Kubby pot case ends in mistrial
A mistrial was declared Thursday in the trial of Steve and Michele Kubby, with a jury that leaned 11-1 toward acquittal on possession-of-marijuana-for-sales charges deciding to give up efforts to convince a lone, female juror to come over to their side.
Jurors were sequestered for 21 hours over five days after hearing testimony that spanned four months. In the end, the jury could only decide to convict Steve Kubby on comparably minor felony drug possession charges involving a magic mushroom stem and peyote buttons.
Steve Kubby faces a maximum exposure of three years, eight months in prison for the drug possession charges and a minimum of probation, Placer County District Attorney Brad Fenocchio said. Prosecutors will now have to consider both a sentencing recommendation and whether to retry the other charges, he said.
“We respect the jury’s decision – and indecision as well,” Fenocchio said.
The crux of the trial was the issue of possession of marijuana for sale stemming from a January 1999 raid on the Kubbys’ Olympic Valley home. Jurors were unanimous in their belief, when polled by the court, that they would be unable to come back with a verdict after further deliberations.
A total of 265 pot plants were confiscated from the Kubbys’ indoor grow – marijuana the Placer County District Attorney’s Office contended had a potential yield far above the couple’s medicinal needs.
Eleven jurors were willing to acquit the Kubbys on the most serious charges – counts of possession for sale, cultivating and conspiracy that could have resulted in up to 10 years in prison. Juror Floyd Marston said the hold-out member of the panel was set from the start of deliberations last Friday against acquittal. Several attempts were made to sway her, he said.
“We just decided that no is no,” Marston said. “She had very definite thoughts and there was no possible way she could be convinced.”
Steve Kubby, a medical marijuana advocate and Libertarian Party gubernatorial candidate in 1998, showed a smile after what defense attorneys described as a victory in the face of his possible conviction on the most serious charges.
Both Steve Kubby and his attorney, Tony Serra, said the jury’s 11-1 shift toward acquittal gave credence to City of Oakland guidelines for growing marijuana established shortly after passage of Proposition 215 in 1996. The Oakland guidelines allow 144 plants per person for medicinal use.
“The important thing is the jury upheld the Oakland guidelines,” Kubby said. “Everything else is really superfluous.”
Serra said the fact 11 jurors’ backed the use of the Oakland guidelines as de facto standards shows counties with more restrictive policies should seriously consider the standards.
The lone hold-out against acquittal “seems an unreasonable voice,” Serra said.
Steve Kubby will return to Placer County court Feb. 2 for sentencing on the peyote and magic mushroom charges.
“While we feel badly that Steve Kubby was convicted on the other counts, we were here for a marijuana contest and we won that,” Serra said.
He added that it is unlikely the case will be retried.
Chris Cattran, prosecutor during the marathon trial in North Auburn, had attempted to convince jurors that the Kubbys sold their excess crop to Bay Area cannabis buyers clubs. The clubs were set up after the passage of Prop. 215 but have since been shut down. But the prosecution could produce no witness to testify that they had seen a transaction take place, been involved in a transaction with the Kubbys, or heard the Kubbys talk about their alleged role as growers.
“The jury has spoken – we’ll take it from there,” Cattran said. As to a possible retrial, Cattran said the District Attorney’s Office would decide after evaluating the trial and its outcome.
David Nick, Michele Kubby’s attorney, said that it wasn’t disappointing to have the major charges left without a verdict.
“I believe this is a great victory for medical marijuana patients,” he said. “Eleven of the jurors concluded that the amount the Kubbys possessed was reasonable.”
Prosecutors “utterly failed to prove their case,” Nick said. Law enforcement and government officials should consider the Kubby trial outcome a signal to find common ground with the medical marijuana community, he said.
The Kubby trial began in September in the DeWitt Center courtroom of Judge John Cosgrove. The proceedings rippled with drama as Serra and Nick’s combative natures tested the patience of Cattran and Cosgrove. After one remark against Cattran, Nick was sanctioned by Cosgrove and fined $200. Both Kubbys testified – setting up tense confrontations with prosecutors while on the stand and a continual stream of objections from a defense team energized by the closely watched trial. Proceedings drew a steady stream of medical marijuana patients. They sat in the public gallery offering silent – and sometimes vocal – support. More than once, the court bailiff had to remind audience members to keep their remarks to themselves.
Michele Kubby said her husband and two young children will leave Placer County and find a place to live where they won’t be harassed by authorities.
“What are we supposed to do?” she said. “This trial opens up a whole new box of questions.”
Michele Kubby was acquitted on the two drug possession charges her husband was found guilty of.
At the time of their arrest, both Kubbys had medical marijuana recommendations from doctors to grow and use cannabis. Michele Kubby’s was for irritable bowel syndrome. Steve Kubby’s was to arrest a rare form of adrenal cancer. Marijuana, he told jurors, kept him alive.
Jurors who spoke outside the courtroom said they believed Prop. 215 has its place.
“What needs to happen is it needs to get more specified,” said Meadow Vista’s Matt Nielsen. “If you want to make it work, you need to make guidelines regarding the different needs.”
Another juror, Robert Pineschi, described Prop. 215 as a good law.
“But it’s too vague,” Pineschi said. “Both sides should get together because the Oakland guidelines are the only ones out there. They need to have realistic guidelines rather than just going in there and tearing it up.”
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