When medical marijuana user, activist, and former Libertarian Party contender for California Governor Steve Kubby and his wife, Michele, were targeted, raided and arrested at their Lake Tahoe, California, home in 1999, local cops and prosecutors failed to realize they had a tiger by the tail. Kubby, the founder and director of the American Medical Marijuana Association (http://www.americanmarijuana.org) was ready, willing, and able to mount a an aggressive legal strategy that would turn the tables on Placer County prosecutors.
Last week, the couple's two-year legal saga came to an end as the case against them ended not with a bang but a whimper. After a grinding, contentious, and closely-watched four-month trial, with the Kubby legal team demolishing witness after prosecution witness and establishing that the couple fell well within California's Compassionate Use Act guidelines, the prosecution's case was in tatters. Last month, a Placer County jury delivered the death blow to the prosecution with a hung verdict on the pair's marijuana charges: Jurors voted 11-1 for acquittal.
Seeing the writing on the wall, prosecutors declined to retry the Kubbys, and they gave up a similar case against Michael Baldwin, an Auburn dentist who is a medical marijuana patient.
Kubby was found guilty of possessing a dried psychedelic mushroom stem and a peyote button (he argued that the former was a teaching aid and the latter was left by a guest) found during the raid. But last week, over prosecutors' objections, Judge John Cosgrove reduced the two drug possession counts from felonies to misdemeanors, sentenced Kubby to probation and community service, and dismissed the case. Cosgrove also formally dismissed the Baldwin case.
The Week Online spoke with Kubby on Thursday. Below are excerpts from that interview.
WOL: How do you feel now that you've been vindicated in court?
Kubby: We feel that until our case, the opposition was picking the cases and forcing indigent patients to defend the law. We set ourselves up as a test case from the beginning. Mark Greer [of DrugSense] and others knew we were under surveillance and were prepared for us to be raided. We believed that once we showed we were legally asserting our cultivation rights, we would be able to resolve it in court, but instead we were treated like common criminals and it degenerated into a political witch hunt.
At that point, we realized we would not only have to defend Prop. 215, but also the Constitution and the Bill of Rights. For two years, we weaved our way through the court system battling for three things: First, the right to counsel of our choice -- they didn't want to allow Tony Serra to represent me, and we had to go through a bunch of judges who considered us guilty until proved innocent before we could prevail on that fundamental issue. Second, the right to the defense of our choice -- the right to use the Compassionate Use Act as a defense. The prosecution took the position we were commercial growers hiding behind the law. The Prop. 215 defense would "confuse the jurors," said the prosecution. And third, the right to the witnesses of our choice. The prosecution would require us to suddenly produce witnesses without warning; they would hold hearings to disqualify our witnesses any way they could.
Tony Serra has gone through over 600 jury trials, and he told me that never in his career has he seen such slimy tactics or prosecutorial misconduct as in our case. But we beat 'em. Their narcs lied, their witnesses lied, and we caught them in lies. We had to fight on their own turf, by their own rules, and we still beat them.
WOL: Still, you must have mixed feelings about all this. This trial cost you time, money, incalculable stress.
Kubby: Mahatma Gandhi said people do not pay any attention to your message until they see you suffer. Now people are paying attention. Frankly, we'll do whatever it takes. Now, we're finally getting our message heard.
WOL: You haven't been only on the defensive, but also on the offensive. Tell us about the recall drives you and American Medical Marijuana Association are aiming at prosecutors.
Kubby: Actually, we are totally prepared to engage in a recall election against the district attorney here in Placer County; we have the backing of key members of the community. We see recall actions as a means of convincing local prosecutors to comply with Proposition 215. This isn't a vindictive thing on the part of patients. It's a matter of survival. We have a statewide chairman, Dr. Jay Cavanaugh, who is the former Commissioner of the California State Pharmacy Board -- heck, he used to accompany the DEA on raids. He is on our medical board because he's outraged that effective medicine is being denied to people. We will use the recall process as necessary. I can say that right now we anticipate a recall in Shasta County, as well as in Placer County.
WOL: There have been reports that you will be relocating to British Colombia. Are you going as an embittered marijuana refugee, or what?
Kubby: We're still residents of the United States and California residents, but we have signed an agreement with Pot-TV (http://www.pot-tv.net) up there to produce three shows a week. I'll take a one-year leave of absence. But as for the US, I prefer to remain here and be an embarrassment and annoyance to the prohibitionists.
Before I go, I would like also to extend our profound gratitude to DRCNet. They were there within the first day of our arrests helping to broadcast what had been done to us, and we will always remain grateful for DRCNet's help.