Pubdate: Mon, 01 May 2000
Source: Auburn Journal (CA)
Copyright: 2000 Auburn Journal
Contact:  1030 High St., Auburn, CA 95603
Author: Jessica R. Towhey, Journal Staff Writer


California's highest-profile case testing Proposition 215's legalization of 
medical marijuana is scheduled to kick off again today in an Auburn courtroom.

But neither the prosecution nor defendants Steven and Michele Kubby of 
Olympic Valley expect Superior Court Judge James Roeder to be happy to see 
them. Two months ago, Roeder warned both sides to be ready to start the 
trial today.

However, attorneys for Steven Kubby, the 1998 Libertarian Party candidate 
for governor and a key player in the passage of the Compassionate Use Act 
of 1996, have filed several motions - including a challenge to Roeder's 
ability to hear the case - that threaten to delay the trial once again.

Additionally, Michele Kubby does not yet have a lawyer, even though Roeder 
allowed the Kubbys to fire their original attorneys on March 9. And Steven 
Kubby's attorney, the well-known San Francisco lawyer J. Tony Serra, will 
not be in court this morning due to a scheduling conflict.

An associate from his firm will take his place.

In February when the Kubbys first asked to substitute Serra for Tahoe City 
attorney Dale Wood, Serra said the case would have to be pushed back until 
at least April to allow him to clear his calendar. According to Steven 
Kubby, though, another judge has ordered Serra to represent the defendant 
in a murder trial that also starts today.

That delay followed an earlier continuance last year, when a visiting judge 
suspended the trial until Michele Kubby completed a pregnancy. She gave 
birth to a daughter in January.

When he continued the case two months ago, Roeder made it clear he did not 
welcome further delays.

"And you should both be advised that given the circumstances that have been 
presented to the court, there will be no continuances on that trial date," 
Roeder said after setting May 1 as the start date.

"It's frustrating," said Deputy District Attorney Chris Cattran, who has 
said since July that he and Supervising Deputy District Attorney Gene Gini 
are ready to prosecute the Kubbys.

"The judge gave them what they wanted in February, which was to fire their 
attorneys. We're ready to go to trial. We've been ready to go to trial," 
Cattran said.

The Kubbys, while say they are just as frustrated with the roadblocks, 
insist that starting the trial under the circumstances would deny them the 
right to a fair hearing.

"Regardless of what the judge told us, because another judge has forced my 
attorney into another trial, why should I be deprived of counsel?" Steven 
Kubby asked.

And, "If this had been a two-week regular drug trial, it would have been 
fine," Michele Kubby said. "But we need some pros in this one because it 
has become a political thing."

Michele Kubby, who filed the challenge against Roeder, will not be 
accompanied by her own counsel today. The Kubbys intended to hire Eric Berg 
to represent her, but were unable to raise a required $50,000 deposit. 
While Berg will consult on the case, the Kubbys said they want to bring in 
J. David Nick, who served as legal counsel for the San Francisco Cannabis 
Club but the arrangements have not been finalized.

If Roeder decides to begin the trial today, Michele Kubby said she would 
accept representation by a public defender. But it would take at least two 
months for any lawyer to prepare for the case, she said.

The Kubbys claim to have raised $45,000 in the last month alone for their 
legal defense fund. They also said they have expended a significant amount 
of money already and expect to pay out even more as the trial progresses.

Donations to the fund have come from in- and out-of-state medical marijuana 
supporters as well as from dues-paying members of the Libertarian Party. 
Steven Kubby was the unsuccessful Libertarian gubernatorial candidate in 1998.

Neither of the Kubbys, who published an on-line magazine prior to their 
Jan. 19, 1999 arrest, are working. The couple filed for bankruptcy after 
authorities seized their computer equipment and did not return it for more 
than six months.

Steven Kubby suffers from cancer of adrenal glands, which causes the amount 
of adrenaline in his body to rise frequently to life-threatening levels. He 
claims marijuana controls the adrenaline levels and said he needs to 
medicate - ingest marijuana - several times a day to control his blood 
pressure. His annual marijuana intake surpasses seven pounds per year.

Michele Kubby claims to suffer from irritable bowel syndrome, which she 
said is alleviated by marijuana.

While Steven Kubby has asked he be allowed to medicate during the trial - a 
motion Roeder has not yet ruled on - Michele Kubby said she will not use 
the drug since she is caring for the couple's 4-month-old daughter. The 
Kubbys also have a 4-year-old daughter.

On Jan. 19, 1999, the Placer County Sheriff's Office raided the Kubbys 
Olympic Village home and confiscated 265 marijuana plants in various stages 
of growth, the couple's computerized financial records and computer hardware.

The Placer County Sheriff's Office, which kept the Kubbys under 
surveillance off and on for six months, acted on an anonymous letter mailed 
from Southern California to the El Dorado County Sheriff's Office in July 
1998. Among other charges, the letter stated Kubby was using proceeds from 
sales of the drug to fund his gubernatorial campaign - a claim the Kubbys 
have denied.

The case against the Kubbys hinges on financial information the District 
Attorney's Office said supports the claim they were selling marijuana.

Cattran said in February 1999 the Kubbys possessed more marijuana than 
necessitated by a medical condition. To that end, Cattran filed a motion 
early on asking the judge to disallow a compassionate use defense since he 
said he has seen no medical records to support claims the drug treats 
Steven Kubby's cancer.

According to Cattran, the recommending physician, Dr. Charles Kellermyer of 
Tahoe, was not actively treating Kubby at the time of the recommendation.

Both sides will convene in front of Roeder at 9:30 a.m. this morning in 
Department 4 of the Historic Placer County Courthouse on Maple Street.
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