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CNN: Going To Pot: The Controversy Over Medicinal Marijuana

Newshawk: Richard Lake Source: CNN's Burden of Proof Pubdate: Aired November 14, 1997 - 12: 30 a.m. ET Contact: cnn.feedback@cnn.com Contact: http://cnn.com/feedback/

GOING TO POT: THE CONTROVERSY OVER MEDICINAL MARIJUANA

ROGER COSSACK, CO-HOST: Marijuana has many names -- pot, weed, Mary Jane, reefer -- but can it be called "medicine?"

(BEGIN VIDEO CLIP)

UNIDENTIFIED WOMAN: I only smoke when I hurt, when I can't eat, when the nausea is almost too much.

(END VIDEO CLIP)

COSSACK: One year after voters in California and Arizona legalized the use of marijuana for medical purposes, unsettled issues linger like smoke in the air. The federal government says the drug is still illegal under federal law, meaning doctors who prescribe it risk prosecution or losing their license to prescribe drugs.

(BEGIN VIDEO CLIP)

GEN. BARRY MCCAFFREY, U.S. DRUG POLICY CHIEF: Clearly, the only thing that's not under debate is whether federal law is still operative. It's unaffected.

(END VIDEO CLIP)

COSSACK: And what about users? Why should a seriously ill patient be barred from asserting a medical necessity defense to possession charges? Some say regardless of its medicinal value, any legal use of marijuana sends the wrong message to young people, among whom use of illegal drugs -- and especially marijuana -- is growing.

Today on BURDEN OF PROOF, making the case for and against medicinal marijuana.

ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

COSSACK: Welcome to BURDEN OF PROOF.

Peter McWilliams gets high with a little help from his friends -- and his doctors. McWilliams suffers from cancer and AIDS. He says marijuana -- medical marijuana -- is the only thing that makes it possible for him to take the other life-sustaining medications that he needs.

GRETA VAN SUSTEREN, CO-HOST: Last December, McWilliams was arrested at the Detroit airport in possession of seven marijuana cigarettes. He goes on trial for charges of drug possession later this month. The judge in the case first ruled McWilliams could mount

a defense of medical necessity, but later reversed herself. Should a defense of medicinal marijuana use be permitted? Is there such a thing as medical marijuana?

COSSACK: Peter McWilliams joins us today from Los Angeles. And his attorney, Richard Lustig, joins us from Detroit.

VAN SUSTEREN: And here in Washington in the front row, Andrea Ford, Larry Klayman of the conservative watchdog group Judicial Watch and Richard Bernstein. And in the back row, Gary O'Connor and Larry O'Connor.

Peter, first to you, what happened?

PETER MCWILLIAMS, MEDICAL MARIJUANA USER: What happened -- well, I hadn't smoked marijuana for decades prior to my getting sick in March of 1996. I was diagnosed as having both AIDS and cancer, and I immediately began chemotherapy for the cancer and also the so-called "magic" combination of drugs that people take for fighting AIDS -- the protease inhibitors and the two anti-virals.

All of these medications -- at one I was taking 12 medications; all of which had nausea as a side effect. I tried various anti-nausea medications. They didn't work. My option at that point was being put on an intravenous drip 24-hours a day or smoking marijuana.

I smoked marijuana very reluctantly. I still believed that it would destroy my motivation and productivity; something I found was yet another myth of the drug wars. But what I found was that it instantly -- I mean instantly - -- stopped the nausea, and, in fact, it turned it into hunger. It was the most amazing thing. Sometimes a quick dash to what I thought would be the bathroom, with one or two puffs of marijuana, turned into a meandering raid on the kitchen.

VAN SUSTEREN: Peter, did you get the medicine or the marijuana from a doctor?

MCWILLIAMS: My doctor approved it. I didn't get it from him, of course. Doctors cannot prescribe marijuana, even in California, because prescription is a federal matter. And marijuana is a schedule one drug, which means it has major negative affects, according to the federal government, and it has no known therapeutic effects. My doctors, however -- I had four doctors actually working with me at that time, and all four doctors approved of medical marijuana.

