Bias the basketball star? Had everything. Including cocaine. Well one night he had too much and his heart stopped. It’s a shame, too. He could’ve been great.

As a student, Justin spent hundreds of hours researching Bias for a PhD dissertation at the University of Maryland - the same university where Bias played. Where students still wear Bias jerseys to games.

JH: I went there to do research on the image of the Black athlete. And I kept coming back to the Bias story because of the implications his death had on both sports and broader society. // It was the perfect story at the perfect time, if you will.

JH: Well it started off as ‘local hero dies.’

News Anchor: He had it all. Len Bias was an All-American basketball star at...

JH: Local news coverage // really paints Bias as the hero of Landover, Maryland // who had finally made it big and was struck down right before he could really taste professional success.

News Anchor: He had it all. Until this morning when his heart gave out and he died. NBC’s Robert Hager tells his story...

JH: But as news of the potential drug use came out. That narrative shifts a little bit.

Local news reporter: Maryland’s All-American basketball player had just suffered a seizure from taking too much cocaine.

One TV station gets their hands on a tape of the 911 call from the night Bias died.

Brian Tribble: ...Len Bias needs help.

911 Operator: Well it doesn’t matter what his name is. What’s the problem?

BT: He’s not breathing right.

Reporter: Brian Tribble, the man’s voice you heard in that tape, is the man police suspect of supplying drugs to Len Bias and other Maryland athletes…

Len Bias died of a powder cocaine overdose. And it turned into a huge story in the summer of 1986. Not just because he was a famous athlete. But also because of what was going on in America at the time around drugs.

Dan Rather: This is the typical tiny bottle for the new illegal drug of choice in America: crack.

Powder cocaine had been around for decades. But crack cocaine was new. It was smokable and gave a shorter, more intense high.

It became a public health crisis, especially in Black neighborhoods. Infant mortality rates, foster care rates, homicide rates all shot up in Black communities as crack spread.

But the media didn’t exactly frame it as a public health crisis. The coverage of crack was full of coded racist language.

Dan Rather: 48 hours on crack street. It could be anybody’s street.

[Music]

DR: Would you call this a standard crack house?

Cop: Eh, it’s a crack house, sir. Standard in this precinct.

JH: You go back and look at any rhetoric from the 1980s, it was almost like a plague. Like a contagion, spreading from Black neighborhoods.

Diane Sawyer: So you’re out to insulate this community?

White town official: Most assuredly. I couldn’t have put it better myself.

JH: This drug would spread to suburbia, this drug would spread to rural America.

Diane Sawyer: It’s hard to believe, in this wonderful prosperous community, on this lovely street in these nice houses, what you’re talking about is going on.

White suburban father: It’s like the Nightmare on Elm Street.

...

In 1986, the news was full of stories about drugs and the harms they caused - real and imagined. And so when Len Bias died of a cocaine overdose, it took on a larger meaning. And it helped launch the next phase of the panic surrounding drugs - what was America going to do in response?

PBS NewsHour, June 25, 1986: The death of Len Bias has become more than a medical story. More than one young athlete’s self-destruction. It’s also blossomed into a kind of national morality play, with different people writing different plots with different victims, heroes, and villians....

Len Bias was a role model, a star at the height of his promise, in peak physical condition - if he could die from cocaine…

JH: People are just like, what’s happening? What’s going on? Why are these athletes who are 22, 23 years old dropping dead? We need to save America’s youth from this.

PBS NewsHour, June 25, 1986: At a Washington press conference, University of Maryland basketball coach Lefty Driesell said he hoped Bias’s death would launch a new War on Drugs.

Lefty: Cocaine is a killer and if we can capture the moon, we can sure blow up all the cocaine or do something to stop cocaine from coming into this country and to our youth.

Blow up all the cocaine or do something. It sounds kinda ridiculous. But when the crack panic reached Congress, that urge to do something took hold.

Eric Sterling: The hatred and the fear of drug users was so out of control.

This is Eric Sterling. Eric is a guy who knows the story of Len Bias’s death and its impact so well, he can almost tell it all himself.

ES: Within a few - I mean rumors, how does this guy die? Why did he die? He supposed to be squeaky clean. Well, hmm, rumors, hmm...then the autopsy. It's drugs. Drugs! Drugs!...And now we have an epidemic.

In the summer of 86, Eric was working in Washington, for Congress. He was a lawyer for the House Judiciary Committee, subcommittee on crime.

He was perfectly positioned at the center of what happened next.

Len Bias died during campaign season - just months from the 1986 midterm congressional elections.

Reagan in his second term as president. Republicans control the Senate. Democrats have the House.

ES: The election is November. This is July and the speaker is on the phone with the Democrats around the country. What are you hearing? What's the country talking about? What's commanding attention? And the word is coming back. It's drugs. It's crack.

Both parties saw political value in being tough on drugs. So rather than fight against each other, they fought to outdo each other.

PBS NewsHour, August 21, 1986 - Cokie Roberts: With congressional elections coming up, each political party rushed to sign up for the War on Drugs.

PBS NewsHour, August 21, 1986 - Rep. Jim Wright (D): The war against drugs is not a Democratic war and it isn’t a Republican war, it’s an American war. There’s place for all of us on the battlefield.

What Congress began working on that summer would become one of the signature pieces of legislation in the War on Drugs. Broadly speaking, it poured more money into the enforcement of drug laws and it required tough mandatory minimum sentences for drug crimes.

This law would introduce the now infamous 100-to-1 sentencing ratio for crimes involving crack vs powder cocaine. Five grams of crack, got you the same minimum mandatory sentence as 500 grams of cocaine.

In effect this sentencing ratio punished poor Black people for their drug use a lot more than wealthier white people.

ES: You would hear language like, we must send a message, we have to send a message to the drug dealing thugs and scum that America is not going to tolerate this kind of thing.

In the end a huge majority of congress signed on to that message. The Anti Drug Abuse Act of 1986 passed both the Senate and the House in near unanimous landslides.

And in October of 1986, just 4 months after Len Bias died, President Reagan signed this new anti-drug bill into law.

Ronald Reagan, October 27, 1986: The American people want their government to get tough and to go on the offensive. And that's exactly what we intend. With more ferocity than ever before.

The Anti Drug Abuse Act of 1986 was enormous. And it changed society. It supercharged the “law and order” approach to drugs in America.

America’s prison population soared. And Black people made up a disproportionate share of that population.

And that hasn’t really changed since then.

Not long after the Anti Drug Abuse Act of 1986 was enacted, Eric Sterling started to regret his role in crafting it. He left his job on Capitol Hill. For decades now, he’s been an advocate for drug policy reform.

ES: When I meet the family members of people who have gotten these long sentences or when I think about the fact that I played a central role in writing what is probably in terms of number of legal injustices, the most unjust law ever written in the United States. It's disheartening.

JH: When you’re someone Len Bias dies the way he dies, obviously, you lose control of your narrative, people can use it for all types of situations.

For Justin Hudson, one of the ironies of this history is how lawmakers used a famous Black athlete’s death to justify policies that would harm Black communities.

JH: The fallout from the drug policy is astonishing to me. Because people wanted to do something, they did something, but...that legislation destabilized communities and perpetuates a cycle of drug use in certain communities.

...

Josh Cook: I know the name now that you’re talking about it.

Jason Moon: Yeah and then he OD’d on cocaine and died.

JC: Wait it was the Celtics, right, he got drafted to?

JM: That’s right. Yeah.

JC: Okay, yeah yeah I do know this story. I don’t know where I heard it though.

I’m not sure what I expected Josh to say when I talked to him about Len Bias. I mean what can he say?

But Len Bias’s death and Josh Cook’s fate are directly connected. Along with everything else it did, the Anti Drug Abuse Act of 1986 created a new penalty: a 20 year mandatory minimum sentence for drug distribution resulting in death. The death resulting law.

