Pubdate: Thu, 07 Dec 2000
Source: Auburn Journal (CA)
Copyright: 2000 Auburn Journal
Contact:  1030 High St., Auburn, CA 95603
Author: Gus Thomson, Journal Staff Writer


Prosecution Says It Plans To Call Five More Witnesses

The stress of a lengthy trial took its toll on Michele Kubby, with the
co-defendant breaking down in tears Wednesday before fleeing the courtroom.

Michele Kubby's display of emotion followed a day-long stint on the witness
stand by her husband, Steve. The two are charged with 16 drug-related
counts related to a January 1999 raid on their Olympic Valley home that
netted 265 marijuana plants.

After a series of delays - including one that allowed Michele Kubby time
off to give birth to the couple's second child - the trial began in
earnest in early October.

Both sides expressed interest in bringing the trial to a
conclusion this week but, in the absence of the jury, Deputy District
Attorney Chris Cattran told Placer County Judge John Cosgrove late in the
afternoon that he planned to call five more witnesses for the prosecution
to rebut defense evidence. The defense rested its case at the end of Steve
Kubby's testimony.

Cattran listed his witnesses, including: a Fair Political Practices
Commission investigator; former Kubby neighbor and brother of ex-Attorney
General Dan Lungren, Brian Lungren; and Mick Mollica, a Department of
Justice rebuttal expert.

Both Michele Kubby defense attorney David Nick and Steve Kubby defense
attorney Tony Serra expressed surprise on the mention of Mollica. Nick said
he had been told by the prosecution that Mollica would never testify. He
asked for a week's adjournment to prepare for his testimony.
"(Mollica) is a perjurer, a liar, a fraud," Nick said. "This is such a
sandbag, your honor."

Nick said he would have to "go to Washington State" to find a retired
federal Drug Enforcement Agency officer to refute Mollica's testimony.

Earlier, Steve Kubby had weathered an extended cross-examination by
Cattran. Because of the rare form of adrenal cancer he has been diagnosed
with, the court has allowed him to stop testifying at 4 p.m. Both Steve and
Michele Kubby had medical marijuana recommendations from doctors at the
time of the raid. They say the plants were for their own personal, medical
use under Proposition 215 - the medical marijuana initiative passed by
California voters in 1996.

As the defense attorneys issued their objections to Mollica's surprise
testimony, Michele Kubby buried her face in her husband's shoulder as the
two sat side-by-side. After several seconds, Michele Kubby silently walked
out of the North Auburn courtroom. Excused soon afterward, Steve Kubby also
left. The two didn't return for the final hour of testimony by Colleen
McGee, a state Fair Political Practices Commission enforcement division

McGee listed donations to the Kubby for Governor campaign filed with the
state and was to continue her testimony today. The prosecution is
attempting to show the Kubbys earned income from homegrown marijuana sales
to Bay Area medical marijuana clubs during the period leading up to their
arrests. But the Kubbys contend a series of deposits in their accounts were
gifts from supporters of their pro-medicinal marijuana advocacy. Steve
Kubby helped put Prop. 215 on the ballot and ran for governor in 1998 as
the Libertarian Party candidate.

Steve Kubby testified for a third straight day, with the prosecution
cross-examining him on a contention that he had never advocated illegal
drug use. Cattran zeroed in on a book Kubby had written in the early 1990s
that theorized magic mushrooms could be the Biblical "manna from heaven."
In the book, a footnote listed businesses that would supply mushroom
growing equipment and spores.

Kubby said that he felt that if they were advertising in national
magazines, there was no illegality.

"It would be irresponsible for me to do that (advocate illegal mushroom
use)," Kubby said.

"Lab notes" Kubby wrote at the time showed he had supplied magic mushrooms
to his college-age son from a first marriage and a friend. Kubby said he
supplied "manna" to the two because he was developing a theory. His son
would know what the mushroom would look like and his friend, a college
professor, would be able to tell him if he conducting a proper scientific
study, he said.

Judge Cosgrove disallowed questioning on Kubby's notes, which indicated he
supplied LSD to his 16-year-old son in 1991. Serra had argued with the jury
out of the courtroom that the LSD evidence would be "inflammatory" near the
end of proceedings and become "the tail that wags the dog." Cosgrove
described the evidence as "highly prejudicial" and the prosecution had
already proved its point with the mushroom evidence.
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