The Los Angeles Times

U.S. to Fight Man's Plea
to Use Medicinal Marijuana

Writer facing federal charges says he needs the drug
to combat nausea from AIDS medication.
Prosecutors say the law leaves them no choice.

By: MICHAEL LUO
TIMES STAFF WRITER

Friday, February 26, 1999


No one disputes that Peter McWilliams is dying and that marijuana has helped buy him valuable time. Even the prosecutors who will try him on federal drug charges in September won't contest that in court.
But when McWilliams asks a judge today to alter his bail conditions so he can smoke pot while awaiting trial, the prosecutors will be dead-set against it.
McWilliams, a 47-year-old Laurel Canyon resident who was diagnosed with AIDS three years ago, says he needs pot to keep him from vomiting his powerful antiviral medications.
Federal attorneys argue that the law leaves no room for sympathy. Despite California voters' 1996 passage of Proposition 215, which legalized the medical use of marijuana, the federal government still regards possession and ingestion of marijuana as criminal acts.

"Our job is to enforce the law and not to legislate," said Assistant U.S. Atty. Fernando Aenlle-Rocha. "There's no way we could do anything other than oppose this."

A federal grand jury in July indicted McWilliams on nine counts of conspiring to possess, manufacture and distribute marijuana. The charges came a year after federal agents raided the Bel-Air mansion of McWilliams' alleged partner, medical marijuana advocate Todd McCormick, and found more than 4,000 marijuana plants, worth several thousand dollars each.

McWilliams' plea to liberalize his bail restrictions sets the stage for a confrontation in federal court today that will be watched closely by medical marijuana advocates. Five states recently followed California's lead in legalizing marijuana use for medical purposes.

McWilliams, a writer and publisher who faces a mandatory minimum of 10 years in prison, insists that he is not a drug kingpin but simply someone interested in conducting medical research on different strands of marijuana. Prosecutors say that when they expanded their investigation of McCormick, they found that McWilliams was financing the drug manufacturing and distribution operation.

A month after McWilliams was taken into federal custody, he was freed on $250,000 bond. A federal magistrate, however, forbade him from smoking marijuana as one of the conditions of his bail release.

The decree is tantamount to a death sentence, McWilliams and his doctor say.

"I just want to be alive to defend myself in September," he said.

McWilliams is on the "combination cocktail" of AIDS medications that attacks the deadly virus in his blood but also causes violent fits of nausea. Pot helps him keep the drugs down.

Since his release and subsequent denial of pot, McWilliams' viral load has skyrocketed from undetectable to a level that, if it is not reduced, will inevitably lead to the crumbling of his immune system, his doctor says.

Dr. Daniel Bowers, an AIDS specialist at Pacific Oaks Medical Center in Beverly Hills, diagnosed McWilliams in March 1996. He initially prescribed a number of other anti-nausea agents, including Marinol, a drug that includes a synthetic form of THC, a medically active ingredient in marijuana.

The doctor said he finally recommended marijuana: "Everything else failed."

Immediately, McWilliams' viral load went down to undetectable, where it remained for nearly a year until his arrest.

Now, his doctor says, his life may be slipping away. Even so, prosecutors say that the law is on their side because federal law is deemed supreme in any conflict between state and federal statutes.

Legal experts agreed, saying that McWilliams and attorney Tom Ballanco, who will argue that denying McWilliams access to pot constitutes an abridgment of his fundamental right to life, probably will lose their appeal.

"California, in passing its medicinal use initiative, only affected state law. It had no impact at all on federal law or federal prosecutions," said professor Clark Kelso of the McGeorge School of Law in Sacramento. "A federal judge is not going to say I'm going to approve a violation of federal criminal law."

Magistrate Andrew Wistrich, who presided over McWilliams' original bail hearing in December, ruled that passage of Proposition 215 did not change marijuana's federal status as an illegal drug.

Prosecutors' opposition to McWilliams' plea is the latest in a string of federal assaults on Proposition 215.

Last year, federal prosecutors began closing cannabis buyers clubs in Northern California by civil injunction. In addition, federal officials have vowed to prosecute doctors who recommend marijuana to their patients.

McWilliams, despite his weakened state, has found the energy to launch a vigorous political and legal campaign.