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Kubby stays positive about medical pot case despite court loss
By: Penne Usher, Journal Staff Writer Wednesday, May 18, 2005 12:14 AM PDT
Medical-marijuana activist Steve Kubby lost his most recent battle in an Auburn courtroom Monday, but says it's a "victory."
Bill McPike, Kubby's attorney, filed a motion to vacate a 2000 drug conviction, April 29.
Judge John Cosgrove denied McPike's request Monday, citing that Placer County court did not have jurisdiction over the case and Kubby's fugitive status as reasons for the denial.
Kubby fled to Canada in an effort to avoid incarceration after a 2000 conviction on charges of possession of mescaline and psilocybin. Deputies reportedly found a small amount of peyote button and magic mushroom during a 1999 search of Kubby's Olympic Valley home.
Two-hundred-sixty-five marijuana plants in various stages of growth were reportedly seized, officials said.
"We're disappointed," Kubby in a telephone interview from home Monday. "We're not deterred. There are a number of alternatives available to us."
Chris Cattran, deputy district attorney for Placer County, filed a response to the court during the April appearance in which he responded to the petition for the writ, citing reasons it should be denied.
Cosgrove explained to McPike that the court time Monday was to allow him to respond to the people's response to the writ.
Cosgrove ruled that the "petition for writ error coram nobis is denied."
Kubby ran as the Libertarian candidate for governor on the 1997/1998 ballot. He was also one of the authors of Prop. 215, the compassionate use act passed by the voters in of the state of California in 1996.
Kubby's attorney contends there was not a solid basis for the judge to grant a warrant to search the Kubbys' home, citing a Drug Enforcement Administration report that he said was used as the basis of obtaining the search warrant.
They should have never issued a search warrant. The report allegedly created their strongest suspicion, McPike said.
"Clearly the ruling was a defeat for them today," Cattran said.
Kubby doesn't see the ruling the same way.
"We do believe we have made our case," Kubby said from his home in Canada Monday. "We met the legal test for bringing the fraud to the attention of the court."
The DEA report allegedly confirmed that a "guest" at the Kubby home, Peter Brady, was a Jamaican drug smuggler. Kubby asserts that the non-existent report was used to persuade a judge into signing a search warrant.
Brady, a former marijuana journalist for "Cannabis Culture" and "High Times," spoke to the Journal by phone Monday from an undisclosed location in New Mexico.
"I visited the Kubbys as a journalist in 1999 and engaged in absolutely no criminal activity with them. I never was, nor have been, involved with Jamaican marijuana smuggling or provided information to the DEA about marijuana smuggling."
Kubby was allowed to leave the country in 2000 with the stipulation that he returned for his surrender date. He opted to stay in Canada. Had he been granted alternative sentencing, which he was reportedly eligible for, he would have spent about 120 days under home monitoring, Cattran said.
He and his wife, Michele Kubby, now live in British Columbia. Kubby said he will continue the fight.
"We feel criminal actions have taken place," Kubby said. "I feel we will continue to come after those that served the search warrant. They broke the law and we intend to prove it."
Kubby has said that the search warrant was the basis for his arrest.
Brady said he has been used as a pawn by Kubby.
"My presence at the Kubby home was not instrumental in their being raided," Brady said. "They were under surveillance long before I ever visited them and my evaluation of the search warrant affidavit indicates they would have been raided if police saw me at their home or not."
Whether Kubby's attorney plans to file an appeal with the court is unclear.
"I'm thinking about a motion for reconsideration," McPike said outside the courtroom Monday. "I need to time to review the options."
Kubby, who has testified he relies exclusively on cannabis to control the symptoms of adrenal cancer, said he is hoping to clear things up and return to the area. Cattran said Kubby's flight to avoid incarceration will have serious consequences.