Victim or Criminal: Public Defender Speaks Into Drug Problem and Recent Trial/Verdict

By LYDIA BERGLAR
News Editor

The December 20th issue of the Sentinel included an article titled, “Fentanyl Distributor Tried for Murder,” which briefly recapped a fall 2023 court case about Terry Lebron Mitchell and Erin Elizabeth Phillips (who died of a fentanyl overdose). The article included information from the court disposition and statements from Clayton Fuller, the prosecuting attorney.

After publication, Jad Johnson, public defender and defense attorney for this case, contacted the Sentinel with further information, and he offered his perspective on the broad topic of drugs and addiction.

Johnson explained that Phillips and Mitchell were engaged at the time of Phillips’ death, and both of them were addicts. Johnson said, “Because they were both drug users, that was a part of their relationship, but it wasn’t the sole part. They were becoming a family. I don’t want anyone to think that [their relationship] was nothing but drugs, drugs, drugs.”

Phillips’ young daughter and Mitchell had formed a relationship, and the couple was expecting a baby together. During this pregnancy, the couple decided that they needed to quit using drugs.

Johnson said, “Unfortunately, it’s not as simple as saying, ‘I’m going to quit today.’ Especially with opioids, like Fentanyl, you go through a terrible physical sickness when detoxing. It’s not just a craving. It’s like two weeks of the worst case of flu you’ve ever had.”

A friend of the couple testified during the trial. He himself has just recently detoxed from drugs, and the night Phillips died, he made the 911 call (at the request of Mitchell and with Mitchell’s cell phone).

Johnson said, “I asked him if watching his friend die made him want to get off drugs, and he said that it made it worse because that experience was a trauma, and drugs are how addicts deal with trauma.”

Johnson said that according to testimonies, Phillips found detoxing so difficult that she decided to use drugs again. She was prepared to buy the fentanyl alone, but feeling that he could help keep her safe if he was at least with her, Mitchell agreed to go with her.

The couple bought fentanyl from someone known as “JJ” in Chattanooga. Johnson said, “All we know is ‘JJ.’ We don’t know who he is. He was described to me as being very young. My guess is that he reports to someone else.”

As covered in the December article, Mitchell was tried and found not guilty of murder and feticide. While those who provide drugs have been tried for murder elsewhere in Georgia, this was the first instance of such charges in the Lookout Mountain Judicial Circuit (LMJC).

Johnson said, “Regarding drug sellers being charged with murder–it is rare, but it is becoming more prominent as fentanyl is taking more lives. The reason why, I believe, the jury found Lebron not guilty is that he was not a drug dealer–he was a drug user; he was an addict.”

Johnson reported that some of the evidence indicated that Mitchell was the more experienced user in this case, and, therefore, he dosed out amounts to Phillips. However, Johnson’s argument to the jury was that both were buyers–not sellers–and they bought the fentanyl together in Chattanooga.

Johnson explained that according to Georgia law, “distributing” is not only a commercial transaction–sharing drugs makes those involved “distributors” to each other. A charge that commonly shows up in police reports is “possession with intent to distribute,” but this could mean that the subject intended to share drugs with friends and/or family.

From his perspective as a defense attorney, Johnson believes that there should be a distinction in the law with distinct penalties. He explained, “A lot of people who are addicts do sell a little on the side to support their habit. I think that those people should not be punished nearly as harshly as the main guys at the top of the pyramid.”

In a process called “fronting,” a provider gives drugs to users who do not have the money to pay upfront. The users then dilute and sell a portion of the drugs to pay the provider back, and they use the rest. Neither Johnson nor Fuller mentioned any evidence of Mitchell or Phillips fronting/selling to support their addiction.

It is, of course, difficult to catch dealers who are higher up the pyramid, and root sources outside of the United States add another layer of difficulty.

The Sentinel asked if Johnson thinks that “JJ” should be tried harshly if caught. Johnson does not know enough details about JJ to know if he could or should be charged with Phillips’ murder. Johnson said that Georgia’s supreme court has not yet made it clear if someone like JJ could be prosecuted for murder.

Noting that Phillips had once worked as a jailor at the Dade County Jail, was a volunteer with the Davis Fire Department, and left behind a child and distraught mother and stepfather, Johnson said, “People’s natural instinct is, ‘Somebody needs to pay for this.’ There’s this reaction that because this epidemic is ravaging our community, we’ve got to do something. My opinion, and the jury agreed, is that Lebron was a victim of his addiction, like Erin. I said in my closing arguments that if this had gone down a little differently, I could’ve been sitting there with Erin in her murder trial if Lebron was the one who had died.”

