Deliberating jurors went home early from the medical marijuana trial of Steve and Michele Kubby Wednesday after telling a substitute judge they had reached verdicts on three of the lesser counts but are deadlocked at 11-1 on all the others.

They didn't tell and were not asked which way they were leaning, but Steve Kubby and almost every member of the defense team said they believe the unanimous votes on three relatively minor issues, two involving Michele, suggest the one person in the minority is holding out for conviction.

"We made our case," Kubby, 53, stated in a parking lot interview. "I don't think we could have done any better."

Prosecutors would not comment on the development pending the return to court this morning of Superior Court Judge John L. Cosgrove, who has presided over the 3-month-old trial.

Cosgrove was out of town Wednesday when the jury submitted a sealed note to his temporary replacement, Judge Frances Kearney, who called the jurors into the courtroom and cautiously questioned them about their communication.
After determining that they were split, she ordered them to resume deliberations.

Cosgrove is expected to reconvene the group in the courtroom at 8:30 this morning and faces the prospect of losing one or more of the jurors to previous commitments.

If the jury is still deadlocked, Cosgrove can declare a mistrial, which could result in a costly retrial, or discharge some of the jurors and order the others, and some alternates, to return after the holidays to restart deliberations.

According to Steve Kubby's attorney J. Tony Serra, the note that ultimately was unsealed by Judge Kearney said the vote was unanimous on one count involving Steve Kubby and two counts involving Michele Kubby, 34.

The one relating to both was an allegation that, at the time of a police raid on their residence in Olympic Valley, the Kubbys had possession of peyote buttons, a controlled substance found in an area of the home used by guests.

The other unanimous vote came on a count alleging Michele Kubby possessed
psilocyn, a controlled substance found in a tiny piece of psychedelic mushroom seized during the Jan. 19, 1999, search.

Testimony at trial indicated only Steve Kubby knew the mushroom piece was in the house, and it was the defense position that its psilocyn content was so minute, it could not be used for illegal purposes.

The 11-1 split was on allegations of conspiracy, cultivation and possession for sale of marijuana.

Some 265 marijuana plants were found growing at the Kubby residence, prompting prosecutors to call it a commercial operation. The Kubbys insisted they were cultivating the crop for their own personal medical needs. He is a cancer patient. She suffers from irritable-bowel syndrome.

Pubdate: Thu, Dec. 21, 2000
Source: Sacramento Bee (CA)
Copyright: 2000 The Sacramento Bee
Address: P.O.Box 15779, Sacramento, CA 95852
Author: Wayne Wilson, Bee Staff Writer
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