Author: Wayne Wilson, Bee Staff Writer
Cited: http://www.kubby.com/

KUBBY DEFENSE LAWYERS MOVE TO DISQUALIFY DA

Harsh words filed this week in Placer County Superior Court by defense
attorneys accuse District Attorney Bradford Fenocchio of prosecuting
medical marijuana activists Steve and Michele Kubby for "improper political
and blatantly bias(ed) purposes."

The allegations are contained in a motion asking the court to disqualify
Fenocchio and other attorneys from prosecuting the Kubbys' criminal trial,
which is scheduled to resume Wednesday before Judge John L. Cosgrove.

Attorneys J. Tony Serra and J. David Nick claim that a "careful review of
the testimony received" during the first two days of the Kubby trial
revealed "an impermissible conflict of interest that cannot be cured
without recusal."

Deputy District Attorney Christopher M. Cattran, the lead prosecutor in the
case, dismissed the motion as "specious, baseless and meritless."

"It misstates the facts that have been presented at trial so far. We will
be prepared to litigate the matter on Wednesday," Cattran said.

The motion claimed that prosecutors used a "charging process (that) was
tainted by not only a desire to discriminate against medical marijuana
users, but by a design to eradicate from Placer County supporters of
medical marijuana that the Kubbys so openly represent."

The Kubbys were arrested in January 1999 after a police raid turned up a
garden of 265 marijuana plants at various stages of growth in the couple's
Squaw Valley home.

Steve Kubby, 53, a former Libertarian candidate for governor, and Michele
Kubby, 34, insist the pot was being cultivated as medicine to help Steve
fight cancer and Michele to ease symptoms of a bowel disorder.

The motion by their attorneys claims that prosecutors did not act
evenhandedly in their approach to the Kubbys, alleging that they:

- -- "Actively took part in the six-month costly and intrusive investigation.

- -- "Assured that the Kubbys would be charged even when sheriff's
investigators did not find evidence of illegal activity.

- -- "Drove out to the scene when the search warrant was executed to
guarantee that the Kubbys would be arrested.

- --"Oversaw collection of evidence at the Kubbys' residence.

- --And "questioned the Kubbys themselves." The defense alleges that since
the deputy district attorneys were so actively involved in the
investigation and arrest, they are witnesses to conduct that may prove the
Kubbys innocent and therefore should not be permitted to continue as
prosecutors.

Serra and Nick said the first detective assigned to the investigation was
"let go" when he "failed to find sufficient evidence to justify searching
or arresting the Kubbys." And in his place, authorities "brought on board
as case agent" a "young and inexperienced detective ... as a puppet for the
District Attorney's Office," the defense alleged.