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Pubdate: Thu, Sept 7, 2000
Source: Sacramento Bee (CA)
Copyright: 2000 The Sacramento Bee
Contact: opinion@sacbee.com
Address: P.O.Box 15779, Sacramento, CA 95852

Author: Wayne Wilson, Bee Staff Writer

By Wayne Wilson, Bee Staff Writer

Starkly contrasting views of the marijuana-growing activities of Steven and
Michele Kubby were offered Wednesday during opening statements at the
couple's drug conspiracy trial in Auburn.

Prosecutor Christopher M. Cattran portrayed the former Libertarian candidate
for governor and his wife as pushers and users hiding behind the 1996
initiative that permits the growing and ingestion of marijuana by seriously
ill Californians.

"Recreational drugs and drug dealing: That's what this case is about,"
Cattran said.

Not so, said J. David Nick, the attorney for Michele Kubby.

Nick accused Placer County's law enforcement community of cynicism and a
recalcitrant attitude toward Proposition 215 and said authorities have been
persecuting the Kubbys for political purposes.

He said Steven Kubby, 53, is "one extremely sick man" who, after four
surgeries, radiation and chemotherapy, turned to marijuana when all else
failed in his fight against a rare adrenal cancer that could kill him.

And he said Michele Kubby, 34, received the approval of her physician to use
pot in the treatment of severe gastrointestinal problems.

J. Tony Serra, who is representing Steven Kubby at trial, reserved his
opening statement until the conclusion of the prosecution's case.

Evidence-taking began with the testimony of Edward C. York, a former member
of the North Lake Tahoe Narcotics Task Force, who said he posed in 1998 as a
trash collector to seize and examine the garbage left by the Kubbys outside
their Olympic Valley home.

The "trash intercepts" produced some vegetable matter that turned out to be
marijuana and some packaging materials that could suggest an "indoor grow,"
prosecutor Cattran stated.

Also in the garbage was a note to law enforcement, signed by Steven Kubby,
detailing his medical condition, his dependence on marijuana and a
declaration that the amount of marijuana being cultivated in the house met
the criteria of Proposition 215.

Testimony today will examine the investigation as it was reinitiated by
Detective Michael Lyke, who replaced York when York left the task force in
August 1998.

In his opening statement, Cattran said the "trash intercepts" and some
nighttime observations through a window of Kubby trimming marijuana plants
led to a search warrant and the Kubbys' arrests.

Among the plants found by investigators were 107 fully budded female
marijuana plants 3 to 4 feet tall and a "large number" of plants 1 to 3
inches tall, the latter under fluorescent lights in a shower stall, Cattran

Defense attorney Nick said that since Steve Kubby alone "has to ingest
marijuana on a bihourly basis all day long, all evening long," the number of
plants was "totally reasonable and in compliance with the amounts needed to
treat himself."

Nick said the growing of marijuana is "an extremely complicated procedure
that depends on perfect temperature control, perfect humidity and perfect
light," and in the Kubbys' case, the gardening procedures weren't always

Kubby was "throwing away about 80 percent of everything he was growing,"
Nick said.

Prosecutor Cattran pointed to bank accounts that showed deposits of more
than $100,000 from sources he considered questionable as evidence that the
marijuana was being sold.

Nick countered by saying the funds were contributions from advocates funding
the Kubbys' lobbying efforts in the fight for the acceptance of medical
marijuana laws.

Not one sale was ever documented by police, Nick said.

In addition to getting recommendations from their physicians, the Kubbys
went to their attorneys, who informed them "the amount and what they were
doing was within the law," Nick stated.