Pubdate: Sun, 04 Mar 2001
Source: Auburn Journal (CA)
Copyright: 2001 Auburn Journal
Page: Front Page - Page 1
Contact:  1030 High St., Auburn, CA 95603
Author: Gus Thomson, Journal Staff Writer


Bringing some semblance of closure to one of the more contentious
cases in Placer County legal history, a Superior Court judge - at the
request of the District Attorney's Office - dismissed
marijuana-possession-for-sale charges Friday against pot activist and
former Libertarian Party gubernatorial candidate Steve Kubby.

But Kubby, 54, will serve a 120-day jail sentence - likely through
electronic monitoring in his home - on misdemeanor convictions for
possession of a magic mushroom stem and peyote buttons.

Kubby brushed back tears as his wife, Michele, embraced him in relief
after Judge John L. Cosgrove announced the District Attorney's Office
decision not to pursue a second trial on charges stemming from a
January 1999 raid at the couple's Olympic Valley home. The raid netted
265 marijuana plants from an indoor grow.

Outside the North Auburn courtroom, supporters - many of whom had sat
through the lengthy legal battle, greeted a smiling Steve Kubby. He
pumped an arm in the air as he emerged into a hallway filled with
print and television reporters.

"For once, I am speechless," Kubby said, after praising the efforts
Friday of defense attorney J. David Nick and expressing pleasure with
the District Attorney's Office decision to also file a motion to
dismiss similar pot-possession-for-sale charges against Rocklin
dentist Michael Baldwin and his wife, Georgia.

Prosecutor Chris Cattran said his office decided not to retry the case
based mainly on the vagueness of Proposition 215 and the initial 11-1
juror deadlock.

"The defense tries to make (pursuing charges against the Kubbys) out
as vindictiveness," Cattran said "But a crime occurred and we have an
obligation to charge crimes and follow through."

The Kubbys contended during a four-month trial that the pot found in
their home was for their own medicinal use under Prop. 215 - a law
passed in 1996 by California voters that allows people to grow and
possess marijuana if they have a doctor's recommendation.

Steve Kubby was a key player in getting the proposition on the ballot
and has been a high-profile supporter since its passage. Both Kubbys
had doctor recommendations - he for a rare form of adrenal cancer and
she for irritable bowel syndrome. A mistrial was declared in January
after 11 jurors favoring acquittal gave up on efforts to persuade a
lone juror holding out for a conviction to come over to their side.

While the most serious charges were expected by the defense to be
dropped after the January jury impasse, Friday's sentencing continued
the combative courtroom climate so prevalent during the trial, with
Cosgrove serving as arbitrator between two diametrically different
takes on what Prop. 215 stands for.

On Friday, Cattran attempted to block Nick's motion to drop the jury's
conviction on magic mushroom and peyote charges to a misdemeanor from
a felony.

Nick visibly bristled when Cattran argued the defense attorney's
arguments on apparent incongruities in the peyote possession charge
versus a more lenient peyote cultivation Penal Code section were
groundless and a mere exercise in "mental gymnastics."

Unlike several other occasions - including one where he was fined $200
for an outburst against Cattran within earshot of jurors - Nick stayed
silent and Cosgrove eventually ruled that reductions on both
convictions to misdemeanors were warranted.

The defense did lose out on two motions - one to delay sentencing
until July, when Proposition 36 comes into effect. Prop. 36 mandates
treatment instead of jail time for the first two convictions on drug
possession charges. The other was to rule out a search-and-seizure
provision that eventually would be attached by Cosgrove to Kubby's
three-year probationary term.

Outside the courtroom, Kubby said he was not satisfied with the
search-and-seizure condition. He added that he will be considering a
lawsuit against the county based on his belief that his civil rights
were violated.

Kubby has also mounted a recall drive against District Attorney Brad
Fenocchio. He said that effort is proceeding, although he plans to
protest a Placer County Elections Division ruling that the petition to
get the recall on the ballot needs 15,500 signatures of registered
voters. Kubby said the total should be closer to 9,000 signatures.

J. Tony Serra, Kubby's defense attorney during the trial, could not be
present because he was awaiting a verdict in an Oakland case. Besides
Nick, Kubby was represented Friday by Serra associate Carol Hagin.

Nick said he anticipated the 120-day term - 60 days on each count -
because the judge was expected to give the prosecution "some form of
retribution" in the face of the reduction in charges to

The Kubbys plan to move to British Columbia, Canada's Sechelt
Peninsula after the 120-day sentence is completed. Nick said Kubby
will apply for electronic monitoring and will be required to serve all
but three of the 120 days. Kubby was jailed for three days after his

"It's not safe for my husband here," Michele Kubby said. "Just walking
into the courtroom has made him guilty, no matter what the outcome has

The two have established a video production business, which already
includes a talk show on marijuana issues.

Kubby had an angry outburst after the sentencing when a supporter
broached an order to not smoke marijuana within the outer entrance
area and became embroiled in a confrontation with bailiffs. Kubby, who
had himself abided by the order during the trial period, walked across
the street where supporter Ryan Landers - an AIDS patient - had moved
and began to yell that the confrontation was an example of what
medicinal marijuana users have to contend with. 
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