the basic facts of my case

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Basic facts of the Case

I have been a publisher and writer since 1967. I have written and published 35 nonfiction books and have appeared five times on the New York Times Bestseller List. (See books.) I had a column with Universal Press Syndicate for 17 years. Yes, I am the Peter McWilliams who wrote all those computer books in the late 70s and early 80s. (See bio for similar nonsense.)

In mid-March 1996, I was diagnosed with AIDS and an AIDS-related cancer, non-Hodgkin's lymphoma, on the same day. (Beware the Ides of March, indeed.)

The chemotherapy and radiation for the cancer and combination therapy for the AIDS caused extreme nausea. If you can't keep the life-saving pills in the system, they do no good. After trying all the prescription anti-nausea medications my doctors had to offer, I turned to medical marijuana.

The medical marijuana ended the nausea within minutes, and I was able to continue treatment. The cancer went into remission. My AIDS viral load dropped from 12,500 to undetectable and remained undetectable from April 1996 until my arrest in July 1998.

I told myself that, if I lived, I would devote my life to getting medical marijuana to all the sick people who needed it. I lived, and I began my campaign.

In the fall of 1996 I met Todd McCormick, a medical marijuana patient who was an expert at growing marijuana and of the way different strains of marijuana (there are more than 30,000) are useful in treating different illnesses. I commissioned him to write a book, How to Grow Medical Marijuana. (My relationship with Todd is detailed in the Introduction I wrote for How to Grow Medical Marijuana.) still available at drugsense.org

In February 1997, I began publication of the Medical Marijuana Magazine Online. (Since my arrest and subsequent illness, I'm afraid it has not been updated since August 1998, but you'll get the idea if its purpose.)

In March 1997, Todd used a portion of his book advance to rent the ugliest house in Bel Air. On a square-foot basis, it was cheaper than commercial warehouse space.

I filed papers for The Medical Botanical Founda
tion, a 501(c)3 nonprofit charitable organization. I determined that the best way to distribute medical marijuana was through pharmacies, and a nonprofit organization was most likely to gain state and federal approval. After some calculation, I determined that I could retail sterile medical marijuana of a known a genetic strain and consistent potency for $1 a gram--$28 an ounce. (The difference between $28 an ounce and $500 an ounce is what Milton Freidman calls "the Drug-War tariff.")

On July 29, 1997—after an exhaustive five-day investigation—50 federal Drug Enforcement Administration (DEA) and Los Angeles Sheriff’s Narcotics Deputies stormed Todd’s home, flack jacketed and guns drawn.

When I heard about it, I immediately sent out a press release Who Is Todd McCormick?

The first press story--television, radio, and print--relied exclusively on exaggerated, and on one point completely dishonest, reports from unnamed "detectives. The Los Angeles Times coverage on July 30,1997, was typical. Thousands of Marijuana Plants Found in Mansion

At a press conference the next day, the DEA claimed Todd had "more than 4,000 plants worth between $20 million and $27 million. For an idea of the size of these plants, click here. As the Los Angeles Times noted, "Many were seedlings rather than mature plants."

At the same press conference, the DEA claimed Todd had "purchased" a Bel Air "mansion" with "the proceeds of drug sales." I immediately sent out another press release saying that Todd rented the house with his author's advance provided by me.

I got on the phone and did radio talk shows. My then-editor of the Medical Marijuana Magazine Online, Richard Cowen, talked to the newspapers. We both did televised soundbites. The publicity department of my publishing company kept the faxes and e-mail busy. Overnight, the press coverage changed. Todd went from high-rolling drug dealer to cancer-survivor medical marijuana patient. On July 31, 1997, the Los Angeles Times featured this headline on the front page of its Metro section: "Pot Palace" Used to Grow Cancer Drugs.

I continued my pr campaign. I was on the phone 18 hours a day. When Woody Harrelson offered to put up Todd's $500,000 bail, the story because more popular than ever. When Todd emerged from federal custody 16 days after his arrest, he was a media hero. Advocate of Medical Marijuana Out of Jail. The press conference after Todd's release was attended by every major media outlet in Los Angeles and several national news organizations, including CNN.