Congress wanted to do something in the wake of Len Bias’s death - and they’re doing it, to Josh.

But some people think death resulting charges aren’t used nearly enough.

Matt Capelouto: A question that I ask myself quite often is in my daughter’s death, who do I put the bulk of the responsibility on? And I gotta say, I think that person who delivered it to her bears the bulk of the responsibility.

Matt Capelouto lives in southern California. In 2019, his daughter Alexandra, who was 20, was home from college on a winter break. One morning, just two days before Christmas, Matt says his wife found Alexandra dead in her bedroom.

MC: We had no idea how she had died. We called medics and sheriffs showed up here and they ruled her death as an accidental overdose.

Alexandra died of a fentanyl overdose. The same drug Josh gave his friend Liz. But Alexandra’s death was different in an important way.

MC: We found out that she had, through Snapchat, got what she thought was oxycodone...But it was a counterfeit pill made of fentanyl.

A counterfeit pill.

Remember those three waves of the opioid epidemic - first pills, then heroin, then fentanyl. Well, this fentanyl wave we’re living through now is evolving. At first, fentanyl was mixed into the heroin supply chain.

But now, fentanyl is being mixed into other drugs - meth, cocaine, it’s even sprayed onto pot leaves. And now increasingly, fentanyl is being pressed into counterfeit pills. Pills that are made to look like prescription drugs like oxycodone.

So now there are people overdosing on fentanyl - and dying - who think they are taking something else entirely.

MC: And I started to think that through and “accidental overdose,” that terminology, just didn’t sit well with me, the more I thought about it. I think a more accurate description is my daughter was fatally poisoned.

This is a really important distinction for Matt. The way he sees it, his daughter didn’t take too much of something she wanted. She didn’t know what she was taking - like someone slipped poison into her drink.

It seemed obvious to Matt that his daughter had been murdered. He says he argued with the local police to see it that way, but they ruled his daughter’s death an accident.

...

Matt saw in his daughter’s death a systemic problem - not just with fentanyl and drug dealers - but with the way law enforcement was handling these cases.

He connected with other people who’d lost loved ones to fentanyl and he became an advocate. Today he’s president of a non-profit called Drug Induced Homicide. It’s an advocacy group trying to get every state to adopt its own version of the death resulting law and to get prosecutors to use the charge more often. Matt’s group sells purple wristbands, they organize protests.

MC: We’ve got a long ways to go but we’ve done pretty darn well at changing the perceptions of these deaths. We are starting to see law enforcement, news media referring to these deaths as poisonings rather than overdoses.

Just weeks before we released this story, Matt sent me a video.

Todd Spitzer: I’m not going to let drug dealers get away with murder. It’s not going to happen anymore. It’s not going to happen if we can help it.

It’s a press conference from November 2021 hosted by the District Attorney of Orange County, CA. DA Todd Spitzer is standing at the mic, surrounded by poster-sized photos of people who died from fentanyl. He’s flanked by cops.

California doesn’t have a local version of death resulting on the books. And Spitzer was announcing a new legal strategy to try to get around that.

He says prosecutors in his office will force anyone pleading guilty on a drug distribution charge to sign a form that says they know drugs are deadly. Then, if they’re ever arrested again for selling drugs that someone fatally overdoses on, prosecutors will use that as evidence in a murder charge against them.

TS: We’re gonna offer that into evidence and the jurors are gonna see that. 

Just a few months before, Matt had described this very idea to me over the phone. It was like hearing Matt’s words come out of the DA’s mouth.

And Matt was there. He was at the press conference representing his group. At one point the DA, Todd Spitzer, held up a purple bracelet. It was the one Matt’s group sells on its website.

TS: I personally didn’t understand it. And then they gave me this bracelet. And their website. It says “it’s not an overdose.” And I’ve been a police officer, I’ve been a prosecutor for many, many years. I had to really think about that.

MC: Fentanyl has changed everything. The drug dealers today because of fentanyl, they’re serial killers. And these are the easy pickings. We can go and get these guys off the streets immediately.

For Matt, victories like this make him optimistic. People are coming to see this the way he does. And death resulting laws are gaining steam in statehouses across the U.S.

Since 2009, 11 states have passed new death resulting laws or expanded existing ones. Right now, at least 25 states, in all corners of the country, have a version of a death resulting law on their books. That’s all in addition to the federal law passed back in ‘86. Sometimes they’re even referred to as “Len Bias laws.”

But whether you agree with those laws or not, it’s worth considering the consequences of this approach for people who sell or share drugs.

We know there’s data to suggest that Black people are given longer sentences when charged with death resulting. And that means that while being charged with death resulting is serious for anyone, it can be much more serious for some...

James Linder: I mean, the prosecutors, by charging people with drug induced homicide, they ain't gonna stop nothing because you never get the big guys, they out there, they don't ever touch no drugs. They drop it off and give them to somebody. So, you know.

This is James Linder. He’s 41. He’s Black. The advocacy group Drug Policy Alliance singles out his case as an example of racial disparities in how death resulting laws are enforced. I called him inside the Dixon Correctional Facility in Illinois.

JL: People are going to get high. That's one thing I learned. They're going to get high, and no matter what you do, they're going to keep doing it.

James’s history with the criminal justice system starts long before he was charged with death resulting.

When he was a freshman in high school, 16 years old, prosecutors charged him as an adult - for armed robbery. A judge gave James 11 years in prison.

When James got out, he says he struggled with cocaine addiction.

Then, he spent his late 20s and early 30s in and out of prison - for drug possession, drug distribution, possessing a firearm with a felony record.

JL: Once you get a number from the Department of Corrections, they’re going to try to send you back any chance you get.

In 2014, James was 34 and getting out of prison. He managed to line up a job - at a bakery. But James says his parole officer messed up the paperwork he needed to be able to travel to the job.

James says the mistake costs him the job at the bakery. And he says he felt stuck. He wanted to help his family. He had a son.

JL: I didn't have no job I had, I had to I had to pay a phone bill, I had to buy clothes for my son. I had to get food. I had to help my sister pay rent. It was real hard.

James started selling heroin.

On January 30, 2015, James sells a gram of heroin to a guy named Cody Hillier. Cody then shares the heroin with his girlfriend, Danielle Barzyk. They met in rehab the summer before.

Within hours of Cody buying the heroin from James Linder, Danielle dies of an overdose.

Local police investigate. James and Cody are both prosecuted.

Each of them had a role in distributing the drug that caused Danielle’s death. But only one of them was charged with her death.

Cody, who’s white, was charged with unlawful possession and unlawful distribution of heroin. He was sentenced to probation.

James, who’s Black, was charged under Illinois’ death resulting law. He was sentenced to 28 years in prison.

Probation for the white defendant. 28 years in prison for the Black defendant.

We spoke to the prosecutor whose office charged both Cody and James.

Patrick Kenneally: My name is Patrick Kenneally. I've been the McHenry County state's attorney for five years. They I was I initially started in the office back in 2007...FADE

Patrick Kenneally is a big supporter of death resulting laws. On his campaign website, he says he’s charged more people with death resulting in his county than any other county in Illinois.

Patrick, who is white, doesn’t believe that race had anything to do with the different sentences for Cody and James.

He says, for one, Cody cooperated with the investigation. He brought police to James - did a controlled buy. He says James refused to take police further up the drug supply chain. James disputes this.

Patrick Kenneally also says James’s criminal record was much longer and more serious than Cody’s.

PK: Mr. Linder’s sentence here can adequately be explained by the nature of the offense he committed as well as his criminal history without resorting to race.

Look. There are a lot of ways to debate whether and how race impacted the outcome of James’s case. Did James have a long record because of systemic economic disadvantages? Or because his neighborhood was overpoliced? Or because when he was 16, prosecutors charged him as an adult, where they might’ve seen a child if he was white?

I can’t say for sure. But what we do know is what happened at James’s trial.

