KUBBY PROSECUTION ENDS NOT WITH A BANG BUT A WHIMPER

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.