I had committed the unforgivable federal crime, EDP-- embarrassing the DEA in the press.

I was questioned by four DEA Special Agents. They gave me an interesting--and telling--piece of information. All four said they had known about me for some time, because most every bust they go on, they find a copy of my book Ain't Nobody's Business if You Do: The Absurdity of Consensual Crimes in Our Free Country. They didn't say it, but it was clear that, to them, I was the guy who wrote the bestselling book against the Vietnam War, the DEA Special Agents were the Green Berets. I was a traitor to their cause, and I was spreading my treachery through the written word. My recollection of DEA questioning.

Scott Hass, the other co-defendant whose marijuana "manufacturing" I supposedly financed, was hired to be the president of my publishing company. It didn't work out, but because he had to relocate from Washington to Los Angeles, I felt it only fair to give him a generous severance package and use of the company vehicle through the end of 1997. I knew nothing of his grow operations--if, indeed, he had any--and saw him only once (Thanksgiving, I think) from the time he left Prelude Press in late August 1997 until after his arrest in December 1997.

That is the sum total of my drug kingsmanship: a book advance to Todd; a severance package to my publishing company president.

In late November 1997 I announced the publication of my book, A Question of Compassion: An AIDS-Cancer Patient Explores Medical Marijuana. Due to government intervention described below, this book has yet to be printed.

On December 1, 1997, I published as an advertisement in Variety a two-page essay highly critical of then-DEA Administrator Constantine's harsh criticism of the sitcom character Murphy Brown's use of medical marijuana to quell the nausea of chemotherapy. Variety ad.

As you can yell by even a quick skim of the Variety ad, the DEA was not happy with moi. Seventeen days later, on December 17, 1999, nine DEA agents came a-callin' with the IRS and a search warrant in tow. I was handcuffed, sat in a chair, and watched as they spend the next three hours going through every piece of paper, sheet by sheet, in my home. They found an ounce or two of medical marijuana, but they didn't seem to be looking for drugs; they were looking for information.

The DEA and IRS agents then repeated this at my brother's house and at the office of my publishing company, Prelude Press, Inc. Of eight computers they had to choose from, they took only my personal computer, the one with my unfinished books on it. Their reason for taking this was that they were looking for records of drug transactions. If this were the case, why didn't they take the computer in the accounting department at Prelude Press? Could they have been looking for something else, such as that book critical of the DEA I told them I was working on? They also took "eight plastic bags" of documents that I was not allowed to see and which have not yet been returned.

The Los Angeles Times account of the search: Agents Raid Home of Writer on Medical Use of Marijuana. This was followed by a letter to the editor. The ACLU joined in, ACLU letter to then-DEA Administrator, Thomas Constantine. And William F. Buckley, Jr. (bless his heart) wrote about it in his nationally syndicated column, Judicial High in California. John Stossel discussed the serach on his excellent ABC News primetime special Sex, Drugs, & Consenting Adults. I wrote about my night visitors in an article for Liberty Magazine, The DEA Wishes Me a Nice Day.

A division of the DEA with which I have never come into contact

When the computer containing all my books-in-progress was returned to me a month later, it had somehow caught a pernicious virus that took six weeks, several thousand dollars, and the purchase of a new computer to eliminate. The gap this caused in my publishing business was financially devastating.

Then began the Starr Treatment. One after another, federal grand jury subpoenas began arriving at my home and publishing company--some were for records, some were for people. During the next seven months every current employee, an unknown number of past employees, all my friends, my neighbor, and my electrician were called to testify before the grand jury. I was never called nor was I ever given an opportunity to present my side of the story. It's called a grand jury because it's a grand time for prosecutors. My medical records were subpoenaed. My accountant was ordered to produce overnight, in the middle of the tax season, all references in his files about me. This was quite a request, as he had been my account for thirty years. (After this, understandably, my accountant chose to no longer represent me. All but one of my employees have left as well.)

