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How West Point is likely to deal with drug-overdosing cadets

April 14, 2022

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Spring break might over, but the after effects linger for the U.S. Military Academy at West Point. Five cadets on spring break in Florida were hospitalized after ingesting what appeared to be fentanyl-laced cocaine. The managing partner of the law firm Tully Rinckey, Sean Timmons, joined the Federal Drive with Tom Temin to explain the legal ramifications.

Tom Temin: Sean, good to have you back.

Sean Timmons: Thank you. I appreciate that, sir.

Tom Temin: So what happens in the case of this odd environment, this kind of unique environment of the military academies when on spring break away from the academy, a cadet, in this case a group of cadets, do what other knuckleheaded teens and young adults do when they’re on spring break?

Sean Timmons: Very similar to many of my other cases, three areas that get a lot of individual cadets in trouble or any member of the military, sex, drugs, alcohol, and this fits into the drug label, clearly. Whether it was considered innocent ingestion or deliberate use that the military is going to determine which one of those elements it actually ends up being if it was deliberate use they’re probably, their military career is probably over. If it was innocent ingestion and they did not reasonably know that this was cocaine-laced fentanyl, they may have a viable defense, that’s going to take it and I see an officer appointed by the West Point Academy to flesh out what actually happened. And who’s responsible. So they’re facing likely separation from the academy, though.

Tom Temin: Well, yeah, it’s hard to see how anyone could prove accidental ingestion. What else would you think is a line of white powder that you put your nose on? I guess.

Sean Timmons: Exactly. The only other defenses that might be available would be duress, if they were placed in imminent fear of death if they do not engage in the activity. But unfortunately, in a spring break environment, that argument is not going to be viable. So unfortunately, the administrative process at West Point will likely conduct an investigation, they’ll hold a preliminary evidentiary hearing and board potentially, and then they’ll be separated. And potentially depending on where they are in the academy, they may be faced with a debt of six figures plus for their cost of education, and they won’t be permitted to graduate. So unfortunately, you know, one, one time mistake is going to cause a parade of horribles for the rest of their life for each individual. So when they go to get a federal job, they’ll have to disclose on their background, this situation, they may not get a security clearance in the future, they may have a difficult time getting other employers, especially government employers to hire them.

Tom Temin: Interesting. So if someone from you know, some less august institution like Harvard had this and they ended up in the hospital while on spring break, do local police bring charges? Because in addition to the hospitalization there was the use of illegal substances in a very public way.

Sean Timmons: That’s a good question. Generally, the police in the jurisdiction or where the event occurred would be the ones with the charging authority. So if it was just overdose of use, probably not going to face any criminal penalties. They could face criminal sanctions for public intoxication or public nuisance. But usually, that’s a ticketable offense, no different than, say driving through a stop sign. In the military, that ticketable offense becomes a career ending event.

Tom Temin: Right. So someone from a non-military college would just go back and probably go back to their classes. And that would be the end of it as long as they were able to sit upright and concentrate.

Sean Timmons: Basically, yes, that’s exactly right. So the punishment differences catastrophically divergent. The military community puts restrictions on individuals that are far in excess than what the regular ordinary college student would face.

Tom Temin: Right. And these restrictions extend to their private time outside of the confines of the particular campus.

Sean Timmons: Exactly. They’re technically considered on duty 24/7. Regardless, if they’re engaged in a private capacity entirely, or if they’re engaged in behavior, unrelated to military service. It’s still considered while you’re contractually obligated to military, you are in the military 24/7 everything you do. So it’s difficult for younger adults to understand when they go home at night, after serving all day in the military, they’re still technically on duty. And they have to conduct themselves accordingly and then kind of behave and if they don’t, it could result in repercussions to their day to day job.

Tom Temin: And is this true also of the Naval and Air Force Academies?

Sean Timmons: Yes, and the military is still stuck in the 1980s zero tolerance for drugs, philosophy. They have not changed. Although, you know, 40 jurisdictions have legalized marijuana and have been much more liberal as far as prosecution and drug use. The military is still in the 1980s when it comes to the drug punishment.

Tom Temin: We’re speaking with Sean Timmons, managing director of the law firm Tully Rinckey. And just give us an insight into how the judicial proceedings work at these academies. It looks like a trial on a court with opposing counsel and so forth, but it’s within the structure of the academy, correct? It’s not a judicial branch proceeding.

