The Medical Marijuana Magazine

 

June 1, 1998 For Immediate Release

Appeal Judge Rules Not Allowing Medical Necessity Defense for Marijuana Is "Immoral."

AIDS-Cancer Patient Peter McWilliams Ready for Trial. Prosecution Balks.

Wayne County Circuit Court Judge KymWorthy ruled today that AIDS-cancer patient Peter McWilliams may use medical necessity as a defense in his marijuana possession trial. Judge Worthy ruled that, under current Michigan law, it would be "not just improper but immoral" to deny McWilliams the ability to present to a jury the fact that he uses marijuana to help treat his life-threatening medical condition.

McWilliams was arrested for possession of seven "marijuana cigarettes" at Detroit Metro Airport on December 12, 1996.

Original UPI story at: http://vh1380.infi.net/news/local/qdope19.htm)

Detroit News story at: http://detnews.com/1997/metro/9706/06/06060114.htm

Detroit Free Press Story at: http://vh1380.infi.net/news/health/qaids30.htm

In October 1997, Wayne County prosecutors moved to have any evidence or testimony concerning McWilliams’ medical condition banned from the courtroom, including testimony from McWilliams’ doctors who recommended medical marijuana and supervise his use of it. In November 1997, the trial judge, the Honorable Tina Brooks Green, chief judge of the 34th District Court in Romulus, ruled that McWilliams could present his medical defense. A week later, Judge Green reversed herself.

Detroit News Story at: http://detnews.com/1997/metro/9711/06/11060129.htm

McWilliams appealed to the Wayne County Circuit Court, and today’s ruling by Judge Worthy, a former Wayne County Prosecutor, reversed Judge Green’s decision. Judge Worthy ruled that Judge Green’s first decision was correct and that McWilliams should be allowed to present a medical necessity defense even though there has been no law in Michigan specifically permitting marijuana for medical use since 1987, when the state’s previous medical marijuana law expired.

"This allows us to present all the facts to a jury," said McWilliams’ attorney, Richard Lustig, who filed the successful appeal. "Today’s ruling does not say Mr. McWilliams was not guilty, but it does reaffirm his right to present to a jury his reason for possessing marijuana."

Lustig based his appeal on Michigan law, rooted in English common law stating that if a man steals a rowboat to save a drowning person, that man is not guilty of stealing the boat. This is generally knows as the "necessity defense." In the medical area, if a mother breaks the speed limit to rush her child to the hospital, a jury is allowed to take the mother’s medical necessity into account when deciding her guilt or innocence to a charge of speeding.

"If Mr. McWilliams’ does not keep down his anti-AIDS medications, which causes severe nausea, he will die," said Lustig. "Medical marijuana’s antinausea effect permits Mr. McWilliams to continue his lifesaving medical treatment. Mr. McWilliams is breaking current drug laws in order to save his life. This is his medical necessity defense and, as Judge Worthy confirmed today, Michigan law already permits him to use it. Now it’s up to a jury to decide if Mr. McWilliams’ medical necessity was reason enough for breaking the law prohibiting the possession of marijuana."

"I could not be more pleased," said McWilliams. "I am confident that a jury, knowing all the facts, will not send me to prison for taking the medication that helps keep me alive."

However, Wayne County Appellate Prosecutor Jeff Kaminsky said his office might appeal Judge Worthy’s ruling. Wayne County Prosecutor James O’Hair will make the ultimate decision. If an appeal is filed, it will delay McWilliams’ trial at least another a year. If the Prosecutor’s Office appeals that ruling, the trial will be put off until the next millennium.

"If they appeal Judge Worthy’s decision, it will not be because they think a higher court will rule differently," said McWilliams, "but because they want to stall for more time. No one wants to be seen as trying to send an AIDS-cancer patient to jail in an election year with public opinion overwhelmingly on the side of medical marijuana." Public opinion polls consistently show more than two-thirds of Americans believe an exception to marijuana laws should be made when people are sick.

"At the same time," McWilliams continued, "the Prosecutor’s Office hasn’t had the courage, compassion, or practical good sense to say, ‘We have more important crimes to spend our limited resources on than prosecuting sick people for taking their medicine.’ If the Prosecutor’s Office appeals, it will prove that they fear a jury’s decision on this issue, that they want the status quo to continue, and that they want to keep prosecuting sick people while murderers, robbers, and rapists go free."

Wayne County, which includes the city of Detroit, has one of the highest unprosecuted murder rates in the nation. "More people literally get away with murder in Wayne County than almost anywhere else in the country," McWilliams said. "Rather than making sure murder convictions don’t get overturned, the Prosecutor’s Office may use the appeal process keep a jury from finding out I have AIDS. Does this make any sense?"

McWilliams, a best-selling author, was recently featured on the ABC News John Stossel Special Sex, Drugs, and Consenting Adults.

http://www.abcnews.com/onair/abcnewsspecials/transcripts/specials_stossel980526_trans.html

McWilliams is publisher of the Medical Marijuana Magazine Online (www.marijuanamagazine.com) and is working on several books about medical marijuana, including A Question of Compassion: An AIDS-Cancer Patient Explores Medical Marijuana (http://www.mcwilliams.com/compassion.html)

"I want my day in court. It has been seventeen months since my arrest. Let’s put this matter before a Michigan jury, under current Michigan law, and let the people speak. This is a life-and-death issue the Prosecutor’s Office is treating like a political football. Let a jury decide, and soon."

How would a Detroit jury rule? In November 1997, the Detroit News asked its readers: "Should the state allow patients with cancer and other serious illnesses to get a prescription to use marijuana for pain and nausea relief?" The response was unanimous: Yes. Fourteen responses are at:

http://detnews.com/1997/metro/9711/13/11130038.htm

http://detnews.com/EDITPAGE/9711/28/letters/letters.htm

CONTACTS:

Peter McWilliams 213-650-8489

Richard Lustig 248-258-1600