The DEA, with the full cooperation of the Lexus Company, installed a tracking device on my Lexus. (The DEA came onto private property, broke the car, and when it was towed to the Lexus dealership for repair, the tracking device was installed. The device failed to work, as it turns out, so the DEA and the Lexus dealership repeated the whole charade again.) After tracking it for a few months, the DEA impounded the car overnight, thus triggering the lease revocation clause. That’s a little-known clause in every lease that says if a federal agency impounds the car, even overnight, the lease is revoked and the entire amount of the lease becomes due. I didn’t have that amount, so my credit was ruined. I wrote the president of Lexus, as the car was financed through Lexus, and asked for some compassion. Right. Janet Reno has shown me more kindness.

If the government thought these tactics would intimidate me, it was wrong. In May 1998 I announced the formation of a new publishing company, the Medical Marijuana Press. The books included such government-pleasing titles as The Big Lie: Medical Marijuana and Our United States Government; The Same People Who Sold Us Cigarettes Are Selling Us The War on Drugs: The Advertising Industry, The Partnership for a Drug-Free America, and a Dark Day for American Capitalism; and DEA: The Covert International Military Organization That Creates Its Own War So It Can Keep On Fighting to Win It. The complete list of titles. Due to my arrest two months later and my subsequent illness, not one book on the list has reached print.

On July 4, 1998. I gave a speech before the Libertarian Party National Convention in Washington D.C. I praised medical marijuana and condemned the federal government for keeping it from sick people. It was broadcast nationally on C-SPAN. Audio of the speech (Click below the headline "Peter McWilliams arrested." As you listen you can browse the Libertarian Party site; the audio will continue playing.) Edited transcript of the speech (but the audio is more fun).

Nineteen days later, on July 23, 1999, nine DEA agents again came to my door at 6:00 AM. This time they didn't want my computer--they wanted me. I was arrested, handcuffed, and taken--as they say in all the cop shows--"downtown." Naturally, I was not permitted the use of medical marijuana before leaving the house, so I vomited. One of the DEA agents, genuinely concerned, asked, "Isn't there something you can take to settle your stomach?" I turned my head from the bowl long enough to give him the sort of wearily ironic look we gay folk perfected sometime around the Inquisition era, when, just before being burned at the stake, the executioner would ask, “I’m not tying these ropes too tight, am I?” The agent saw the error of his sudden burst of compassion, said, “Oh, yeah,” and continued processing my arrest with the trained indifference Hormel provides to hogs.

Los Angeles Times Article about my arrest. Letter to the editor, Los Angeles Times. My press release, written in custody. William F. Buckley's syndicated column, Leave the Birds of Paradise Alone.

An accurate and amusing summary of the indictment by Warren Whipple. (You've heard of Cliff's Notes; these are Whipple Notes.) The federal indictment itself: The United States of America v. Peter McWilliams, et. al. (I call it The Ladybug Conspiracy because it repeatedly characterizes the buying of ladybugs in sinister tones, as though their purchase is a federal crime.) This is an exceedingly dull document and I do not recommend you waste your time. It does, however, give lie to the first point of the DEA Mission Statement: "Investigation and preparation for prosecution of major violators of controlled substances laws operating at interstate and international levels." We were not "major violators," nor did we operate "at interstate and international levels." We were all within a few miles of each other.

Although I fully expected to be arrested, the high bond was a surprise. Months before, my lawyer had written the federal prosecutors a letter saying that I knew I was going to be arrested, that I wasn’t going anywhere, and all they had to do was tell me where and when to appear for arraignment and I’d be there. Hardly the action of a flight risk. I though I would be released with little or no bail. The court’s own pretrial services recommended a bond of $50,000. The prosecutors, however, insisted on $250,000. As usual in federal court, the prosecutors got what they wanted. I was in custody four weeks while my mother and brother arranged to put up their houses as bail. The combined value of the houses was not enough, and a friend put up the rest in cash.

While in federal custody I was denied my AIDS medications for the first nine days. When I finally got them they didn't do much good as I could not keep them down for long. I was denied the only prescription medication that helps relieve the nausea even a little, Marinol® (synthetic THC, one of medical marijuana's active ingredients).

