Pubdate: Sat, 03 Mar 2001
Source: Sacramento Bee (CA)
Copyright: 2001 The Sacramento Bee
Contact:  P.O.Box 15779, Sacramento CA 95852
Author: Wayne Wilson, Bee Staff Writer
Bookmark: (Kubby, Steve)


Applause erupted in a Placer County courtroom Friday when a judge
reduced to misdemeanors the felony drug convictions of medical
marijuana activist Steve Kubby and dismissed all the remaining pot
counts against him.

Kubby, 54, who now resides in Lake County but plans to move to British
Columbia as soon as he fulfills the conditions of probation, was fined
$2,700 and ordered to serve 120 days of alternative sentencing.

"The jail would not be an appropriate place for Mr. Kubby," said Judge
John L. Cosgrove, acknowledging Kubby's claim that he needs pot to
keep a rare form of cancer from taking his life.

Loudly expressing their appreciation for the judge's rulings were a
couple dozen proponents of the Compassionate Use Act of 1996, the law
that permits seriously ill Californians to cultivate and use marijuana
for medical purposes.

They had filled Cosgrove's courtroom in support of their
standard-bearer, Kubby, the Libertarian Party's candidate for governor
in 1998.

And it turned out to be a banner day for the movement

In addition to asking the judge to drop the marijuana case against
Kubby and his wife, Michele, District Attorney Bradford Fenocchio also
filed a motion to halt the pending retrial of Roseville dentist
Michael A. Baldwin and his wife, Georgia, on similar charges.

Both couples were arrested after raids on their homes turned up
gardens of marijuana plants in various stages of cultivation.

And both claimed medical exemptions, citing doctors' recommendations
that they use marijuana to treat physical ailments that had disrupted
their lives for years.

The Baldwins' trial ended in May of 1999 with the jury deadlocked,
leaning slightly toward acquittal.

And the four-month Kubby trial concluded in December with the jury
hung at 11-1, the majority voting that the Kubbys' 265-plant grow was
for medicinal use only. But that same panel returned guilty verdicts
against Steve Kubby for possessing minute quantities of psilocybin and
mescaline found during the Jan. 19, 1999, search of his home.

The psilocybin was contained in a single mushroom stem that Kubby said
he had obtained and studied years ago for a book he wrote on the
religious significance of psychedelic mushrooms.

And the mescaline was in the form of a "peyote button" that Kubby
claimed he had never seen and must have been left in the house by a

The probation officer's report noted that the amount of illegal
narcotics recovered was "extremely small" and that Kubby's explanation
for their presence was "believable."

And Judge Cosgrove said those factors, along with Kubby's "impeccably
clean" prior record, persuaded him to treat both offenses as

But Kubby didn't escape unscathed.

He will be subject to search and seizure for the three years he is on
formal probation and will have to serve 120 days in an
as-yet-to-be-determined alternative sentencing program.

In the motion to dismiss the remaining counts against Kubby, Deputy
District Attorney Christopher M. Cattran said the prosecutorial
decision was "not a comment on guilt or innocence, but rather an
indictment of the vagueness, whether intentional or unintentional," of
the new law relating to medical marijuana.

Cattran said the request to dismiss in no way reflected a lack of
confidence in the investigative efforts of the North Tahoe Narcotics
Task Force or the Placer County Sheriff's Department.

But "because of the vagueness (of the law), inconsistent court rulings
interpreting the section and the remaining conflict with Federal law,
a second trial on the remaining counts is not prudent," Cattran wrote.

On behalf of DA Fenocchio, Cattran asked the California legislature
"to establish specific guidelines with respect to the amount of
marijuana appropriate for medical use."

And he pledged that, "Until the legislature speaks," the Placer County
prosecutors' office "will work with law enforcement, citizens and
health care providers of this county and neighboring counties to
establish guidelines that provide guidance for law enforcement and a
basis for evaluation of each case."
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