Amid overdose crisis, NH debates over two bail statutes and a death-resulting drug case


New Hampshire Bulletin

Published: 12-08-2023 4:25 AM

It was July 29, 2022, when prosecutors allege Cody Frye drove 15 minutes from Maine into New Hampshire to deliver drugs to a man in Conway. About 36 hours later, the man, a restaurant worker, was found dead of fentanyl intoxication. 

Frye, 30, the alleged middleman in the drug transaction, has been held without bail at the Carroll County Department of Corrections since January, charged with the sale of a controlled drug resulting in death. Denied bail on the belief that his release would endanger the safety of the public, Carroll County Superior Court Judge Mark Attorri applied an elevated bail statute — RSA 597:1-C — in Frye’s case because the charge comes with the possibility of life in prison.

Alternatively, when a judge applies bail statute RSA 597:2, they can set personal recognizance bail and other pre-trial conditions.

Frye’s case recently went in front of the New Hampshire Supreme Court on appeal, and as a result, raised an argument that the blanket denial of bail under RSA 597:1-C isn’t appropriate for death-resulting drug cases, as it’s a complicated charge that can be brought against a wide variety of people – from drug kingpins, to those driving the drugs, to also-addicted friends and family. 

And more often than not, public defenders say, it’s the latter being charged in these cases, because New Hampshire’s statute addresses liability only, meaning prosecutors don’t have to prove an intent to harm. State statute doesn’t account for someone’s role in the death – only sentencing does. 

“At the trial court, I made the argument that this particular charge, the death-resulting charge, should be excluded from that harsh bail statute,” said David Rothstein, the attorney representing Frye. “Nobody gets up to life if they’re convicted. It’s more of a policy argument and an argument that the statute needs to be changed.”

The statute 597:1-C “is an exception to the general rule that all persons are eligible to be released pending trial,” and judges are able to apply it to death-resulting drug cases because the charge comes with a maximum potential sentence of life in state prison with the possibility of parole. Once a charge triggers 597:1-C, the prosecution has to demonstrate a level of dangerousness by providing “clear and convincing” evidence that the defendant committed the crime. If a judge agrees the evidence is clear and convincing, the defendant is held without bail. 

In late September, the state Supreme Court ruled in favor of Frye’s appeal and remanded his case back to Carroll County Superior Court for reconsideration, saying it does not believe the prosecution met the burden of “clear and convincing evidence” for the 597:1-C bail statute.

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The order raised larger questions around how bail is applied, or not, in death-resulting drug cases, an already controversial prosecutory endeavor amid the opioid crisis. The oral arguments in front of the Supreme Court also shined a light on how courts define “dangerousness” in such cases, which can be nuanced.

A similar debate over dangerousness is ongoing in the New Hampshire Legislature, after House lawmakers last month unveiled a sweeping new bail reform proposal aimed at disqualifying 13 violent offenses from speedy bail and establishing a new electronic system that would track people out on bail.

Keith Blair, interim Carroll County attorney, said he believes the judge made the correct determination in applying the elevated bail statute in the Frye case because “it only applies in charges where the possible punishment is life in prison.”

Asked about the defense’s argument that the “clear and convincing” evidence burden wasn’t met, Blair said: “I think the Supreme Court tries to make the best decision they can with the information they have. They don’t often receive the information directly.”

At the original bail hearing in March, in addition to arguing for 597:1-C bail application, Blair said county prosecutors made an alternative argument that dealing opioids alone is a danger to the community.

“We will continue to make that argument,” he said. Another bail hearing in the Frye case is scheduled for Thursday, Dec. 7.

Supreme Court arguments 

During Supreme Court oral arguments in late August, the parties sparred over how convincing the evidence is in Frye’s case, and if it merits application of the harsher bail statute. 

Police alleged that Frye delivered fentanyl, cocaine, and possibly marijuana edibles to Joshua Smith’s Conway residence on July 29, 2022. Thirty-six hours passed before Smith was found dead on the morning of July 31.

According to court documents, text messages led police to Frye and Walter Peek-Antolin, the person accused of arranging to get the drugs from another person who has not been charged. Peek-Antolin is also being prosecuted and facing the same charge as Frye.

In his Supreme Court appeal, Rothstein argued the prosecution has not been able to prove that the drugs Frye allegedly delivered were the same drugs that caused Smith’s death. Smith had a pattern of addiction, he said, and experienced a non-fatal overdose after the delivery on July 29. According to court documents, when his mother discovered him overdosing, she destroyed some of his drugs and paraphernalia. 

Smith, who was 35 at the time of his death, later had the opportunity to obtain drugs from other sources, Rothstein argued, including a friend with a history of opioid use who he spent time with after his restaurant shift on July 30.

“Saying Peek-Antolin is my drug dealer is like saying Hannaford is my supermarket,” Rothstein said before the court. “There are a lot of supermarkets out there. I might prefer to go to Hannaford, but I’m going to go to other ones.” 

Rothstein also said the state has presented no evidence as to the amount of fentanyl found at the death scene, raising questions around if the amount allegedly delivered by Frye would have been enough to sustain a person with a longtime substance use disorder for two days.