While in custody, on August 3, 1998, I realized that precisely 30 years before, as s teenager, I had been arrested for marijuana possession in Michigan. I mused philosophic on this. August 3rd, 1998: I, Too, Have a Dream. Later in August I posted this brief press release from behind bars, An Unsettling Irony.

The conditions of my release on bail specifically prohibited the use of marijuana, a prohibition enforced by random urine testing. If I failed to meet this condition of release, my disabled mother’s and brother’s houses would be taken away and I would remain in prison until and during my trial.

The nausea caused by the AIDS medication has been unrelenting. My doctor prescribed one antinausea medication after another, to no avail. Using medical marijuana to keep down my combination therapy resulted in more than two years of an “undetectable” viral load. (The viral load is a measure of active AIDS virus per milliliter of blood.) AIDS doctors become alarmed when it rises above 10,000. When mine had reached its previous high of 12,500 in March 1996, an AIDS-related cancer, non-Hodgkin’s lymphoma, had already developed.

Unable to keep down my AIDS medication, my viral load rose from 279 on August 21, 1998, to 3,789 by October 20, 1998. Less than two weeks later, on November 2, 1998, it had skyrocketed to 254,600. My T-cells (helper cells central to immune-system function) fell by 26 percent. In the three months following the arrest I lost 30 pounds, 15 percent of my total body weight.

On December 1, 1998, my attorney, Thomas J. Ballanco, brought an emergency verbal motion before the federal Magistrate Judge in the case, the Hon. Andrew J. Wistrich, asking that the restriction on medical marijuana be removed from my conditions of bail in order to save my life. One of the federal prosecutors, after speaking with my physician, actually seemed concerned. He asked for 48 hours to contact the Justice Department in Washington to see if something might be worked out. Apparently Justice (“Just ice”) said no, for on December 3, 1998, the same federal prosecutor argued that the “no marijuana” restriction, as well as drug testing, should remain in place. On Pearl Harbor Day, 1998, the magistrate judge issued a ruling, denying the verbal motion.

On January 15, 1999, my attorney filed a written motion to be heard by the federal judge who will preside over the trial, the Hon. George King. Judge King was presented with a letter from one of my physicians, Dr. Bowers, and a letter from a physician who is an expert on Marinol®, Dr. Cohan. The federal prosecutors represented Dr. Cohan as someone opposed to smoked medical marijuana. Dr. Cohan was kind enough to set the record straight. (NOTE: These two letters take a little over two minutes to download with a 28K modem.)

The government responded on January 29, 1999. Not surprisingly, it took the attitude: “Marijuana is not medicine because Congress says it’s not medicine, federal law supercedes California state law, we don’t care what his doctors say, if McWilliams dies, he dies.” Astonishingly, the paltry exhibits the prosecutors included as “proof” that marijuana is not medicine clearly acknowledge in two places that marijuana is medicine for people with AIDS and for people with intractable nausea who have not responded to other antinausea medications—precisely my situation. Were the prosecutors trying to help me prove my case, or did they just not bother to read the exhibits before attaching them?

U.S. to Fight Man's Plea to Use Medicinal Marijuana, Los Angeles Times, February 26, 1999. ACLU press release on my use of medical marijuana while on bail (NOTE: This page takes 5 minutes to download on a 28K modem)

Although Judge King "struggled hard and mightily" with the issue, he denied my motion on March 4, 1999, but encouraged the government any my lawyer to work together to develop an “appropriate accommodation.”

Judge Denies AIDS Patient's Request for Marijuana, Los Angeles Times, March 10, 1999; McWilliams Ruling, Letter to the Editor and my reply to that letter, Los Angeles Times, March 16, 1999. My letter to the Los Angeles Times about the letter McWilliams Ruling expresses my feelings about Judge King's ruling.

My attorney left messages with the prosecutors so that he might begin negotiating with the government to find an "appropriate accommodation." The government said it would, "Get back to you soon."