COSSACK: All right, Richard Lustig joins us. Richard, you're Peter's lawyer. Initially, the judge said you could put on a defense of medical necessity. Then later on, the judge reversed herself. What happened?

RICHARD LUSTIG, ATTORNEY FOR PETER MCWILLIAMS: I based the issue on a prison escape case, where a prisoners escaped and said that he had a need, a medical necessity, to escape to get medical treatment. The judge originally ruled that I was correct. I gave a summary of my proofs, and she indicated no problem; you can have all the witnesses you want. About a week later, I got a call and she said she wants a rehearing. And I said, the prosecutor didn't ask for that. She said

no, come into court. We came into court, and she said that she didn't believe that marijuana in our particular situation, despite Peter's problems, would be imminent -- destroy the imminent threat of serious bodily harm or the possibility of death.

COSSACK: Richard, did Peter get a chance to testify, as he has just done with us, and tell the judge under oath the affects that medical marijuana had for him?

LUSTIG: No, it's a misdemeanor in Michigan, and it is a -- we did it as an offer of proof.

VAN SUSTEREN: All right, Larry, what's wrong with letting this man present his defense of medical necessity to the jury?

LARRY KLAYMAN, JUDICIAL WATCH: Well, part of the problem, Greta, this is basically a back door way of trying to gain the acceptance of marijuana generally. Certainly, we sympathize with Peter. It's a terrible situation that he's in. There are several other drugs that are available with regard to nausea. I might add, many people who are religious also pray to try to alleviate the problems involved with cancer, and that seems to help. But all that being said...

MCWILLIAMS: Are you suggesting that prayer would take care of my nausea, sir?

KLAYMAN: It very well may. And what I'm basically suggesting here is...

MCWILLIAMS: Are you suggesting -- I'm sorry, but that doesn't work.

KLAYMAN: If I may finish, Peter, because I do respect you, and I certainly feel for the situation you're in...

MCWILLIAMS: Yes, I understand, but you're not respecting me because...

(CROSSTALK)

COSSACK: Peter, let's let Larry finish.

KLAYMAN: The point I'm trying to make here is that we all know the realities in society. Anybody who wants to procure marijuana, for better or worse, can get it, can use it in their home. It's not the type of a drug which is generally subject to tremendous ridicule. I might add unfortunately. But it would seem to me that Peter -- and if you look at his history -- has flaunted this issue. He's become a political activist, and what he's trying to do...

(CROSSTALK)

MCWILLIAMS: Are you implying that I got AIDS and cancer in order to flaunt some political purpose?

KLAYMAN: I'm talking about the use of marijuana.

VAN SUSTEREN: Let me ask you this, Larry. Let's set aside everything you've said and simply go to the issue about here's a man who's charged with the crime. He claims his defense is medical necessity. And why not let the jury decide whether or not that is a good defense, a ridiculous one, one that ought town to be credited in part. Why not let the jury decide that?

KLAYMAN: Oh, I have no problem in having the jury decide that. Unfortunately, what he's done against the law. The jury will be required to follow the instruction given by the judge. But certainly, there's no harm in allowing the jury to decide that, but the jury will obviously decide in favor of the state -- that it's illegal.

My point was, if I can finish, Peter, is that Peter's history is such that he's become an activist. He wants to be arrested. He wants to bring this into the public domain.

MCWILLIAMS: No, I don't want to be arrested.

KLAYMAN: And the problem is this sets a terrible example for the rest of society.

VAN SUSTEREN: All right, let's have Peter respond. Go ahead, Peter.

MCWILLIAMS: First of all, this man is getting paid to be here. I'm not getting paid to be here. He works...

KLAYMAN: I'm not being paid anything.

MCWILLIAMS: You're being paid -- what organization do you get your money from, sir?

KLAYMAN: I don't get money from any organization.

MCWILLIAMS: Then how do you get your money?

KLAYMAN: I am the chairman of Judicial Watch. I'm a volunteer.

MCWILLIAMS: Exactly.

