On the Near Hanging of a Medical
LESTER GRINSPOON, M.D.
November 4, 1989, Kerry Wiley, a 35-year-old computer science lecturer on sabbatical, was
apprehended in Kuala Lumpur, Malaysia for the possession of marijuana. He was accused of
mailing himself a package containing marijuana from Thailand, and an informant tipped off
the police who searched his apartment and found more marijuana. He was charged with the
possession of over 500 grams of cannabis. Death by hanging is the prescribed penalty for
possession of more than 200 grams (7.05 ounces) under Provision 39b of the Dangerous Drugs
Act of 1983. One particularly chilling part of this law reads:
"In any proceedings under this Act the provisions of this Act shall be construed and interpreted so as to give effect to the purpose of this Act without regard for ambiguities, or infirmities of language, or other defects or deficiencies therein..."
More than a hundred people had been hanged in Malaysia under this law, including eight young Hong Kong residents the preceding summer. Bail is not allowed in such cases, and the prisoner may wait two to five years for trial. By the time Kerry came to trial he had spent over a year in the cruelly overcrowded Pudu prison, sleeping on a blanket on a cement floor in a small cell with several other prisoners, bathing in dirty water. Whereas the diet of the other prisoners was rice-based, his was restricted almost exclusively to potatoes apparently because he was an American. His nutritional state was poor and it was not surprising that his teeth were rotting. Nor was it surprising that he had become seriously depressed.
As a 12-year-old boy, while hiking alone on Christmas eve in the San Jacinto mountains, Kerry had slipped and fallen 60 feet down a ledge to sharp rocks below. He was not found until the next morning. Newspaper headlines described his survival as a "Christmas miracle" but he was left with serious disabilities, of which the worst was painful muscle spasms in his left shoulder and arm. Over the course of the next few years he was given a variety of analgesics, none of which he found satisfactory. At one point he became addicted to one of the opiate derivatives. Like many other people, including victims of quadriplegia, paraplegia and multiple sclerosis, Kerry, now a young adult, discovered that cannabis was far more useful for this kind of pain and had fewer side effects than any of the medicines doctors could prescribe. He began to use it regularly, and like anyone who needs a medicine for the relief of spasm and pain, he wanted to have assurance of an uninterrupted supply. There is no evidence that he ever abused cannabis or sold it.
I first heard about Kerrys plight when I received a call in February of 1990 from his mother, Dr. Helen Wiley, a retired psychologist from Sacramento, California. Helen is a remarkable woman who, among other things, spent eight months living alone in a hotel in Kuala Lumpur to assist in her sons defense. She called me because she had read "Medical Uses of Illicit Drugs," a chapter James B. Bakalar and I wrote for the book Dealing With Drugs, which she believed would be useful in the trial if I would redraft it as an affidavit. I replied that much more would be needed for her sons defense and put her in touch with Ramsey Clark, former Attorney General of the United States, who shortly thereafter went to Malaysia and talked with Kerrys Malaysian lawyer. Ramsey and I believed that a defense of medical necessity was the best and perhaps only hope for preventing a tragedy. Karpal Singh, the Malaysian lawyer, was understandably skeptical, since that defense had never been used in Malaysia.
By the time I arrived in Kuala Lumpur, Kerrys defense was in the hands of another Malaysian lawyer by the name of Mohammed Shafee Abdullah. On technical grounds, he had prevented the admission of evidence concerning the cannabis Kerry allegedly mailed to himself from Thailand, but the cannabis found in his apartment (265.7 grams) would be enough to condemn him to death.
I arrived in Kuala Lumpur on Monday, December 10th, 1990. I examined Kerry in Pudu prison for three hours that day, and again for two-and-a-half hours on Wednesday, December 12th. Before I examined him, I had an opportunity to see the x-rays of his left shoulder and arm; his humerus had not healed properly. In examining him, it was obvious that he had what must have been quite painful muscle spasms in and around the deltoid area of his left shoulder. He told me that the pain was not bad then because he had had a smoke just before he was brought to the room used for this type of examination. I was surprised -- --
"You use marijuana in here?"
"Pudu prison is the easiest place in Kuala Lumpur to buy marijuana. The guards sell marijuana to the prisoners."
Once I recovered from my disbelief, I realized that it made sense: the guards earn extra money by selling marijuana and at the same time they make their jobs easier; people who are high on cannabis are generally not trouble-makers and they are not violent. I wondered to what extent this was practiced in U.S. prisons. I also spent an hour with the prison psychologist who had been treating Kerry for his depression.
I spent many hours with Shafee preparing the medical necessity defense, with which Shafee had no experience. This bright and affable man arranged for me to give a lecture on the evening of Thursday, December 13th to a group of influential Malaysian physicians and lawyers. I spoke of the serious confusion embodied in the Malaysian concept of "dadah," a generic term which treats opiates and cannabis as though they were identical. Most of my remarks were about the history of cannabis as a medicine. I started by pointing out that Dr. W. B. OShaughnessys groundbreaking work, published in 1839, was based on his observations of the medicinal use of cannabis among Indians and Malays. Seldom have I lectured to an audience that expressed so much interest in cannabis. They seemed starved for up-to-date, reliable, realistic information about the drug.
