POT ACTIVIST ASKING TO USE DRUG IN JAIL

Kubby's Attorney Says Client Needs Cannabis To Treat Cancer

Medical marijuana activist Steven Wynn Kubby has asked a Placer
County judge to let him use cannabis in a nonsmoking form while he
serves a 120-day jail sentence in Auburn for a drug conviction in 2000.

An attorney for the 59-year-old Kubby, who says he will die unless
he's allowed to use marijuana to treat a rare form of cancer, made
the request Tuesday.

The attorney, William McPike of Fresno County, also asked that Kubby
be allowed to serve his sentence under "home detention" at his new
residence in Marin County. An electronic device could be used to
monitor his movements, McPike suggested.

Placer Superior Court Judge Robert McElhany scheduled a hearing on
the motion for Friday.

UCDavis Health The District Attorney's Office said it has made no
recommendation on Kubby's request to use an edible form of marijuana.
The Placer County Sheriff's Department says it opposes the idea.

Kubby returned to California on Thursday after being deported from
Canada, where he had taken refuge in 2001. He began serving his term Friday.

In court Tuesday, a gaunt Kubby, wearing orange jail clothing, smiled
at old friends who had held a peaceful rally outside the jail before
the brief hearing.

Kubby was in court for arraignment on a charge that he violated
probation when he moved to Canada. He pleaded not guilty to the allegation.

Deputy District Attorney Christopher Cattran said that if a judge
determines that probation was violated, Kubby could face additional
time in a state prison because one of his drug convictions was a felony.

McPike also asked that Kubby be recognized as a "state legal medical
marijuana patient."

"We want him to be allowed to cultivate marijuana at his home to
treat his condition and for it not to be considered a violation of
any laws," McPike said outside the courtroom.

Kubby, the Libertarian Party gubernatorial candidate in 1998, was
arrested by Placer County authorities in 1999.

Sheriff's deputies raided his Lake Tahoe-area home and found 265
marijuana plants growing, peyote buttons and a hallucinogenic mushroom.

Kubby, who helped author Proposition 215, the initiative approved by
voters in 1996 for the legalization of medicinal marijuana, contended
that he needed the cannabis to keep adrenal cancer in remission.

In 2000, a Placer County jury voted 11-1 for acquittal on the
marijuana charges. However, the jury found him guilty of felony
counts of possession of mescaline for the peyote buttons and psilocyn
for the hallucinogenic mushroom.

The judge in the case later reduced the felonies to misdemeanors.

However, the District Attorney's Office appealed and the mescaline
conviction was restored to a felony.

During the noon rally Tuesday, Kubby's supporters held signs urging
Placer authorities to allow him the use of marijuana.

Clark Sullivan of San Francisco, who said he's been using cannabis
for 25 years to treat depression, said most of the Kubby backers are
medical patients.

"We don't feel he's getting the proper medical care in the jail," he
told reporters. "The medical marijuana is what's been keeping him alive."

Sullivan described Kubby as being in a fragile state in jail.

"He could die between now and tomorrow," he said. "We're asking this
court to have compassion. He's dying and (Placer County) is killing him."

Mira Ingram of San Francisco called the 120 days for Kubby "a death
sentence without his cannabis."

"When he doesn't use the cannabis, the adrenaline floods the
bloodstream," she said.

McPike said that it appeared that Kubby had lost "15 or 20 pounds"
since Thursday.

He said he didn't know whether a physician had seen his client in the jail.

Undersheriff Steve D'Arcy said he could not comment on Kubby's
medical condition because of confidentiality laws.

However, he said all inmates at the jail are treated with "dignity,
courtesy and respect" and they are given medical care by physicians
within the California Forensics Medical Group.

D'Arcy said his department won't allow cannabis in the jail because
of a U.S. Supreme Court decision in 2005 that said marijuana use was
a violation of federal law despite state laws allowing medicinal use.

"And this office does not intend to commit any law violations," he said.

D'Arcy said he believes the District Attorney's Office and the Placer
County Counsel "will argue this point for us" in the Kubby case.