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AIDS VICTIM HAMMERED BY POT CHARGE

Federal Court Bars His Best Defense Arguments

Imagine this: You're a juror in a criminal case. The defendant is whisked
into the room in a wheelchair. He's gagged. His attorney follows. He's
gagged, too. The federal government's prosecuting attorneys are present at
their table. They aren't gagged. The prosecutors outline the case against
the defendant. Neither the defendant nor his attorney can respond to the
charges -- because of a ruling by the judge -- but the jury doesn't know why.

This isn't fiction; it isn't a scene from a Kafka novel. It's real. Can the
defendant expect justice in such a federal district court?

The defendant in this Kafkaesque scenario is best-selling author and
publisher Peter McWilliams. In 1996, he was diagnosed with both AIDS and an
AIDS-related cancer, non-Hodgkin's lymphoma. McWilliams underwent
chemotherapy and radiation for the cancer and a pharmaceutical therapy for
AIDS. The cancer treatment resulted in complete remission. The AIDS
treatment entails a mixture of chemically derived protease inhibitors and
anti-viral medications in order to prevent the spread of the AIDS virus in
his body. He must continue his AIDS treatment in order to live.

When McWilliams began his intensive treatment, he experienced violent
nausea from the moment the medications reached his stomach. He couldn't
hold them down long enough for the medicines to be absorbed by his body.

His doctor prescribed every anti-nausea medication available. None worked.
He vomited out his numerous pharmaceuticals.

McWilliams might have died -- except he discovered that smoking marijuana
controlled the nausea long enough for his body to absorb his medications.
The amount of live AIDS virus in his blood dropped dramatically.

McWilliams lives in the Los Angeles area. In 1996, California voters passed
Proposition 215, the ballot measure that allows patients to smoke marijuana
with a doctor's recommendation.

Proposition 215 also allows seriously ill patients or their primary
caregiver to grow marijuana for the patients' personal medical purposes.

McWilliams cultivated 300 marijuana plants for his own medical use.

But the federal government isn't about to let states legalize marijuana,
even for the compassionate use by serious and terminally ill patients who
find marijuana a palliative that eases their pain and nausea.

In July 1998, federal agents arrested McWilliams. He is currently charged
with manufacturing marijuana, conspiracy to manufacture marijuana, and
aiding and abetting the manufacturing of marijuana. The terms of his bail
were that he cannot use marijuana to control his nausea and that he has to
submit to random urine tests.

McWilliams stopped smoking marijuana. He now takes the prescription
anti-nausea drug, Marinol, that he claims only works about a third of the
time. He vomits up much of his AIDS medications and, by the fall of 1998,
the amount of live AIDS virus in his blood had reached a critical stage.
McWilliams can no longer walk any further than 50 feet and uses a
wheelchair. He often sleeps 18 hours a day. All this since the arrest.

The federal prosecutors found a friendly federal district court judge in
George H. King of the U.S. District Court of the Central District of
California. On Nov. 5, King ruled that McWilliams and his attorney cannot
use in McWilliams' defense: his medical condition; Proposition 215; the
National Institute of Medicine's recent report on the medical usefulness of
marijuana; a medical necessity defense; nor may they mention the federal
government's own drug program which treats eight patients with marijuana.

In other words, the defendant and his attorney are to appear in court, but
they will be gagged. This sounds like a something out of a Soviet court
during the Cold War: Say anything in your defense and you're guilty; say
nothing and you're guilty.

What has this nation come to? A defendant in a criminal trial is prohibited
from telling a jury his reasons for smoking and growing marijuana, about
the California law which is supposed to protect medical use of marijuana,
about how his health plummeted because he can no longer use marijuana,
about medical research that verifies the medical usefulness of marijuana
and about the federal government's own marijuana program.

McWilliams' attorney can't even tell the jury that he cannot address some
key issues and why he can't.

McWilliams' health is failing, his publishing house of 32 years is bankrupt
and he faces 10 years in federal prison -- because he is ill and followed
California state law.

McWilliams' attorney, Thomas J. Ballanco, says the federal government is
using his client as more than a test case: "They're making it a deterrence
case. They want to hold this up to all the other patients, in all the other
states who might want to implement the various state medical marijuana
initiatives. And say look, 'We're still going to come after you. And we're
still going to get big prison sentences."'

On Nov. 12, McWilliams and his attorney sat down with the prosecution and a
different judge to negotiate a guilty plea. Nothing has been decided yet.
But pivotal to any plea agreement, according to McWilliams, is his right to
appeal.

Under Judge King's restrictions, McWilliams doesn't feel he has a chance to
win in a trial: "This is an issue that is hopeless in a court of law,
unless there is jury nullification -- unless somehow, some way the jury
found out what was going on."

Jury nullification occurs when a jury deliberately rejects the evidence of
guilt or refuses to apply the law because it wants to send a message about
a social issue or because the result dictated by the law is contrary to the
jury's sense of justice, morality or fairness.

If ever there was a case in American law that justified jury nullification,
it's this one. The federal prosecutors, in this case, have acted like
shameless bullies -- pounding a sick man into the ground. But their action
is really aimed at all citizens who may suffer from AIDS or cancer -- our
parents, children, loved ones.