The Epic Story of Dr. Lester Grinspoon - Part 3

Preventing the first American death from cannabis

May 16, 2023

Or, in the history of the practice of law, what was the worst question, to ask the wrong person, at the wrong time?

With his unmatched intellectual stature on cannabis issues, my dad frequently testified on behalf of people who landed on the wrong side of the War on Drugs. My dad would help anyone -- especially if there was a principle or precedent at stake.

In 1989, an American named Kerry Wiley, a 35-year-old computer science lecturer from Sacramento, California, was arrested in Malaysia for cannabis possession. Wiley was sentenced to death. The Malaysian Government wasn’t sympathetic to the idea that Mr. Wiley was using cannabis as a medicine, to treat his crippling nerve pain. Wiley had been apprehended in Kuala Lumpur, Malaysia for the possession of marijuana after mailing himself a package containing marijuana from Thailand. An informant tipped off the police, who then searched his apartment.

Wiley 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 Drug Act of 1983. 200 grams is approximately the same amount that medical cannabis patients in Massachusetts are allowed to buy legally each month.

Wiley’s life was in serious jeopardy as more than a hundred people have been hanged under this law -- though never an American. Bail is not allowed in these cases, and the prisoner may be stuck waiting years for trial. By the time Wiley came to trial he had spent over a year in the cruelly overcrowded nineteenth-century Pudu prison, sleeping on a worn blanket on a damp cement floor, in a small cell with several other prisoners, bathing in dirty water. In response to these conditions, he became seriously depressed.

As a twelve-year-old boy, while hiking alone in the San Jacinto mountains one winter, Wiley had slipped and fallen 60 feet down a ledge onto sharp rocks below. Newspaper headlines described his survival as a "Christmas miracle", yet he was left with serious disabilities, of which the worst was painful muscle spasms in his left shoulder and arm. Like many other patients suffering from quadriplegia, paraplegia, and multiple sclerosis, Wiley discovered that cannabis was more useful for this type of pain (nerve pain and spasms) and had fewer side effects than any of the medicines his doctors could prescribe.

Once he found that cannabis alleviated his symptoms, Wiley began to use it regularly, and like anyone who relies on a medicine, he wanted to be sure of having access to a secure supply. There is no evidence that he ever misused cannabis or sold it.

My dad first heard about Wiley's plight when he received a call from his mother, Dr. Helen Wiley, a retired psychologist from Sacramento. Helen had spent eight months living alone in a hotel in Kuala Lumpur to assist in her son's defense. She called my dad because she had read about his work on cannabis and thought, if anyone could, he would be able to help with the medical defense.

My dad replied that much more would be needed for her son's defense and put her in touch with a friend and colleague of his, Ramsey Clark, the former U.S. Attorney General under President Kennedy. Ramsey and my dad believed that a defense of medical necessity was the best and perhaps only hope for preventing a tragedy. The Malaysian lawyer they were working with was profoundly skeptical as that defense had never been used in Malaysia.

By the time my dad testified, Wiley's 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 package of cannabis Kerry mailed to himself from Thailand, but the cannabis found in his apartment (265.7 grams) would be more than enough to condemn him to death.

After my dad arrived in Kuala Lumpur on December 10th, 1990, he examined Wiley in Pudu prison for three hours that day, and again for two-and-a-half hours on the next day. He also spent an hour with the prison psychologist who had been treating Kerry for his depression. He spent many hours with Attorney Shafee constructing the medical necessity defense, with which Shafee had absolutely no experience.

Shafee, who my dad described as a “bright and affable man” had arranged for his guest to give a lecture on the evening before the trial to a group of influential Malaysian physicians and lawyers. My dad spoke of a serious confusion embodied in the Malaysian concept of "dadah", a generic term that treats opiates and cannabis as though they were identical. (Ironically, this sounds quite a bit like the current stance of the American Psychiatric Association). My dad spoke widely about the history of cannabis as a medicine. He started by pointing out that Dr. W. B. O'Shaughnessy's ground-breaking work, published in 1839, was based on his observations of the medicinal use of cannabis among Indians and Malays.

My dad said of this event, “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.”

The next morning, when my dad was called to the stand, the judge, Judge Shaik Daud Ismail, who sat without a jury, immediately expressed his irritation at his presence by asking Shafee, "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 pursued the direct examination. Like so many people at the previous night's audience, the judge became increasingly interested in the medical uses of cannabis in general and Kerry Wiley's 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." My father had heard from several sources that the prosecutor, Abdul Alim Abdullah, believed it would advance his career to convict and hang Wiley as the first American under Provision 39b.

Everyone in the courtroom was surprised by the first question he put to my father after recess. He asked whether, in completing his disembarkation form for visitors to Malaysia, he had indicated that he was there for business or pleasure.

My dad responded, "For business."

"And what is your business here, Dr. Grinspoon?"

"My business is to examine the patient and appear as a witness at this trial."

He interrupted me to say, "You mean the accused? And how many times did you examine the accused?"

"Twice."

"How many hours did you spend examining the accused?"

"Five-and-a-half hours."

"Good. And now you will kindly produce for the court the written authorization from the Ministry of Health as required by law for a foreigner to medically examine a prisoner in Malaysia."

My dad was blindsided as he 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 my dad for the violation. The judge, after satisfying himself that the law existed, 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 you needed two to three hours of cross-examination." Prosecutor Alim then decide to put the charge on hold and to proceed with cross-examination.

He had a long list of questions however, 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 the history of the practice of law, this might have been the worst question, to ask the wrong person, at the wrong time.

My father explained to the court how smoking cannabis had given his son Danny, who suffered from a losing battle with acute lymphocytic leukemia, extraordinarily effective relief from the pernicious nausea and vomiting caused by the cancer chemotherapy regimen he was under. He pointed out that Danny wasn’t able to find this relief from traditional pharmaceuticals, which is why medical cannabis is increasingly being accepted as a legitimate treatment in the United States.

As someone from the American Embassy later said, "You could hear a pin drop in that courtroom." As my dad continued to speak, the prosecutor began to shuffle and rustle papers intrusively. The judge, who was obviously deeply interested in my dad’s 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 and abruptly stopped, although he had only asked a fraction of the questions on his list. He then conferred with some other government people, one of whom was in uniform. It seemed clear that they were deciding whether to arrest my dad. Finally, he told the judge that he had concluded his cross-examination, and the court was dismissed.

My dad’s team was fairly certain that, given his comments during the cross-examination, the judge would not sentence Wiley to death. They also believed that the Prosecutor Alim had decided not to arrest my dad because the publicity might further damage his case, and even his reputation.

However, as they were preparing to leave the courtroom, Allen Kong, legal council to the American Embassy, told Shafee and my dad that they were not out of danger yet, and that Alim might arrest him at Subang airport that night as he left Kuala Lumpur. He gave my dad a telephone number where he could be reached at the time of his departure. That evening Shafee accompanied my father to the airport, where he obtained an airport security badge and walked him through customs and immigration, never leaving his side until the door to the airplane was closed.

The judge issued his ruling, "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 pain and limitation in motion for the rest of their life.

Ramsey Clark and my dad explored the possibility of an appeal or a pardon. There was no appeal and no pardon, and Kerry Wiley did get whipped by the rattan. My dad was haunted by these ten rattan strokes that he couldn’t prevent. I remember him talking about this several times, years later, at least once with Ramsey Clark, when I got to tag along to a meeting between these two intellectual giants. In the end, though, Ramsey Clark and my dad had saved Mr. Wiley’s life and had further moved the chains on worldwide acceptance of medical cannabis.