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."