Midway through his landmark medical marijuana case, Steve Kubby and his wife Michele took advantage of a trial an unusual recess in an unusual way, with unusual results.
The trial, which has attracted the attention of major television networks and newspapers, opened in September, with the Kubbys represented by a legal team headed by two of California’s fiercest “marijuana attorneys,” David Nick and Tony Serra.
Serra is a legendary Bay Area criminal defense lawyer whose commitment to justice was memorialized in an epic movie, starring James Woods, called “True Believer.”
Nick has represented Dennis Peron and other major pot defendants. He’s known for cocky courtroom behavior backed up by prodigious legal skills and a genuine dislike of police state drug war tactics.
Nick was even able to convince Superior Court Judge John Cosgrove to grant a three-week recess after the long-delayed trial had started. The cause for the recess: Nick got married, and Cosgrove wanted to go on vacation.
Before the recess, however, Nick and Serra took turns bludgeoning the star prosecution witnesses. They got Detective Michael Lyke to admit that he spied on the Kubbys in the middle of the night by standing on private land and watching them through their windows. Another detective admitted searching Kubby’s garbage cans and finding written invitations for law enforcement officers to come and inspect the couple’s legitimate medical marijuana gardens.
Lyke also admitted that he had been searching the Kubby’s home for four hours on the day of Kubby’s arrest in January 1999, when Placer County District Attorney Chris Cattran, the same DA who is now prosecuting the Kubbys, showed up during the search to confer with the detective. Lyke admitted that he had previously met with Cattran to discuss the Kubby case.
The Kubbys’ lawyers suggested that these conferences prove collusion between the prosecution and police before the Kubbys were even arrested. The Kubbys further allege that the collusion was based on a political hit ordered by Kubby’s opponents in the California gubernatorial elections. Kubby was the Libertarian Party candidate for governor in that year’s election, and was nearly picked to be the Party’s candidate for vice president during this year’s campaign.
Kubby allies speculate that the political hit is tied to the questionable “anonymous letter” that police claim caused them to begin their investigation in 1998. They note that Kubby’s opponent in the election was Attorney General Dan Lungren, a Republican anti-pot fanatic who led the fight against Prop. 215 and Dennis Peron.
Lyke claimed that even though the Kubby search was the first marijuana cultivation search warrant he had executed, his “expertise” led him to believe that the Kubby’s basement indoor marijuana garden containing more than 200 plants was a commercial operation rather than solely for the Kubby’s personal medical use.
But intense questioning from Serra cast doubt on Lyke’s credibility and conclusions. Lyke was forced to admit that he did not understand how to calculate yield per plant, and that his estimate of the crop’s value and the Kubby’s motivation for growing might have been totally wrong.
Cannabis Culture journalist Pete Brady has already become an issue in the trial. Lyke said he watched Kubby and Brady trim a marijuana plant during a New Year’s day surveillance. In his affidavit to obtain a search warrant, Lyke falsely claimed that a DEA file listed Brady as TWO Jamaican marijuana smugglers. Brady’s a white guy with short blonde hair and no dreadlocks!
“I’ve never been a Jamaican or a pot smuggler,” he said. “I had never been to Jamaica until I visited it last year to write an article for Cannabis Culture. Kubby and I engaged in no criminal activity at all. Could it be that police might actually be dishonest and fabricate false ‘facts’ to back up an affidavit for a search warrant? I think the answer to that question will be found in the Kubby trial.”
Lyke had Brady arrested two days after the Kubbys were raided, and later called Brady to try to force him to testify against the Kubbys. Instead of testifying against Kubby, Brady angrily informed Lyke that he had been taking pictures of Kubby’s plant for a Cannabis Culture article, not participating in the fictitious marijuana conspiracy that Lyke had wrongly concocted.
When Lyke asked Brady about health store hemp oil that Lyke had seized from Kubby’s refrigerator, Brady informed Lyke that hemp oil was a legal product, not the hash oil Lyke assumed that it was. Kubby’s attorneys forced Lyke to admit that he had seized the oil in error. Brady later did a Freedom of Information Act records request from DEA, and was told by the agency that they had no file on him at all.
Steve Kubby made sure that the fireworks in the courtroom were matched by events outside it. In August, for example, Kubby and six other medical marijuana patients, including Elvy Musikka and Jane Wierick, lit up joints within a few yards of the courthouse and the district attorney’s office. Officials took no action against the tokers.
When the recess was announced, Steve and Michele decided to literally go “back to nature.” Kubby has long taught that humans need nature as a form of spiritual and physical rejuvenation, but having a four-year-old daughter and a nine-month-old daughter would have discouraged less courageous parents.
“We headed out to a remote location near Yosemite and spent a week camped above 10,000 feet, among pristine alpine lakes, soaring granite peaks, and glaciers, completely alone with Nature,” Kubby said. “We had those kinds of timeless moments where all thought falls away and you are left completely in the moment and grateful for life, grateful for love and each other. These are the kinds of bedrock realizations that entheogens can provide, and that communing with nature can provide. We needed it.”
Kubby said that the family nature retreat helped him and Michele view their arrest and trial without fear and worry.
“We know we’re innocent. We didn’t seek this fight, but we will not run from it,” said Kubby, a cancer survivor whose doctors say medical marijuana has helped save his life. “We know the Constitution and Bill of Rights have been almost completely subverted by the drug war, and that all of us have an obligation to help restore the dream of freedom and individual responsibility that can make our country great again. I hope everyone will wake up, see what they are losing, and help us end this war once and for all.”
KUBBY TRIAL INFO: Trial resumes October 11th and is expected to go until mid-November. Trial days are Tuesday, Wednesday, and Thursday, from 9:30 A.M. to 4 P.M.
DIRECTION TO DEWITT CENTER COURT: Coming from Sacramento and the Bay Area, take Interstate 80 through Auburn and exit at the Bell Road exit. Turn left on Bell Road and go about 2 miles down Bell Road. At about the 2 mile point you will approach the intersections of Highway 49 and Bell Road. Continue going straight through that intersection for about 2 more blocks until you find First Avenue, then turn left onto First Avenue. Go down First Avenue to B Avenue and take a right. The Courts are located about in the middle of B Avenue on your left-hand side. Parking is available on the right hand side of that street, directly across from the Courts. Detailed map of DeWitt Center at: www.placer.ca.gov/maps/dewitt1.htm
LODGING INFO: Holiday Inn, Auburn, California Address: 120 Grass Valley Highway Auburn, California 95603 USA Phone No.: (530) 887-8787 Fax No.: (530) 887-9824 E-Mail: [email protected] Book a Room: www.holiday-inn.com or call the Hotel direct at (530) 887-8787 URL: www.rimcorp.com/OurHotels/Tours/AuburnHI/auburnhi.html
Kubby email news list: Kubby-Announce-on[email protected]
Other Cannabis Culture Kubby articles on-line:
Steve Kubby Update: California Libertarian’s med-pot trial continues. (16, march 2000)
Steve Kubby trial starts in March: California Libertarian battles for med-pot. (27, feb 2000)
Kubby faces new obstacles: (20 dec, 1999)
Kubbys Face New Obstacles: (26 oct, 1999)
Kubby’s trial continues: (25 oct, 1999)