MIKURIYA IN SONORA

At 5 a.m. on a Friday morning in late September, Tod Mikuriya, MD,
leaves his house in the Berkeley hills to drive to Sonora to testify
in what he sarcastically calls "a wrong metabolite syndrome case." The
defendant, Robert Hemstalk (his people must have grown hemp once upon
a time), is a man in his 50s who tested positive for cannabinoids back
in March, one day after Mikuriya had recommended that he use marijuana
for relief of chronic pain and as an alternative to alcohol. "He
suffers encephalopathy, including cerebellar degeneration with obvious
ataxia when he walks," says Mikuriya, who interviewed Hemstalk at the
Oakland cannabis Co-op last spring. (You may have heard the condition
described as "wet brain.")

Robert Hemstalk's original crime was cultivation of three plants --
"for self medication," according to Mikuriya. "But in most of the 215
cases people plea bargain their rights away. They're facing time,
they're scared, and they take probation with the usual conditions --
meaning you give up every civil right. They can come by any hour of
the day or night and do a full search with digs, trash your
apartment...." Hemstalk accepted diversion and had to report to a
substance abuse program for urine testing. He tested clean for eight
months. After his counselor, Travis S. Busey, Jr., told Hemstalk that
a doctor's recommendation would entitle him to use marijuana, he drove
to Oakland and got one from Dr. Mikuriya. When he then tested positive
he was violated, as they say, and found himself facing prison time.
For three plants.

"It's just blatant non-compliance with the law," says Mikuriya, who,
at 62, still seems slightly surprised that not everybody took their
civics lessons as seriously as he did. "You have the government
blocking safe, affordable access when the law says it has to ensure
safe and affordable address. They're acting directly contrary to the
wording of the law and the will of the people." The law he refers ro
is section 11362.5 of the California Health and Safety Code -- born as
Prop 215.

Mikuriya was not keen to make the three-hour drive to the Sierra
foothills. He's had to cancel appointments because Tuolomne County
Superior Court Judge Eric DuTemple -- a Republican, like every
superior court judge appointed in California in the last 16 years --
had refused to accept into evidence a written declaration confirming
and explaining Mikuriya's recommendation of marijuana to Hemstalk.
DuTemple had also rebuffed the public defender's attempt to have
Mikuriya designated an expert witness -- which would have meant
remuneration of $400 an hour, the going rate for medical expert testimony.

Mikuriya has been denied expert witness status by other judges in
several other counties and is filing complaints against them with a
state agency called the Commission on Judicial Performance. He
testified without remuneration at a hearing in Humboldt for Pebbles
Trippet, and will do so again at her Trial (it's scheduled for October
19). The four charges against Trippet are possession and
transportation, which she doesn't deny, and intent to sell and driving
while impaired, which she denies unequivocally.

Because threats from the federal government have left so few doctors
in California willing to provide written recommendations for patients
with conditions covered by Prop 215, more than 1,000 people have
sought out Mikuriya; he has given the green light to cannabis to some
900. "I've never induced anybody to take cannabis," he says. "In my
contact with patients I passively listen and trust what they tell me."

Attorney General Lungren's office has singled our Mikuriya fro
scrutiny. Last September John Gordiner, the senior assistant whom
Lungren assigned to enforce his "narrow interpretation" of Prop 215,
sent a memo to the District Attorneys of California's 58 counties
asking to be informed of any cases involving Mikuriya. Gordiner -- who
provides the local DAS with lines of argument and motions to file in
prosecution 215 cases -- deposed Mikuriya at great length in
connection with People v. Peron last summer. Last month, when he was
leading a raiding party on a garden in Red Bluff, Gordiner ridiculed
the written recommendations from Mikuriya that the growers produced as
their bona fides.

"So far the harassment I've received has been kind of soft-core," says
Mikuriya. "Attacks on my credibility, forcing me to make drives like
this... But I wouldn't be surprised if Ayatollah Lungren issued a
fatwa against me before he leaves office." Add Lungren lore: one of
Dan's closest friends at Notre Dame was a classmate named Eddie de
Bartolo, Jr. They graduated in `68. Dan managed to avoid Vietnam by
claiming bad knees. Since his father was Richard Nixon's personal
physician, his draft board probably didn't question his letter of
diagnosis as closely as Lungren now questions the letters Mikuriya
writes for poor, sick people like Robert Hemstalk.