Johnson noted that the Georgia Supreme Court has had several cases involving the issue of who can/should be charged in overdose situations, but gray area remains. “The legal questions haven’t been answered yet. Some states have a law that’s basically a death based on overdose statute. Georgia doesn’t have that; all we have is felony murder.”

Part of the gray area lies in ethical questions about how responsible one person is for another’s action. In this case, how responsible is a seller for a buyer’s actions?

Johnson noted laws about alcohol providers and drunk driving incidents. A portion of O.C.G.A 51-1-40 reads: “A person who willfully, knowingly, and unlawfully sells, furnishes, or serves alcoholic beverages to a person…who is in a state of noticeable intoxication, knowing that such person will soon be driving a motor vehicle, may become liable for injury or damage caused by or resulting from the intoxication of such…person when the sale, furnishing, or serving is the proximate cause of such injury or damage.”

Johnson also discussed a theoretical situation regarding gun sales. “If a customer enters a gun store and says, ‘I’m planning a school shooting. What gun would cause the most damage?’ If you then sold that person a gun, I think you’re partially responsible. When it comes to drug dealers, I really don’t know where that line is for how responsible the drug dealer is for somebody else’s actions. That’s a tricky question that people a lot smarter than me have been wrestling with.”

The Sentinel asked Johnson how he thinks the drug epidemic (as both he and Fuller referred to it) should be addressed. His answers boil down to three points: preventative measures, treatment measures, and law enforcement/judicial measures targeting dealers.

He also noted that naloxone (commonly referred to by the brand name NARCAN) can help save lives, although for Phillips’ situation, Johnson did not think naloxone would have been effective.

Regarding the Dade County Sheriff’s Office naloxone guidelines, Sergeant Chad Payne (public information officer) reported, “All officers are issued naloxone, and we have a naloxone usage form we fill out every time we use it. We train on naloxone delivery every two years when we do CPR training, which focuses on recognizing the signs/symptoms of an opioid overdose, proper delivery of the medication, and officer personal protection against fentanyl exposure.”

The officer who responded to this particular call did not have naloxone on his person, but Payne did not know the details of why. He noted that the officer could have used his supply and not yet had time to restock, or it could have been in his vehicle rather than on his person.

Of the root causes of addiction, Johnson said, “Like their friend said, trauma is what often leads people to addiction. It might start off recreationally, but a lot of people use drugs because they’ve got some sort of trauma and they want to ease that pain. Poverty adds to it. If we could fix the reasons people use drugs in the first place…but that’s the billion dollar question that we’ve been struggling with for generations.”

Preventative measures begin in childhood, as children are raised in families, attend schools, and learn from their surroundings as a whole. Georgia schools have the C.H.A.M.P.S. program (Choosing Healthy Activities and Methods Promoting Safety) as one preventative measure.

Of law enforcement/judicial measures, Johnson believes that dealers who are higher up on the pyramid should most heavily be targeted, saying, “Not treating addicts like criminals is something we can do here in Dade County.”

Regarding treatment, Johnson is a strong supporter of the LMJC’s Drug Court and Mental Health Court (noting that there is often overlap between the two.) However, because these options require traveling to Lafayette several times a week, they are not always accessible to Dade residents.

The 18-24 month long Drug Court program includes individual and group counseling several times a week. Johnson said, “It’s more focused on treatment rather than putting someone on probation and locking them up when they relapse.”

He explained that Drug Court anticipates relapses and offers multiple chances. He said, “When someone is in that lifestyle, it changes the way they think and behave. Drug Court is trying to re-teach some of those life skills that come natural to you and me, but not so much to someone who’s been an addict for decades.”

Gretchen Neal (drug court coordinator) reported that the LMJC Drug Court began in July 2017 and treats “individuals that are at high risk for rearrest and have high treatment needs.” She provided the following statistics:

• 172 Individuals Served To Date
• 86 Successful Completions of the Program
• 57 Active Participants
• Approximate Recidivism Rates: Eight percent for two years after completion, 36 percent for three years after completion
• State Prisoner Recidivism Rates: Approximately 68 percent for rearrests three years post release
• Economic Impact: Individuals become taxpayers instead of tax burdens. Each graduate produces approximately $25,921 in economic benefits to Georgia through reduced recidivism costs, reduced health care costs to the state, reduced foster care costs, incarceration and adjudication savings.

Johnson is also a fan of A Hand Up Ministry, reporting that he often refers Dade residents to A Hand Up. (The ministry is a local addiction treatment nonprofit that provides housing, education, and life skills to help men and women turn their lives around).

Johnson said, “Rex [Mayo] is doing a fantastic job. I wish we had something like that in every county. There really isn’t anything else quite like that in our area.” He noted that northeast Georgia (Clarkesville) has a similar Christian ministry called Pilgrim Ministries. Like LMJC’s Drug Court, A Hand Up began in 2017.