KLAYMAN: I do not take a salary, Peter, so you should do your homework.

VAN SUSTEREN: Let's get to the issue, Peter.

MCWILLIAMS: Let's get to the issue. The issue basically is that this man wants to take and fight in my sick room his war on drugs. I didn't smoke marijuana for decades prior to getting this. I smoked marijuana to keep down my medication, which is keeping me alive. And the people like this, who want to take their war on drugs and fight it out over my dying body, I find it absolutely reprehensible.

KLAYMAN: Peter, I'm not saying that. You're, in fact, doing the reverse...

MCWILLIAMS: And now you're interrupting me because you're...

VAN SUSTEREN: And I'm going to interrupt everybody -- and I interrupt everybody because we have to go to break. When we come back, we're going to find out what the prosecution offered Peter, and we're also going to talk about the hazy law on the legality of marijuana.

Stay with us.

(BEGIN GRAPHIC)

How many Americans say they have used marijuana at least once?

Answer coming up.

(END GRAPHIC)

(COMMERCIAL BREAK)

(BEGIN GRAPHIC)

Q&A -- HOW MANY AMERICANS SAY THEY HAVE USED MARIJUANA AT LEAST ONCE?

MORE THAN 68 MILLION SOURCE -- NATL. INST. ON DRUG ABUSE

(END GRAPHIC)

VAN SUSTEREN: Marijuana is the most widely used illegal drug in the United States, and it IS still illegal. It is listed in Schedule I, the most tightly restricted of the federal government's controlled substances. But the law in California for more than a year has permitted the use of marijuana for medical purposes when approved by a doctor.

Before we get to the issue of the California law, let me ask you this, Rick - -- what did the prosecution offer Peter? Didn't they offer to, in essence, put the case on hold and not prosecute him?

LUSTIG: They requested a plea of guilty and they would take it under advisement. At the end of a probationary period, it would be dismissed.

VAN SUSTEREN: So that means he wouldn't have the conviction at that particular time?

LUSTIG: Yes, but he'd have to go through probation and admit guilt where there was no criminal intent.

COSSACK: But, Rick, also, wouldn't he probably have to agree -- wouldn't Peter have to agree that he would no longer use marijuana?

LUSTIG: Absolutely. And he probably would be subject to drug testing.

COSSACK: All right. Larry -- you know, this bothers me. I mean, in reality here, here's a guy who at the very worst has got this terrible disease and wants to do nothing more than in the privacy of his own home take something that he considers to be a medicine that makes him feel better, and you suggest that, well, we can do it that way, but aren't we asking him therefore to be a criminal?

MCWILLIAMS: No, in fact what he's doing is putting himself, Roger, in the position where he wants to be a political activist. I was talking about the real world, the way things work today, to set the precedent to allow people to use marijuana, perhaps indiscriminantly, we see "Murphy Brown" wants to run a TV show on this now. This is part of an orchestrated effort to gain the acceptance of the drug.

COSSACK: Isn't that kind of informational? I mean, shouldn't we know this, shouldn't we know that marijuana helps sick people and shouldn't, therefore, we have a right to do it?

MCWILLIAMS: I have to differ with you on that. The medical evidence is not in that this is the only exclusive drug that deals with nausea. There are other drugs.

(CROSSTALK)

VAN SUSTEREN: I'll differ with all of you. Let me differ with all of you. The problem really is, at least to me, is not whether marijuana answers this is problem of this nausea for this of horrible disease. The issue is why doesn't the federal government change the law if indeed that's the appropriate problem? We have a pharmacist with us, Larry O'Connor. Larry, explain to me, as a pharmacist, have you ever been asked to prescribe marijuana?

O'CONNOR: The active ingredient in marijuana was actually available in a tablet called marinol, and people who have tried both smoking and using the tablet find that the smoking provides much greater relief.

Larry speaks of the real world. I mean, if -- I'm a pharmacist -- retail pharmacist out in the real world. If you could see the faces such as the gentlemen on the monitor. I mean, your average patient that comes to the counter for this is not a 20-year-old dead- head with Twinkies in his pocket. It's your grandmother, it's an AIDS patient.