James was tried before a white judge and an all-white jury in McHenry County, Illinois. Even in the original pool of about 40 potential jurors, there were no Black people.

JL: And it was like for like four or five, I think, like Latinos, that's about it. No, no Blacks available.

JM: How did that feel when you were looking out at that pool of possible jurors and you didn't see any Black faces?

JL: Scary. Real scary. I was like, what the...?

James says he does bear some responsibility for Danielle’s death. He told me he’s willing to accept some punishment for that. But it’s the length of his sentence - especially compared to what Cody got - that he can’t understand.

JL: I mean, both of us is to blame...But the thing I'm mad about is the 28 years cause I apologize for my involvement in this stuff, and I was willing to take way more than time than I suppose to got. Just to teach me a lesson about dealing with small amounts of heroin. And it seemed like I got fucked and he got off.

James’s projected parole date is in the year 2035.

...

Next time, on Death Resulting….

Josh Cook will go to federal prison for Liz’s death. But how long he goes to prison - that’s not just about Josh and what he did. It’s also about what was done to Josh, long before he met Liz.

Shannon Nelan: You know I understand that he is an adult and he makes his own choices. And that’s easy for a lot of people to say to me, to cheer me up or whatever. But they don’t know what I’ve done to him.

JC: My mom has, like, a messed up way of trying to protect me and, like, help me. And it just, it was all bad. We got caught.


Transcript - Episode 3: A Normal Member of Society

CONTENT WARNING: A quick warning before we get started. This podcast is about drug overdoses. And this episode in particular really gets into the lived experience of addiction. There are references to abuse and domestic violence. There’s also some swearing. So take care of yourself and whoever is listening with you.

Previously on Death Resulting.

Josh Cook: A friend of mine, Liz, hits me up on Facebook and she's like, hey, I got some money and I wanna buy some dope.

John Farley: She did not deserve to die. And we as a society have to think about, and different people can have different opinions, about what value to place on that human life.

James Linder: I mean, the prosecutors, by charging people with drug induced homicide, they ain't gonna stop nothing because you never get the big guys, they out there, they don't ever touch no drugs. They drop it off and give them to somebody.

Josh Cook: I’ve been in jail most of this time now, so sometimes I catch myself and I still feel like I'm 14 years old.

It’s about six months before Josh Cook’s sentencing hearing. I’m walking down a busy street in Manchester, New Hampshire with Josh’s mom, Shannon Nelan. We’re talking about Josh. And then, by chance, he calls.

Shannon Nelan: Hi.

Josh Cook: Hello how are you?

SN: I’m good how are you? Guess what I’m doing.

JC: What?

SN: I’m walking down the street with microphones in my face. Down Valley Street.

JC: With microph-- oh, you’re talking to Jason or whatever?

SN: Yeah, with a big furry microphone on a stick.

JC: That’s awkward.

It is a little awkward. People keep looking at us from their cars as they drive past.

JC: I don’t know what to say.

SN: Well think of something cool to say and if you do, call me back.

JC: (laughs) Alright. I love you.

SN: I love you, too. Bye.

Josh calls Shannon almost every day. She’s his main contact with the outside world.

She’s also Josh’s biggest advocate. When I called to see if she would talk to me about Josh - she didn’t hesitate. We met outside in a park and ended up walking around, talking for hours.

It’s cold out, and Shannon pulls the sleeves of her hoodie over her hands. Every now and then she puffs on a small vape pen.

SN: (pfff). Sorry.

Shannon is a good storyteller. And she has a lot of stories to tell - mostly about her and Josh’s life before Josh was charged with death resulting.

Like Josh, Shannon spent a big part of her life struggling with addiction. As I’m recording this, she’s been in recovery from opioid addiction for three-and-a-half years.

Shannon tells me about what addiction did to her life with this total, unflinching honesty. A lot of her stories are incredibly tragic. But somehow, Shannon often manages to find levity in them.

It’s this spark she has. One of her friends who’s known her since high school describes her as “feisty.” Shannon, who’s just five feet tall, uses the word “chihuahua.”

Honestly, I might go with the word “fearless.” What happens right after Josh calls is a good example:

We’re walking to a jail. It’s not the jail Josh just called from -- but it’s somewhere both Josh and Shannon have spent a lot of time. Shannon brought it up so many times and it was only a couple blocks away, so I asked her, ‘do you mind if we just walk over there?’

SN: My inmate number is actually so old, I'm like in the twos, which means I've been coming here since the 90s.

This place is officially called the Hillsborough County House of Corrections. But everyone calls it Valley Street jail. Shannon talks about it like she’s coming back to her old high school.

SN: This is Valley Street. This place loves me, hates me. Oh! That’s a sergeant…(fades out)

So… we’re walking around the outside of the jail, this angular brick building with narrow slits for windows. And as we turn the corner we see these two guards walking right at us. I’m like ‘oh they’re here to tell us to leave.’ But not Shannon. Shannon recognizes them.

SN: This girl doesn’t like me very much but we’ll say hi.

Hi I thought you worked at a treatment center

Correctional Officer: I did for like a year with my brother.

SN: Oh. Do you think they’ll let me into booking - for the reporters?

C.O.: Hmm. Probably not but you can try.

SN: Okay

JM: (nervously) You want to try?

If you heard some nervous laughter in the background - that was me... wondering what Shannon means by ‘let us into booking.’ I thought we’d maybe just stand outside and talk. We can’t just walk into this jail…

Shannon walks to this side door of the jail - like definitely not the main entrance - and she just opens it.

SN: This is just how you get in. I’m just going to go in here. I don’t come in here anymore though. So, right on the other side of that door…

We’re in this little vestibule not much bigger than a phone booth. Inside there’s a second door, (that one’s locked). And through a window in that door we can see into the booking area, where people are processed when they come in or out of jail.

We don’t see anyone. But next to the door hanging on the wall, there’s a phone. Shannon picks it up.

SN: Hi. Um. What are the chances, um, that I can come in the-- so, I’m an ex-inmate that is just doing a story on recovery and they want to see what your booking looks like. I know you’re not going to let me in but can I get into this little room?

(pause)

SN: Great, thank you.

They said to stay on the phone, don’t hang up, the supervisor is coming. They’ve probably been watching us.

(pause)

Hi… Okay, thank you. Alright bye. ‘If you’re going to have any film crews here you need to contact us Monday through Friday…’ (fade out)

So that’s Shannon. Fearless. The kind of person who tries to talk her way into a jail where she was formerly incarcerated. She’s been through a lot.

But what’s happening to her son right now - Josh sitting in jail, waiting to learn how many years he’ll be in federal prison - it’s eating her up.

SN: You know I understand that he is an adult and he makes his own choices. And that’s easy for a lot of people to say to me, to cheer me up or whatever. But they don’t know what I’ve done to him. I don't know. I don't know, like, I'm in therapy over it, like, you know, like I've tried everything to kind of, you know, my doctor is huge in my recovery. And he's like he makes me put this stupid, stupid thing on my mirror. And I did because he told me to, and I have to listen to everybody. And it just says, forgive yourself. And I'm like, you know, I'm still not there.

The federal death resulting law doesn’t leave a lot of room for subtleties. The only question that matters before the law is whether Josh gave his friend Liz the drugs that killed her. Yes or no? Guilty or not guilty.

But Shannon got me interested in other questions. Like “why?” and “how?”

How did Josh end up homeless and suffering from a severe addiction before he was even 20 years old? Why did the systems - that were supposed to help and protect him, fail?

The answers to those questions say a lot about how Josh ended up charged with murder for his friend’s overdose.

This is Death Resulting. I’m Jason Moon.

When Josh was in juvenile jail – years ago – he saw a therapist. Later, when Josh was charged with death resulting, that therapist wrote a letter to the judge who will decide how many years he gets. She tells the judge Josh needs treatment not punishment. She writes, “Joshua is a victim of his circumstances.”

