MEDICAL POT TRIAL ENDS IN ACQUITTAL

A Marin Superior Court jury yesterday found Marinwood resident Steven
Babich innocent of charges of both cultivating marijuana and possessing
marijuana for sale-a verdict that proponents of medical marijuana said was
a reaffirmation of Prop 215 and compassionate use of the drug.

"This is a victory for medical marijuana in Marin county," said Babich's
attorney, M. Blake Wilson, a former associate of well-known Bay Area
defense lawyer Tony Serra. "The jury resoundingly rejected the prosecutor's
case."

The jury came in with its verdict after deliberating for little more than
an hour

Wilson, who said he was speaking on behalf of his client, said, "The good
jurors of Marin county have spoken by rejecting the district attorney's
heavy-handed, capricious and arbitrary approach to medical marijuana."

It was the first Marin County trial involving claims of medical marijuana
use since proponents of Prop 215-which permits the use of the drug for
medical reasons-helped finance an unsuccessful effort to recall District
Attorney Paula Kamena last year.

Babich, 41, faced a possible maximum penalty of eight years in state prison
if convicted of charges of cultivating marijuana, possessing marijuana for
sale, and owning a 12-guage shotgun, despite a 1991 misdemeanor conviction
for assault and battery that prohibits the keeping of firearms for 10 years.

The jury found Babich guilty of unlawfully possessing the shotgun. Although
he could face a maximum penalty of four years in state prison for that
conviction, Wilson expects Babich will receive probation after serving some
time in the county jail.

Babich, who lives with his 75-year-old mother, Venetta Babich, says he uses
marijuana to dull pain from neck and back injuries sustained in a
motorcycle accident when he was 23 and various other mishaps. His mother
smokes marijuana to treat glaucoma that has left her blind in one eye.

But prosecuting attorney Kathyrn Mitchell argued that Babich was growing
far more marijuana than he and his mother would need. She also noted that
the doctor's recommendation for medical marijuana use, required by Prop
215, was issued by a Martinez man, who later admitted to impersonating a
physician.

Babich was arrested initially by the county's Major Crimes Task Force in
June 1999 following a raid on his house. Mitchell said that police
confiscated 112 plants ranging in size from large to tiny clones.

But attorney Wilson said, "There were not 112 plants at Babich's house."

Wilson said that in the process of removing the plants police
indiscriminately chopped them down, making it appear to be more plants. "No
one actually counted them one by one," Wilson said.

The marijuana confiscated as evidence could not be examined by the jury
because it began to decay while in storage.

The number of plants is a key issue since the prosecution's argument that
Babich intended to sell the marijuana rests solely on the amount of
marijuana he was growing, Wilson said.

Prosecutor Mitchell said that Sgt. Steve Mason, a 20-year narcotics
investigator with the Nevada County Sheriff's Department, examined the
evidence and estimated there were at least 48 plants capable of producing
buds rich in THC, the active ingredient in marijuana.

Mason estimated that the plants were capable of producing 12 to 15 pounds
of buds, Mitchell said. That is far more than Babich and his mother would
need, she said, even at their stated rate of combined consumption: 15
cigarettes a day.

Wilson said that Babich, a novice grower, planted more than he needed to
guarantee an adequate harvest. Wilson suggested that Mason inflated the
number of plants and their expected yields out of an antipathy for
Propostion 215 and the legal medical use of marijuana, sparked by years of
battling narcotics.

"You can't expect a law enforcement officer who has made a career out of
busting marijuana users to suddenly do an about face," Wilson said.

Mitchell responded, "There has been no evidence produced to support such an
allegation." She noted that Mason served on a Nevada county panel that
created the local guidelines for the legal use of marijuana in compliance
with Prop 215.

Mitchell said that Babich sought out Michael Dayton, a Martinez man who
would later admit to impersonating a doctor, after his mother's physician,
Mervyn Stein, initially refused to recommend marijuana for her glaucoma.

"There was an effort to perpetrate a fraud on this court," Mitchell said.

Wilson, however, said that the Babichs were duped by Dayton, whom they
assumed was a legitimate doctor. They were desperate since mainstream
doctors were loath to recommend marijuana use, even though its success in
treating glaucoma is well documented, Wilson said.

Following Babich's 1999 arrest, Dr. Stein did issue a recommendation for
marijuana use to Venetta Babich, after she threatened to switch doctors.
Nevertheless, police raided the Babich house again in September 2000
confiscating most of 42 plants. In an effort to comply with Prop 215,
Babich's mother was left a modest amount.

During this raid, police confiscated a 12-guage, pump-action shotgun. Due
to a misdemeanor conviction, Steve Babich is prohibited from possessing any
firearms. But Wilson said that Babich purchased the shotgun for his
mother's self-defense.

Wilson focused on a discrepancy between an early police report that said
the shotgun was found in Steve Babich's closet, and later testimony by Lt.
Dennis McQueeny, head of the Marin County Major Crimes Task Force, that the
shotgun was found under Steve Babich's bed. Wilson noted that there is no
closet in Steve Babich's room.

Mitchell dismissed the discrepancy as a clerical error and said that the
location of the shotgun when it was found was immaterial.

"He (Steve Babich) bought the ammunition, shot the weapon, cleaned it and
reloaded it," she said.