Today's Stories

March 2, 2009

Andrea Peacock
A Poisoned Town's Shot at Justice

Feb. 27 - March 1, 2009

Alexander Cockburn
Is Nancy Pelosi Really Against War Crimes?

Harry Browne
Where the Cheats Have No Shame

Anthony DiMaggio
From Bush to Obama: Seven Years of Wartime Propaganda

Sasan Fayazmanesh
Dennis Ross and Iran: the Fox and the Chicken Coop

Mischa Gaus
The Banks' War on Workers

Felice Pace
The Economy and the Big Picture

Mike Whitney
Is Free Market Capitalism Possible Without Accountability?

Lee Sustar
Blaming the Autoworkers

Peter Lee
The Other Side of the Coin in Afghanistan

Nicole Colson
Ruining Young Lives for Profit

Roger Burbach
Et Tu, Daniel? The Betrayal of the Sandinista Revolution

Rannie Amiri
King Abdullah Has No Robes

Missy Beattie
Owning Disaster

Dave Lindorff
America's Stupid Health Care Debate

Robert David Steele Vivas
Intelligence for the President--and Everyone Else

John Ross
Teotihuacan Gets Mickey-Moused

Ralph Nader
Civic Heroism Awards

Yves Engler
Haiti's Harsh Realities

Alan Farago
The Story of Leonard Abess, Banker

Zulfikar Majid
Understanding Kashmir

David Yearsley
Don't Stay Up Too Late, Johan!

Charles R. Larson
Sleeping with Dogs

Kim Nicolini
Spitting at Dark Times: Mike Leigh's "Happy-Go-Lucky"

Lorenzo Wolff
So You Wanna Be a Garage Rock Star

Poets' Basement
Puthoff, Payne, Gaffney and Gray

Website of the Weekend
Sleep Now in the Fire

February 26, 2009

Dave Lindorff
Obama's Address to Congress

Jonathan Cook
Israel's Military Mephistopheles

Patrick Cockburn
Did the US Learn Anything in Iraq?

Mike Whitney
The Geithner Put

Eamonn McCann
"Make Bono Pay Tax"

Tim Wise
Eric Holder and the Whitewashing of Racism

Tom Barry
Napolitano's Hard Line

Harvey Wasserman
Obama's Excellent Atomic Omission

Adam Turl
The Enemies of Unions and the Lies They Tell

David Macaray
When People are Fired Illegally

James McEnteer
Rush to the Rescue: Limbaugh's Secret Plan to Save the Economy

Website of the Day
The Carbon Casino

February 25, 2009

Chris Sands
Afghanistan: Chaos Central

M. Shahid Alam
Israel in 1948: Poised for Expansion

Chris Floyd
Obama's Non-Withdrawal Withdrawal Plan

Dave Lindorff
Wall Street and Bernanke: the Blind Leading the Blind

Norman Solomon
The Slow Pullout Method

Rachel Godfrey Wood
Neoliberals Do The Amazon

Niranjan Ramakrishnan
Teacher and Student: the New Class Struggle

Ron Jacobs
It Ain't Over Till It's Over

Nadia Hijab
The First Waltz

Dennis Loo
The Water Line

Website of the Day
Hitchens Gets Stomped by Syrian Nerd

February 24, 2009

Paul Craig Roberts
How the Economy was Lost

Uri Avnery
Coalition Theory

Peter Morici
Is Nationalization Inevitable?

Jonathan Cook
Arab Parties Face Most Hostile Knesset in History

Paul Fitzgerald /
Elizabeth Gould
The Man Who Shouldn't be King (of Afghanistan)

Andy Worthington
Who is Binyam Mohamed?

Brian Horejsi
Crisis Creates Hope for Reality

Julia Stein
I was a Writer for the Government

Norm Kent
How Judges Disgrace the Bench

Rachel Smolker /
Brian Tokar
Biofuels, Promise or Threat?

