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Pair claims win in pot case mistrial
By Wayne Wilson

Bee Staff Writer

(Published Dec. 22, 2000)


Medical marijuana advocates claimed victory Thursday when a Placer County jury deadlocked at 11-1 for acquittal on all five pot counts at the trial of Steve and Michele Kubby.

But the movement's standard-bearer didn't escape unscathed: Steve Kubby was convicted of possessing two illegal substances found during the January 1999 search of his home.

We won on the important stuff, a smiling Kubby said after a panel of eight women and four men deadlocked one vote shy of acquittal on all five marijuana counts.

Kubby, 53, and his wife, Michele, 34, thanked and even hugged some of the jurors as they left the building following three months of trial and four full days of deliberation.

It was a bittersweet moment for Michele Kubby, who was found not guilty on the same two felonies that snared her husband: Possession of a psychedelic mushroom stem and possession of mescaline (peyote buttons).

Theoretically, Kubby could be sentenced to up to three years in state prison on each of the two felonies returned by the jury.

But because the amount of incidental drugs found in the marijuana raid was so small, a grant of probation is possible.

The Kubbys were directed to return to court Feb. 2 ' Steve Kubby for sentencing, both to learn if they will face a second trial on the mistried marijuana counts.

Prosecutor Christopher M. Cattran said after the verdicts were read that his office hasn't decided if it will pursue the matter.

We're going to evaluate it and make a determination, Cattran said. Commenting on the verdicts, Cattran said, The jury has spoken. We'll take it from there.

J. Tony Serra, the legendary San Francisco attorney who represented Steve Kubby free of charge, said he does not believe Placer County will retry the case.

It would be an extraordinary waste of resources, Serra said. They could never win.

Serra said if it hadn't been for an unreasonable, dissident voice on the jury, we would have had a complete victory.

J. David Nick, Michele Kubby's lawyer, said the jury tried to wrap a Christmas present for the Kubbys, but somebody (was) standing in the way.

One juror said the holdout vote for guilt was steadfast from the start of deliberations last Friday.

She had a very definite thought on the (medical marijuana) program, the juror said.

She said, 'No, I will not change my mind.' And we all decided that no is no.

Steve Kubby said the jury's vote of 11-1 accomplished one thing: It set a reasonable standard for law enforcement to follow in deciding how many plants are too many in a medical marijuana grow.

Eleven jurors thought the Oakland guideline (144 plants in three stages of growth) makes sense, Kubby said.

It is based on real science, real medicine and, in fact, what the government gives its medical marijuana patients, Kubby stated.

If counties statewide were to adopt the Oakland standard, it would provide a bright line for police and a real guideline for patients to protect them as well, he said.

Although voters approved the cultivation and use of marijuana by seriously ill Californians with Proposition 215, the Compassionate Use Act, the 1996 law is vague and has been applied differently in counties throughout California.

Kubby has been at the forefront of the medical marijuana movement since the mid-1990s, when he helped secure the passage of Proposition 215.

He carried that banner into the 1998 political campaign as the Libertarian party's candidate for governor, openly acknowledging that he has used marijuana since the late '70s to control a most-often fatal form of adrenal cancer, pheochromocytoma.

According to his medical records and testimony at trial, Kubby turned to pot after four surgeries, radiation, chemotherapy and other medical interventions failed to relieve the symptoms that threatened to kill him.

Tumors sitting at the base of his heart produced blinding headaches, skyrocketing blood pressure, heavy beating of the heart, vomiting, trembling, and nightly episodes of profuse sweating, his attorney told the jury.

When he began growing his own medicine in his rented home in Olympic Valley, Kubby feared a police raid and placed notices that led with: Attention Law Enforcement ... in his garbage.

His fears were well-founded.

An anonymous letter originally sent to the El Dorado County Sheriff's Department was turned over to Placer County and an investigation was launched.

On Jan. 19, 1999, agents of the North Lake Tahoe Narcotics Task Force served a search warrant at their residence on Sandy Way.

Of the 265 marijuana plants found in the Kubby home, 107 were fully budded females standing 3 to 4 feet tall. More than 70 plants being started in a bathroom shower stall were seedlings 1 to 3 inches long. The rest were in various stages of growth.

Prosecution witnesses, each with law enforcement backgrounds, contended that the ready-to-harvest plants would keep both Kubbys in marijuana for more than three years.

But defense experts testified that the only scientific studies conducted by the government demonstrated that a much smaller yield would result.

Even if Thursday's jury decisions mark the end of the Kubby prosecution, It doesn't end with this case, Kubby said. It ends when Placer County stops arresting and jailing sick people and destroying their medicine.

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