The Medical Marijuana Magazine [April 3, 1998]

Cancer Patient Medical Marijuana Patient Todd McCormick Jailed for Three Weeks Because Federal Prosecutor was "Not Ready for the Hearing"

Todd McCormick, who voluntarily surrendered himself this morning [Friday, April 3, 1998] at 9:00 AM as he had agreed to do yesterday, was taken before Federal Magistrate Judge James McMahon at 11:00 AM this morning.

The federal prosecutor claimed McCormick had violated his parole by using medical marijuana. McCormick claims he did not. The prosecution, however, did not call the necessary witnesses or any witnesses, for that matterto substantiate its claim. The federal prosecutor admitted the government was not ready for the hearing.

"Mr. McCormick is not a flight risk," McCormick's attorney, Eric Shevin, told the court. "He turned himself in this morning, as agreed. He is out on $500,000 bond. He is not a danger to the community. He is charged with a nonviolent act, legal in California. There is no logical or legal reason to imprison Mr. McCormick just because the government is not ready to present its evidence."

Nevertheless, Judge McMahon jailed McCormick until April 22, 1998, while the federal prosecutors call witnesses that could easily have been called today.

McCormick had passed every one of the almost 100 drug tests he was subjected to since his release on bail in August 1997. Deprived his drug of choice, medical marijuana, he has been in unbearable cancer-induced pain. And yet, he remained marijuana- free for seven months.

In early March 1998, McCormick received a prescription for Marinol from his physician. Marinol is a powerful synthetic form of THC, an active ingredient in medical marijuana. McCormick informed the government of his prescription, and took this FDA- and DEA-approved medication until March 17, 1998, when Judge McMahon ordered him to stop using it.

McCormick was then drug tested five days in a row. The results of those tests, as expected, show fluctuating levels of THC, spiraling downward. This is precisely the pattern scientists would expect as the body eliminates an oil-based prescription medication.

In todays non-hearing, the federal prosecutor failed to call the necessary scientific expert(s) to present its case that McCormick had used marijuana. (The federal prosecutor thought another federal agency had done this, but the other agency thought the prosecutor had.) The government only had a piece of paper with test results, but no one to verify whose test results they were or what the test resultsa series of numbers actually mean.

Without at least one expert witness, such a scientist from the laboratory that had tested McCormick, there was no legal way to link McCormick to the test results or even know the meaning of the results. The prosecution was simply not ready for the hearing.

Furthermore, because the government failed to call its expert witness(es) as required, McCormicks attorney could not prove under cross examination what any expert in drug-testing knows: If you take synthetic THC in the legal form of Marinol, your urine will test positive for THC for weeks thereafter.

So, without a formal hearing, McCormick is being held in federal custody.

This concerns his friends greatly, who have noticed a marked deterioration in McCormicks physical and mental condition. The constant pain he has had to endure for more than seven months is taking its toll. "I cannot sleep for more than an hour a night," he wrote a friend. "Every time I turn over, the pain wakes me up." The agony is so great as to cause mild nausea; McCormick's weight is dangerously low.

A motion for an emergency appeal is being filed this afternoon. The earliest it could be heard is next week. Meanwhile, McCormick sits in federal custody, without a formal hearing, for taking a prescription medication.

McCORMICK TO SURRENDER TOMORROW; HEARING AT 2:00 PM

April 2, 1998, LOS ANGELES. A federal warrant for the arrest of Todd McCormick was issued today. Around 2:30 this afternoon, seven U.S. Marshals entered Todd McCormicks house from an open back door, searched the house, but found him not at home. The Marshals waited an additional hour, and then left.

Meanwhile, Todd McCormicks attorney arranged with the federal authorities for McCormick to turn himself in tomorrow morning, Friday, April 3, 1998, and appear before Federal Magistrate Judge McMahon at 2:00 PM.

A press conference will be held directly outside the old federal courthouse as soon as the 2:00 hearing is completed. If McCormick is returned to federal custody, his attorney will meet the press to explain the outcome of the hearing. If Judge McMahon permits McCormick to remain on bail, both McCormick and his attorney will meet the press.

McCormick, who had cancer nine times before he was ten, is accused of failing a urine test, which he has taken (and passed) several times each week since his release on bail in mid-August 1997. The federal government claims a urine sample taken some time in March revealed traces of THC, the active ingredient in marijuana.

