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Pain not enough to tip the scale of man's justice

Richard Paey has been sentenced to 25 years in prison for drug trafficking. He never sold a pill. And he says chronic, disabling pain was his motivation.

By CARY DAVIS, Times Staff Writer
© St. Petersburg Times
published July 21, 2002


The typical drug trafficker is not a graduate of an Ivy League law school. Nor is he a victim of botched back surgery whose chronic pain forced him into a wheelchair -- and left him hooked on prescription drugs.

There's no evidence that Richard Paey ever sold pills to anyone else, but when investigators discovered that he had illegally obtained more than 1,000 painkillers, they charged him with drug trafficking. That's the same charge they throw at drug lords who move, for instance, hundreds of pounds of cocaine.

State prosecutors realized the potential punishment for trafficking didn't fit Paey's crime.

"We took into account the fact that he is disabled, his medical condition . . . and it seemed like the proper disposition was to get him treatment," said Assistant State Attorney Richard Mensh, the chief prosecutor in Pasco.

So, prosecutors offered the 43-year-old Hudson man house arrest and probation, a sweetheart deal considering that most convicted traffickers go to prison for decades.

But no matter how many times prosecutors offered him a way out, Paey balked.

And now he is paying a heavy price.

Two weeks ago, Paey risked a trial and lost. A jury convicted him of eight counts of trafficking in oxycodone. Equally significant was that Paey had obtained more than 28 grams of the oxycodone pills illegally. That pushed him into the toughest category of Florida's minimum mandatory sentencing laws for drug trafficking.

The law couldn't be clearer: A judge must sentence Paey to at least 25 years in prison.

"I have to question my own judgment," Paey said of his decision to stand trial. "It's hard to swallow."

For Paey, there was only one way out of his predicament. Hours after his conviction, he nearly succeeded in taking his own life. He sharpened his jail medical tag and slashed his neck and wrist. He just missed the major artery in his neck and had to be flown to a Tampa hospital.

"It was a moment of despair," he said. "The deepest despair of a lifetime of unending suffering."

* * *

The suffering began in 1985, when Paey was a student at the University of Pennsylvania law school. He was involved in a bad car wreck and suffered a severely herniated disk in his lower back. The first surgery failed.

A second operation, an experimental procedure involving screws, only made matters worse. The screws splintered his backbone and mangled the delicate network of nerves surrounding his spine, he said.

"The center of my back is one big knot, to the point where I have trouble breathing," Paey said in a recent jailhouse interview.

It took him an extra year, but Paey managed to graduate from law school. He took his exams standing up.

But Paey never sat for the bar exam. He couldn't sit for that long without his medications. And the rules said he couldn't be under the influence of any narcotics during the grueling exam.

Paey has been collecting disability since 1989.

Soon after his second surgery, Paey developed a physical dependence on painkilling drugs, he said. Gradually, he said, he built up a tolerance to the drugs. To combat the pain, he said, he needed more pills, which became a problem when he moved his wife and three kids to Florida in 1994. His doctor was in New Jersey.

He had trouble finding local doctors to write his high-dosage prescriptions. The doctors willing to accept him as a patient became skittish after fielding calls from suspicious pharmacists, he said.

So Paey began writing his own prescriptions.

His New Jersey doctor, Steven Nurkiewicz, had given Paey several undated prescriptions. Those, plus a copy machine, provided Paey with an endless supply of fraudulent prescriptions, prosecutors said.

Paey said Nurkiewicz gave him permission to copy the undated prescriptions. On the stand at Paey's trail, Nurkiewicz denied that.

Investigators from the Pasco County Sheriff's Office and the federal Drug Enforcement Administration started tailing Paey in late 1996. Over a three-month period, they watched Paey, always in a wheelchair, enter one pharmacy after another. During that period, investigators said, Paey used fraudulent prescriptions to obtain 800 pills of Percocet, a painkiller made with oxycodone. He also obtained 400 pills each of the painkiller Lortab, made with hydrocodone, and Valium, the investigators said.

