Award-winning investigative journalist (and dad) Peter Gorman has spent more than 20 years tracking down stories from the streets of Manhattan to the slums of Bombay. Specializing in Drug War issues, he is credited as a primary journalist in the medical marijuana and hemp movements, as well as in property forfeiture reform. His work has appeared in over 100 national and international magazines and newspapers.
Peter Gorman's love affair with the Amazon jungle is well-known to people in the field. Since 1984 Mr. Gorman has spent a minimum of three months annually there generally using Iquitos
Peru as his base. During that time he has studied ayahuasca the visionary healing vine of the jungle with his friend the curandero Julio Jerena. He has collected artifacts for the American Museum of Natural History botanical specimens for Shaman Pharmaceuticals and herpetological specimens for the FIDIA Research Institute of the University of Rome. His description of the indiginous Matses Indians’ use of the secretions of the phyllomedusa bicolor frog has opened an entire field devoted to the use of amphibian peptides as potential medicines in Western medicine.
by Peter Gorman
It’s been seven-plus years since former Drug Czar General Barry McCaffrey called California’s Prop 215, which permits patients to use cannabis with the recommendation of a doctor, “Cheech and Chong Medicine.” And that’s how long it took for the White Houses of both Bill Clinton and George Bush, in a conspiracy with the Attorney General, California’s last and current Attorney Generals, the DEA, local law enforcement from several of California’s most remote counties and the state’s Medical Review Board to find a way to finally censure Dr. Tod Mikuriya, Prop 215’s medical advisor. But it ain’t over yet.
In November, 1996, the voters of California passed Proposition 215, the Compassionate Use Act. That law permitted patients throughout the state to use, possess and grow cannabis—and their caregivers to possess, grow and provide cannabis—on the recommendation of a physician. In response to what the Federal government saw as an erosion of cannabis prohibition in California, on December 29, 1996, then-Drug Czar General Barry McCaffrey held a news conference to discuss the new law, during which one of his props was a large flip-chart. At the top of the chart was printed: Dr. Mikuriya’s Medicine, and below it was long list of ailments for which Dr. Tod Mikuriya, a respected Berkeley, CA psychiatrist and co-author of Prop 215 was alleged to have claimed cannabis would be beneficial. Included with such ailments as glaucoma, cancer and AIDS were a couple of ringers like “Recovering Forgotten Memories,” and “Writer’s Cramp,” that made the whole list suspicious, and allowed McCaffrey to sound legitimate when he commented, “This isn’t medicine. This is Cheech and Chong medicine.”
That Dr. Mikuriya had never recommended that cannabis might be good for either “recovering forgotten memories” or “writer’s cramp” didn’t matter to the Clinton White House. To the Drug War warriors, deception is typical and justified.
That press conference was the first public salvo in a war waged against the new California law, patients and their caregivers, and the doctors who wrote their recommendations. Chief among their medical targets was Dr. Tod Mikuriya.
This past April 29, the Feds finally got their pound of flesh, when Dr. Mikuria began serving a 5-year period of medical practice probation ordered by Administrative Law Judge Jonathan Lew, in an action brought by the Medical Board of California before it’s Administrative Court. The terms of Mikuriya’s probation include paying $75,000 for the cost of his prosecution, no longer being able to see patients in his home—something he’d been doing for 30 years—paying a second doctor to review his patient records, having his records spot checked by the California Medical Board, not being able to do telephone follow-ups with patients, and requires that he disclose his medical marijuana recommendations to his patients’ primary physicians.
THE SET UP
While the “Cheech and Chong” medicine was the first public salvo fired against the passage of Prop 215, privately, on November 14, 1996, several weeks prior to McCaffrey’s nationally televised news conference, the Drug Czar’s office held a meeting to decide how to handle the now-legal cannabis smokers in California. The list of attendees reads like a who’s who of the anti-medical marijuana movement. Along with several members of the Drug Czar’s office and the Department of Health and Human Services (HHS) were representatives of the Department of Justice and the Drug Enforcement Administration the President of the Partnership for a Drug Free America, the President of Community for A Drug Free America (CADCA), seven representatives of Sheriff’s and Narcotics police departments in California and two representatives from then-California Attorney General Dan Lungren’s office, among others. Head of the California Delegation to the meeting was Lungren’s Senior Assistant District Attorney, John Gordnier.
