cannabisnews.com: Kubby Prosecution Ends Not With a Bang but a Whimp Kubby Prosecution Ends Not With a Bang but a Whimp Posted by FoM on October 29, 2000 at 05:52:16 PT By Patrick McCartney, Journal City Editor Source: Auburn Journal Placer County's prosecution of medical marijuana advocate Steve Kubby and his wife Michele came to an abrupt conclusion this week. If it were a softball game, I'd invoke the mercy rule and acquit the Kubbys before the defense even begins its case on Tuesday.Over the course of the last seven weeks, the District Attorney's Office introduced three key lines of evidence against the Olympic Valley couple, who are charged with 19 felony counts that include cultivation of marijuana for sale and conspiracy to sell marijuana. If the jury believes the prosecution's case, the Kubbys were engaged in a commercial marijuana-growing operation, selling more than $100,000 worth of pot to cannabis clubs in Oakland and San Francisco.If the jury believes the defense, the prosecution of Steve Kubby is closer to a political show trial than a criminal case. Kubby, a leading advocate for the medical use of pot, was running for governor as a Libertarian when an anonymous letter triggered a six-month investigation by the North Tahoe Narcotics Task Force.Only time will tell which version of the events that led up to a Jan. 19, 1999, search of the Kubbys' home will be persuasive.What is not in dispute is that investigators found 265 marijuana plants, including 107 mature plants, growing in the Kubby home when the task force executed a search warrant. Also seized was the Kubbys' computer equipment, which they used to publish an outdoor adventure magazine, that contained financial data which a forensic computer analyst extracted over the next six months.But for each piece of evidence introduced by prosecutors, the Kubby defense team aggressively challenged the prosecution's interpretation. By the time Deputy District Attorney Chris Cattran rested the prosecution's case Thursday afternoon, the jury was presented with contradictory interpretations of the three principal prosecution arguments.Perhaps the most compelling evidence for the prosecution was the number of plants found in the couple's home. The prosecution introduced as its expert witness Deputy Frank Koehler of the Nevada County Sheriff's Department, a genial man who had investigated 77 marijuana-growing cases over a 27-year career. Of the 77 cases, all but two were outdoor gardens.In his testimony, Koehler estimated the future yield of the Kubbys' mature plants as 4 ounces each, a figure that would produce a total harvest of 25 pounds of pot – far more than two medical marijuana patients would reasonably be expected to possess. (Steve Kubby has a rare adrenal cancer, while Michele Kubby used marijuana for an intestinal disorder.)But on cross-examination, Koehler's claim to expertise was seriously undermined.Referring to a book on marijuana cultivation Koehler cited as part of his formal training, defense attorney J. David Nick demonstrated that the infant plants Koehler had described as clones – often used by commercial growers to reduce the time needed for a plant to mature – were actually grown from seeds. Koehler had overlooked the pair of non-serrated "seed leaves" on each sprout's stem.Then Nick asked Koehler about a 1992 Drug Enforcement Administration study that documented a way to estimate the future yield of marijuana plants by measuring the width of the plant's crown and its fresh weight minus the roots. Koehler said he was familiar with the study, but instead relied on his field experience to estimate the potential yield of the Kubbys' garden.Well, the defense had employed an expert of its own to measure and weigh the seized plants a month after the raid (applying the DEA formula for estimating fresh weight). The result, according to Nick? The Kubbys' plants would yield a half-ounce each – not the 4 ounces Koehler asserted.The difference would mean the Kubbys' harvest would have been approximately 3 pounds, not the 25 pounds the prosecution had suggested.I asked Cattran about the DEA study last week and he dismissed it as irrelevant."The DEA formula is a piece of (bleep)," Cattran snapped. "It's based on an outdoor grow, and not sinsemilla [seedless] plants."Yet, by Koehler's own testimony, his expertise was almost exclusively from outdoor plants as well, including the four plants he himself had manicured and weighed. I then asked Nick about it."You will not find one narcotics officer in California who will admit to knowing that formula. It takes away from their control," Nick said. "The DEA study is the only peer-reviewed, scientific study of the future yield of marijuana plants. And Koehler admitted that outdoor plants yield more than indoor plants because the sun produces way more energy than any indoor light system."Similarly, when the prosecution introduced an alleged "pay/owe" sheet seized from the Kubbys, the defense effectively explained it.Cattran introduced a hand-written note that described different strains of marijuana, weights in grams and dollar amounts. The note indicated the Kubbys planned to sell 1,279 grams (about 3 pounds), Cattran asserted.But, the prosecution did not tell the jury about a second note seized from the Kubbys, which was almost identical expect for the omission of one of the strains. The second list was titled, "Three-month supply," and according to the Kubbys, was intended to calculate what it would cost the couple to purchase their own marijuana if police forced them to stop their growing.And finally on Thursday, the courtroom was abuzz as Cattran – who had argued the prosecution case on his own since the trial's opening statements – was ready to introduce into evidence poster-board charts of how much money flowed into Kubby bank accounts from the Bay Area medical marijuana clubs. Three other deputy district attorneys sat in the audience, and District Attorney Brad Fenocchio peeked in the courtroom.But Judge John L. Cosgrove, who had previously given each side the widest possible latitude to argue their case, sided with Nick and co-defense counsel J. Tony Serra and ordered the prosecution to remove words from the chart that the defense argued were "argumentative" and "prejudicial."After the changes were made and Cattran returned with the sanitized version of the flowcharts, his cohorts were no longer around, leaving Cattran to soldier on by himself.While Cattran argued that the money sent to Kubby suggested