Sean Timmons: Worst case scenario, these cadets could be charged criminally under Article 112a of Uniform Code of Military Justice, and if they plead not guilty, they could face a trial by court martial, which should be a hearing in front of senior officers who are a panel would determine their fate. I do not think they are going to take the court martial process, though. They’ll probably accept some kind of administrative disposition where they’re separated. If they result, go to a court martial and they lose and they get convicted, they’ll have a federal conviction the rest of their life on their record. And that’ll make it even more difficult to obtain future employment, professional licenses, other jobs. So the collateral consequences of a federal conviction are far worse than say, just leaving West Point prematurely.

They may be able to clean up leaving West Point prematurely by enrolling in the college down the road and just saying, you know, West Point didn’t work out. And a private employer may not dig too deep into it. However, for the federal government, it’s going to be a probably a 10 year period before they’re able to work for the federal government.

Tom Temin: Is there any possibility of incarceration for these offenses?

Sean Timmons: Yes, the punishment is, you know, in the Uniform Code of Military Justice could result in a year or more incarceration if they were convicted. That usually doesn’t happen for mere use alone. Usually, it’s distribution that results in significant incarceration. Use is usually handled administratively. But if they turned down the administrative process and the Article 15, as proposed to them, and they demand trial by court martial, and, you know, the academy could take it all the way.

Tom Temin: Wow. And what about the idea of alcohol abuse or something like that, where the substance is legal, but you just get drunk, you know, either during or after hours?

Sean Timmons: Drunk on duty is another offence and show up to work and still intoxicated, or inebriated, then that’s also another offense. I have that in my office every day, people show up on the flightline having a couple too many drinks the night before, and they’re supposed to have no alcohol within a certain hours limitation prior to showing up for duty. Or they’re just pulled over for, given a DUI, a DUI can be a career ender for any military officer.

Tom Temin: Right. So if it’s midnight on the weekend, and you’re DUI and you’re in one of the academies, it’s the same as the cocaine and fentanyl deal.

Sean Timmons: Pretty much, exactly. And if you’re misusing alcohol to the point where it causes an impairment, it could impact your security clearance, it could impact your suitability for commissioning. And there is programs the military has for alcohol and drug abuse. If you self-report, you can get help. And they encourage individuals to self-report, but if the only way they find out about it is through the situation like Florida, where it’s a spring break arrest, you’re pretty much S.O.L., you have to self disclose you have an addiction prior to the police being involved.

Tom Temin: And earlier, you mentioned the legal fees they could also be facing then they would retain counsel, such as Tully Rinckey, or another law firm. And that’s out of their pocket.

Sean Timmons: Yes, they decided to have a civilian counsel with substantial experience, they’re going to be spending a significant amount of money defending themselves. Obviously, they would be entitled to a trial defense attorney who’s relatively a new attorney who would be assigned to them to help them out. However, the issues with a trial defense attorney is they’re usually junior attorneys with no more than one to four years of experience, potentially five or six years. If they’re a senior officer being defended. But beyond five or six years in the military, you really move on to more supervisory roles as an attorney and you lose your litigation skills. So any attorney assigned to these cadets would be relatively new and inexperienced.

Tom Temin: So that would be the equivalent of say, a public defender in the private sector?

Sean Timmons: Yes, exactly. And the public defender as we all know, they have an incentive to get you the deal and move on with your life. If you really need aggressive representation, you have to pay out of pocket, unfortunately.

Tom Temin: And I guess the motivation for trying cocaine knowing or not knowing it’s laced with fentanyl, that will forever be a mystery, in this case, won’t it?

Sean Timmons: Probably, so and it very well may have just been an atmosphere where everybody was doing it, and they just fell into peer pressure. And I see that quite a bit, in my cases with my soldiers, and airmen, and Marines across installations. They believe it’s a one time event that nobody’s going to know about it. And honestly, frankly, statistically speaking, that’s probably accurate. I mean, that the number of new uniform who have actually experimented with unlawful drugs has been is probably very high, and only a small percentage actually get caught. But if you do get caught, the repercussions are catastrophic.

Tom Temin: Sean Timmons is managing partner of the law firm, Tully Rinckey. Thanks so much for joining me.

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