Mikuriya is not unprepared for his showdown with the DA in Sonora. He
has been studying cannabis his entire career. He grew up in Eastern
Pennsylvania. His mother, who shaped his politics, was a Quaker. "The
Quakers were proprietors of the Underground Railway, I'm proud to say.
The cannabis prohibition has the same dynamics as the bigotry and
racism my family and I experienced starting on December 7, 1941, when
we were transformed from normal-but-different people into war-criminal
surrogates." He attended the classy George School, flunked out of
Haverford, graduated from Reed, then went to Temple University School
of Medicine, where he read through all the pre-prohibition literature
on cannabis. He graduated in `62 and did his residency at Mendocino
State Hospital in Tallage. In 1967 he became the first director of
marijuana research at the National Institute of Mental Health. He left
when he was instructed to look only for negative effects. He came out
to Berkeley, where he has been in private practice for three decades.

When Dennis Peron opened the first cannabis buyers club in San
Francisco, Mikuriya saw "a unique research opportunity," signed on as
medical director, and began interviewing patients. For what conditions
were people actually using marijuana? In what forms and at what
dosages? Mikuriya developed a registration form designed to collect
and organize the members' anecdotal evidence. It included a list of
more than 50 conditions for which cannabis provided relief according
to the pre-prohibition literature, updated to include "conditions that
people who seemed to be credible had been treating with marijuana."

Versions of Mikuriya's form are being used by most of the surviving
clubs, including the Oakland Cannabis Co-op. He's still collecting
data and is the de facto medical director of the clubs in Hayward,
Arcata, and San Francisco (CHAMP), Since the passage of Prop 215 in
November `96, he has made three trips to Arcata to see people who want
to use marijuana for medical purposes. Mikuriya claims that
video-teleconferencing will enable him to conduct adequate interviews,
and that he and Jason Brrowne, the proprietor of the Arcata club, are
close to installing a workable system. Mikuriya charges the clubs
$1,000 for four hours. Interviews last roughly 15 minutes per
individual, "depending on how simple of complex the case is." On a
sojourn to Arcata in early September, Mikuriya spent two days straight
interviewing people who wanted recommendation for cannabis.

"Cannabis appears to be a unique immunomodulator analgesic that is
useful in the control of auto-immune inflammatory diseases throughout
the body," Mikuriya generalizes. He considers it "a gateway drug back"
for alcoholics and heroin addicts. "A Scottish physician named
Clendenning first used cannabis in 1843 for the detoxification of
alcoholics," he comments as the old moon fades into Lafayette. There's
already traffic in both directions.

"Chronic pain is a large category. Post-traumatic arthritis.
Post-injury muscular-skeletal problems. I run into a lot of people who
have suffered substantial injuries either in childhood of through some
sort of severe trauma -- car accidents, for example -- that result in
chronic problems. Construction workers who have suffered on-the-job
injuries. There are a lot of people out there who are suffering
needlessly as a result of inadequate medication. And believe me
they've tried. In most cases cannabis is a last resort. Usually the
history involves some sort of misadventure with prescribed medication,
such as GI bleeds from non-steroidals of significant incapacitation
from antispasmodics and benzodiazapenes."

"I see quite a few multiple sclerosis patients. In fact, there are
some people who have been trying to see me but can't because of being
housebound in the middle of nowhere. People hear about me by word of
mouth. I have a significant practice in Nevada County -- people come
down in groups and I see them in my office, which is now in my house.
I lost my office at the Claremont Hotel after Prop 215 passed. There
was a big crush of people wanting to see me -- patients for
certification, journalists for stories, police for surveillance or
verification. One of the Bay Area police entities requested of the
management that they keep me under close observation. That outraged
them but scared them at the same time. So, after 16 years, since there
was a threat form police, it's good-bye Dr. Mikuriya, `You're not part
of our mix anymore,' to quote the mealy-mouthed bureaucratic phrase
they used. By the way, the manager was a man whom I'd given a credit
reference to when he was new on the job, and played tennis with. So
much for friendship.

Public defender Gerry Kahl's office is a block east of the courthouse,
not in ne of the old brick building favored by the private-sector
lawyers, but in a modern rectangle next to the 7-11. Kahl seemed
embarrassed -- offended, almost -- as Mikuriya told him what a drag it
was having to appear. The one matter they talked about before the
hearing was remuneration.

