Pubdate: Sun, 29 Oct 2000
Source: Auburn Journal (CA)
Copyright: 2000 Auburn Journal
Contact:  1030 High St., Auburn, CA 95603
Author: Pat McCartney,  , Journal City Editor
Bookmarks: MAP's shortcut to Kubby items:
and to Cannabis - Medicinal items:


Placer County's prosecution of medical marijuana advocate Steve Kubby and 
his wife Michele came to an abrupt conclusion this week.

If it were a softball game, I'd invoke the mercy rule and acquit the Kubbys 
before the defense even begins its case on Tuesday.

Over the course of the last seven weeks, the District Attorney's Office 
introduced three key lines of evidence against the Olympic Valley couple, 
who are charged with 19 felony counts that include cultivation of marijuana 
for sale and conspiracy to sell marijuana.

If the jury believes the prosecution's case, the Kubbys were engaged in a 
commercial marijuana-growing operation, selling more than $100,000 worth of 
pot to cannabis clubs in Oakland and San Francisco.

If the jury believes the defense, the prosecution of Steve Kubby is closer 
to a political show trial than a criminal case. Kubby, a leading advocate 
for the medical use of pot, was running for governor as a Libertarian when 
an anonymous letter triggered a six-month investigation by the North Tahoe 
Narcotics Task Force.

Only time will tell which version of the events that led up to a Jan. 19, 
1999, search of the Kubbys' home will be persuasive.

What is not in dispute is that investigators found 265 marijuana plants, 
including 107 mature plants, growing in the Kubby home when the task force 
executed a search warrant. Also seized was the Kubbys' computer equipment, 
which they used to publish an outdoor adventure magazine, that contained 
financial data which a forensic computer analyst extracted over the next 
six months.

But for each piece of evidence introduced by prosecutors, the Kubby defense 
team aggressively challenged the prosecution's interpretation. By the time 
Deputy District Attorney Chris Cattran rested the prosecution's case 
Thursday afternoon, the jury was presented with contradictory 
interpretations of the three principal prosecution arguments.

Perhaps the most compelling evidence for the prosecution was the number of 
plants found in the couple's home. The prosecution introduced as its expert 
witness Deputy Frank Koehler of the Nevada County Sheriff's Department, a 
genial man who had investigated 77 marijuana-growing cases over a 27-year 
career. Of the 77 cases, all but two were outdoor gardens.

In his testimony, Koehler estimated the future yield of the Kubbys' mature 
plants as 4 ounces each, a figure that would produce a total harvest of 25 
pounds of pot -- far more than two medical marijuana patients would 
reasonably be expected to possess. (Steve Kubby has a rare adrenal cancer, 
while Michele Kubby used marijuana for an intestinal disorder.)

But on cross-examination, Koehler's claim to expertise was seriously 

Referring to a book on marijuana cultivation Koehler cited as part of his 
formal training, defense attorney J. David Nick demonstrated that the 
infant plants Koehler had described as clones -- often used by commercial 
growers to reduce the time needed for a plant to mature -- were actually 
grown from seeds. Koehler had overlooked the pair of non-serrated "seed 
leaves" on each sprout's stem.

Then Nick asked Koehler about a 1992 Drug Enforcement Administration study 
that documented a way to estimate the future yield of marijuana plants by 
measuring the width of the plant's crown and its fresh weight minus the 
roots. Koehler said he was familiar with the study, but instead relied on 
his field experience to estimate the potential yield of the Kubbys' garden.

Well, the defense had employed an expert of its own to measure and weigh 
the seized plants a month after the raid (applying the DEA formula for 
estimating fresh weight). The result, according to Nick? The Kubbys' plants 
would yield a half-ounce each -- not the 4 ounces Koehler asserted.

The difference would mean the Kubbys' harvest would have been approximately 
3 pounds, not the 25 pounds the prosecution had suggested.

I asked Cattran about the DEA study last week and he dismissed it as 

"The DEA formula is a piece of (bleep)," Cattran snapped. "It's based on an 
outdoor grow, and not sinsemilla [seedless] plants."

Yet, by Koehler's own testimony, his expertise was almost exclusively from 
outdoor plants as well, including the four plants he himself had manicured 
and weighed. I then asked Nick about it.

"You will not find one narcotics officer in California who will admit to 
knowing that formula. It takes away from their control," Nick said. "The 
DEA study is the only peer-reviewed, scientific study of the future yield 
of marijuana plants. And Koehler admitted that outdoor plants yield more 
than indoor plants because the sun produces way more energy than any indoor 
light system."

Similarly, when the prosecution introduced an alleged "pay/owe" sheet 
seized from the Kubbys, the defense effectively explained it.

Cattran introduced a hand-written note that described different strains of 
marijuana, weights in grams and dollar amounts. The note indicated the 
Kubbys planned to sell 1,279 grams (about 3 pounds), Cattran asserted.

But, the prosecution did not tell the jury about a second note seized from 
the Kubbys, which was almost identical expect for the omission of one of 
the strains. The second list was titled, "Three-month supply," and 
according to the Kubbys, was intended to calculate what it would cost the 
couple to purchase their own marijuana if police forced them to stop their 

And finally on Thursday, the courtroom was abuzz as Cattran -- who had 
argued the prosecution case on his own since the trial's opening statements 
- -- was ready to introduce into evidence poster-board charts of how much 
money flowed into Kubby bank accounts from the Bay Area medical marijuana 
clubs. Three other deputy district attorneys sat in the audience, and 
District Attorney Brad Fenocchio peeked in the courtroom.

But Judge John L. Cosgrove, who had previously given each side the widest 
possible latitude to argue their case, sided with Nick and co-defense 
counsel J. Tony Serra and ordered the prosecution to remove words from the 
chart that the defense argued were "argumentative" and "prejudicial."

After the changes were made and Cattran returned with the sanitized version 
of the flowcharts, his cohorts were no longer around, leaving Cattran to 
soldier on by himself.

While Cattran argued that the money sent to Kubby suggested illegal 
marijuana sales, Serra asked a question about the categories of funds the 
prosecution had chosen.

"Where is the category, 'Kubby for Governor'?" Serra asked, and shortly 
thereafter Cattran brought the "people's" case to a close.

Sometime on Tuesday, the flamboyant Serra will deliver his opening remarks 
and the defense case will begin. But from where I sit, they've already won 
the case. 
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MAP posted-by: Richard Lake