He mentioned there's new drugs available, and still, there's some under development, some that have just been recently released, but most people don't find that relieves it as well as smoking.

VAN SUSTEREN: Peter, what about -- you mean, Larry Klayman says you're an activist. You may be, you may not be. But what about being an activist and attempting to change the law so that you don't have to hire Rick to defend you when you travel through an airport, if indeed this is the appropriate thing to do?

MCWILLIAMS: Well, basically, I'm a Libertarian. I've written a book called "Ain't No Business If You Do." I imagine that the pro- prohibition forces have tracked me down, because ever since my illness, I've been very active about this. I find it appalling that, for example, here in California where the voters voted that people can use marijuana, there was a man named Tom McCormick who's been arrested and indicted very recently by federal authorities. He's facing life in prison and a $4-million fine for cultivating marijuana on his own in his own home.

VAN SUSTEREN: But, Peter, you say it's OK to do it in California ...

MCWILLIAMS: But it's not OK. I'm agreeing with you in saying the federal government is not letting people alone in California. If the people around the country are thinking oh, in California and Arizona it's OK. It's not OK.

VAN SUSTEREN: Let me ask you this. Let's assume for the second that the federal government says it's OK in California. The problem was you were picked up in Michigan where it's not OK. Right?

MCWILLIAMS: That's correct. I was walk through an airport, and I was on my way actually out of California. I was stopped. I wasn't doing a political demonstration, as the other man might suggest, being an activist that I am. I'm a writer. I'm a well-known writer. where my activism comes in, I'm not really sure. Although, whenever I find out something, I get passionate about it. And marijuana is a medicine. It does help.

COSSACK: Larry Klayman, you are a conservative guy and you were the first guy to stand up for state's rights. Now, the state of California put it on the ballot, and the people approved the use of marijuana in this state. How can the federal government interfere?

KLAYMAN: Roger, I'm also a guy who recognizes what lawyers call mal inprohibitum (ph) and mal en se (ph).

VAN SUSTEREN: He doesn't know what that is.

KLAYMAN: If you know what that is. And to me it's fundamentally wrong to prescribe and to condone the use of illicit drugs. This is an hallucinogenic drug. Certainly ...

MCWILLIAMS: Marijuana isn't a hallucinogenic.

KLAYMAN: I might add the Clinton administration is against what's going on here. Janet Reno has taken rather strong action, and certainly, they being somewhat to the left of Larry Klayman and Judicial Watch, if they find it's wrong, perhaps there is some actual common ground that most people in society do have a problem with this.

COSSACK: But the voters in the state of California overwhelmingly approved this, and you are a state's rights guy on almost every issue, why not this issue?

KLAYMAN: Not on every issue. I don't think the states can take action with regard to Saddam Hussein or with regard to certain other issues.

COSSACK: Well, Larry, come on. You know what I'm talking about.

VAN SUSTEREN: Let me go back to Rick.

KLAYMAN: I also used to represent the FDA when I was with the Justice Department, Roger, and certainly the states are not able to craft a uniformed policy on the regulation of drugs and controlled substances. So I'm not state rights when it comes to drugs -- to food and drugs.

VAN SUSTEREN: Let me go back to Rick. Rick, you know, you can't break the law. The law says he can't -- you can't use marijuana in the state of Michigan, but I have a little bit of a problem with the defendant not being allowed to present his defense. The jury can disregard it since it would be a violation of the law, but where do you go from here? Can you take an appeal before trial on this particular issue and let a court of appeals review whether or not you're allowed to raise this medical necessity defense?

LUSTIG: Before I answer your question, let me go back a little bit. In Michigan, we did have a statute that allowed the research and the use marijuana under what we call a drug czar. In 1982, it was enacted. In fact, our present governor signed it later on. The situation became that the law expired in '87 because the federal government did not allow the state to interfere with what they felt was their rights under Schedule I.

VAN SUSTEREN: OK, so it's against the law now in Michigan, where Peter got picked up. The judge has said no medical necessity defense. You're about to go to trial, or you will go to trial at some particular point.