Conversely, Robert Baldridge, representing the state Attorney General’s Office, argued the only known source of fentanyl prior to Smith’s death was Peek-Antolin via Frye’s delivery. When Baldridge said law enforcement can’t account for “every second of the last day of his life,” Chief Justice Gordon MacDonald asked, “But isn’t that the point?”

Rothstein acknowledged in his argument that he wasn’t necessarily asking for Frye to be released on bail, but rather a decision from the court that 597:1-C, the harsher statute, doesn’t apply in this case, and that it be reconsidered under regular bail statute. 

Rothstein noted the Carroll County Superior Court judge’s decision cited the “influx of fentanyl into New Hampshire,” and the fact that Frye allegedly traveled from Maine to New Hampshire to deliver the drugs. 

“None of us are pro-interstate transport of drugs, but just in terms of reality and what we know, there are people who transport drugs from Massachusetts to New Hampshire and they go under 597:2, and many of them are released on bail,” Rothstein argued.

To say that anyone who drives from Maine to New Hampshire to deliver a drug is dangerous is a “stretch,” Rothstein later said in an interview, noting that Fryeburg, Maine, is on the New Hampshire border. 

Baldridge said he didn’t read the judge’s bail order as saying Frye was more dangerous because he is a Mainer, but rather, he’s willing to travel to be involved in drug transactions. 

“This isn’t someone doing a favor for a friend,” Baldridge said. “He’s actually involved in this.” 

In its Sept. 26 order, the Supreme Court vacated the bail ruling and remanded the case back to Carroll County Superior Court.

“Although we acknowledge that the trial court was presented with a close call, we disagree with its conclusion,” the order stated. “Based on the record before us, we conclude that no rational trier of fact could have found that the evidence clearly and convincingly demonstrated that the fentanyl delivered on July 29 caused the decedent’s death on July 31.”

Justice Anna Barbara Hantz Marconi concurred in part and dissented in part, disagreeing that the “clear and convincing” evidence standard was not met.

Death-resulting cases are complicated 

Though the death-resulting charge in New Hampshire comes with the possibility of life in prison, no one ever receives that sentence, attorneys say.

Instead, sentences for the charge typically range from a minimum of three years to a maximum of 40 years, according to an analysis by the Bulletin of more than 20 such cases prosecuted by the state Attorney General’s Office since 2015. 

Cases successfully prosecuted under the federal Controlled Substances Act come with a minimum 20-year prison sentence, as well as a fine of up to $10 million.    

Albert “Buzz” Scherr, a professor of law at UNH Franklin Pierce School of Law who helped write the state’s 2018 bail reform law, agrees with the argument that death-resulting cases should be excluded from the 597:1-C bail statute due to “the wild variation in those who are charged.”

He thinks it should be made explicit under the more flexible bail statute, 597:2.

“I know of a number of cases where prosecutors charged someone with death-resulting and the person was held on clear and convincing evidence of dangerousness, and three or six months later, the prosecution dumped the case,” Scherr said. “There’s always a causation issue with death-resulting cases.”

These cases are all about permutations, he said, the specific sequences in which a series of events took place, and ultimately may or may not have caused a person’s overdose death. It’s Scherr’s opinion that most judges would keep Frye incarcerated no matter which bail statute is applied, but it’s more so about the principle. 

“One of the reasons (these cases) get dismissed is the period of time when the drugs were sold and when the drugs were injected,” Scherr said. “(This) is not a slam dunk. There are triable issues in this case.”

Sarah Rothman, executive director of the New Hampshire Public Defender, said her office handles between 12 and 15 death-resulting cases per year. Those numbers don’t include conflict-of-interest cases that are assigned to a contract attorney or defendants who hire private counsel.

Rothman is of the opinion that the prosecution of death-resulting cases is “wasteful,” a leading reason being that those being charged often aren’t the main distributor of the drugs in question.

Oftentimes, she said, both the deceased and defendant are struggling with the same disease. And the cases are also difficult to prove, because people typically obtain drugs from and use alongside many different individuals, “even in the course of a single day.”

“There can be tragedies without trying to find a source of retribution,” Rothman said. “Even to the extent that you believe there is a place for prosecution of drug crimes, to charge the person struggling right next to the person who dies and it very easily could have been the other way around …”

The Attorney General’s Office declined to comment for this story, despite its prosecution of such cases over the years. A spokesperson instead directed the Bulletin to county attorneys, saying the state office does not maintain data on this charge and that the counties mostly prosecute these cases nowadays.

In 2016, then-U.S. Attorney Emily Gray Rice and then-Attorney General Joseph Foster formed an inter-office team to target the prosecution of overdose deaths in the state, when New Hampshire had the third-highest rate of per capita deaths nationwide. At the time, Rice said, “Our joint team effort to prosecute those who are criminally responsible for overdose deaths is a critical element of the multi-faceted law enforcement approach needed to combat the drug epidemic in our state.”

Law enforcement also cites the death-resulting charge as a mechanism of justice for families who have lost loved ones to an overdose. 

Blair, Carroll County’s interim attorney, said while the state has passed prosecution of many of these cases to local offices, some police departments aren’t equipped with enough resources to conduct investigations.

“They are very evidence-intensive cases,” Blair said. “There is a lot that goes into whether the charge can even be brought, evidence-wise.”