At that meeting, a range of options that might be taken by the Federal Government in response to the passage of Prop 215 were considered. Among them were filing a suit claiming that federal law preempts the state propositions; a plan to initiate federal criminal prosecution of medical marijuana users; federal support of state and local arrests and seizures based on violation of federal law; and developing a strategy for taking action against physicians.
The Feds decided to push hard with option number four: taking action against the physicians who recommended medical marijuana. The plan was spelled out during McCaffrey’s “Cheech and Chong” conference, when HHS Secretary Donna Shalala announced that doctors who recommended marijuana risked having their Federal DEA licenses to prescribe controlled drugs revoked. More than that, noted Shalala, they risked criminal prosecution and being excluded from Medicare.
But while that tactic scared most doctors out of making medical cannabis recommendations, many others saw the threat for what it was: an infringement on their First Amendment rights to discuss whatever they liked with a patient, as well as their ability to make reasonable medical recommendations, which might include the use of medical marijuana—something doctors had been doing quietly long before Prop 215 passed.
One of those doctors, an AIDS specialist named Dr. Marcus Conant, sued the Federal government in January, 1997 over its infringement on his right to talk freely with patients. Conant was joined by 14 other doctors and patients in the class-action lawsuit (initially Conant vs McCaffrey, and later, Conant vs Walters), which resulted in an injunction against the Federal Government taking their planned course of action. The case eventually went to the Supreme Court in 2003, which held that the Federal government could not threaten or intimidate doctors for recommending that their patients use marijuana if they thought it was in their best interests. The Feds were trumped.
Even before the injunction in place though, the Feds didn’t dare go after doctors before the suit was heard, and that should have been the end of the harassment of California’s physicians. But the Feds had hedged their bets. The two states with medical marijuana laws at that time—California and Arizona—were urged to develop their own strategies to stop legal medical cannabis use, and in California, that strategy was developed by anti-Prop 215 zealot AG Dan Lungren’s office. On October 28, 1997, Lungren’s Senior Deputy Attorney General, John Gordnier—the same man who’d headed California’s delegation to the anti-Prop 215 strategy meeting—put out a notice to all law enforcement personnel and county District Attorneys in the state that included this request: “If your jurisdiction has received recommendations signed by either Dr. Eugene Schoenfeld or Dr. Tod Mikurya [sic], please notify John Gordnier at…”
“I don’t think they knew how they were going to use the information they were collecting at that time,” says Mikuriya of the Gordnier request. “I think they were just hoping to find something they could jump on, something illegal or patently out of line.”
Both Schoenfeld and Mikuriya were large targets. Both were active in the medical cannabis field, both were psychiatrists who wrote recommendations for a wide range of ailments, many of which were not as cut and dried as AIDS or cancer chemotherapy, both willingly testified at trials related to medical marijuana use and both were popular figures around San Francisco, the core of the medical marijuana movement.
Schoenfeld would be a feather in Lungren’s cap because he was a columnist and radio host—known as Dr. Hip to his readers and The Modern Rock Doc to his listeners—who discussed sex, drugs and rock ‘n roll. He’d also at one time been the director of the Haight-Ashbury Free Clinic—the hippie family clinic—at the vortex of the free love and smoke pot movement.
Mikuriya would be a feather in Lungren’s cap as Berkeley’s answer to Harvard’s Dr. Lester Grinspoon. He was one of the world’s foremost authorities on the uses of medical cannabis, having spent nearly 35-years researching the subject and had published several papers and edited or co-authored a number of books on the subject. Moreover, he was a medical marijuana activist. He is the Medical Coordinator for California Cannabis Centers, author of the Oakland Buyers’ Cooperative protocols, a member of the Advisory Board of the Journal of Cannabis Therapeutics and President of the California Cannabis Research Medical Group. And he was co-author and Medical Advisor to Prop 215. One can only imagine how Lungren salivated over the thought of nailing him.