In that letter, the therapist, who’s also a psychologist, writes that when Josh was 16 he was screened for something called “Adverse Childhood Experiences.” It’s an idea based on a huge and hugely influential study which showed that kids who experience trauma are more likely to struggle as adults - with addiction, depression - even shorter lifespans.

There are ten categories of these ‘adverse childhood experiences.’ Most people experienced at least one as a child. About a quarter of people experienced three or more.

In her letter to the judge, the therapist writes that Josh... has experienced nine.

In just the last few years, researchers have started exploring the idea that these adverse childhood experiences can be transmitted across generations. As in, kids who grow up with parents who had childhood trauma could be more likely to experience it themselves.

I kept thinking about that idea with Josh and Shannon. It’s hard to ignore the way their stories seem to rhyme. And it’s why I want to start the story of Josh’s childhood, with Shannon’s.

Shannon says she grew up in a home with addiction and abuse.

SN: They were always at the bar. They were always bringing people home from the bar. And I was always just alone. 

And Shannon says the same was true for her mother - Josh’s grandmother.

SN: So she was brutally abused her whole life, met my dad and he was a way out.  So she latched on, got married, got out of the house, got pregnant with me, had me.

Shannon says she had a difficult relationship with her mom growing up. She says she just couldn’t stay at her mom’s house. Sometimes she’d run away.

As a teenager Shannon says she was sent to live in a group home. A place called The Protestant Youth Center. Later described by one of its reverends as a place for kids who “trusted no adult and were destined for a life of failure and regret, marginalized by society.”

Shannon got out of the group home. She met a guy. And she got pregnant - with Josh.

Shannon had Josh at the same age that Shannon’s mother had her: 19 years old. Josh’s dad was 20.

Their relationship didn’t last. Shannon says they would get in these huge fights.

SN: And we were doing it in front of Josh. Josh was, granted, a baby, so he was like six months, but. Luckily my mom came. My mom showed up and she's like, I'm taking the baby. And I was like, OK, that's cool. You know, thank god.

Josh is taken into his grandmother’s house when he’s two years old. His parents are still in the picture - but Josh lives primarily at his grandmother’s until he’s five.

JC: That house was pretty hectic. She was always fighting with her boyfriends and chasing us around with wooden spoons. Her boyfriends were never that good of people - screaming at her, screaming at us all the time, hitting her. Stuff like that.

Josh is already experiencing his first childhood traumas. Traumas that it seems like he almost inherits.

Meanwhile, for Shannon, Josh going to live at his grandmother’s was the start of a new chapter. She was only 21 years old.

SN: And that's pretty much essentially where the partying began. There was a club going every night of the week and I was that girl. I knew where dollar drink night was every single night. I think I didn't do cocaine all of four days that whole decade.

When Josh was five years old, he was moved again. This time from his grandmother’s to his father’s.

Josh’s dad, Derek Cook, decided not to talk to us for this story. He told me it was just too personal.

Derek runs a roofing business. He’s married, with kids - Josh’s half siblings.

When Josh was young, Derek was the more stable parent. According to that letter from Josh’s therapist, Derek worked hard to repair his relationship with Josh. Josh says he was a good dad.

Still, Josh says, as he grew up in his dad’s house, he often wanted to be with his mom.

JC: It was like I almost -not to sound like a creep or anything- but I almost like obsessed over like calling my mom like trying to get her to just come pick me up and spend time with me. And my dad would talk bad about my mom. Like your mom isn't even around, like why are you freaking out? And I'd freak out on him. I'm like, don't talk about my mom ever. You know what I mean, I don't talk about my mom badly. Like, I was wicked protective over her.

Shannon did try to co-parent when Josh was placed with his dad. But it was hard for her. It was emotionally complicated.

SN: And that's where the guilt and shame started. And I started compensating for giving him away so freely by buying him stuff that he didn't deserve. And like that's when I was afraid to yell at him or ground him because I just felt like such a piece of shit for putting him through the last five years of his life, you know, and that carried on.

Josh’s childhood starts gaining this kind of negative momentum. The early, generational trauma he experienced seems to propel him into a legal system full of its own kinds of traumas.

At around 12, Josh is diagnosed with attachment disorder - a behavioral disorder that affects a child’s ability to form and maintain relationships. He develops behaviors that adults struggle to control.

JC: I would just skip classes everyday. I’d smoke weed before I went to school and go in there and just be out of my mind high on weed and the teachers would know it.

In the sixth grade, Josh has his first contact with the legal system he’ll be in for the rest of his life.

He’s caught stealing $5 from a classmate to buy pot. He’s expelled from school.

And he’s charged with robbery. The judge puts him on juvenile probation. He’s about 11 years old.

Derek and Shannon come up with a plan. They figure maybe Josh can get a fresh start in a new school. They decide to move Josh - again.

This time, he’s sent to live with his mom and visit his dad on the weekends.

It’s been ten or so years since Shannon has lived with Josh for an extended period. She’s now married. And raising her two new children. Shannon’s also struggling with addiction. She’s using cocaine and she’s also taking methadone to treat an opioid addiction.

Josh says living with mom was a lot different than living with dad.

JC: My mom’s not a bad mom, but she’s very laid back. She’d let me leave at all hours of the day - as long as I came back at night. There really wasn’t any rules there. She tried, but there really wasn’t any rules.

Josh is a teenager now, and this is where the juvenile legal system really starts to wrestle control away from his parents.

Josh keeps failing the drug tests from his juvenile probation officer. Eventually, he violates his probation so many times he’s moved again - this time by the courts. A judge sends Josh away to his first group home.

Then his second.

Then his third.

He runs away from that last group home. We heard that story in the first episode - 14 year old Josh in a stolen minivan cutting his dad off in traffic.

When Josh is about 14 - when he’s supposed to be entering high school - instead he’s sent to juvenile jail. It’s like adult jail - except it’s for kids. There is a school, and some behavioral health services are offered.

In juvenile jail, Josh gets more diagnoses. Attention-Deficit Hyperactivity Disorder, Oppositional Defiant Disorder, and Post-Traumatic Stress Disorder.

His addiction is also diagnosed. He has what doctors call Opioid Dependence, Severe.

Josh would end up spending about three years locked inside New Hampshire’s juvenile jail. What should have been his high school years.

And there’s this one incident that - maybe more than anything else I heard from Josh and Shannon - just seemed to epitomize how dangerous their relationship had become.

It happens when Josh is 16. He’s seeing a therapist at the jail - the one that would later write a letter to the judge. The therapist zeros in on Josh’s relationship with his mom. She gets Shannon to start coming to family counseling sessions at the jail.

SN: The therapist wanted me and Josh to start building our - a normal relationship.

Shannon is still in active addiction at this point. And like she said, she has all this shame and guilt about her son. And so when he asks her for something, she just has a hard time saying no.

So, one day… Josh tells Shanon he wants her to bring him something. He says that the parents of other kids are smuggling drugs into the juvenile jail.

SN: I’m like, these mothers are bringing in shrooms to these freaking kids? Are you crazy? So he just wanted to fit in and I wanted him to fit in  and I always fell short with him so I made it up by: ‘sure I’ll bring you whatever.’

During one of these family counseling sessions with the therapist, Shannon makes good on her promise. She sneaks in a handful of pills for Josh.

SN: I brought him breakfast because we are allowed to bring food in there. And I and I put them in a bag. And what it was three Tylenol PM and one Xanax, it wasn't Percocet or anything like that. And I put them in a bag, I put them under the egg and he just ate the egg. And somehow he just, you know, put it in his mouth and just left it there.

When he thinks the therapist isn’t looking, Josh moves the pills from his mouth to his sock.

JC: The counselor she lets my mom leave and then she's like, ‘what's in your sock?’ I was like, ‘what?’ And she's like, ‘what's in your sock?’ I'm like, ‘nothing's in my sock.’ She’s like, ‘really?’ She's like, ‘do you want me to call everybody down here? Just give me what’s in your sock.’ And she calls the response team down there on a radio and they're all running at me. So I grabbed all the pills and I throw them in my mouth and I start chewing them…. To try to protect my mom, you know what I mean?