"Thats not surprising," said Peter McWilliams, McCormicks publisher, "Todd took legally prescribed Marinol for the first half of March. Marinol is a powerful synthetic form of TCH. For someone to continue to give positive THC results less than two weeks after stopping Marinol is not uncommon."

McCormick was ordered not to use Marinol by Judge McMahon on March 17, 1998. For two weeks prior to that, McCormick was prescribed high doses of the medication by his physician.

McCormick is facing life imprisonment for cultivating medical marijuana, legal under California law for patients since the passage of Proposition 215. While the federal government has taken only civil action against buyers clubs that openly sell marijuana as well as grow it, McCormick, a longtime medical marijuana advocate, is obviously being treated quite differently.

To contact Todd McCormick: 213-650-4906 (home number).

Judge Abruptly Denies Motion and Cancels Long-Set Hearing

March 17, 1998, Los Angeles. In an astonishing move late yesterday afternoon, Federal Magistrate Judge James McMahon canceled a long-set hearing on a motion from cancer patient Todd McCormick to use medical marijuana while awaiting federal trial for medical marijuana cultivation.

Later in the afternoon, Judge McMahon issued his ruling by fax: the motion, in its entirety, was denied.

"Why wont he even let me speak?" asked McCormick, shocked by the news when it reached him late yesterday afternoon. "I havent been able to use my medicine for eight months now. I have been in constant pain. Tomorrow's hearing was my one hope. I thought maybe I could convince the judge. But now, I don't even have the chance to speak. I'm just devastated."

Also not permitted a chance to testify is Elvy Musikka, a glaucoma patient who receives medical marijuana directly from the federal government. In opposition to McCormick's medical marijuana use, the federal prosecutors in their opposition papers (at www.marijuanamagazine.com) maintained the federal government does not recognize medical marijuana, no matter what the voters of California have to say about it, so McCormick's motion should be denied.

"I'm coming to tell the judge the federal government does consider marijuana a medicine, and I can show him the federally grown marijuana to prove it," said Musikka in an interview from her Florida home on Monday morning. "If the judge doesn't want to hear that fact, he doesn't have to, but Ill be there to tell him just in case he does."

Apparently, he does not.

The judge's sudden cancellation of the hearing has caused a greater stir in the media than it probably would have if announced tomorrow as planned. The news made at least one local television newscast by 6:00 PM, and McCormick spent the remainder of Monday evening talking with the press, including an extensive interview with PBS.

On March 10, 1998, in an unprecedented move, Judge McMahon ordered McCormick to no longer take the prescription medication Marinol, although his physician legally prescribed it. This has outraged doctors, who see it as improper federal intervention into the doctor-patient relationship.

"They take away the medication I have been successfully using for thirteen years, then I try the official, legal, FDA-approved, DEA- approved, doctor-prescribed, $15-a-pill medication, and just as Im starting to get some relief, and they take that away, too," said McCormick who faces a mandatory ten-year sentence which could be life without possibility of parole at the judges discretion. "Now, they wont let me even ask for relief in person. They don't mind torturing me; they just dont want to look at the result."

Without his medication, McCormick suffers from extreme weight- loss caused by nausea, insomnia, and lack of appetite. These are the result of intense physical pain. McCormicks body was left so deformed by childhood cancer operations and radiation treatments that a physician, seeing only his x-rays, was surprised to learn the adult McCormick was not permanently confined to a wheelchair.

While federal judges can deny motions without a hearing, seldom is a hearing scheduled (originally for March 9, 1998), then rescheduled for today, March 17, 1998, and then cancelled less than 24 hours before the hearing, followed only hours later with an abrupt denial of the motion.

Although the judge gave no reason for the sudden change, it is believed the controversial nature of the medical marijuana decision and the increasing interest by the press were the cause of the last-minute cancellation.

"This is a political hot potato that no one wants to touch," said McCormicks publisher Peter McWilliams. "The federal bureaucracy has determined Todd McCormick must pay for his cultivation of medical marijuana with his life, but I cannot believe one person in that entire bureaucracy wants to be the one to say to Todd, face-to-face, We're locking you up now, where you will be in pain for the rest of your life. We're doing it for the children."

