Pubdate: Sun, 24 Dec 2000
Source: Auburn Journal (CA)
Copyright: 2000 Auburn Journal
Contact:  1030 High St., Auburn, CA 95603
Author: Patrick McCartney, Journal City Editor


Eleven jurors gave Steve and Michele Kubby an early Christmas present this 
week, rejecting the prosecution's charge that the former Olympic Valley 
couple grew marijuana for sale.

While the jury convicted Steve Kubby, the 1998 Libertarian candidate for 
governor of California, of two unrelated drug charges, only time will tell 
whether or not Placer County law enforcement has had its fill of arresting 
sick people for growing marijuana under the 1996 Compassionate Use Act.

On Thursday, Superior Court Judge John L. Cosgrove declared a mistrial in 
the five principal counts against the Kubbys, after one juror held out for 
conviction following five days of deliberation.

The jury acquitted Michele Kubby of possession of a psilocyben mushroom 
stem and peyote buttons  - the same charges they found her husband guilty of.

(Unless Cosgrove reduces the two felony convictions to misdemeanors, Steve 
Kubby would be prohibited from ever again seeking public office.)

Now it will be up to Placer County District Attorney Brad Fenocchio whether 
to try the Kubbys again on the cultivation-for-sale and 
conspiracy-to-cultivate charges that were the heart of the prosecution 
case. Fenocchio took the afternoon off Friday and was unavailable for comment.

But most people in the legal community expect the district attorney to 
throw in the towel in light of the jury's 11-1 vote for acquittal.

Far less clear, but potentially more important, is whether Fenocchio will 
choose to retry Michael and Georgia Baldwin, the Rocklin dentist and his 
wife whose case closely paralleled the Kubbys.

Both were Libertarian Party officers who possessed medical recommendations 
for using pot under the auspices of Proposition 215. Authorities raided 
both homes and seized all plants under cultivation. And later, both the 
Kubbys and Baldwins filed bankruptcy.

Last year, a Placer County jury deadlocked 6-6 in the case against Michael 
Baldwin, and voted 7-5 to acquit Georgia Baldwin. Afterward, county 
prosecutors announced they would retry the couple, but the case has been 
delayed pending the outcome of the Kubbys' trial.

The Kubbys became subjects of a 6-month investigation by the now-defunct 
Lake Tahoe Drug Task Force in 1998 when an anonymous letter sent to 
authorities claimed Steve Kubby was selling marijuana to finance his 
gubernatorial campaign.

"A utility worker has stated to expect to find 1,500 to 2,000 plants," 
falsely claimed the anonymous letter, which was mailed from Marina del Rey 
during the governor's race.

When investigators searched the Kubbys' trash they found a notice to law 
enforcement that invited officers to knock on the door and inspect their 
garden. The notice stated that Steve Kubby was a terminal cancer patient 
growing his own medicine and warned police, "If you destroy the garden, I 
will hold you financially and morally responsible."

Instead of paying the Kubbys a visit, investigators conducted 10 acts of 
surveillance and raided the Kubbys' rental home on Jan. 19, 1999. The 
evidence prosecutors used to try the Kubbys largely came from financial and 
other records seized from the couple's home computer - plus 265 plants in 
varying stages of growth.

Once Cosgrove declared the case a mistrial, jurors explained their 
reasoning to journalists and attorneys. One juror said the difference in 
caliber of expert witnesses weighed in favor of the Kubbys. While 
prosecutors relied on narcotic officers, who said the Kubbys would harvest 
25 pounds of pot, the defense referred to peer-reviewed studies by the Drug 
Enforcement Administration and the actual weight of the seized marijuana. 
No law-enforcement or prosecution expert bothered to weight the plants 
taken from the Kubbys.

(Heck, even the Kubbys' friends and character witnesses who testified were 
physicians and scientists, in conspicuous contrast to the less-educated 
prosecution "experts.")

"Hopefully this will send a message that (the issue of medical marijuana) 
needs to be dealt with," said juror Jan Halbern. "My mind was opened up to 
the Compassionate Use Act."

Another juror, Robert Pineschi, said Gov. Gray Davis and the California 
Legislature need to set clear guidelines on how Prop. 215 is implemented.

"One statement by defense attorney J. David Nick stuck with me," Pineschi 
said. "They (prosecutors) did this all backward. They arrested first and 
then tried to figure out if there was a crime."

As far as the Kubbys are concerned, the 11-1 vote by a Placer County jury 
was a ringing endorsement of the Oakland guidelines, which allow a medical 
marijuana patient to grow up to 144 plants in different states of maturity.

Relaxing afterward at their borrowed Meadow Vista residence, Michele Kubby 
expressed relief that the case had come to an apparent end nearly two years 
after police knocked on their door.

"At first I thought that fighting the charges would be easy, since we were 
innocent," she said. "But it proved to be a lot bigger ordeal than I could 
have imagined. I feel like I've surfaced after diving through a series of 

As the Kubbys discussed their case, Mike Baldwin called and Steve Kubby 
filled him in on the jury's decision. Kubby told Baldwin he hoped the 
mistrial would discourage Fenocchio from retrying Baldwin.

"How much more money is the district attorney willing to waste on 
high-profile show trials that don't go anywhere?" Kubby asked Baldwin.

For now, the Kubbys will wait to see if Placer County's district attorney 
re-files charges, or seeks to work with the medical marijuana community 
rather than pursue similar cases.

"We want to give Mr. Fenocchio the benefit of the doubt before making any 
decisions of our own," Steve Kubby said at the end of the day.
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