The courthouse in Sonora is a solid, old three-story building made out
of yellow brick, with big windows and high ceilings -- the kind they
used to build before all the money disappeared. The handsome oak door
leading to Judge Eric DuTemple's courtroom has been retrofitted to
accommodate a big, ugly metal detector -- three girders in an inverted
U. DuTemple looks like Mr. Burns [from the prime-time television
cartoon The Simpsons] in his 40s -- your basic, mean, white man with
hair a slightly unnatural rust color. Hemstalk is gray-haired,
sunburnt, handsome, wiry and has a prominent scar on his cheek. His
voice is a rasp. Kahl's polyester suit looks like it might have been
worn to a disco in the `70s. His first client doesn't show and
Mikuriya takes the stand almost immediately. The DA, Clancy, is young
and sallow. He interrogates Mikuriya according to Gordiner's script.
Mikuriya is dignity personified as he describes his March 26, 1998,
interview of Hemstalk. He made a recommendation under section 11362.5
of the state Health & Safety Code. Written? Yes. The original is
entered into evidence. The diagnosis? Post-traumatic arthritis,
alcoholic encephalopathy with cerebellar atrophy leading to vocal
chord paralysis.

Did you perform a physical examination? No. Was your opinion based on
what Hemstalk said? Yes. Plus an examination of his records and
conversance with the medical literature. [Mikuriya got in that he'd
edited a collection called the Marijuana Medical Papers 1839-1972.]
What percent of your practice is devoted to time spent at the
so-called cannabis clubs? About ten percent. The rest? Going to
hospitals. I'm called in by attending physicians to see patients and
evaluate psychotropic medications. On a typical day at Oakland, how
many patients do you see? Three of four. What percentage do you
recommend marijuana for? About 85 percent. Do you get paid for the
work you do at these so-called clubs? $150 cash, per patient. Are you
board-certified? No, I'm board eligible.

The judge continued the DA's line of questioning. What do you charge
for a follow-up session? $120. With which hospitals are you
associated? Eden in Castro Valley, Vencor and St. Luke's sub-acute in
San Leandro, Vintage Estates in Hayward.

The prosecutor summed up: Hemstalk had simply paid $150 for a
recommendation to use marijuana. He and Mikuriya did not have a
"legitimate doctor-patient relationship as contemplated by 11362.5."
Mikuriya's recommendation was based on "a very superficial
examination."

Gerry Kahl argued that Hemstalk had tested clean for eight months and
assumed he was in compliance with the law by getting a doctor's
approval. He added that Mikuriya's recommendation reminded him of "the
way in which my own doctor has said, `we'll try this and see if it
works.'"

Judge DuTemple said he would consider the matter and rule in a
week.

Leaving Sonora we passed a crew from the Sierra Conservation Center
picking up trash along the roadside -- seven men in green jumpsuits
supervised by one deputy. "There they are, the fruit of the criminal
justice system," observed Mikuriya. He thought his testimony had gone
okay. "That young DA was really giving it the old college try. Asking
questions about how much I charged and how much time I spent in the
interview -- I'm sure that's part of the script suggested by Gordiner.
I think I would stack up favorably with almost any physician in the
amount of time I spend taking the history and the depth of information
I elicit. It was gratuitous prosecutorial effort. Asking if I
conducted a physical examination -- does a psychiatrist typically
conduct a physical examination? I should remind the defense attorneys
to ask me `What percent of psychiatrists do physical examinations on
office visits?' Most of them would probably go out of business if they
had to. It takes time and it takes staff."

"The judge was just a prosecutor-surrogate. But he's going to have
some problems as hee deliberates about what happened at the hearing.
The record will make him look pretty bad if he sends Hemstalk to
prison. Assertions by the prosecutor that I really didn't do a
good-faith examination and adequate medical work-up are not going to
hold up. The defense attorney appropriately rebutted them and we got
in enough material about the evaluation."

Mikuriya says he decided not to take the exam for certification by the
American Board of Neurology and Psychiatry "based on how much
preparation and study I would have had to have done, and the overall
impact on my professional career. I'm board eligible, which opens up
most of the jobs available for psychiatrists. Certainly it's a
desirable status to have. I guess I'm suspicious of some of these
institutions -- I've practiced as much as I can on the periphery. A
lot of people in medicine think that one more brownie point is going
to make for a better career. It's not necessarily so."

A week after the trip to Sonora Mikuriya called Kahl and was informed
that the judge was not going to send Hemstalk to prison. Nevertheless,
Mikuriya has filed a complaint against DuTemple with the Commission on
Judicial Performance. He charges that the judge with wrongfully
insisting that he testify in person and then wrongfully denying him
expert witness status. It's the principle of the thing, says Mikuriya.

Checked-by: Patrick Henry