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Source: Sacramento Bee (CA)
Copyright: 2000 The Sacramento Bee
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Author: Ed Fletcher, staff writer
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DOCTORS' TESTIMONY BLOCKED: PROSECUTION LOSES RULING IN KUBBY MEDICAL MARIJUANA CASE


Prosecutors cross-examining medical marijuana user Steve Kubby attacked his and his wife's need for 265 marijuana plants, but at the end of the day it was the defense attorneys who were smiling.

After the jury had been excused Tuesday, Placer County Superior Court Judge John L.  Cosgrove ruled that the prosecution could not call two doctors as rebuttal witnesses.

The doctors had been expected to testify that other, and perhaps better, medical options existed for Kubby and his wife.

Kubby testified earlier that he began taking marijuana after three surgeries and chemotherapy failed to cure his adrenal cancer.

"I'm happy because the ruling showed a respect for the law.  We are not here to debate the law," said defense attorney J.  David Nick.

Nick estimated that the ruling shaved a week off the trial.

Kubby, 53, and his wife, Michele, are on trial in Auburn on charges of conspiracy, and cultivation and possession of marijuana plants for sale.  A January 1999 raid on their Squaw Valley home turned up 265 plants in various stages of growth.

Defense attorney J.  Tony Serra joined Nick in arguing against allowing the doctors' testimony, which they said would force the jury to decide a question already decided by the voters in Proposition 215.

What medical procedure is appropriate is not a question for the jury, Serra said.

Earlier Tuesday, prosecutor Christopher M.  Cattran questioned Kubby about the need for 265 plants to provide medical marijuana for just two people.

Cattran also asked Kubby if sheets of paper with identical information about the drug looked like labels.

"All of that was cut and pasted from seed magazines," Kubby said.  "I never used them as labels.  I defy you to find where that was ever used as a label."

Cattran suggested that the Kubbys had $108,000 in unexplained wealth.  He also questioned Kubby about a psychotropic mushroom found during the raid.

The proceedings were filled with frequent and passionate objections from the defense, one of which resulted in a $200 fine for Nick.

Nick called the prosecutors' attacks on Kubby's political affiliation with the medical marijuana movement and the Libertarian Party "dirty pool."

Judge Cosgrove will rule today whether the prosecution will be allowed to present an additional witness.  If not, the case could be in the hands of the jury by the end of the day.


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