New York Times

Sunday, November 7, 1999

Los Angeles Drug Case Bars Medical Marijuana Defense

LOS ANGELES -- In a July 1997 raid, police officers and federal agents here
found more than 4,000 marijuana plants in a Bel-Air mansion known as the
castle, near the home of Ronald Reagan, whose administration created the
"zero tolerance" approach to illegal drugs.

With a trial scheduled to begin Nov. 16, the case has turned into a test of
judicial tolerance for a defense strategy based on marijuana's medical uses.

Two defendants, Todd McCormick and Peter McWilliams, advocate legalizing
marijuana for medical use and have used it to treat their own ailments:
McCormick for pain from cancer treatments that fused several of his
vertebrae, and McWilliams for nausea from drugs he takes to treat AIDS.

Saying the plants were for personal use and research on a book about medical
marijuana, they contend their actions were legal under Proposition 215, the
ballot measure approved by California voters in 1996 allowing patients to
smoke marijuana with a doctor's recommendation.

Federal prosecutors, however, sought and received an order from a federal
judge barring the defendants from telling the jury that side of the story,
even offering to drop some of the counts against them to keep those issues
out of the courtroom.

In a ruling on Friday, U.S. District Judge George King prohibited the
defendants from making any reference to Proposition 215, the purported
medical benefits of marijuana or even the federal government's own
experimental program, now closed, providing marijuana to patients.

The defendants say they are not being allowed to defend themselves. "I'm
devastated," McWilliams said in an interview on Friday. "I can't even
present my case to the jury. We just have to sit there and listen to the
evidence, and we've already admitted everything. Obviously, the federal
government is stonewalling any discussion of medical marijuana in any
forum."

McWilliams, a best-selling self-help author, McCormick, who founded a club
that distributes marijuana for medical purposes, and another defendant,
Aleksandra Evanguelidi, were among nine people charged with conspiring to
grow and sell marijuana. They face minimum prison sentences of 10 years if
convicted. Three other defendants have pleaded guilty.

In court filings, prosecutors have said the medical issues are irrelevant to
the charges, and if allowed into evidence, "will serve only to confuse and
mislead the jury." Further, they maintain that if the defendants want to
change the government's position on marijuana, they should petition the Drug
Enforcement Administration.

"Whether the defendants like it or not, the proper challenge is through the
regulatory process," Mary Fulginiti, a prosecutor, said in court last month.

The trial comes at a time of increasing conflict in America's relationship
with marijuana. On Tuesday, voters in Maine approved an initiative allowing
medical use, joining six Western states. A report commissioned by the
Clinton administration concluded earlier this year that marijuana's active
ingredients were useful in treating pain and nausea, though the benefits
were limited by the smoke's toxic effects.

And in September, the 9th U.S. Circuit Court of Appeals allowed a cannabis
club in Oakland to resume providing marijuana to patients, in the face of an
injunction from the Clinton administration.

Yet marijuana remains classified by Congress as a Schedule I controlled
substance, putting it in the company of heroin and LSD. That raised a
central question: whether the defendants could assert a "medical necessity
defense," maintaining that they broke the law because their health required
it.

Prosecutors contended that marijuana's Schedule I status precluded such an
argument, because it legally defined the drug as having no legitimate use.
But defense lawyers maintained that the appeals court decision in the
Oakland case opened the door to such a defense.

Federal prosecutors are so intent on keeping medical issues out of the
courtroom in the case that they agreed to dismiss charges of intent to
distribute if the judge barred the medical-necessity defense. Under the law,
the defendants could have been allowed to assert that Proposition 215 and
their medical conditions contributed to their "state of mind" if they were
prosecuted on the intent charges. But with manufacturing charges, state of
mind is not relevant.

In his ruling, King said the medical-necessity defense would be unavailable
to the defendants because allowing them to use it would explicitly
contradict a congressional determination. Judge King found that the appeals
court ruling in Oakland did not directly address the issue, and he rejected
admission of Proposition 215 and medical benefits of marijuana because the
government agreed to limit its case to simple manufacturing charges.

The number of marijuana plants, which rose to more than 6,000 after the
discovery of other growing sites, has led to charges that the defendants
sought to reap profits by selling to cannabis clubs, an enterprise not
sanctioned by Proposition 215, which allows possession in "personal use
amounts."

According to court documents, the two men signed a detailed agreement on
financing and managing cultivation sites, distribution plans and profit
sharing. McWilliams is accused of approaching an employee of a cannabis club
with an offer to sell it marijuana, saying that he wanted to become the
"Bill Gates of medical marijuana."

The case has become a celebrated one with legalization advocates. The actor
Woody Harrelson, who was once arrested for planting hemp seeds in a
ceremonial protest, put up McCormick's $500,000 bail, and Alan Isaacman, the
lawyer who defended Larry Flynt on pornography charges, signed on to defend
him.

McCormick made his case on the television show "Politically Incorrect." And
a fugitive in the case, Renee Boje, who was hired by McCormick to sketch the
plants for his book, is profiled in the December issue of Glamour magazine
under the headline "Drug Queenpin or Innocent Victim?"

Legalization advocates say the results of the case will serve as a barometer
of the federal government's willingness to prosecute medical marijuana cases
aggressively in states where medical use is legal.

"To some degree, the outcome of this case will shape the extent to which the
federal government proceeds with additional federal prosecutions for
offenses which are no longer illegal under state law," said Keith Stroup,
the executive director of the National Organization for the Reform of
Marijuana Laws, a lobbyist for marijuana legalization. "If it's a clean
victory, it will encourage them to use federal prosecution."

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What follows is my DRAFT letter to the New York Times, not yet sent.

Peter

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Editors, New York Times

Your article about my upcoming federal trial for marijuana manufacturing
("Los Angeles Drug Case Bars Medical Marijuana Defense") stated, "According
to court documents, the two men signed a detailed agreement on financing and
managing cultivation sites, distribution plans and profit sharing." If there
is such an agreement, I will plead guilty today and begin serving my
ten-year mandatory-minimum sentence tomorrow. Technically the charge may be
in a "court document," but the more accurate term is for it is "incitement,"
and even the incitement does not claim we "both signed it." There is no such
agreement in writing, for there was no such agreement at any time.

Your reporter merely repeated what federal prosecutors told him without
checking the facts although the facts were readily available, an infraction
of the basic rules of journalism that is endemic in covering the War on
Drugs.

Your article also states that I admit to growing "4,000 marijuana plants in
a Bel-Air mansion known as the castle." This is also untrue. Although I did
attempt to grow a considerably more modest number of plants in my own home,
my only connection to that operation was, as a publisher of 32 years with
books that have appeared five times on the New York Times Bestseller List, I
gave a book advance to an author and he used it to rent the ugliest
structure in Bel Air to begin a much-needed medical marijuana research
facility.

The precedent being set here is not just about the iron-fisted federal
treatment of medical marijuana users, but also the freedom of the press. Is
the president of Random House to be held criminally liable for the civil
disobedience of his authors? Is the publisher of the New York Times to be
charged with "conspiracy to purchase a controlled substance" because a
reporter buys a joint with money earned at the Times? These may seem absurd
examples today, but the legal precedent for it taking place tomorrow is
being set here in Los Angeles, and the New York media is asleep to this
story-to its own future peril.