Over a year's time, investigators said in a search warrant application, Paey filled some 200 prescriptions for 18,000 pills.

The investigators also watched Paey's home. No one man, they thought, could consume so many pills. They suspected he was dealing. They never found any evidence to back up their suspicions.

In March 1997, Paey was arrested for trafficking.

Paey now gets his medications legally. Only now, in addition to pills, he has a morphine pump hooked up directly to his stomach. The pump administers the equivalent of a shot glass of morphine every day into Paey's system.

The drugs have never given him any pleasure, Paey said, only a little relief.

The pain has gotten so bad, Paey said, that he can't get around without a wheelchair. To make matters worse, he said, he was diagnosed four years ago with multiple sclerosis.

* * *

Oxycodone and other painkillers were incorporated into Florida's drug trafficking laws in 1995. Under the new laws, illegal possession of more than 4 grams of oxycodone, about seven pills, elevates the crime to trafficking. The trafficking law does not require that a defendant be caught selling drugs.

For more than 28 grams of oxycodone, the penalty is severe. A conviction carries a minimum mandatory sentence of 25 years in prison and a $500,000 fine. By contrast, someone convicted of trafficking 10,000 pounds of marijuana faces a minimum mandatory of 15 years in prison and a $200,000 fine.

Lawmakers probably didn't have Richard Paey in mind when they passed the tough new sentencing laws. That's where prosecutors come in.

Prosecutors have the power to introduce a human element when reality doesn't match the black-and-white world of statutes. That's exactly what they did in Paey's case, prosecutor Mensh said.

They negotiated with Paey's first attorney, Bob Attridge, and offered a deal. Paey could plead down to attempted trafficking and avoid prison altogether. The deal called for eight years' probation, the first three to be served on house arrest.

A change of plea hearing was scheduled for Jan. 8, 1999. But midway through the hearing, Paey began to vacillate. Then he broke down. Circuit Judge Stanley Mills refused to accept the plea and stopped the hearing.

Attridge still isn't sure why Paey wavered over the plea agreement. "He couldn't articulate to me why he didn't take the deal," Attridge said.

Eventually, Paey stopped returning Attridge's calls and skipped appointments with the lawyer. Attridge withdrew from the case.

The next defense attorney on the case, Keith Hammond, couldn't get Paey's authorization to negotiate with prosecutors.

"If I had gotten the go-ahead from him," Hammond said, "I think I could have worked something out."

Said Paey: "I didn't want to plead guilty to some horrendous crime. It's like child molestation. It's horrible."

And so, five years after Paey's arrest, the case went to trial.

Halfway through the trial, as the evidence against him mounted, Paey had second thoughts. He asked prosecutors to make an offer.

Pasco-Pinellas State Attorney Bernie McCabe has a policy against offering plea deals once a trial begins. But in this case, prosecutors made an exception. They offered Paey 71/2 years in prison.

Paey rejected it.

And then he was convicted.

"We reached out to him," said Mensh, "and he kept turning us down. There comes a point when you have to accept the consequences of your actions. These are consequences he brought upon himself."

Paey has one more chance to avoid the harsh consequences. His attorneys are asking for a new trial, arguing that Paey was incompetent.

Competency was at issue during Paey's trial. Senior Judge Robert Beach ordered a competency evaluation after Paey started nodding off during testimony.

The psychologist who conducted the evaluation testified that the combination of powerful painkillers and stress had rendered Paey incompetent to stand trial. Judge Beach rejected that finding.

Should Paey fail in his efforts to win a new trial, there is nothing that allows a judge to depart from minimum mandatory sentencing guidelines, attorneys say.

That's wrong, said Attridge, who has been rehired to handle the appeal.

"He's being punished more severely than someone who traffics 300 pounds of cocaine," Attridge said. "You can see that things are way out of kilter."

-- Cary Davis covers courts in west Pasco County. He can be reached in west Pasco at 869-6236, or toll-free at 1-800-333-7505, ext. 6236. His e-mail address is cbdavis@sptimes.com.

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