Pubdate: Fri, Sept 8, 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

Related: http://www.kubby.com/


KUBBY DEFENSE PROBES SEARCH: DETECTIVE PRESSED ON MOTIVE, PROCESS

By Wayne Wilson
Bee Staff Writer
(Published Sept. 8, 2000)

A blistering cross-examination of the lead detective in the Steven Kubby
marijuana cultivation case consumed most of the trial day Thursday as
defense attorneys explored their theory that the prosecution of Kubby and
his wife is politically based.

Lawyers J. David Nick and J. Tony Serra pounded away at Placer County
Sheriff's Detective Michael Lyke, challenging his credentials as an
investigator and his testimony that it was his call to arrest the Kubbys
only after discovering 265 marijuana plants in their Squaw Valley home.

The Kubbys, who insist their garden was being used only to meet their
medical needs under the provisions of Proposition 215, are on trial in
Placer County Superior Court.

Each is charged with seven felonies and two misdemeanors, including
conspiracy, cultivation and possession for sale. Steven Kubby is accused of
illegally possessing a hypodermic needle.

The couple had a key role in the passage of Proposition 215, the 1996 state
initiative that allows the medical use of marijuana.

Their trial, after two days of testimony, will be in recess until Oct. 11
for several reasons: Nick is getting married Saturday and will be on a
honeymoon. Judge John L. Cosgrove will be on vacation.

In his testimony Thursday, Lyke acknowledged the Kubbys were arrested about
four hours after the search began and only after Deputy District Attorney
Christopher Cattran arrived at the house and conferred with him on the day
of the search.

But he insisted Cattran had nothing to do with the decision to take the
couple into custody.

Lyke said that even though this was his first marijuana cultivation raid, "I
knew the difference between what (amount) would be for personal use and what
was a commercial operation, and in my opinion, that grow was a commercial
operation." So the defense tested his knowledge of medical marijuana.

Was he aware that the federal government had recognized Kubby, 53, as a
cancer patient? Did he know cancer patients require more marijuana than
glaucoma patients? How many of the plants seized were flowered and how many
in the nursling state?

Lyke said he didn't know what Kubby's status was with the federal
government. Nor did he know how many plants were in each of the various
stages of growth.

Did he find in the Kubbys' home 3 1/2 pounds of smokeable marijuana, an
amount allocated by the government every six months to some recognized
medical marijuana patients? "I don't know what the yield of the plants would
have been," Lyke replied.

"If you don't know the yield, why did you arrest them?" Serra asked.
Prosecutor Cattran's objection was sustained.

"You wouldn't know medical marijuana if it was staring you in the face,
would you?" Serra demanded, prompting another sustained objection.

The defense got Lyke to acknowledge that the seizure of hemp oil from the
Kubbys' refrigerator and empty hemp oil bottles from the trash was probably
a mistake, explaining that he simply didn't know until afterward that hemp
oil is sold over the counter at health food stores.

------------------------------