But during the past several years, while Shoenfeld kept a lower profile to stay under the radar—though he still had his radio show and made appearances at HempFests and such—Mikuriya became more of a thorn in the anti-medical marijuana crusaders’ side. He not only kept his profile high, he made over 7,000 medical marijuana recommendations, more than 10% of the recommendations statewide.
But how could they get him? His professional credentials are impeccable, and nailing him, even with a stacked deck and the weight of the Federal Government behind it, was no easy task. A graduate of Temple University’s Medical School, he specialized in psychiatry at the Oregon State Hospital in Salem, OR, then set up the first methadone maintenance program in Alameda County. He is a member of the California Medical Association, a Life Member of the American Psychiatric Association, a member of the American and California Societies of Addiction Medicine and is on the staff of the Kindred Hospital at San Leandro.
And for all the information the probably poured into the office of AG Lungren—and his replacement, Bill Lockyer, who took over in Jan. 1999—as a result of Gordnier’s request, nothing about Mikuriya’s recommendations was out of line. “I write a lot of recommendations because I have a lot of patients,” says Mikuriya. “About 40% of them are recommended to me by their primary physicians, who either know nothing about the benefits of medical marijuana, or are too scared to write recommendations themselves. The rest were self-medicating before I ever saw them. Someone is recommended by a doctor. He tells a friend, who tells a friend. There are countless numbers of people who don’t have primary physicians. Then there are countless others who simply know that cannabis is beneficial to their condition, whether that be depression, anxiety, post traumatic stress and attendant inability to sleep because of recurring nightmares related to that stress or any number of other disorders.”
It was a lot of heat to take but he knew he was going to face it when he stood tall while the vast majority of California’s 38,000 physicians were too frightened to stand at all.
“I knew there would be heat,” he says. “I don’t mind. Someone’s got to take it. We have a law. Medical cannabis is legal here, for god’s sake!”
FROM BUCKS COUNTY TO BERKELEY
Mikuriya knows about taking heat and being a target. He was born in 1933 in rural Bucks County, PA, of a Japanese father and a German mother. He was seven years old when Pearl Harbor was attacked in 1941, an event which made all Japanese suspicious in the eyes of many Americans. While his father was not sent to an internment camp—as were so many Japanese in California—his family had the FBI visit and had a camera and a radio with a short wave band confiscated as a precaution against the possibility that they were Japanese or German spies. “But it was a good lesson. I learned early how to be marginalized and scape-goated,” he says. “My family—my parents, two sisters and myself—learned what racism and prejudice looked like. We couldn’t travel more than 50 miles from our home and in many places in town we were not welcome. The irony is that my father worked as a defense contractor,” he laughs.
He laughed at his own joke. He often does. His brain works at a fast pace—he’s a member of Mensa—and listeners are frequently just catching up when he’s on to the next subject. One minute he’ll be talking about his case, in another he’ll move on to note that George Bush is behaving more and more erratically in recent public appearances, and a few moments later he’s commenting on feeling old when he looks at the scar left by triple-bypass surgery in August, 2002.
“The worst thing about that town,” says the tall, angular Mikuriya, now 70, “was that intellect was regarded as a menace and curiousity was regarded as a flaw. The term ‘brain’ was used as an epithet. I had to learn college English for my educated parents and gutter english for my colleagues downtown.
“But I didn’t sequester myself or become a hermit. I played basketball, baseball and football with the others that I had to interact with—I’m a wonderfully mediocre athlete. I could have made the varsity squads but I had an anti-authoritarian attitude. I did not regret it. I didn’t choose to hang around with the jocks. They were generally clannish and not well rounded.
“It was the kind of town where you hung around the gas station, and I learned how to fit in. But as soon as I could I escaped from that town because I didn’t want a blue-collar life. All we talked about were how many women we laid and how much drinking was done on the weekend.” He pauses, then laughs. “All lies, of course.”
His escape was going to a Quaker prep school, which he describes as like going from night to day. “That was the land of the movers and shakers of the northeast corridor. George Segal was a classmate and there was a fellow whose father was an editor of Newsweek.”
He learned to fit into the new world of bon vivants as well and laughs when he recounts the story of a day when the car he and his new friends were travelling in broke down on the road. “All these well-bred intellectuals just sat there not knowing what to do, having a panic attack. They were helpless when faced with a blue-collar problem. I just got under the hood and fiddled around a little and fixed the problem. They could hardly believe it.”