Dennis Loo
The Water Line: Doing What Must be Done

James McEnteer
The Oscar for Denial

Website of the Day
How to Destroy a Fox News Anchor

February 23, 2009

Michael Hudson
The Language of Looting

Mike Roselle
On Cherry Pond: Going Up Against Big Coal in W. Virginia

Patrick Cockburn
The New War in Iraq

Franklin Spinney
Obama Steps on the Pentagon Escalator

Einar Már Guðmundsson
A War Cry From the North

Ralph Nader
How Credit Unions Survived the Crash

Jordan Flaherty
A New Orleans Intifada?

Helen Redmond
Ted's Table: Kennedy and the Corporate Lobbyists Craft a Health Plan

Dennis Loo
The Water Line

Harvey Wasserman
Jet Crashes and Nuclear Reactors: Feds Ignore a Serious Risk

Terry Lodge
The Intelligence is Wrong

Website of the Day
BadCreditReport.Com

February 20 / 22, 2009

Alexander Cockburn
The Lawyer's Tale

Michael Neumann /
Osha Neumann
Remove Our Grandmother's Name from the Wall at Yad Vashem

Ismael Hossein-zadeh
Herbert Hoover Copycats

Paul Craig Roberts
Bill of Rights Under Fire

Linn Washington Jr.
The NY Post's Chimpanzee Cartoon

Saul Landau
On the Road Again

Marjorie Cohn
War Criminals Must be Prosecuted (And Their Lawyers Too)

Binoy Kampmark
Cricket and Cartels: the Fall of Sir Allen Stanford

Dave Lindorff
Using the Recession to Hammer Workers

David Yearsley
Edward Said's Greatest Musical Writings

David Macaray
A Closer Look at the Employee Free Choice Act

James McEnteer
Last Mambo in Minnehaha

Rick Salutin
A Canadian Looks at Obama

Wayne Clark
South Carolina Nears the Abyss

Richard Rhames
Got Farms?

Stephen Martin
Silver Mist Descending

Mitu Sengupta
Slumdog Millionaire's Dehumanizing View of India's Poor

Charles R. Larson
Slumdog Reality?

Richard Morse
Carnival Ramble in Haiti

Lorenzo Wolff
Desperation in an Unavoidable Groove

Poets' Basement
Three Poems of Tu Fu (Trans. K. Rexroth)

Website of the Weekend
Ron Paul: What If the People Wake Up?

February 19, 2009

Norman Finkelstein
The Cleanser: Lobbyists Whistle Up Cordesman to "Prove" Israel Waged a Clean War in Gaza

Harry Browne
How Ireland Went Bust

Robert Bryce
Why the Promise of Biofuels is a Lie

Brian M. Downing
The Winding Road: From Western Europe to Kyrgyzstan

Fred Gardner
The DEA Chief's $123,000 Flight

Andy Worthington
Obama's Uighur Problem

Wajahat Ali
Aftermath of a Beheading

Laura Carlsen
A New Attitude at the White House Toward Bolivia and Venezuela?

Deb Reich
Gaza: Choose Life!

Christopher Ketcham
Crisis? What Crisis?

Website of the Day
Taking Back NYU

February 18, 2009

Paul Craig Roberts
President of Special Interests

Mike Whitney
Trouble at Treasury

M. Shahid Alam
Afghan Pitfalls

Patrick Cockburn
A Real Surge at Last

Conn Hallinan
Death's Laboratory

Dave Lindorff
Whatever Happened to Antitrust?

Rannie Amiri
The Perils of Blogging in Egypt

Gareth Porter
Pushing Back Against Petraeus on Pullout Risks

Eric Hobsbawm
Remembering V. G. Kiernan

Christopher Brauchli
The Pope's Predicament

Martha Rosenberg
It's the Cymbalta Stupid

Website of the Day
Red Gold

February 17, 2009

Michael Hudson
The Oligarchs' Escape Plan

Mike Whitney
The Global Ditch

Ralph Nader
The One-Dimensional Congress

Joanne Mariner
Benchmarking Obama: How to Evaluate the New Administration's Counter-Terrorism Policies

John Ross
Commodifying the Revolution: Zapatista Villages Become Hot
Tourist Destinations

Belén Fernández
The Venezuelan Referendum From the Back of a Pickup Truck

Mats Svensson
Who is a Terrorist?