SN: I left, everything's fine, like, my job's done, like, you know, therapy session done. And I get back on the highway and I get instantly you start getting phone calls from Derek. ‘What did you give our son?’ And I was like, ‘what? Nothing.’

JC: And they tackled me and they brought me to the hospital and tried to pump my stomach with charcoal. And I refused. So they took my blood.  And they were they were like like, ‘where's your mother?’ And I was like, ‘I'm not telling you. Are you crazy?

SN: Derek's like, ‘Shannon, what did he just swallow?’  And he's like, ‘he's in an ambulance right now on his way to fucking-’. And like, my heart just sunk.  And, I wasn’t going to lie, like that was my kid.  ‘Three tylenol pm and a xanax.’ And he was like ‘what the fuck, blah blah blah.’ And I was like ‘ugh, I’m in trouble.’

JC: My mom has, like, a messed up way of trying to protect me and, like, help me. I, like, told her on the phone, I was like a couple weeks away from going on getting a parole hearing. And she wanted me to stay out of trouble. And I was like, ‘I can't mom, I can't sleep, I haven’t been sleeping.’ And so it's kind of messed up sounding, but that was her way of trying to help me sleep. And it just it was all bad. We got caught.

Shannon later spent a year in jail for this. She was charged with possession of a controlled substance, smuggling contraband, and endangering the welfare of a child.

For Josh, it meant he wasn’t allowed to see his mom for the rest of the time he was in juvenile jail - about another year.

So, Josh and Shannon both faced consequences for that episode. The juvenile jail where it all went down, did not.

Which is worth noting because, when Josh looks back, the person he finds most responsible for the trauma he suffered as a child is not a person at all - it’s the juvenile jail itself.

Officially, the place is called the Sununu Youth Services Center, but it often goes by it’s old name, the Youth Detention Center. YDC.

JC: I think if I never went to YDC, I could’ve figured out to be a normal member of society on my own.

There’s a ton of research to suggest that Josh may be right. Putting kids in jail, in general, is not only bad at improving their behavior, it can actually make their behavior worse. Multiple studies from different states on kids released from juvenile jails found that 70 to 80 percent of them were rearrested within two or three years.

And then there’s what juvenile jail can do to a child’s health. One study followed health outcomes for over 14,000 kids into adulthood. They found that the longer a kid spent incarcerated, the worse their physical and mental health was as an adult.

I spoke with the therapist who worked with Josh at the jail. She didn’t want to be recorded, but she told me her experience working with Josh helped solidify her belief that children should never be incarcerated.

So, three years in any juvenile jail was already extremely likely to set Josh back in life.

BUT...the particular jail where Josh spent those three years had its own set of serious problems.

Since January of 2020, more than 430 people have come forward to say they were physically or sexually abused while incarcerated at the facility as kids. The allegations range from 1960 to 2018, and name as many as 150 different staffers as alleged perpetrators.

So far, eleven former staffers have been indicted.

When I asked, Josh said he didn’t want to talk about this particular aspect of the juvenile jail.

And so — that was Josh’s childhood. A series of adverse experiences.

The systems that were supposed to support Josh - the systems that were supposed to support his parents - they all failed. Schools expelled him. Group homes shuffled him from one to the next. Juvenile jail failed to treat his addiction and put him at risk for physical and sexual violence.

When Josh was 17 he got into a fight at the juvenile jail. The state charged him with assault - but this time they charged him as an adult. It was a seamless transition from the juvenile legal system to the adult one. Not long after, Josh met Liz.

Amy Bisson: Yes, it is the only thing I do have dogs, so they sometimes bark, so let me just  bring one out. I have the shepherd in my room. All right. You go out there bubba. Ok, Momma's going to be on the phone for a little bit. Try not to bark. Sorry I talk to them like they're people.

This is Amy Bisson. She’s one of Shannon’s oldest friends. And she looked out for Josh.

AB: It’s always kind of been like ‘auntie Amy.’ If things were going bad he would always call me. I was like a second mom when Shannon couldn’t be.

Amy wrote a letter to the judge in Josh’s case, too. In her letter, Amy pleads with the judge to make sure Josh will have drug treatment in prison. She writes, “I’m begging you, please.”

Amy enters the story in 2016, two years before Liz’s death. Josh is in jail. Adult jail, this time. He’s 18 now. He’s addicted to both heroin and meth.

Josh is about to get out of jail. He can’t go stay with Shannon because she’s in jail, too. She’s still serving time for smuggling the pills to Josh at the juvenile jail. Josh doesn’t want to go stay with his dad, because he says he knew he’d get kicked out for using drugs.

So Shannon asks her old friend Amy, if she’ll do her a huge favor.

AB: And I made her a promise, you know,  when Josh gets out, he will come with me.

AB: I knew about his addiction. Did I think that it was going to be as hard as it was at the time we were planning it? No.

Amy tries to give Josh lots of structure and rules. But she has trouble enforcing them.

AB: At one point I noticed the screen was out of one of my windows. So that told me he was sneaking out the window and coming back in.

Amy says that there were lots of confrontations. Over whether Josh was allowed to have a phone. Over whether people had been over at the house while Amy was at work.

Amy has a full-time job at a health insurance company. And she’s trying to raise this teenager, her friend’s kid, who has a serious drug addiction. She’s doing this alone.

So it wasn’t easy. Amy and Josh fought. But Amy says they also loved each other.

AB: He loved me, he respected me, it was just hard for him to get out of those negative ways.

As Amy said this, I thought of when Josh told me he sometimes feels like he got stuck at age 14. How he says jail and drugs stunted him.

Amy has this ability to separate Josh’s behaviors from him as a person. Like a kind of split screen view: on one side she sees the addiction, the behavioral disorders. On the other, she sees the little kid who used to go to daycare with her son.

She can do this with even the toughest moments she had with Josh and his addiction while he lived with her.

AB: At one point Josh spit in my face.  And I know he didn’t want to do it. He didn’t mean to do it. It was the addiction that was taking over. Taking over his mentality and his everything, you know.

Then, things get even harder. Josh’s mom, Shannon, gets out of jail. And she doesn’t have anywhere to go either. So Amy lets her move in, too.

At this point Josh is 19. Shannon is 39. Shannon and Josh’s addictions reinforce each other’s. They start using heroin – together. Not in front of Amy, but she says it was obvious enough.

AB: They would bring people. ‘They are they're just coming over.’ I know they're not just coming over to hang out and chill. You know, I knew that. ‘I don't want them here, end of story.’ 

Amy reached her limit. The stress of trying to take care of two people in active addiction was crushing her. She decided she had to escape it all. She told Shannon and Josh she was moving out of state.

AB: I couldn’t do it anymore. I worried every day that I may come home and find one of them dead from an overdose. Every day.

Amy says she liked some of the people who came over to use drugs with Josh and Shannon, even though she didn’t like what they were doing in her house. She says she could see they wanted to stop using, but couldn’t.

One of the people who would come over to use with Josh and Shannon ...was Liz. The woman whose death Josh would later be charged with.

AB: She reminded me of myself. She was professional. She worked.  And she was just super sweet, super nice. And respectful, super respectful.

Liz was in early 30s. She had a college degree, worked in HR at a healthcare company, had no criminal record.

AB: The night before I moved she called me and she said ‘can I come by and say goodbye to you?’ And I said ‘absolutely.’

Amy says she was still packing the last few boxes when Liz arrived. Liz would have been about three months pregnant at the time.

AB: And she said ‘what’s all that?’ And I said it’s just stuff I haven’t been able to sell so I’m just going to put it in storage.  I said ‘you want it? Take it.’ And I gave her what I had for winter clothes that she could fit into. Jacket and things like that. Cause she didn’t have a jacket on. And she told me she was pregnant that night as well. And I was like, ‘take whatever you want.’  And I just asked her to promise me to keep an eye on Josh and Shannon and she said she would.