Although the ruling was a disappointment, two weeks later came glorious news. The National Academy of Sciences Institute of Medicine (IOM) report, Marijuana and Medicine: Assessing the Science Base. The IOM report found that (a) marijuana is medicine, (b) marijuana is not a gateway drug, (c) there is currently no alternative to smoked marijuana for some patients, (d) patients who need medical marijuana should be able to obtain approval within 24 hours, (e) if marijuana is addictive at all it is only mildly so and any withdrawal symptoms are minimal, and (f) there is no reason to believe that medical marijuana will increase recreational marijuana use.

Meanwhile, my attorney left messages with the prosecutors so that he might begin negotiating with the government to find an "appropriate accommodation." The government said it would, "Get back to you soon."

A Poet in Exile: The Los Angeles Times' best columnist, Al Martinez, wrote a very generous piece about me for the Sunday, April 4, 1999, edition.

Meanwhile, my attorney left messages with the prosecutors so that he might begin negotiating with the government to find an "appropriate accommodation." The government said it would, "Get back to you soon."

From November 1998 onward I have not been able to hold down more than one on three doses of my AIDS medication. The high AIDS viral load feels as though I have the flu all the time. I sleep 18 to 20 hours a day. I have maybe four productive hours in every 24, most of them spent trying to keep my head financially above water. I have so much to say, so many ideas and discoveries I want to communicate, and very little time or clarity of mind to do so.

Meanwhile, my attorney left messages with the prosecutors so that he might begin negotiating with the government to find an "appropriate accommodation." The government said it would, "Get back to you soon."

The emotional pressure is sometimes worse than the physical, I could develop an AIDS-related opportunistic infection and be dead within a week. To avoid germies I don't go anywhere. I have left my house maybe ten times since my August 1998 release from custody, for court hearings and medical appointments. My mother and brother worry about me, and I worry about them worrying about me. The specter of spending the rest of my life in federal prison haunts me like the ghost of Christmas future. The good news is that time goes by very quickly when you're only awake four hours a day.

Meanwhile, my attorney left messages with the prosecutors so that he might begin negotiating with the government to find an "appropriate accommodation." The government said it would, "Get back to you soon."

Todd's attorneys and my attorney worked hard on a total of 14 motions and presented them to the court. Thirteen and one-half of them were denied.

Meanwhile, my attorney left messages with the prosecutors so that he might begin negotiating with the government to find an "appropriate accommodation." The government said it would, "Get back to you soon."

Along the way, the lead federal prosecutor in the case quit the government and went into private practice with Monica Lewinski' s first attorney, the bearded one who "kissed her inner thigh" when she was an infant. Small world, isn't it?

On August 30, 1999, after months of dialog, the government informed my attorney that an agreement regarding my use of medical marijuana was impossible.

Then came the best news since the passage of Proposition 215 in 1996. On September 13, 1999, the federal 9th Circuit Court of Appeals--the court that will hear all appeals in my case--ruled that medical marijuana ("cannabis" the court called it) was necessary for some patients and the government must "balance" the need to enforce the drug laws with the need of patients to obtain necessary medicine. Los Angeles Times front-page article, Medical Need a Factor in Pot Cases, Court Says, September 14, 1999; Medical Marijuana Issue Raised, Associated Press, September 14, 1999; Complete text of ruling, Los Angeles Times Article on ruling's possible effect on my case, AIDS Patient Pin Hopes on Pot Ruling, September 20, 1999.

On September 15, 1999, my lawyer again petitioned Judge King based on the IOM Report, the failure to negotiate an “appropriate accommodation” with the government, the 9th Circuit ruling, and my ongoing toboggan ride to death. The court denied my application without a hearing on September 22, 1999, clearing the way for a filing before the 9th Circuit Court of Appeals. Press release.

On November 5, 1999, disaster: the trial judge ruled I cannot use medical marijuana defense, nor can I mention Proposition 215, marijuana's medical usefulness, the 8 patients who get medical marijuana monthly from the federal government, or my medical condition. Press Release, November 5, 1999, Los Angeles Times/Associated Press article, November 6, 1999, New York Times Story, November 7, 1999.