CALIFORNIA POT LAW AUTHOR CHARGED ALONG WITH SPOUSE

Police say they grew too many plants

OLYMPIC VILLAGE, Calif. - More than two years after California voters
passed Proposition 215 thinking they were legalizing medical use of
marijuana, there's the possibility a criminal case may set standards for
how much patients can use or grow.

The case centers on Steve Kubby, the 1998 Libertarian Party candidate for
California governor, who spent two years helping write and push for passage
of Proposition 215, which has since been copied by five other states.

Now Mr. Kubby faces possible sentences of more than 20 years in prison for
- - he says - following the terms of that law, adopted on a 56 percent yes vote.

Prosecutors will outline some of their case in a preliminary hearing
tomorrow in Tahoe City, east of Sacramento, against Mr. Kubby, 52, and his
32- year-old wife, Michelle, for growing marijuana in their High Sierra
home near Lake Tahoe. Agents of the joint federal-state-local North Tahoe
Task Force raided the house Jan. 19, confiscating 265 pot plants along with
books, computers, papers and the wallets of both Kubbys.

The agents had been watching the Kubby home since receiving an anonymous
tip in a letter mailed from 300 miles away in Southern California.

"This may be the perfect case to test Proposition 215," says Mr. Kubby, who
has smoked marijuana for 21 years and offers letters from two prestigious
physicians claiming the weed may be all that has saved him from a rare form
of adrenal cancer he has had since the late 1970s. He also contends he has
never sold or given any pot to anyone. Either act would be a felony.

"In some amazing fashion, this medication has not only controlled the
symptoms of the {disease}, but in my view, has arrested growth," wrote Dr.
Vincent DeQuattro, professor of medicine and chief of the hypertension
diagnostic laboratory at the University of Southern California Medical
School. He added that he knows of no other patient diagnosed with the same
disease at the same time who still survives.

"You may be amazed to learn that one of my other patients with {the same
type of cancer} has achieved similar spectacular benefits from cannabis
cookies. We definitely have to write up this experience for the medical
literature."

Dr. Tom O'Connel, a San Francisco thoracic surgeon, said in a letter to
District Attorney Bradford Fenocchio: "It is very probable that regular use
of cannabis has protected Mr. Kubby . . . for years."

So far, there have been no scientific studies against which to measure
those claims.

But prosecutors say they will persist with the charges against the Kubbys
because of the number of plants they were growing. "Our contention is that
he was simply growing more than necessary," said Deputy District Attorney
Christopher Cattran.

Defense attorney Dale Wood responded: "On that basis, the case is weak for
them. There is no precedent where anyone has ruled on how much marijuana is
acceptable. And medically, we can produce testimony showing the amount is
highly variable, depending on the individual and on what strain of plant
you're talking about."

Mr. Kubby maintains that everything he grew was for use by him and Mrs.
Kubby, who says she uses it to combat irritable bowel syndrome. Mr. Cattran
cites no evidence of sales or providing pot to anyone else other than a
single incident agents observed through a kitchen window.

"They saw a third person clipping buds from a plant through a window," Mr.
Cattran reports. "We do not know whether that individual, who we have
identified as Peter Brady, carried any marijuana when he left."

Mr. Brady, a reporter for the marijuana-oriented magazine "High Times,"
says he was clipping unsightly leaves from the plant during the episode to
make it more attractive for a photograph he snapped. He said he took no
marijuana with him.

Mr. Fenocchio believes the prosecution case is strong, based simply on the
number of plants. "Patients can't grow more than they need," he said.

The Kubbys, however, maintain they were growing only what they needed, even
though their plants took up four full rooms. "No sale has ever occurred
involving either of us," said Mr. Kubby, who published an Internet
newsletter until agents confiscated his equipment. "We were within the
guideline of 144 plants per person set by the Oakland City Council in the
only law of its kind last year. Yes, it would have produced more than our
immediate daily needs. But that was because we didn't want to have to grow
year-round. We planned to freeze some of it and set it aside so we could
travel and promote our business and not be full-time growers."