When I found out about Liz, it broke me. It broke me for her. It broke me for Josh.  I knew what was going to happen to him. I knew how the state was going to look at it. And I was scared. I was scared for him. Because he was never given a chance.

JM: I read through the prosecution’s sentencing memo. And they talk about how a stiff penalty in a case like this will send a message to other people to not traffick in fentanyl or give fentanyl to other people. Do you think that works?

AB: No. Josh is not a trafficker.  Not even close. He’s an addict.

SN: So that's the cell I was in.  So I was there talking to the to the booking officers, just waiting.

That jail that Shannon and I walked to… that’s the jail where police took Josh on the day Liz died.

And by total coincidence Shannon was there that day, too - on a separate charge. Just as Josh was arriving at the jail, Shannon was being let out.

Shannon says she was in the booking area - that room we looked in on through the window in the door. Shannon was changing back into her street clothes, getting ready to leave.

SN: And as I get changed and get put into the little holding cell in booking right there, they bring in the chained people together. And it’s Josh.

JC: She’s like ‘oh that’s my son!’ The people already know that she’s my mom. She’s like ‘oh that’s my son. Joshua, are you alright?’

SN: I was like ‘are you okay?’  he just shook his head and  he broke down  chained to a bunch of other inmates.

Shannon says in this moment, somehow, suddenly everything that she and Josh survived... it all catches up to her.

SN: It just broke me. I was just like how much more of this can we go through, you know?

I can never explain the feeling of that surrender in that moment. Like, I had no desire to get clean. I didn’t even think it was ever possible for me. But just like seeing him and knowing that he’s not okay and he’s in trouble.  You go back to when he was a little kid. Like, I just never wanted this for him.

Shannon was released from jail that day on the condition she enter drug court.

Drug courts have been around since the ‘80s. They’re an alternative to jail or prison. Each one is a little different. But in general, they use a mix of intense supervision, addiction treatment, and the threat of jail to steer people into recovery.

And evidence shows drug courts work. Or at least that they’re more effective than simply putting people in jail.

Shannon is now an example of that.

Her life looks remarkably different today. She has a job, her own place, she’s taking classes. She even told me she got her driver’s license back after paying off thousands of dollars in fines.

This is what Shannon wants the judge to see: that if she can recover, so can Josh. That what happened to Liz is not something that Josh did to her. It’s the same thing that’s been happening to all of them: addiction.

SN: My addiction was way worse than Josh’s. I’ve done way worse than Josh did. And here I am in college again and I have everything back and  they took the time to get me into treatment. And what do you know - I recovered. So what are you saying that my kid isn’t worth that?

Next time, on the last episode of Death Resulting…. Josh goes before the judge.

Murat Erkan: It was wicked fucking contentious.  It was just really hard to stand up there and keep saying ‘I don’t agree judge and I need to tell you why.’


Transcript - Episode 4: You Gotta Have an Opinion

CONTENT WARNING: A quick note before we start. This podcast is about addiction and drug overdoses. So take care of yourself and anyone else who’s listening with you.

Previously, on Death Resulting.

Amy Bisson: When I found out about Liz, it broke me. It broke me for her. It broke me for Josh.  And I was scared. I was scared for him.

John Farley: We have an individual who died, and whose unborn baby died, as a result of Mr. Cook’s conduct. And as a society we have to have some way of acknowledging that human life has value.

Murat Erkan: The underlying premise is that drug dealers are preying upon victims. Well now you’re prosecuting the victim.

Shannon Nelan: My addiction was way worse than Josh’s. I’ve done way worse than Josh did.  And what do you know - I recovered. So what are you saying that my kid isn’t worth that?

In a lot of ways, Josh and Liz seemed to be from different worlds. Liz was 33 years old when she died. Josh was 20. Liz had a college degree and a job. Josh graduated high school inside juvenile jail and never had a job more than a few days.

But one thing they had in common - was that they used drugs together. They both lived the disease of addiction -- together.

Josh Cook: When you're down and out with people like that and you've got no one else but the people you're getting high with, I think you get like kind of like a strong bond. And me and Liz got a strong bond and she said I was like a little brother. If I needed her, I'd call her. She would come pick me up if I was stranded.

Just a few months before Liz died, something really terrible happened to Josh’s mom, Shannon. She was shot. It happened when she confronted a guy who she says had beat up Josh a while earlier. She yelled at him. He pulled a gun.

Shannon was rushed to the hospital. And eventually she recovered.

But the whole thing – it really shook Josh up. When Josh first heard his mom was shot, he wasn’t sure what to do - or where to go. Then, Josh says, Liz and her boyfriend invited him to come stay with them.

JC: They took me into their house and like cooked me pancakes and stuff like that, like, tried to cheer me up and stuff cause we thought she was dead for a while. They wouldn’t tell us anything.

I did wonder about their friendship.

Obviously, I’m missing an important perspective. I can’t ask Liz if they were actually close. And as I said before, I reached out to several of Liz’s family members but they either didn’t respond or declined to speak with me.

Is it possible Josh is exaggerating the depth of their friendship to gain sympathy?

But for what it’s worth, I think the evidence we do have supports the idea that Josh and Liz were close.

  • The friendship is corroborated by Josh’s mom, Shannon, and their family friend, Amy - who you heard from in the last episode.
  • Prosecutors in Josh’s case, who told me they have spoken with Liz’s family, also refer to them as friends.
  • And then there are the messages between Josh and Liz in the days leading up to her death. They’re included in the police reports from the investigation into her overdose.

In those messages, Liz and Josh negotiate on a price for the fentanyl. But they’re clearly more than just a “drug dealer” and a “drug user.” They talk about Josh’s girlfriend and Liz’s boyfriend. When Josh gets anxious about his unstable living situation - Liz tells him not to panic.

On the day she would fatally overdose, Liz was outside the hotel where Josh was staying - waiting for him to come down with the drugs. Josh was taking a long time and Liz seemed to get impatient, so she texted him: “hurry up, we’re family.”

JC: The prosecutors, they don’t really do me and Liz’s friendship any justice. They just act like she was just some stranger  they don’t want to say that  she was my friend and that the situation really messes with me. Like, they don’t-- Like, I gotta see mental health often about this situation specifically. It really messes my head up, you know what I mean?

This is Death Resulting. I’m Jason Moon.

Josh will be sentenced at a federal courthouse in Concord, New Hampshire. In a building that feels like it was built to intimidate. Outside it’s a towering hulk of stone. Inside it’s modern angles of granite, glass, and light.

There’s no recording allowed in federal courthouses. I can’t even bring my phone in with me. So you won’t hear any audio from inside. But between the notes I took and the court transcript I got later, I can walk you through what happened.

Inside the courtroom, only about a dozen people attend Josh Cook’s sentencing. That’s including the attorneys and the bailiffs.

The lawyers are at their separate tables in front of the judge’s bench. There’s Murat Erkan, Josh’s attorney, and two prosecutors for the U.S. Attorney’s Office, Georgiana MacDonald and Seth Aframe.

The rest of us are made to sit on wooden pews behind them.

There’s Josh’s mom, Shannon Nelan. His dad, Derek Cook - with his family. Me and my co-producer. No other media. No one from Liz’s family. We’re all made to sit six feet apart. Everyone wears a mask.

A door opens. And Josh is brought in through a side-entrance. He’s in a brown inmate uniform and a blue mask. He sits down next to Murat who puts an arm on his back. It looks like maybe he just got his hair cut. He seems really young. And nervous.

The judge is late. 10 minutes late. 30 minutes. 45 minutes.

People have quiet conversations. They go in and out to use the bathroom. Josh swivels in his chair. His mom fidgets with her car keys.

