GOING TO POT: THE CONTROVERSY OVER MEDICINAL MARIJUANA

ROGER COSSACK, COHOST: 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 lifesustaining medications that he needs.

GRETA VAN SUSTEREN, COHOST: 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 socalled "magic" combination of
drugs that people take for fighting AIDS the protease inhibitors and the
two antivirals.

All of these medications at one I was taking 12 medications; all of
which had nausea as a side effect. I tried various antinausea medications.
They didn't work. My option at that point was being put on an intravenous
drip 24hours 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 20yearold 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 $4million 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 wellknown 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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