Cancer Patient Medical Marijuana Patient Todd McCormick Jailed for Three Weeks Because Federal Prosecutor was "Not Ready for the Hearing"

Todd McCormick, who voluntarily surrendered himself this morning at 9:00 AM as he had agreed to do yesterday, was taken before Federal Magistrate Judge James McMahon at 11:00 AM this morning.

The federal prosecutor claimed McCormick had violated his parole by using medical marijuana. McCormick claims he did not. The prosecution, however, did not call the necessary witnesses—or any witnesses, for that matter—to substantiate its claim. The federal prosecutor admitted the government was not ready for the hearing.

"Mr. McCormick is not a flight risk," McCormick’s attorney, Eric Shevin, told the court. "He turned himself in this morning, as agreed. He is out on $500,000 bond. He is not a danger to the community. He is charged with a nonviolent act, legal in California. There is no logical or legal reason to imprison Mr. McCormick just because the government is not ready to present its evidence."

Nevertheless, Judge McMahon jailed McCormick until April 22, 1998, while the federal prosecutors call witnesses that could easily have been called today.

McCormick had passed every one of the almost 100 drug tests he was subjected to since his release on bail in August 1997. Deprived his drug of choice, medical marijuana, he has been in unbearable cancer-induced pain. And yet, he remained marijuana-free for seven months.

In early March 1998, McCormick received a prescription for Marinol® from his physician. Marinol® is a powerful synthetic form of THC, an active ingredient in medical marijuana. McCormick informed the government of his prescription, and took this FDA- and DEA-approved medication until March 17, 1998, when Judge McMahon ordered him to stop using it.

McCormick was then drug tested five days in a row. The results of those tests, as expected, show fluctuating levels of THC, spiraling downward. This is precisely the pattern scientists would expect as the body eliminates an oil-based prescription medication.

In today’s non-hearing, the federal prosecutor failed to call the necessary scientific expert(s) to present it’s case that McCormick had used marijuana. (The federal prosecutor thought another federal agency had done this, but the other agency thought the prosecutor had.) The government only had a piece of paper with test results, but no one to verify whose test results they were or what the test results—a series of numbers—actually mean.

Without at least one expert witness, such a scientist from the laboratory that had tested McCormick, there was no legal way to link McCormick to the test results or even know the meaning of the results. The prosecution was simply not ready for the hearing.

Furthermore, because the government failed to call its expert witness(es) as required, McCormick’s attorney could not prove under cross examination what any expert in drug-testing knows: If you take synthetic THC in the legal form of Marinol®, your urine will test positive for THC for weeks thereafter.

So, without a formal hearing, McCormick is being held in federal custody.

This concerns his friends greatly, who have noticed a marked deterioration in McCormick’s physical and mental condition. The constant pain he has had to endure for more than seven months is taking its toll. "I cannot sleep for more than an hour a night," he wrote a friend. "Every time I turn over, the pain wakes me up." The agony is so great as to cause mild nausea; McCormick’s weight is dangerously low.

A motion for an emergency appeal is being filed this afternoon. The earliest it could be heard is next week. Meanwhile, McCormick sits in federal custody, without a formal hearing, for taking a prescription medication.