For Shannon, just seeing her son across the room is really hard. She’s crying a little. Then it seems like she’s getting mad. She points at the prosecutors and says, to no one in particular, but just loud enough so that they might hear, “do they know what a murderer is?”

The judge, Joseph LaPlante, finally arrives. He’s in his 50’s. A former prosecutor. He’s chatty in a way that makes him seem less formal than I expect for a federal judge. He apologizes for being so late.

Then he begins the hearing.

In theory - Josh’s fate is nearly sealed. His lawyer and the prosecutors have already agreed on a plea deal. That deal is: prosecutors drop the death resulting charge and its 20-year mandatory minimum. In return, Josh pleads guilty to a lesser charge and the judge sentences him to between 13 and 17 years.

Really the only thing left to happen in court is for each side to make their case for the exact number of years Josh should get within that range - 13 to 17 years. Typically, here’s how a hearing like this might go: the prosecutor asks for the longest sentence, the defense asks for the shortest sentence, and the judge picks somewhere in between. Hearing adjourned.

But this will not be a typical sentencing hearing.

The surprises begin right away -- with the prosecution. I’m going to paraphrase what was said, based on the official transcript.

One of the government attorneys, Seth Aframe, stands up to address the judge. And he goes off-script. He asks that the judge to sentence Josh to the lowest possible sentence under the agreement. 13 years.

The judge seems intrigued. He calls it an ‘interesting recommendation.’ He’s eager to hear why the prosecution is making it.

The prosecutor calls this case a ‘constellation of tragedies.

He says Josh committed a really serious offense. But he also says Josh’s upbringing was tragic. And the prosecution believes the shortest sentence under the agreement, 13 years, is the best way to take all of those tragedies into account. It sends Josh to prison for Liz’s death, but for significantly less time than what he would’ve faced at trial.

In one way, this is good news for Josh. The prosecution agrees, to an extent, that Josh’s childhood and his addiction make him less responsible for Liz’s death.

But in another way, this opening move from the prosecution throws a big wrench into Murat’s plan for this hearing.

Murat doesn’t think 13 years is a fair sentence. He thinks it’s too harsh and that the government gave Josh no real options other than to take this deal. And so before the hearing, Murat told me about this kind of Hail Mary plan he had to try to get Josh a lighter sentence. Not just the lowest end of the plea deal -- but even lower than that.

Murat plans to try to get the judge to reject the whole plea deal -- on the grounds that it’s too harsh.

The catch is - the judge knows that both sides have made this agreement. He’s read the details. So if Murat comes into court and asks the judge to throw away that deal -- then Murat risks looking like he negotiated in bad faith. The judge might see it as Murat breaking the deal himself.

That could be bad for Josh. It would probably annoy the judge. But more importantly, if Murat breaks the deal then the prosecution isn’t bound to it. They could put the death resulting charge AND the 20 years or more back on the table.

So Murat’s plan? To somehow convince the judge to throw the deal away without actually asking the judge to throw it away...? That was never gonna be easy. Now the prosecutor just made Murat’s task even harder by asking for the most lenient sentence under the agreement.

Murat stands up to address the judge.

He starts by quoting one of the last things Josh messaged to Liz before she arrived at the hotel the day she died. “Bring the money so I can stay warm, fed, and geeked out 24/7.” Murat tells the judge it was these basic needs for shelter, food, and to avoid opioid withdrawal that drove Josh that day. Not profit or malice.

But right away - the judge interrupts him. He’s confused. He’s like ‘the prosecution has already asked for the lowest sentence under the agreement. Why are you making a big speech? What more could you be asking for?’

Murat struggles to respond.

Judge Laplante asks him ‘are you recommending a different number?’

Murat says ‘no judge, I’m constrained to recommend within the agreement.’

Judge: ‘Are you urging me to reject the agreement?’

Murat: ‘I can’t urge the court to reject the plea agreement,’

It’s awkward. Eventually, Judge LaPlante picks up on it. He sees that Murat is honoring the letter of the plea agreement, but not the spirit of it.

But - he doesn’t seem to like it. As Murat carries on, Judge LaPlante pushes him, hard, at every step.

But Murat keeps going - or tries to. He brings up Len Bias and the origin of death resulting laws. He says Congress in the ‘80s meant to target kingpins, not addicted users like Josh.

The judge: ‘How can we know why hundreds of members of Congress voted for or against a piece of legislation? There’s so many reasons people could vote for a 20-year minimum mandatory, and our Congress did.’

Murat is tripping over his words. The room is getting more tense.

Judge LaPlante keeps forcing Murat back to the concept of culpability.

The judge says he agrees that Josh’s upbringing and his addiction make him less culpable. But he says that doesn’t mean he’s not to blame at all. He says to Murat ‘isn’t there culpability when he is providing deadly drugs to, A, another person, and B, a pregnant woman? Doesn't the Court need to address that? Doesn't he need to be accountable for that in some way to some degree?’

For me, watching from across the courtroom, this is THE question. The one that started me down the rabbit hole on this story. How do we reconcile a legal system that looks to blame one person’s overdose on another person’s actions, with the science that says addiction is a disease that controls those actions?

Only here in this courtroom, it’s not just a thought-provoking hypothetical in a podcast. Judge LaPlante will actually answer the question. At least as it applies to one defendant. And whatever he decides, it will have very real consequences for Josh.

Before we go back to the sentencing hearing and close the book on Josh’s story, there’s one more person I want you to meet.

She doesn’t have a direct connection to Josh’s case. And yet, maybe more than anyone, I think she deserves a chance to weigh in on death resulting laws.

I called her because I kept thinking about these unanswerable questions that haunt death resulting cases. Would the victims of fatal overdoses want their deaths treated like murders? Like, is this what Liz would’ve wanted?

And maybe most of all, I wondered what would Len Bias say?

Obviously I can’t ask him. But that’s why I wanted to talk to his mom.

Lonise Bias: I am Dr. Lonise Bias. I am the mother of the late Len Bias that died over 35 years ago, two days after being drafted by the Boston Celtics. He died of a drug related death and forty two months later, I lost a second son, Jay, to gun violence. And I use the deaths of these two young men as an opportunity to travel throughout the nation, encouraging individuals.

For decades, Lonise Bias has been a motivational speaker - delivering speeches on living through tragedy -- and drug prevention. She’s spoken at all kinds of events - from local churches and schools, to the NCAA, the Drug Enforcement Agency, even the White House.

I want to be really clear about why we’re bringing Lonise in at this point in the story.

  • She’s not a juror in Josh’s case.
  • She’s not a stand-in for everyone who lost someone they love to drugs.
  • She’s not a stand in for Black grief writ large

Lonise had reservations about being recorded. She didn’t want her words to be manipulated to conform with an agenda. She agreed to talk for 30 minutes, she wound up giving me about 40.

And I’m glad she did because I think it’s helpful just to hear her grapple with the question out loud. Is an overdose a murder?

First, I asked her to tell me about Len Bias her son - not the basketball star.

LB: I did not give birth to rocket scientists. All of my children were C students  and that was fine.

Lonise says they were an average family. Len and his brother Jay used to play with the tape recorder. They’d pretend to be Muhammad Ali and the sports journalist Howard Cosell.

She says Len loved art. He was curious about things that caught his eye.

LB: if he saw something beautiful in nature, he would bring it home and show it to me, and he would bring a stone and say, Mom, isn't this stone pretty?  And I think as a parent sometimes  I did not know that that was treasure then.

I asked Lonise about her take on the War on Drugs - how her son’s story was used by politicians.

But before she answered. She wanted to back up.

LB: when Len Bias died and all of this was going on. It takes years to come out of the funk and the dust and the hurt and the pain to try to even breathe again and to start trying to put your life back together. You we were not concentrating on, oh, look what they're doing up on Capitol Hill. We're still trying to figure out what happened to our life. What happened? How did all of this come about?