David Macaray
Why America Needs Labor Unions

Gregory Vickrey
$400 in Change

M. Junaid Levesque-Alam
Another Hamastan?

Michael Dickinson
Unrest in Istanbul

Website of the Day
Take a Stand for Open Access

February 16, 2009

Patrick Cockburn
Iraq Reconstruction: the Greatest Fraud in US History?

Oscar Guardiola-Rivera
The Truth About Colombia's New Emperor

Paul Craig Roberts
Who Remembers Guns and Butter?

Uri Avnery
Livni's Bitter Options

P. Sainath
The Meltdown: Whose Crisis Is It?

Dedrick Muhammad / Michael Brown
White Recession, Black Depression

Carla Blank
A New New Deal for the Arts

Patrick Irelan
Venezuela Ends Term Limits

Dan Bacher
Is Delta Pumping Driving Salmon and Orca Decline?

Fidel Castro
Chavez's Clarion Call

Harvey Wasserman
Hail to the Spleef: Did George Washington Smoke Pot?

Website of the Day
Mining Black Mesa

February 13 - 15, 2009

Alexander Cockburn
On the Rocks

Joshua Frank
The Myth of Clean Coal

Mike Whitney
Geithner's Coming Out Party

George Ciccariello-Maher
Venezuela's Term Limits: More Hypocrisy From the NYT

Nikolas Kozloff
Venezuela Beyond the Referendum

Brian M. Downing
Pakistan on the Brink

Paul Craig Roberts
Deficit Nonchalance

Christopher Ketcham
Israel's Ball Boys

Ron Jacobs
At a Campus Sit-In Against Israeli Occupation

Dave Lindorff
Why Can Judd Gregg See What Obama Can't?

Alan Maass
Lincoln at 200

Chuck Spinney
Grassley Sounds Off on Obama's Man at the Pentagon

Phil Gasper
Mr. Darwin's Reluctant Revolution

Stephen Lendman
A Short History of Business Handouts

Charles Thomson
Tate Cruises: Caveat Emptor on the High Seas

Kathy Sanborn
The Suicide Rush

Saul Landau
Bowled Over

Len Wengraf
The Nightmare in Somalia

Harvey Wasserman
Striking a Blow Against Nuclear Power

David Macaray
An Easy Call for Obama on Joining a Union

Tom Stephens
Four Freedoms, Four Changes

Seth Sandronsky
Lincoln and the Collective Mind

David Yearsley
On the Road Again

Lorenzo Wolff
Freaking Out With Danny Barnes

Kim Nicolini
The Body of the Worker: What "The Wrestler" Says About the State of America

Poets' Basement
Anderson, Buknatski and French

Website of the Weekend
The Iranian Revoution and the US Dual Containment Policy: a Presentation

March 2, 2009

Pot Shots

The Judge Who Ruled Marijuana is Medicine

By FRED GARDNER

Most drug-policy-reform advocates know the name of Judge Francis Young and many can quote a line from his 1988 recommendation that the DEA remove marijuana from Schedule One: "Marijuana is one of the safest therapeutically active substances known to man." 

Few if any activists know the name of Judge James A. Washington. And whereas Judge Young's recommendation was rejected by the DEA, Judge Washington's decision in United States v. Robert Randall had an actual and significant impact.

Randall, who faced blindness from glaucoma in his late 20s, would be the first patient to get marijuana from the federal government under an "investigational new drug" protocol. Some 30 other people with serious illnesses followed Randall into the IND program, which was closed to new patients in 1991. Four surviving patients receive federal cannabis to this day.