I was called to the stand at 9 AM on Friday, December 14th. Judge Shaik Daud Ismaill, who sat without a jury, immediately expressed his irritation at my presence by asking Shafee, as he tried to introduce me, "Why have you brought this man halfway around the globe to testify when it has been established that the defendant possessed 265.7 grams of cannabis and the punishment is prescribed?"
Shafee then introduced the notion of medical necessity and, after the judge reluctantly agreed to let me testify, he pursued the direct examination. Like so many people in the previous nights audience, the judge became increasingly interested in the medical uses of cannabis in general and Kerry Wileys use of it in particular. The direct examination ended at 11:50 AM. The judge then asked the prosecutor whether the ten minutes remaining before the break for noon prayers would be enough for cross-examination. He replied: "Oh no, my Lord! It will take two or three hours for me to get the truth out of Dr. Grinspoon." I had heard from several sources that the prosecutor, Abdul Alim Abdullah, believed it would advance his career to convict and hang the first American under Provision 39b.
Everyone in the courtroom was surprised by the first question he put to me after the recess. He asked whether, in completing my disembarkation form for visitors to Malaysia, I had indicated that I was here for business or pleasure. I responded, "For business."
He interrupted me to say, "You mean the accused! And how many times did you examine the accused?"
Puzzled, I told him I knew nothing about this law. It was clear from their reactions that neither Shafee nor the judge knew about it either. Alim then said that he would charge and arrest me for the violation. The judge, after reading a page from a law book that Alim carried to the bench, satisfied himself that the law existed. He hesitated and then said, "You are within your right to arrest this man now, but if you do, you will not be able to cross-examine him and you said that you needed two to three hours of cross-examination." Alim, after a short conference with the head of the small contingent of men in uniform, decided to put the charge on hold and cross-examine me.
He had a long list of questions that he crossed out one by one. The more he asked, the more ground he lost. Eventually, exasperated, he said, "Dr. Grinspoon, all that you have reported here about the capacity of cannabis to relieve suffering of one type or another comes from papers and journals. What has been your experience in observing this for yourself?" In response I told the court how smoking cannabis had given my son, who had suffered from lymphocytic leukemia, extraordinarily effective relief from the pernicious nausea and vomiting caused by some cancer chemotherapies. As someone from the American Embassy later said, "You could hear a pin drop in that courtroom." As I spoke, the prosecutor began to shuffle and rustle papers intrusively. The judge, who was obviously deeply interested in my story, raised his voice and said, "Mr. Alim, are you listening to Dr. Grinspoon? Are you getting this? Do you want him to start from the beginning?" Alim stopped shuffling papers. When I finished he pursued a few more questions and abruptly stopped, although he had only asked about two-thirds of the questions on his list. He then conferred with some other government people, including the above-mentioned man in uniform. It seemed clear that they were deciding whether to arrest me. Finally he told the judge that he had concluded his cross-examination, and the court was dismissed.
We were fairly sure that, given his comments during the cross-examination, the judge would not sentence Kerry to death. We also believed that Alim had decided not to arrest me because the publicity might damage his case (or career) even further. However, as we were preparing to leave the courtroom, Allen Kong, legal counsel to the American Embassy, told Shafee and me that I was not out of danger yet, that Alim (the government) might arrest me at Subang Airport that night as I left Kuala Lumpur. He also said that it would be wise for me to destroy any papers I did not want to fall into Alims hands and he gave me a telephone number where he could be reached. That evening Shafee accompanied me to the airport, where he obtained an airport security badge and walked me through customs and immigration, down the jet way, never leaving my side until the door to the airplane was closed.
The judge issued his ruling on January 17th, 1991. He said that "on the balance of probabilities there was enough evidence adduced from the accused to show that the cannabis was for his own consumption"specifically, "to relieve pain from injuries he suffered in a fall off a mountain." He was sentenced to five years in jail, of which 26 months remained to be served, and, as a mandatory part of the sentence, ten strokes of the rattan. The cane used in Malaysia is particularly cruel and burdens the recipient with some motion limitation and pain for the rest of his life. The sentence was to be appealed.
On the advice of Ramsey Clark, I wrote to the Prime Minister, who was a physician. I pleaded with Dr. Mohamad Mahathir to spare the rattan. After reminding him that the rattan used in Malaysia cuts right to the periosteum of the bones in the spinal column and, as a consequence, burdens the victim with pain, particularly when he sits or lies on his back, which he has to bear the rest of his life. It was because he was already suffering from chronic pain that Kerry Wiley began to use marijuana in the first place. Did it make sense to impose another increment of chronic pain? Dr. Mohamad Mahathir never answered my letter but several months later, on February 24, 1993, as his appeal was pending, Kerry was quietly released from prison before the 26 months had expired and without the application of the rattan.
Kerry Wiley returned to the United States a broken man. His health was poor and he had lost his teeth. He became reclusive and he never returned to teaching.