District attorney says plea deals in Oxy cases serve 'bigger picture'

'Very high percentage' of the cases resolved through agreements

Posted: Friday, August 07, 2009

District Attorney Doug Gardner said his office is focusing on the big picture when it comes to prosecuting cases related to the OxyContin "epidemic" in Juneau.

A "very high percentage" of the cases related to the illegal use of the prescription pain drug containing oxycodone are resolved through plea agreements as opposed to going to trial, he said. Many factors are involved when it comes to reaching a plea agreement, including the facts of the case, the law, defenses, criminal history, age and the willingness of the defendant to cooperate with prosecutors and police, Gardner said.

"As prosecutors, we're trying to focus on the big picture of importation of oxycodone into the community and deal with individual cases that help us keep that focus," Gardner said. "Rather than in isolation deal with one prosecution, we would like to use opportunities where they present themselves to plea bargain in order get information to keep our eyes on the big picture."

There are fundamentally two choices to combat the OxyContin issue in the community within the court system, Gardner said. The district attorney's office can prosecute a person and put them through rehabilitation, incarceration and community condemnation. Or, it can reach a plea agreement with a defendant in exchange for information that could lead to further prosecutions, he said.

"Given the magnitude of the problem, if I have the opportunity in the course of a prosecution to reduce a charge ... for getting good information that leads to other prosecutions and prevents drugs from going into the high schools and takes those drugs off the streets, I'm gonna do it," Gardner said.

Each case is different and deserves different considerations in plea bargaining, but Gardner said when it comes to the public safety and health issues involving the OxyContin epidemic, the ultimate goal is to get drugs off the streets. A significant percentage of the theft, burglary and robbery cases coming before the court are directly tied to OxyContin addiction, he said.

"I think every problem has to be dealt with differently and right now I think that our efforts in the plea bargaining area are really a reaction to how big the problem is," Gardner said.

Susan Orlansky, an Anchorage lawyer and expert on plea bargains, said very few criminal cases end up going to trial.

"The statistics show generally that fewer than 1 percent of all criminal cases charged go to trial" in the United States, she said. "The court system would absolutely collapse if most charged cases went to trial. We simply don't have enough court rooms, enough courthouses, enough judges, jurors, lawyers or anything else to try most cases that are charged."

Only eight out of 194 felony cases in Juneau - about 4 percent - went to trial in 2007, according to the latest report of state court data. Six of those trials resulted in guilty verdicts, and two in not guilty verdicts.

In Alaska's entire First Judicial District, of which Juneau is part of, only 22 of 449 felony cases - less than 5 percent - went to trial, according to the report. Fifteen of those trials resulted in guilty verdicts, and seven reached not guilty verdicts.

Only the prosecutor and the defense ever really know what exact factors have entered into a particular plea bargain, Orlansky said.

"That is what plea bargaining for most people is about, sort of an analysis of risks and an avoidance of the worst of the downside risks and a giving up of the best upside risks," she said.

The Juneau District Attorney's Office takes a hard look at every OxyContin related case to determine what the best course of action, Gardner said.

"We charge what we believe we can take to trial and what is just, both under the facts and under the law," Gardner said, adding that more information can come to light after an indictment that can result in more or less severe charges. "Our job is to try and do what is fair, and that is never an easy equation."

Last week's plea deal between Ri Dong "Gino" Kuang and the state generated a lot of community criticism. Kuang was recorded with audio and video arranging a 400-pill OxyContin drug deal with a police informant, but pleaded down from a potentially 20-year felony sentence to a 1-year misdemeanor sentence.

"I don't know that a particular sentence in individual cases is as important as trying to make more cases and trying to get at the problem," Gardner said.

OxyContin is one of the community's biggest public safety issues, he said.

"The getting of the drug jeopardizes public safety and I am solely interested in addressing that concern," Gardner said.

The OxyContin issue is worse than it was three years ago, Gardner said, but the efforts of the police and his office are paying off. The price for illegally buying the drug has fluctuated significantly in recent years. Part of that is supply and demand, but part of it is due to large seizures of by law enforcement, he said.

"I'm trying to do the best that I can to address it as a prosecutor with the resources that I have and I've chosen to try and resolve cases and get new information," Gardner said.

As the fight against the OxyContin epidemic continues the prosecution strategy could change, he said.

"Right now, I think the emphasis is on trying to get more cases going and trying to take more of the drug off the street," Gardner said.

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