May 02,00
Auburn Journal
By Jessica R. Towhey
****
After more than a year of bouncing around the Placer County courts system, the high-profile marijuana case of Steven and Michele Kubby will finally begin Thursday, presided over by Judge John Cosgrove, in a modest DeWitt Center courtroom.
Before re-assigning the case to Cosgrove Monday, Judge James Roeder denied a defense motion for continuance and rebuked the Kubbys for trying to further postpone a trial already fraught with delays.
"I thought the court was being very generous back on March 7," Roeder said, referring to the date he allowed the Kubbys to fire their original attorneys, which put off the trial for another six weeks.
"Memories fade as time goes by, and quite frankly, this file has a lot of whiskers on it," he continued. "I'm disappointed and find it unfortunate that apparently the Kubbys have not accurately represented to counsel the court's comments of March 7."
The Kubbys were arrested Jan. 19, 1999, when the Placer County Sheriff's Office raided their Tahoe home and confiscated 265 marijuana plants as well as computerized financial records and computer hardware. Last July, a visiting judge suspended the trial after Michele Kubby developed complications with her pregnancy.
She gave birth in January and the trial was slated to begin in late February. By the time Roeder allowed the Kubbys to fire their attorneys in March, the case was already more than a year old.
Roeder read a section from the March 7 transcript in which he stated no motions for a continuance would be granted and the Kubbys were to inform their new attorneys of the instruction.
Tony Serra, a well-known San Francisco attorney who replaced Dale Wood as counsel for Steven Kubby, was not in court Monday, having been ordered to represent an in-custody client facing attempted murder charges in San Jose. Carolyn Hagin, an associate with Serra's firm, presented the motion Monday stating more time was needed to wade through the more than 3,000 pages of discovery.
"The fact that a continuance is needed is no one's fault," she said. "But the other lawyers did not file substantive motions in the case. They may not have read the discovery. Basically, we've had to start over."
Deputy District Attorney Chris Cattran, however, opposed the motion.
"The last time we were here it was made abundantly clear we would continue the trial today," he said. "We are here on the eve of trial and it seems to be a little curious. We've been ready and we've been telling the court that since February."
Under direct questioning from Roeder, Hagin admitted the Kubbys had told the law firm the judge's instructions but may not have conveyed the intensity of the warning.
An additional complication presented Monday was a challenge to Roeder's ability to hear the case. According to rules of trial, the prosecution and defense are given one opportunity each to remove a judge from a case. Additionally, neither side has to give reasons why it wants to remove a judge.
In the case of codefendants, the defense is given a second challenge if it can be proven that separate defenses will be presented.
The defense challenged Judge Larry Gaddis in July and the prosecution used their one strike to remove Judge Joe O'Flaherty as soon as he was assigned to the case.
On Monday, Cattran opposed the defense's challenge since both Kubbys claim to have grown and used marijuana as a medical remedy.
"The defense in this case is the Compassionate Use Act in the case of both (defendants,)" he said.
Roeder disagreed, though, and assigned the case to Cosgrove. Because of the reassignment, the case will be heard at the DeWitt Center instead of in the Historic Placer County Courthouse.
Court will convene at 8:30 a.m. Thursday in Department 10, 11546 B Ave. in the DeWitt Center.