His ability to fix cars goes well beyond fiddling. Until recently, he’s had a love affair with them, modifying Volkswagons to try to make them move and handle like Porches—a failed series of experiments—and otherwise tinkering under hoods and frames.
He’s had a love affair with cannabis for nearly as long as he’s loved cars. It began by accident while he was in medical school at Temple, when he read an unassigned chapter about it in a book in pharmacology class during his sophomore year. “It was March, 1959, and by that summer I’d read everything in the medical school library on cannabis. My curiousity wasn’t something I shared with classmates. I kept my interest quiet and made it my personal obsession. But after I’d read everything I thought I culminate my experience and try some out. So I went to Mexico that same year and bought joints from a street dealer. I had him pick one out of the group and light it up and take some hits before I did, just to see that it wasn’t poison. And once I assumed it was safe to give it a try I said goodbye and embarked on the laboratory portion of my experience.
“You know,” he says, switching gears, “once upon a time it used to be okay for scientists to do that, to try it out on themselves. I don’t know where the concept of ‘you can’t try it or you won’t be objective’ came from. I think it was scientific tradition before the prohibitionist scum took over.”
Once the bug had bitten him, he became a voracious reader of the old literature on cannabis and its medical uses, and from there expanded to learn about other verboten medicines. When the chance came a few years later to work with Humphrey Osmond, the man who coined the word psychedelic and who had initially turned-on Aldous Huxley, he jumped at it.
“I had a wonderful opportunity to work as the Director of the Drug Abuse Treatment Center at the New Jersey NeuroPsychiatric Institute where Osmond was the director of the New Jersey Bureau of Research and Neurology in Psychiatry.
“He was an international treasure, a charming man and one of the most well-read scientists I ever met,” Mikuriya says. “He was pursuing the idea that certain psychoactive drugs could mimic certain mental illnesses, like schizophrenia, with the hope that metabolites of those psychoactives would be diagnostic of mental illness. It was a little heady for me at the time.
“But he was also fun to be around. He’d have these wonderful garden parties with people like Tim Leary and the Diggers, interesting folk. Little did I know that the LSD they had had come out of the intelligence community! I didn’t find that out until 20 years after that.”
Mikuriya, despite being wet behind the ears in that company, nonetheless fit in just as he’d fit in with the bon vivants and the blue-collar crowd. And it was during his time at the NJ Institute that he married for the first of five times—“I’m an eternal optimist—and began travelling as well, to spots that included Morocco and Nepal.
His experiences in Morocco led to his first published paper on cannabis, ‘Kif in the Rif’, two ethnographic studies of the Rif Mountain area, the center of Morocco’s traditional hashish using community. In Nepal, he met with the Director of Health and Chief of the Royal Nepal Drug Laboratory. “I tried to get them to extract six liters of hash oil for me and to arrange its importation to the US for research purposes. Somehow the DEA lost the final paperwork on it and so that went nowhere, unfortunately.”
In late 1967 Mikuriya was recruited by the Federal Government’s National Institutes of Health to run medical marijuana research. The job didn’t last long. “The government wasn’t looking for research,” he says bitterly. “They wanted bad things found out about marijuana and I didn’t find them.” He pauses. “One of my most interesting assignments with the NIH was being sent to spy on communes around San Francisco and report back to the department on what kinds of pot abuse I discovered. You might look on me as a defector!”
He liked it so much in San Francisco that he stayed, taking a position as attending psychiatrist at the Gladman Hospital—a position he held for 21 years—and opening his private practice in Berkeley. He continued—and continues—to write and publish papers and books on medical marijuana and drug abuse, and while they didn’t make him many friends in the prohibitionist community, his outspoken in cannabis as a medicine that should be available, as well as his signing-on to the Dennis Peron-driven Prop 215 as its co-author and Medical Advisor, made him a vital target to those same prohibitionists.
BRINGING DOWN THE DOCTOR
When several years of collecting information on recommendations made by Dr. Mikuriya turned up nothing illegal about any of them, the power behind the California Attorney General’s office, Senior Asst. AG John Gordnier, decided to try a new tact. He decided—possibly with the help of the Federal Government—to have police officers and DA’s from rural counties in California complain to the state’s medical board about him.