US v Randall was tried by Judge Washington in Washington, DC, Superior Court, over the course of two days in July, 1976. The prosecutor was Assistant US Attorney Richard Stolker. Randall's attorney John Karr recalled in a recent interview, "Judge Washington had been dean of the Howard University Law School before his appointment to the bench and I knew him to be extremely intelligent and compassionate. A non-jury trial was fine with me."

Randall relied on a "medical necessity" argument, which Karr summarized as: "faced with a choice of certain blindness or using marijuana to save your sight, a reasonable  person would use marijuana."

The key witness was Robert Hepler, MD, a UCLA opthalmologist who had monitored Randall's use of all the pharmaceutical drugs then used to treat glaucoma, and confirmed that only marijuana could stop the progression to blindness.

Here are the facts as recounted by Judge Washington in his decision:

"The government has established, and the defendant has not attempted to refute, that on or about August 21, 1975, police officers in the course of their normal duties noticed what they believed to be cannabis plants on the rear porch and in the front windows of defendant's residence… A warrant was issued and a search of the premises conducted on August 23, 1975. Several plants and a dried substance later identified as marijuana were seized and defendant's arrest followed.

"At trial, the government's evidence demonstrated that the substance seized at defendant's residence was marijuana, possession of which is prohibited by D.C. Code Section 33-402, thus establishing all the elements of the crime charged. Moreover, defendant admitted that he had grown the marijuana in question and that it was intended for his personal consumption. He further testified that he knew that possession and use of this narcotic are restricted by law.

"Defendant nonetheless sought to exonerate himself through the presentation of evidence tending to show that his possession of the marijuana was the result of medical necessity. Over government objection of irrelevancy, defendant testified that he had begun experiencing visual difficulties as an undergraduate in the late 1960s. In 1972 a local opthalmologist, Dr. Benjamin Fine, diagnosed defendant's condition as glaucoma, a disease of the eye characterized by the excessive accumulation of fluid causing increased intraocular pressure (IOP), distorted vision and, ultimately, blindness.

"Dr. Fine treated defendant with an array of conventional drugs, which stabilized the intraocular pressure when first introduced but became increasingly ineffective as defendant's tolerance increased. By 1974, defendant's IOP could no longer be controlled by these medicines, and the disease had progressed to the point where defendant had suffered the complete loss of sight in his right eye and considerable impairment of vision in the left.

"Despite the ineffectiveness of traditional treatments, defendant during this period nonetheless achieved some relief through the inhalation of marijuana smoke. Fearing the legal consequences, defendant did not inform Dr. Fine of his discovery, but after his arrest defendant participated in an experimental program being conducted by opthalmologist Dr. Robert Hepler under the auspices of the United States Government.

"Dr. Hepler testified that his examination of the defendant revealed that treatment with conventional medications was ineffective, and also that surgery, while offering some hope of preserving the vision which remained to defendant, also carried significant risks of immediate blindness. The results of the experimental program indicated that the ingestion of marijuana smoke had a beneficial effect on defendant's condition, normalizing intraocular pressure and lessening visual distortions."

John Karr recalls: "Judge Washington was very careful. After the prosecutor had conducted his examination and I had conducted the cross-examination, he would conduct his own inquiries. It was apparent that he had read all the material we had put together on the history of marijuana as medicine. In his decision he referred to the 1937 Congressional hearings that led to the Prohibition, and a number of recent studies and reports."

A Case of First Impression

"This is a case of first impression in this jurisdiction," wrote Judge Washington in his decision, "one which raises significant issues. Consequently, the Court recognizes its responsibility to set forth clearly and in some depth its understanding of the applicable law."

Citing case law, Washington concluded that "the common law recognizes the defense of necessity in criminal cases... where the actor is compelled by external circumstances to perform the illegal act." He listed three exceptions. The necessity defense cannot be used when  "1) The duress or circumstance has been brought about by the actor himself;  2) The same objective could have been accomplished by a less offensive alternative which was available to the actor; or 3) The evil sought to be averted was less heinous than that performed to avoid it."

