Pubdate: Thu, 21 Dec 2000
Source: Sacramento Bee (CA)
Copyright: 2000 The Sacramento Bee
Contact:  P.O.Box 15779, Sacramento CA 95852
Author: Wayne Wilson, Bee Staff Writer
Note: Bookmark: (Kubby, Steve)


Deliberating jurors went home early from the medical marijuana trial
of Steve and Michele Kubby Wednesday after telling a substitute judge
they had reached verdicts on three of the lesser counts but are
deadlocked at 11-1 on all the others.

They didn't tell and were not asked which way they were leaning, but
Steve Kubby and almost every member of the defense team said they
believe the unanimous votes on three relatively minor issues, two
involving Michele, suggest the one person in the minority is holding
out for conviction.

"We made our case," Kubby, 53, stated in a parking lot interview. "I
don't think we could have done any better."

Prosecutors would not comment on the development pending the return to
court this morning of Superior Court Judge John L. Cosgrove, who has
presided over the 3-month-old trial.

Cosgrove was out of town Wednesday when the jury submitted a sealed
note to his temporary replacement, Judge Frances Kearney, who called
the jurors into the courtroom and cautiously questioned them about
their communication. After determining that they were split, she
ordered them to resume deliberations.

Cosgrove is expected to reconvene the group in the courtroom at 8:30
this morning and faces the prospect of losing one or more of the
jurors to previous commitments.

If the jury is still deadlocked, Cosgrove can declare a mistrial,
which could result in a costly retrial, or discharge some of the
jurors and order the others, and some alternates, to return after the
holidays to restart deliberations.

According to Steve Kubby's attorney J. Tony Serra, the note that
ultimately was unsealed by Judge Kearney said the vote was unanimous
on one count involving Steve Kubby and two counts involving Michele
Kubby, 34.

The one relating to both was an allegation that, at the time of a
police raid on their residence in Olympic Valley, the Kubbys had
possession of peyote buttons, a controlled substance found in an area
of the home used by guests.

The other unanimous vote came on a count alleging Michele Kubby
possessed psilocyn, a controlled substance found in a tiny piece of
psychedelic mushroom seized during the Jan. 19, 1999, search.

Testimony at trial indicated only Steve Kubby knew the mushroom piece
was in the house, and it was the defense position that its psilocyn
content was so minute, it could not be used for illegal purposes.

The 11-1 split was on allegations of conspiracy, cultivation and
possession for sale of marijuana.

Some 265 marijuana plants were found growing at the Kubby residence,
prompting prosecutors to call it a commercial operation. The Kubbys
insisted they were cultivating the crop for their own personal medical
needs. He is a cancer patient. She suffers from irritable-bowel syndrome.
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