The medical board, the agency that issues doctor’s licenses and also has the power to revoke or suspend them, is made up of an executive committee of doctors appointed by the governor who set policy, and an investigative branch made up entirely of career law-enforcement officers. If a complaint warrants an administrative hearing, the board is represented by the Attorney General’s office. The normal course of events is to have disgruntled patients or their loved ones, or other physicians make the complaints. In Mikuriya’s case, none did.
In Mikuriya’s case, complaints were made against him by rural police, narcotics officers and county district attorneys in 2002, resulting in a request by the medical board for the records of 44 patients. Mikuriya refused and the records were subpoena’d. Official complaints were made in the names of 17 of the patients represented by those records, and a medical board decision was made to hold September 2003 hearings to establish their merit. It wasn’t an unprecedented decision: several California doctors had been investigated by the board on the exclusive complaints of law enforcement officials—and one school administrator—but none had resulted in hearings.
Prior to the hearings, Mikuriya’s lawyers filed for dismissed on the grounds that he was being prosecuted for recommending medical marijuana, but that Prop 215 specifically disallowed the state that right in a section of the law that reads: “no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.”
To back up the claim that the prosecution of Mikuriya was based on his recommending medical marijuana, his lawyers presented the summary of an investigative report on the 17 patients made by Sgt. Steve Mason of the Nevada County Sheriff’s Department Narcotics Task Force Office. In the summary he noted: “The recommendations were issued not for a medical purpose but as an excuse for their otherwise criminal possession, transportation and/or sale of a Schedule 1 drug.”
Mikuriya’s team also produced a letter from senior investigator Thomas Campbell, dated June 28, 2002, stating, “The Medical Board of California has concluded its investigation into the matter of your treatment and subsequent recommendations and approval of medical marijuana for numerous patients.”
The prosecutors assigned to the case by Gordnier, Larry Mercer and Jane Zach Simon—like Gordnier, holdovers from the Lungren days and the prosecutors in the famous Dennis Peron Buyer’s Club case in 1997, at which Mikuriya had testified on Peron’s behalf—argued that police commentary was irrelevant, that the hearings should focus entirely on medical practice standards.
At a pre-hearing settlement conference in July, 2003, Mikuriya was offered a deal that would have given him four-years probation and and he would have only had to reimburse the board $10,000. He was told that if he didn’t take the settlement the charges against him would be enhanced as the District Attorney had sent an undercover narcotics officer and former—and possibly current—DEA operative to the Oakland medical marijuana clinic Marijuana Referral Services where he lied to Mikuriya about a shoulder injury, stress, and a sleep disorder to secure a cannabis recommendation. The authorization for that undercover operation had come from the AG’s office, not the medical board.
“I recommended that he get physical therapy, more sleep and that he should try using a vaporizer rather than smoking the cannabis he said he was using,” says Mikuriya.
Mikuriya turned down the settlement offer. “One of the stipulations was that I couldn’t sue them. In a pig’s eye! If I’m going to have to live with a Joan of Arc model of social responsibility I am going to be the most sour thorn in their side they’ve ever met.”
The hearings began on September 3, 2003. Mikuriya was charged with negligence, incompetence and furnishing dangerous drugs without prior examination. with the state presenting a Kaiser HMO psychiatrist Laura Duskin, who has never recommended medical marijuana. Duskin testified that she’d reviewed the 17 patients’ records—though she declined to interview the patients themselves—and concluded that Mikuriya had failed to conduct adequate physical exams, specify treatment plants, order tests and keep good documentation. She also noted that he had failed each of his patients, not with regards to recommending cannabis, but by stating in his letters of approval that they were under his “supervision and care.”
But nine of the 17 patients whose records were being used by the prosecution testified on Mikuriya's behalf. Every one said the doctor carefully reviewed their medical histories and dispensed caring advice during his 15- to 20-minute exams. According to hearing witnesses, many were visibly sick and brought records from other doctors confirming their illnesses. All were self-medicating with cannabis when they came to see Mikuriya. One said Mikuriya was the only doctor he’d ever had who took the time to thoroughly discuss his illness.