The first two exceptions clearly don't apply in US v. Randall, wrote Washington:

"While the exact cause of defendant's glaucoma is unknown, neither the government nor any of the expert witnesses has suggested that the defendant is in any way responsible for his condition. Similarly, no alternative course of action would have secured the desired result through a less illegal channel. Because of defendant's tolerance, treatment with other drugs has become ineffective, and surgery offers only a slim possibility of favorable results coupled with a significant risk of immediate blindness. Neither the origin of the compelling circumstances nor the existence of a more acceptable alternative prevents the successful assertion of the necessity defense.

"The question of whether the evil avoided by defendant's action is less than the evil inherent in his act is more difficult. It requires a balancing of the interests of this defendant against those of the government. While defendant's wish to preserve his sight is too obvious to necessitate further comment, the government interests require a more detailed examination.

"One of the oldest recognized drugs, marijuana was not regulated in the United States until the Pure Food and Drug Act of 1906, which required that the presence of marijuana be indicated on the labels of products of which it was a component. The modern prohibition began in 1937, in response to primarily economic pressures -- 21 -- without significant inquiry into its effects on users.  [Washington's footnote 21: "Liquor manufacturers and distributors, still recovering from the effects of Prohibition, were interested in eradicating the potential competition from a drug often used for recreational purposes. In addition, criminalizing marijuana simplified the task of eliminating the competition for jobs during the Depression posed by the principal users of the drug, Mexican migrant laborers."]

"The 1970 Controlled Substances Act continued the prohibition of the use of marijuana, but a Presidential Commission was appointed to study its effects. Pending receipt of this report, marijuana was classified as a non-narcotic and although its use was still prohibited, the penalties were considerable reduced, with first offenders being discharged conditionally. The District of Columbia law, however, was not changed, and retains the narcotic classification based on the 1937 Uniform Narcotics Act.

"Medical evidence suggests that the prohibition is not well founded...."

How's that for a soundbite? Washington's decision continued:

"Reports from the President's Commission and the Department of Health, Education and Welfare have concluded that there is no conclusive scientific evidence of any harm attendant upon the use of marijuana. According to the most recent HEW study, research has failed to establish any substantial physical or mental impairment caused by marijuana. Reports of chromosome damage, reduced immunity to disease, and psychosis are unconfirmed; actual evidence is to the contrary.

"Furthermore, unlike the so-called hard drugs, marijuana does not appear to be physically addictive or to cause the user to develop a tolerance requiring more and more of the drug for the same effects. The current HEW report also notes the possibility of valid medical uses for this drug...

"The Court finds that this defendant does not fall within the third limitation to the necessity defense. The evil he sought to avert, blindness, is greater than that he performed to accomplish it, growing marijuana in his residence in violation of the District of Columbia Code. While blindness was shown by competent medical testimony to be the otherwise inevitable result of defendant's disease, no adverse effects from the smoking of marijuana have been demonstrated...

Judge Washington could have ended his decision at this point, but he went on to assert its applicability to other necessity-defense cases. He projected and refuted an argument that would deny the necessity defense based on the literal wording of the DC Code section, which makes no reference to extenuating circumstances.  He also discussed whether a defendant should have to prove necessity "beyond a reasonable doubt" and concluded that "by a preponderance of the evidence" was sufficient.

As John Karr put it, "Judge Washington made an effort to find for Randall in every important way."

Recollections from Karr

"Randall came to me through Alice O'Leary, who was an employee of a client of mine at the time, a company called The American Theater.  Her story was very touching: 'My boyfriend has this problem. He's been busted for growing marijuana on our back porch on Capitol Hill and he's going blind from glaucoma.'  So I said 'Okay, bring him in...'