Lonise says to this day she’s really not that familiar with the details of the laws passed in the wake of her son’s death. She’s not a policy expert - she’s a motivational speaker.

But she does have a general feeling about the law.

LB: I'm sorry for so many people's lives that have been impacted by the death of Len via drugs because of their use of drugs or selling drugs or whatever. I'm just so sorry and I am an advocate for young people. I believe that they're reachable, teachable, lovable and savable. And I am sorry, as I said before, for the the people that were incarcerated because of a law that was done to bring prevention and it has not stopped anything, it's only grown.

It bothers Lonise that we don’t do a better job of intervening with kids who are on a path toward addiction. That schools don’t have better tools for drug prevention.

I asked Lonise whether she thinks fatal overdoses should be thought of as murders.

And she kind worked through the question out loud. There were moments when it sounded to me like she thought “no.”

LB: (fading in) It’s complex. I’m not putting myself out there saying that anyone who sells someone a drug is responsible for their death.

But another moment where it sounded like maybe “yes.”

LB: the individual who sold the drugs, he should be charged with murder - but what is it? Is it manslaughter or homicide? I mean you could go into so many variables…

But it felt like the bigger point she was trying to get across to me was - it doesn’t so much matter what her specific opinion is on this.

LB: It’s not going to be black or white. It’s a lot in the grey area. And it’s not going to be just my opinion.  And in the conversation, you have to be able to take, take the meat and throw the bones away. You know what I mean? You have to take little pieces from what everyone is saying and come up with your own conclusion.

Back in the courtroom - both sides' lawyers have had their turn to speak.

And now, it's Josh's turn.

He unfolds a paper he has with him. But when he starts to read it, he breaks down. He says “I’m not ready.”

Judge LaPlante reads it out loud instead. The letter reads, in-part:

“Thinking about potentially doing all this time at my age scares the life out of me. I don't belong in federal prison. I'm still young and don't know who I am yet, and being around the types of people I'm around is going to shape me into a man I don't want to be. I'm begging everyone to reconsider, please."

Judge LaPlante calls a brief recess to talk with the attorneys in his chambers. After 5 or 10 minutes they come back out.

Judge LaPlante says he’s ready to decide.

He starts by praising the prosecutors. He says they’ve been extremely lenient. He says he just now offered the prosecution the chance to withdraw the plea agreement – on the grounds that Murat violated it with his speech today. Exactly what Murat was afraid might happen. Luckily for Josh, the prosecution let it go.

Still – the judge spends maybe 5 or 7 minutes on this, laying out all the ways the prosecution was merciful and worthy of praise. Dropping the death resulting charge in the plea deal. Asking for the shortest sentence under the deal at the hearing.

And so it really surprised me when the judge said:

‘I do reject the plea agreement. I think it’s too severe.’

I don’t know if Murat’s hail mary plan kind of worked - or if the judge made up his own mind regardless of what Murat said in court. Either way, Judge LaPlante says ‘the court believes the appropriate sentence in this case is 120 months. It’s a very severe sentence. It’s 10 years in prison. But it’s not the 20 years that the statute called for, and it’s not as high as this plea agreement.’

Judge LaPlante tells both sides to come back with a new plea agreement that says 10 years on it, and he’ll sign it. And just like that, it’s over. Hearing adjourned.

Outside, on the courthouse steps, I caught up with Shannon.

Shannon Nelan: That was devastating seeing Josh cry like that. Heartbreaking. Heartbreaking.  He was born an innocent boy, you know. This is going to be a hard day.

John Farley: We were very lenient in the way we treated Mr. Cook. As I said under a strict application of the sentencing guidelines, he could’ve been facing far more than 20 years.

Murat Erkan: Do I think that 10 years is an appropriate sentence? No. I don’t think it’s an appropriate sentence.  I mean at the end of the day it just - they just can’t let go of locking people up as a solution here. And I guess I just question: what have we improved by locking Joshua up for 10 years? What’s made better by this?

JC: Nothing that the judge could’ve given me could make Liz come back or make the hurt I have for what happened to Liz seem smaller. Because that is the worst thing that could’ve happened. Jail? Jail sucks, yes. But it’s never going to hurt me as much as losing Liz hurts me.

After the sentencing hearing, Josh was taken back to county jail. To the same jail he’d been in for almost three years. That time will count toward his sentence, by the way.

About five months after that day in the courtroom Josh was finally transferred to the federal prison system.

But in that span before he was transferred, something important happened to Josh. For the first time, he says he was given access to the medication assisted addiction treatment program at the jail.

He was prescribed suboxone. Suboxone is a drug combination that blocks opioid receptors in the brain and staves off withdrawal symptoms. The federal government calls it “the gold standard” for opioid addiction treatment. But it can be abused and so it’s tightly controlled inside the jail.

JC: They wake everybody who is on suboxone up and they bring us to another room where they give it to us. And it has to dissolve under your tongue  and they stand there with a flashlight in our face so we can’t cheek it for 10 minutes while it dissolves.  Then we have to stick our fingers in our mouth to search our mouth. Even though there’s COVID in the building. And then they make us eat graham crackers and a piece of b read after to make sure we don’t have any saved in our cheeks or our throat.  It’s freakin’ crazy.

It’s not exactly a humanizing addiction treatment experience. But Josh says the suboxone is making a big difference for him.

JC: It’s going good. I don’t have any cravings anymore.  It’s like blocking it out.

Jason Moon: And this is the first time you’ve been prescribed suboxone, right?

JC: Yeah, ever. Yup. It’s a new thing they do in the jails to help people stay clean.

It’s hard to ignore the fact that Josh’s first exposure to what the government says is the most effective treatment for opioid addiction comes… now. After Josh spent almost a decade either incarcerated or on probation.

Still, on this last phone call I had with Josh - he sounded almost optimistic.

JC: Maybe if it’s a popular story you can do a follow-up on me when I get out.  If I’m doing good. (laughs)

JM: (laughs) yeah.

JC: I hope I’m doing good. I think I will be, though. Like I said, my brain is wired different now.  When people talk about drugs now, around me, I walk away. I don’t even want to be involved in the conversation. And believe me, I’ve got war stories, too. But I don’t want to talk about them.

Josh was transferred into the federal prison system in November of 2021.

In the judge’s official sentencing document, he recommended that Josh be sent to the Bureau of Prison’s most intensive drug treatment program. It’s a 9-12 month program called RDAP. He also recommended that Josh be sent somewhere in or near New Hampshire, so his parents can visit.

But as I’m recording this, Josh is at a federal prison in West Virginia - about a ten hour drive away. At a location that does not have an RDAP program for men. It’s also unclear if Josh will be able to stay on suboxone. In the entire federal prison system, as of July, 2021, only 2 percent of people eligible for medication assisted treatment were receiving it, according to a report from the Marshall Project.

What did Josh deserve?

Was ten years a light sentence for a murder?

Was this a reasonable compromise that accounts for both the science of addiction and the idea of personal responsibility?

Or was this an absurd punishment for an accidental death?

Why does the prosecutor say this will send a message, when his own agency’s research says it won’t? How is this not another chapter in a failed War on Drugs?

These questions matter. Because tens of thousands of people will die of drug overdoses next year.

Should we do this each time?

JC: Ok, alright, am I allowed to ask - you gotta have an opinion, what’s your opinion?

Death Resulting was created by the Document team at New Hampshire Public Radio.

This episode was reported by me, Jason Moon, and Lauren Chooljian.

The executive producer is Jack Rodolico.

The executive editors are Dan Barrick and Rebecca Lavoie.

Additional editing by Lauren Chooljian, Todd Bookman, Felix Poon, Gabrielle Healy and Christina Phillips.

Callan Tansill-Suddath was our production intern.

Fact-checking by Sara Sneath.

Artwork, distribution and promotion by Sara Plourde.

Music by me, Jason Moon.

You can find more of our reporting online at nhpr.org/document.