"I don't think Judge McMahon enjoyed being the federal messenger of bad news any more than any other compassionate human being would. I cant think that Judge McMahon is a happy Irishman this St. Patricks Day for what he had to do to McCormick," said McWilliams.

McWilliams is a cancer survivor living with AIDS who uses medical marijuana. "Murderers, rapists, child abductors, these are people even I would look in the eye and say, Youre not going to live anywhere near the rest of us for a long time. But Todd? Anyone who knows Todd, who knows his medical history, who knows his dedication to getting his beloved healing plant to sick people, also knows that this entire prosecution is a travesty."

In turning down the motion, Judge McMahon also refused to lower McCormicks bail from the unusually high $500,000 set when he was first arrested and accused of drug trafficking. The Federal Grand Jury returned a single indictment against McCormick, for cultivation only, specifically permitted under Californias Proposition 215.

The Federal Prosecutors, nevertheless, claim McCormick is "a flight risk" and a danger to the "safety" of "other persons and the community" because he cultivated medical marijuana, after the passage of 215, behind Bel Air walls.

The federal position on medical marijuana in this case, written by Federal Prosecutors Nora Mandella, David Scheper, Fernando Aenlle-Rocha, and Mary Fulginiti, will be posted today on the Medical Marijuana Magazine Online (www.marijuanamagazine.com).

McCormick and Musikka are available for interviews. Please contact:

Todd McCormick 213-650-4906

David Michael 415-986-5591

Elvy Musikka (In LA Tuesday, March 17-19, 1998) 213-650-4906

Los Angeles, March 4, 1998. In a precedent-setting ruling, a federal judge denied cancer patient Todd McCormick access to "any form of marijuana," including the prescription medication Marinol, "marijuana derivatives," and even "hemp seed oil." McCormick, who had cancer nine times before he was ten, was arrested on July 29, 1997, at the fabled "Marijuana Mansion" for medical marijuana cultivation. His bail was set at $500,000, posted by actor Woody Harrelson.

On Tuesday, however, federal Magistrate Judge James McMahon added to McCormicks Terms of Bail Release the instruction "not use any form of marijuana, including any synthetic marijuana, any products that contain marijuana derivatives including but not limited to hemp seed oil, marinol [sic], or any other product containing cannabinoid derivatives, either with or without prescription."

McCormick recently obtained a prescription for Marinol from his California physician. McCormick reported this to his federal Pre- Trial Services officer and to the technician performing McCormicks twice-weekly urine tests. As expected, McCormick tested positive to THC. The words "prescription, Marinol" were added to all lab reports. McCormicks attorney, David Michael, discussed the situation with McCormick's Pre-Trial Services officer. Nevertheless, McCormick was called before federal Magistrate Judge James McMahon on Tuesday where the ruling was made.

The ruling greatly concerned McCormicks attorney, David Michael. "This is an inappropriate interference with the right of a physician to prescribe and the right of a patient to be treated," Michael said. "To deny Mr. McCormick Marinol, an FDA- and DEA- approved Schedule II prescription medication, or any other prescription medication, is a dangerous precedent. The judiciary is ill equipped to take the place of a physician in deciding what medication a patient needs."

After more than six months of chronic cancer-induced pain and reduced appetite because he could not use medical marijuana, McCormick was recently finding some relief in Marinol, a synthetic form of THC, one of marijuanas active ingredients.

"This ruling means I go back to pain, sleepless nights, no appetite, depression," McCormick said, noticeably shaken by the ruling. "The government wont let me use a legal prescription drug to ease my suffering. One side of the federal government, the DEA and the FDA, say Marinol is okay, a medicine. Another side, this court, says I can't use it. I don't understand."

The inconsistency continues in the "Medical Instructions" given McCormick, a set of 35 federal rules for urine testing, one of which reads:

28. Nothing in the above instructions is meant to interfere with legitimate medical treatment. Appropriate medical treatment is encouraged.

Just last week the California Supreme Court decided to let stand a lower court decision to narrowly restrict medical marijuana access under Proposition 215, now the Compassionate Use Act of 1996. The ruling dictates that cultivation is the only way in which California medical patients can legally obtain medical marijuanano buying; no transporting over public roads.

McCormick is charged by the federal government only with marijuana cultivation, not selling, not even intent to sell.

To contact Todd McCormick: 213-650-4906 (home number)

To contact David Michael, McCormick's attorney: 415-986-5591

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