Pubdate: Wed, 06 Sep 2000
Source: Orange County Register (CA)
Copyright: 2000 The Orange County Register
Contact:  P.O. Box 11626, Santa Ana, CA 92711
Fax: (714) 565-3657


The trial of Steve and Michele Kubby on marijuana possession and trafficking
charges, an important case to the future of California's medical marijuana
law based on Prop. 215, is scheduled to begin today with opening arguments.

Whether it actually begins may depend on whether San Francisco defense
attorney J. Tony Serra, Mr. Kubby's attorney of record, is able to get to
the courtroom in Auburn, in Placer County. One of Mr. Serra's assistants,
Carrie Hagin, told us Mr. Serra is involved in a murder trial in San Jose
and that the judge in that case insists that Mr. Serra be in San Jose. Judge
John Cosgrove in Auburn insists that Mr. Serra be there.

Mr. Kubby told us yesterday that his plan now, if Mr. Serra is unable to be
in Auburn, is to decline to communicate with his other attorneys and to
insist on his Sixth Amendment right to counsel of his own choice.

"The judge has known about Mr. Serra's situation, we have asked for a
continuance and he has denied it," Mr. Kubby told us. "I believe I am being
denied my right to counsel of my choice and I don't think I should have to
be placed on trial without Mr. Serra."

Mr. Kubby believes that Mr. Serra's absence during pretrial motions
contributed to the defense losing most of the motions it made. The defense
had sought to question the warrant that led to the Kubbys' arrest, in part
because it was based on surveillance through the couples' windows from
adjoining private property. The police said they had believed the
surveillance site was public property. The judge allowed the warrant to

Carrie Hagin, Mr. Serra's associate, has filed an emergency writ with the
state appeals court, appealing the decision not to grant a continuance. She
told us that she understands the judge's desire to get this case, which has
been delayed numerous times, moving. But she agrees that Mr. Kubby is
entitled to the attorney of his choice, "and I'm not his choice. Mr. Serra
is." The case could be delayed. Or Mr. Kubby and/or Ms. Hagin could be cited
for contempt.

The Kubby trial could have an impact statewide. Co-counsel J. David Nick
told us that "Prosecutors up and down the state have told me that their
prosecutorial program is on hold pending the outcome of the Kubby case. If
the Kubbys lose, police 'will eagerly adopt all the tactics used in the
Kubby case' peering through windows, searching through trash, and cynically
portraying cash desposits as drug money to entrap and convict medical
marijuana patients." A great deal is at stake. Stay tuned.
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