THERE WAS AN EASIER WAY TO INSPECT THE KUBBY GARDEN

Nearly 20 months after an anti-drug task force raided their Olympic Valley
residence, Steve and Michele Kubby finally faced a Placer County jury
Wednesday on 19 criminal charges in a high-profile medical marijuana trial.

The Kubbys, their attorneys, a handful of supporters, prosecutors and local
journalists crowded into a small DeWitt Center courtroom, where Judge John
L. Cosgrove opened the proceedings with instructions to the jury of seven
women and five men. With the preliminaries behind them, the prosecution and
defense launched their opening salvos, setting the stage for what promises
to be one of Placer County's better courtroom dramas.

And what a cast of characters!

Representing the Placer County District Attorney's Office is earnest and
affable Deputy District Attorney Chris Cattran, assisted by Supervising
Deputy District Attorney Gene Gini Jr. The local prosecution team is facing
a formidable pair of defense attorneys.

J. David Nick, whose buzz cut and clunky black glasses reminded me of Elvis
Costello in a three-piece suit, represents Michele Kubby, while Steve Kubby
is represented by Tony Serra, a flamboyant, pony-tailed hipster whose
exploits were portrayed by actor James Woods in the courtroom drama, "The
True Believer."

As reported by Journal Staff Writer Jessica R. Towhey, the opposing sides
offered starkly different interpretations of the cultivation and conspiracy
charges against the 1998 Libertarian candidate for governor and his wife.

"Recreational drugs and drug dealing -- that's what this case is about,"
Cattran told jurors in his opening remarks.

The two principal circumstances Cattran cited were the number of plants
found in the Kubbys' home (105 mature plants, another 160 ranging from
seedlings to preflowering), and $103,000 in cash the couple received over a
two-year period, largely from two Bay Area medical marijuana clubs.

"I have another theory," countered Nick in his opening statement. "This
case is about 8A cynicism on the part of law enforcement who investigated
it and a recalcitrant attitude toward the 1996 Compassionate Use Act by law
enforcement."

Nick suggested to the jurors that Placer County's investigation and arrest
of Steve Kubby was a vindictive act against the political activist who was
instrumental in placing the Compassionate Use Act, or Proposition 215, on
the ballot.

During the trial's first two days, jurors heard how former Nevada County
Sheriff's Deputy Ed York and Placer County Sheriff's Detective Mike Lyke
pursued the investigation that resulted in the Jan. 19, 1999, search of the
Kubby residence and the couple's arrest. Not reported in the news accounts
were some of the surprising details that surfaced during their testimony.

For instance, York described how he had engaged in 10 acts of surveillance
over 30 days against the Kubbys after receiving an anonymous letter about
possible illegal cultivation at their rental home. On two occasions, York
intercepted the Kubbys' household trash, and meticulously sifted through it
for evidence.

The number of items associated with marijuana cultivation found in the
first search on July 13, 1998, was impressive: cigarette rolling papers, 15
to 18 marijuana cigarette stubs or "roaches," plant stalks, leafy vegetable
matter believed to be marijuana and discarded packaging from a 1,000-watt
sodium lightbulb.

On cross-examination and over Cattran's protest, York described another
item that was recovered from the household trash. It was a printed flier
directed at the investigators the Kubbys had been tipped off to expect.

"I have terminal cancer," the letter to law enforcement began, and went on
to declare that Kubby was growing his own medicine, and was not in
possession of more than 3.5 pounds of smokable pot. The notice included a
remarkable invitation.

"In accordance with the Attorney General's guidelines, you may enter our
residence to photograph and take samples," the flier said in so many words.
The statement ended with a warning that prosecutors may in the end regret
they did not heed. "If you destroy the garden, I will hold you financially
and morally responsible."

During a cross-examination by Serra, York conceded that investigators had
not found any direct evidence of marijuana sales. Neither had they tried
very hard. Before obtaining a search warrant, investigators never asked
"confidential informants" to attempt a purchase or went undercover
themselves to do so. Neither did they ever observe a transaction between
Kubby and others nor stop anyone leaving the Kubbys to see if they had
marijuana in their car.

And, of course, investigators never took Kubby up on his invitation and
knock on the door and ask to see the couple's indoor garden.

The investigation was then interrupted for nearly five months when the
Nevada County Sheriff's Department decided to withdraw from the task force.
York blamed it on internal politics, saying the Truckee city manager and
his supervisor were unhappy with the number of arrests generated by the
task force.

"They wanted to see more small arrests rather than occasional larger
arrests," York testified.

Once Detective Lyke decided that the Kubby case was "viable" in late
December, the pattern of trash intercepts and surveillance resumed,
including nighttime observation of the Kubbys with enhanced-vision goggles,
telephoto lenses and a camcorder. The criminal investigation culminated
with the Jan. 19, 1999, search warrant and subsequent filing of criminal
charges.

With a month's recess of the trial, we will have to wait for both sides to
marshal evidence to support their cases. But at times Thursday, it looked
like Placer County prosecutors had their work cut out for them. As a team,
Serra and Nick are giving the prosecution witnesses the kind of grilling
prosecutors could only wince at.

As Kubby said after Friday's hearing, "We're bringing in bigger, badder
gunslinger attorneys than Placer County is used to, and putting the police
and prosecution on trial. Most of the time, prosecutors here don't have to
do much except say, 'He had the drugs, arrest him.' This time, they have
found themselves in a real battle."

After listening to testimony the first two days, it seems obvious there was
a better way to make sure the Kubbys were complying with California's
Compassionate Use Act.

Like, a compassionate way.