Mikuriya refuted the charge that he failed to perform adequate physical exams on patients. While he admitted he frequently does not touch patients or take their vital signs, he said he carefully observes their physical demeanor, asks them to fill out a research questionnaire, and relies heavily on their self-reported symptoms. “My job,” he says, “is to simply ascertain whether, when presented with a set of symptoms, cannabis would or could help. Nothing more.”
Mikuriya’s own key witness, Dr. Philip Denney, reiterated Mikuriya’s job description, defining it as a “medical cannabis consultation practice in which patients are seeking the answer to one specific question: ‘Do I have a medical condition for which cannabis might be a useful treatment?’” Given that narrow definition, Denney said that he, like Duskin, had reviewed the 17 patient files and found that Mikuriya’s exams were more than adequate to make a decision.
In fact, Mikuriya and his staff have turned down at least 3,000 people seeking medical marijuana recommendations over the years because he either felt they were lying about their conditions or because he didn’t feel they had conditions which would be helped by cannabis.
The hearings concluded after six days, and Judge Lew made his ruling on January 30, 2004. In it he said Mikuriya was guilty of gross negligence for failing to properly examine his patients before recommending cannabis.
Mikuriya is bitter about the investigation, the hearing and the result. “They didn’t do an investigation of me, they carried out a vendetta. An investigation would have included interviewing the patients themselves, caretakes, family members and other doctors. None of that was done. I have this record of making recommendations and approvals for medical marijuana and there is a group of rotten apples in the criminal justice bureau who see me as Dennis Peron number two and they’re not going to be satisfied until they punish me.
“I don’t know how but I’m not going to let them get away with this. They’re just criminals under the color of authority. Time and time again my patients continue to be harmed by these moral reprobates.”
He’s down but he’s not out. He’s already filed a civil suit against the officers and prosecutors involved in the medical board case against him, and he’s planning to appeal Judge Lew’s decision. That would have already been done but it took until late May to get the transcripts of the September hearings. “Just playing games,” he says of the group he calls the Rosemary’s Baby Cabal of the criminal justice system.
Certainly one of the angles of the appeal will pursue is the fact that Judge Lew didn’t disclose that he is a board member of the Powerhouse Ministries of Folsom, Texas. The group's Web site has a section on substance abuse that says, "Nobody likes slavery. And no one wants to be a slave. Yet, every day in our community people 'awake' to find out that they have become enslaved to some substance. For some it’s marijuana…”
Mikuriya’s personal attorney, Susan Lea, has noted that the “hearing itself was ruled a meaningless exercise” because of his anti-marijuana bias.
In his corner, Mikuriya has the California Medical Association, which told GA that it will be filing an amicus brief on his behalf. Alice Mead, an attorney who sometimes works for the CMA but said she could not speak for the organization, has compared Mikuriya and the other handful of doctors who make the vast bulk of the medical marijuana recommendations in California to the early HIV doctors. “When the HIV epidemic had just broken out, many physicians were ignorant of HIV and fearful of HIV and they didn’t want to take HIV-infected patients….There were a few brave and informed physicians who did take a lot of those patients, a disproportionate number. We never said they treated too many HIV patients.”
“I can’t tell you how many lives are severely disrupted and ruined by these molestations.” Mikuriya says of the implications of hog-tying him and the thought of the Medical Board of California going after the other physicians who understand cannabis’ medical usefulness and are also willing to write letters recommending it. “This is a level of atrocity with the most vulnerable sector of society being preyed upon by people who have sworn to uphold the law and protect them. Boy, if that isn’t perversion!”
At stake isn’t just one Berkeley psychiatrist’s ability to practice medicine without probationary shackles. Many of his patients work in positions where if word of their medical marijuana use got out—through the disclosure of his patient records to the Medical Board and the patients’ primary doctors—they would lose their jobs.
Too, if Dr. Mikuriya goes down, the other handful of doctors also putting their professional necks on the line for medical marijuana will be the next targets of the California Medical Board. And if they go down, so does medical marijuana in California.
Post Script: Dr. Tod Mikuriya passed away in 2007, leaving the question of his prosecution unanswered.