KUBBYS' LAWYER: POT GARDEN LEGAL

His load lightened by a judge's order dismissing three lesser counts,
attorney J. Tony Serra formally opened Steve and Michele Kubby's defense
Tuesday by telling a jury the couple's marijuana garden complied with the
law.

"This was a medical marijuana grow. It was never intended for sale," Serra
declared as he extolled his client's dedication to the cause of Proposition
215, the initiative legalizing pot for medicinal use in California.

Serra said Steve Kubby was the movement's charismatic "fund-raiser" and
spokesman.

"He could speak and they would donate. He raised thousands of dollars for
medical marijuana. ... Proposition 215 would never have occurred without
Steve Kubby," Serra said.

The Kubbys are on trial in Placer County Superior Court, charged with two
counts of conspiracy, cultivation and possession for sale, and four counts
of simple possession involving marijuana, hashish, a psychedelic mushroom
stem and a minute quantity of mescaline.

Three additional counts -- alleging possession of an ingestion device by
both Kubbys and unauthorized possession of a hypodermic needle by Steve
Kubby -- were dismissed Tuesday by Judge John L. Cosgrove, who said no
evidence had been offered by the prosecution to sustain those allegations.

About half the jurors and a few of the Kubbys' supporters in the gallery
showed up for trial Tuesday in Halloween garb or makeup, a celebration
approved beforehand by the judge. But the mood generated by Serra's opening
statement was serious.

And it set the stage for what promises to be an aggressive defense.

Serra said the Kubbys had a sincere, 100 percent belief they were operating
within the law when they grew the 265 plants that were seized by sheriff's
deputies on Jan. 19, 1999.

They consulted with doctors and their attorneys long before their arrests
and were assured their indoor grow was legal, Serra said.

Steve Kubby's initial efforts as a gardener were not successful, Serra told
the jury. Invasions by spider mites and mold wiped him out in the beginning.

But Kubby studied growing techniques, purchased the necessary equipment and
concentrated on the strains of marijuana that would assist him in his fight
against adrenal cancer, Serra said. "One witness will come before you and
testify that he saw Mr. Kubby burn 10 pounds of marijuana because it wasn't
the strain that helped his kind of cancer," Serra told the jury.

Is that the act of a marijuana merchant? Serra asked.

The Kubby trial will return to Cosgrove's court Nov. 14 and is expected to
be concluded by Thanksgiving.