illegal marijuana sales, Serra asked a question about the categories of funds the prosecution had chosen."Where is the category, ‘Kubby for Governor'?" Serra asked, and shortly thereafter Cattran brought the "people's" case to a close.Sometime on Tuesday, the flamboyant Serra will deliver his opening remarks and the defense case will begin. But from where I sit, they've already won the case.Pat McCartney is the Journal's city editor. He can be reached at 885-6585, ext. 143, or by e-mail at: elpatricio aol.comSource: Auburn Journal (CA)Published: October 29, 2000Phone: (530) 885-6585, ext. 143Copyright: 2000 The Auburn JournalAddress: 1030 High St., Auburn, CA 95603Contact: elpatricio aol.comWebsite: http://www.auburnjournal.com/Related Articles & Web Site:The Kubby Fileshttp://www.kubby.org/Pot Trial Focuses On Magic Mushrooms http://cannabisnews.com/news/thread7468.shtmlMedical Marijuana Trial Moves Forwardhttp://cannabisnews.com/news/thread7456.shtmlCannabisNews Articles - Steve Kubby:http://cannabisnews.com/thcgi/search.pl?K=kubbyCannabisNews Medical Marijuana Archives:http://cannabisnews.com/news/list/medical.shtml Home Comment Email Register Recent Comments Help Comment #2 posted by FoM on October 31, 2000 at 09:51:37 PT Important E-Mail News! ******************************************************** THE AMERICAN MEDICAL MARIJUANA ASSOCIATION 15 Monarch Bay Plaza, Box 375, Dana Point, Ca 92629 Web site: http://www.drugsense.org/amma/ E-mail: amma drugsense.org Join our List: http://www.drugsense.org/amma/********************************************************Tue, 31 Oct 2000From: "renee boje" rboje hotmail.comOrganization: http://www.reneeboje.com/Subject: Michele Kubby on the Healing Herb HourThis week on the Healing Herb Hour, Renee Boje will be talking with Michele Kubby. Michele and her husband,Steve Kubby, are currently fighting medical marijuana charges in California and their case has been called a medical marijuana test case.Michele and Steve are a magical couple, who are doing an incredible job fighting for the freedom of the cannabis plant and all Americans who benefit from using this sacred, healing herb.Michele will bring us up to date about their unique case and tell us what we can do to help them win.The Healing Herb Hour airs every week on Pot TV... "as high as you can get, on the net"...To view the show, visit: http://www.pottv.net [ Post Comment ] Comment #1 posted by kaptinemo on October 30, 2000 at 05:46:35 PT: A major *ss-whupping in store for the antis? Consider, friends: how much of the supposed 'expertise' claimed by LEOs and D.A.s with regards to cannabis is predicated upon literal 'scientific hearsay'?For the past 20 years, the antis have relied upon the results of supposedly scientific studies which have not survived peer review. Studies such as the one where monkeys were forced to wear masks which pumped *nothing but smoke* (no fresh air at all) into their lungs, asphyxiating them. Thus 'proving' that cannabis is toxic. Along with the other intellectually dishonest tripe such as the 'men growing women's breasts' study, the 'precancerous lesions in the lungs' study, the 'amotivational syndrome' study, ad nauseum, these pathetic excuses for (taxpayer funded!) research projects have all been used at one time or another as the basis for continuing cannabis prohibition. Yet when these laughable studies are released, those who take their scientific credentials seriously subject them to rigorous scrutiny, and what do you know? Very often, the conclusions that are supposed to justify cannabis' continued prohibition simply can't hold up; 9 times out of ten, the methodology is so flawed (like choking monkeys with smoke, or addicting them to cocaine before introducing cannabis) that the so-called scientists are laughed out of town. That is, laughed out of town...by their peers. But the antis latch onto their dreck with the desperation of a drowning person eager to find anything to maintain themselves afloat in a hostile environment of facts that can sink their positions. Any study that's sufficiently authoritative sounding, no matter how dubious later scrutiny proves it to be (and in the cocaine/cannabis self-administration tests, the flaws of the study become glaringly obvious as soon as it leaves the starting gate) is trumpeted by the antis as their vindication. It's the equivalent of the 'authorities' insisting that the piece of iron pyrite (fool's gold) they hold in their hands is the genuine article - until someone who knows geology comes along and points out it isn't. The antis have been able to get away with this largely because, IMHO, the arenas where these battles take place are far removed from the concerns of most people, in esoteric planes where few laymen dare tread. Simply because of this, the antis have been able to maintain the vast majority of people in the dark about the enormous amount of data that proves them *wrong*. They trot out their tame 'specialists' and hope that a name followed by several Letters will silence their largely lay critics.But now, with the Kubby trial, basic assumptions the antis have made and based their entire policies upon are being brought, kicking and screaming, into the light. The 'dogma' of LEOs and D.A.s about cannabis are being questioned. The challenging of credentials as to expertise regarding cannabis growing, usage, etc. is the first step to an eventual forced re-examination of all such guidelines. The very same kind of examination that the DEA's own law judge, the late Francis Young, did in 1988, and was silenced behind a wall of bureaucracy. But will the antis be able to do this in a public trial? Like ghouls, antis work best in the cover of dark, in shadows and behind the scenes. They've been able to get away literally with murder because the public's imagination has never been engaged, despite the shredding of the Constitution the DrugWar has perpetrated. But a public trial where the supposed 'experts' are proven to be more ignorant than their opponents?The author is right; the antis ought to quit while they are ahead. The antis were counting upon this being the usual 'last gesture of defiance' case, just another easy 'turkey shoot', where their quarry is set up to be slaughtered. But this may well be the case where their own professional standing winds up being made into sausage. [ Post Comment ] Post Comment Name: Optional Password: E-Mail: Subject: Comment: [Please refrain from using profanity in your message] Link URL: Link Title: