Pubdate: Fri, 13 Oct 2000
Source: Auburn Journal (CA)
Copyright: 2000 Auburn Journal
Contact:  1030 High St., Auburn, CA 95603
Author: Jessica R. Towhey, Journal Staff Writer


Kubby case continues in North Auburn courtroom

Prosecutors in the Placer County District Attorney's Office may find
themselves on the witness stand during the prosecution of medical marijuana
proponents Steve and Michele Kubby.

Attorney J. David Nick, part of the legal team defending the couple on
charges that include cultivating marijuana for sale, said Thursday in the
North Auburn courtroom that he intends to call District Attorney Brad
Fenocchio and Deputy District Attorneys Christopher Cattran and Gene Gini to
testify about their role in the Kubby investigation.

However, Nick said he doesn't believe either Cattran or Gini did anything
wrong, other than follow Fenocchio's orders during an extensive
investigation of the Kubbys' marijuana growing operation in their rented
Olympic Valley home.

"The bull's-eye here is Brad Fenocchio," Nick said.

The District Attorney's Office declined to comment on the prospect of
prosecutors being called to the stand.

"We don't try our cases in the press, we try our cases in court," Gini said.

Superior Court Judge John L. Cosgrove denied a defense motion on technical
grounds Wednesday to recuse the Placer County District Attorney's Office
from trying the case, claiming the prosecutors were involved in the
investigation six months prior to the Kubbys' Jan. 19, 1999 arrest. Judicial
rules require the motion be filed 10 days prior to the hearing. Wednesday
was the ninth day after the motion was filed.

Nick said he would refile the motion, and indicated Cosgrove may issue a
judicial ruling shortening the time before the motion could be heard. If the
motion is granted, the case would be turned over to the California Attorney
General's Office.

During cross-examination Thursday of Mitch Pier, an investigator with the
Nevada Division of Investigation, several of Nick's questions focused on
when and why Cattran arrived at the Kubbys' home during the execution of the
search warrant.

Cosgrove sustained two prosecution objections to Nick asking if Pier had
been told to expect Cattran's arrival and if Cattran announced why he was at
the home. Cattran also objected to Nick saying he would put the prosecutor
on the stand to answer questions about his presence at the residence.

"I recall showing him the different (growing) rooms," Pier said of Cattran.
"It was my impression he had never seen anything like that before, so I was
giving him a tour."

According to diagrams of the Kubbys' home, the subsection of the house was
split into four growing areas: the large east grow room, the north and
northwest rooms with dirt instead of flooring, and a bathroom where the
shower had been converted into a two-level nursery.

Pier, who took part in collecting evidence from the growing areas, testified
he discussed the on-going case with Cattran, as he was the only
representative from the District Attorney's Office at Lake Tahoe. It was the
North Lake Tahoe Narcotic Task Force, to which Pier was assigned, that
served the search warrant on the Kubbys.

Although Nick attempted to ascertain if Pier believed the evidence found at
the Kubbys' home excited Cattran, Cosgrove upheld Cattran's objections to
the line of questioning.

Significant players in the passage of California's Compassionate Use Act of
1996, the Kubbys face a combined 19 counts of possession for sale,
cultivation and conspiracy to sell marijuana.

The Kubbys argue they grew and used the drug for medicinal reasons. Michele
Kubby suffers from irritable bowel syndrome and Steven Kubby was diagnosed
20 years ago with a rare form of adrenal cancer. Steven Kubby claims
marijuana keeps the disease in check, and his attorneys have said he smokes
nearly 12 pounds of the drug annually.

The trial continues Tuesday in Department 10 of the DeWitt Center.
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