LUSTIG: No, the judge allowed me -- she indicated that she didn't like doing this and she would allow me to appeal it. However, this morning, I filed a motion for a rehearing on the issue. Broadening Peter's problems in terms of the imminency and problem of serious bodily harm, because unlike what your guests have been talking about, he doesn't feel better. The nausea perhaps goes away, but it keeps down the medication that sustains his life.

COSSACK: We're going to have to take a break now. There may be a right to use it, but is there a legal way to get it? More on medical marijuana after this.

(COMMERCIAL BREAK)

COSSACK: On the "Murphy Brown" show, the lead character has cancer. The show made waves recently when her friend went to a park to illegally purchase marijuana for her. Peter, we know you were arrested in Michigan with marijuana, and you're forced to -- or you use it for medicinal purposes. How do you get it?

MCWILLIAMS: I'm forced to use the black market. The marijuana I get is catch as catch can. Unfortunately, because of prohibition and because of the black market, marijuana's not produced by appropriate pharmaceutical companies. Therefore, the drug can be contaminated

with anything from PCP to heroin, to mold, bacterias, fungus, all sorts of things one should not be putting in their body. Therefore, I have to make sure that I purify the pot before I use it. It's a whole procedure, and it's outrageously expensive. Marijuana on the streets these days is twice the price of gold.

VAN SUSTEREN: Peter, do you drive an automobile after you smoke this marijuana?

MCWILLIAMS: The most amazing thing that happens. After a while, you don't get intoxicated anymore. The whole notion that oh, I get to smoke pot all day because I have AIDS, it's ridiculous. I've smoked more marijuana this morning than many people have, and I think I'm being fairly coherent. The point is that ...

VAN SUSTEREN: Did you drive to bureau yourself?

MCWILLIAMS: Yeah, I drive. I'm perfectly coherent. I'm capable of doing all the little tests that is people have you do when you -- I'm not in any way intoxicated. However, the medical benefit continues to work. It's something people don't realize about marijuana is that after a relatively short period time, you don't have the intoxication.

VAN SUSTEREN: When do you have to smoke it again to handle the nausea?

MCWILLIAMS: I mostly take oral pills now. I mostly take an oral extraction that I have. I also, by the way, use marinol the prescription drug, and I find that marinol is a very good drug and it works very well. The only time I smoke marijuana is if I have a wave of nausea and smoking some would quell that wave very, very quickly. So I don't walk around smoking marijuana all the time. It's mostly in pill form, mostly in extract that I make myself out of whole marijuana. And I also use marinol, and the smokable is just for emergencies.

COSSACK: Rick, you now are in court in Michigan. Is there any chance that you can use some sort of a constitutional argument that perhaps Michigan would have to recognize the fact that California has legalized this substance.

LUSTIG: Well, I think we do it with concealed weapons permits, but I don't have any law that indicates, constitutional or otherwise, that indicates that they would do it with drugs.

VAN SUSTEREN: Plus, you've got the other problem, too. Even though states have to recognize or can recognize other state's law, the problem is the federal government supersedes both and has said that you can't do it. So you've got a problem there. Right, Rick?

LUSTIG: Right.

VAN SUSTEREN: All right, listen, Larry, if -- in the few seconds we have left -- if you want to change the law in the drug area, what would you have to do to legalize marijuana for medical reasons?

KLAYMAN: You'd have, Greta, to petition the FDA, and obviously they would put out a rule for notice and comment, and we would then be able to have various parts of this society give their pros and cons, and the FDA would do its own study to see if this would be clinically safe and accepted.

MCWILLIAMS: See, the problem with the FDA is that it takes money to bring things before the FDA, and no one is going to make money from marijuana. And so therefore, no one brings it before the FDA.

(CROSSTALK)

unfortunately, that's Catch 22.

VAN SUSTEREN: All right. That's all the time we have. Thank you to all our panelists today, and thank you for watching.

COSSACK: And we'll see you next time on BURDEN OF PROOF.

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