"He told me his very interesting story. So I called a Dr. Brown either at NIH or NIMH and said, 'What's current on the use of marijuana as a medicine?' And he said there were three programs ongoing that NIH knew about. One, I think, in Alabama; one in North Carolina; and one out at the Jules Stein Institute [UCLA].  He said one involved a THC solution delivered intramuscularly; one program reduced it to a pill taken orally; and the one in California was doing it by smoking marijuana.

"So I called the people in North Carolina and I think it was Alabama and they said that their results were very mixed. But Dr. Hepler at UCLA said 'I got this program going and it looks like a real winner.'  So we sent Randall out to UCLA and Hepler tested him-

"He had no money for the defense. In fact, we never got paid for this. It may have been Alice who put together enough money for the trip. She was the real driver in this thing because she was very concerned about him. Anyway, he went out there for about 10 days and Hepler said  'It's a winner.' I asked Hepler if he would come and testify. We advanced the money for that, I think it was 13 hundred bucks but it didn't matter because at this point we were all excited about the case...Sure enough, he came and he was a terrific witness.

"There were some amusing moments in the trial. I remember the delivery of one of the plants from the FBI storeroom to the courtroom, wrapped as if it was a gift from a florist. It reminded me of a revue by the old comedy team, Olsen and Johnson, which began with a hotel bellhop crossing the stage and calling out 'Plant for Mrs. Jones. Plant for Mrs. Jones.'  At the end of each act he would reappear and the plant would have gotten larger and larger and larger...The FBI agent carefully unwrapped the plant, which was mature and now withered, and the prosecutor asked him to roll a joint from it, which he did. This was to prove that it was a usable amount of marijuana...

"At one point I asked my contact at NIMH, Dr. Brown, whether there was a program to get him marijuana legally. And he said you've got to get an 'Investigational New Drug' approval from the FDA. We called FDA and they sent us the forms and we helped Randall fill them out and send them back and eventually an Investigational New Drug license was issued.  And for I don't remember how long, Randall would show up at Morton's Drug Store in the 300 block of  Pennsylvania Avenue Southeast, three blocks from the Capitol of the United States, and pick up his weekly supply of marijuana. Which looked like an olive-drab pack of cigarettes with a band around it saying 'Property of the United States of America.'  I remember it vividly because it was just so perfect.

"I called FDA and was told that it was grown in Mississippi and processed and packaged in North Carolina, where all the cigarettes are processed and packaged..."

P.S.

Attorney Paul Smollar, who worked with Karr on U.S. v. Randall, recalls: "As a memento, Bob took two cigarettes out of the first pack he received from the government, removed the marijuana, and framed the papers -one for each of us to commemorate our victory in court...'Medical necessity' was then a new argument. It had been argued before in criminal cases, but never in connection with marijuana. John is a very creative thinker and an excellent trial lawyer.  And he had a good working relationship with Judge Washington. They respected one another. Judge Washington was not only very bright, but he was willing to make a decision that might be unpopular or might be on the leading edge of the law. His decision for Randall was far ahead of its time.”

Some 35 years after Judge Washington found for Randall, attorney Robert Raich framed a "medical necessity" argument on behalf of the Oakland Cannabis Buyers Club in a case that went to the U.S. Supreme Court. Raich was unaware of Judge Washington's decision in support of Randall. "I wish I had known about it," he told us. "It was scholarly, well-reasoned and well written. I would have incorporated it... I wish we had more such judges these days."

Judge James A. Washington died in 1998 at the age of 83. His obituaries made reference to his five-year stint in the War Division of the Justice Department, joining the Howard faculty in 1946, his work as a lawyer in connection with Brown v. Board of Education and other cases leading to the end of public-school segregation in 1954, and a terrible fall that confined him to a wheelchair for the last 20 years of his life. His decision in U.S. v. Randall exonerating a marijuana user on grounds of medical necessity was too far ahead of its time to be recognized as a signal achievement.

Fred Gardner edits O’Shaughnessy’s, the journal of cannabis in clinical practice. He can be reached at fred@plebesite.com

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