Pubdate: Fri, 22 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: "It doesn't end with this case," Kubby said. "It ends when Placer 
County stops arresting and jailing sick people and destroying their medicine."
Bookmark: (Kubby, Steve)


Medical marijuana advocates claimed victory Thursday when a Placer
County jury deadlocked at 11-1 for acquittal on all five pot counts at
the trial of Steve and Michele Kubby.

But the movement's standard-bearer didn't escape unscathed: Steve
Kubby was convicted of possessing two illegal substances found during
the January 1999 search of his home.

"We won on the important stuff," a smiling Kubby said after a panel of
eight women and four men deadlocked one vote shy of acquittal on all
five marijuana counts.

Kubby, 53, and his wife, Michele, 34, thanked and even hugged some of
the jurors as they left the building following three months of trial
and four full days of deliberation.

It was a bittersweet moment for Michele Kubby, who was found not
guilty on the same two felonies that snared her husband: Possession of
a psychedelic mushroom stem and possession of mescaline (peyote buttons).

Theoretically, Kubby could be sentenced to up to three years in state
prison on each of the two felonies returned by the jury.

But because the amount of incidental drugs found in the marijuana raid
was so small, a grant of probation is possible.

The Kubbys were directed to return to court Feb. 2 -- Steve Kubby for
sentencing, both to learn if they will face a second trial on the
mistried marijuana counts.

Prosecutor Christopher M. Cattran said after the verdicts were read
that his office hasn't decided if it will pursue the matter.

"We're going to evaluate it and make a determination," Cattran said.
Commenting on the verdicts, Cattran said, "The jury has spoken. We'll
take it from there."

J. Tony Serra, the legendary San Francisco attorney who represented
Steve Kubby free of charge, said he does not believe Placer County
will retry the case.

"It would be an extraordinary waste of resources," Serra said. "They
could never win."

Serra said if it hadn't been for "an unreasonable, dissident voice" on
the jury, "we would have had a complete victory."

J. David Nick, Michele Kubby's lawyer, said the jury tried "to wrap a
Christmas present for the Kubbys, but somebody (was) standing in the

One juror said the holdout vote for guilt was steadfast from the start
of deliberations last Friday.

"She had a very definite thought on the (medical marijuana) program,"
the juror said.

"She said, 'No, I will not change my mind.' And we all decided that no
is no."

Steve Kubby said the jury's vote of 11-1 accomplished one thing: It
set a reasonable standard for law enforcement to follow in deciding
how many plants are too many in a medical marijuana grow.

"Eleven jurors thought the Oakland guideline (144 plants in three
stages of growth) makes sense," Kubby said.

It is "based on real science, real medicine and, in fact, what the
government gives its medical marijuana patients," Kubby stated.

If counties statewide were to adopt the Oakland standard, "it would
provide a bright line for police and a real guideline for patients to
protect them as well," he said.

Although voters approved the cultivation and use of marijuana by
seriously ill Californians with Proposition 215, the Compassionate Use
Act, the 1996 law is vague and has been applied differently in
counties throughout California.

Kubby has been at the forefront of the medical marijuana movement
since the mid-1990s, when he helped secure the passage of Proposition

He carried that banner into the 1998 political campaign as the
Libertarian party's candidate for governor, openly acknowledging that
he has used marijuana since the late '70s to control a most-often
fatal form of adrenal cancer, pheochromocytoma.

According to his medical records and testimony at trial, Kubby turned
to pot after four surgeries, radiation, chemotherapy and other medical
interventions failed to relieve the symptoms that threatened to kill

Tumors sitting at the base of his heart produced blinding headaches,
skyrocketing blood pressure, heavy beating of the heart, vomiting,
trembling, and nightly episodes of profuse sweating, his attorney told
the jury.

When he began growing his own "medicine" in his rented home in Olympic
Valley, Kubby feared a police raid and placed notices that led with:
"Attention Law Enforcement ... " in his garbage.

His fears were well-founded.

An anonymous letter originally sent to the El Dorado County Sheriff's
Department was turned over to Placer County and an investigation was

On Jan. 19, 1999, agents of the North Lake Tahoe Narcotics Task Force
served a search warrant at their residence on Sandy Way.

Of the 265 marijuana plants found in the Kubby home, 107 were fully
budded females standing 3 to 4 feet tall. More than 70 plants being
started in a bathroom shower stall were seedlings 1 to 3 inches long.
The rest were in various stages of growth.

Prosecution witnesses, each with law enforcement backgrounds,
contended that the ready-to-harvest plants would keep both Kubbys in
marijuana for more than three years.

But defense experts testified that the only scientific studies
conducted by the government demonstrated that a much smaller yield
would result.

Even if Thursday's jury decisions mark the end of the Kubby
prosecution, "It doesn't end with this case," Kubby said. "It ends
when Placer County stops arresting and jailing sick people and
destroying their medicine." 
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