Fresno County, Oct 2003 (Immediately below)
The Fresno Bee (Published October 19, 2003
Medical pot case serves as a test; Lawyer questions
county's arrest policy.
By Michael Baker
While other Americans celebrated their freedom, marijuana
user Tommy Dean Allen said, police violated his rights by
arresting him after raiding his east-central Fresno house on
Independence Day and confiscating his marijuana plants.
The 51-year-old Allen said he has the right to cultivate
and use marijuana to treat chronic pain, a convenience
granted in 1996 when California became the first state to
approve medical use.
His case tests law-enforcement tactics and the county's
lack of guidelines for prosecuting claims of medical
marijuana usage, said Sara Zalkin, one of Allen's San
"We really feel like our rights were trampled on," Allen
said. "We're going all the way with it. We're not going to
Such a defense has been tried elsewhere but never in a
Fresno County trial, said Barbara Scharton, who oversees
prosecution of major marijuana cases for the District
Proposition 215, approved by nearly 56% of voters in
1996, allows people with cancer, HIV, chronic pain and other
ailments to grow and use marijuana for their health problems
if a physician recommends it.
Fresno County voters were not so supportive of the
referendum; about 58% voted to reject it.
The California Supreme Court upheld the law in July 2002,
saying that under certain conditions, marijuana should be
treated like a prescription drug.
Gov. Davis recently signed a bill directing the
Department of Health Services to provide medical marijuana
users with a card that protects them from arrest.
Early last week, the U.S. Supreme Court upheld a ruling
by an appellate court that allows doctors to recommend the
use of marijuana to their patients.
Most major rulings on medical marijuana laws have been
made in federal courts and based on federal law.
But individual users and growers in California generally
are prosecuted under state law and therefore in state court,
which is where Allen ended up last week at his preliminary
hearing -- when police testified they found 103 marijuana
plants in his house.
Given the law's changing status, Fresno County adopted an
informal policy of letting the courts determine whether a
medical-use claim is legitimate.
District Attorney Elizabeth Egan said it's often best to
leave it up to a jury in order to root out people making
"We just really have zero tolerance for the use of any
illegal drugs, including marijuana," Egan said. "There's a
lot of people trying to hide behind this, behind sick
In Fresno County, deputies don't make those judgments.
"We don't do anything differently," said Fresno County
Sheriff Richard Pierce. "We simply arrest and confiscate."
Decision goes to court
Fresno Police Chief Jerry Dyer said that without legal
guidelines, officers could not determine illegal from legal
cultivation and use.
"It's not fair for the officer on the street to have to
make that determination," he said. "Our practice is that
they would go ahead with normal procedures and allow that
person to make a claim to a judge."
Police detective Robert Lincoln testified succinctly at
Allen's preliminary hearing on the medical-use
"That is a defense to be used in court. I don't make the
distinction. The court makes that distinction."
Zalkin said that's the wrong way to go about it.
"Police officers have a duty to spend enough time when
making an arrest to determine if the arrest is in good faith
and in accordance to state law. I don't expect law
enforcement to become botanical experts. I just think it
should be part of the investigation."
About 20 counties and a handful of cities have policies
based on either the number of plants being grown or the
amount of usable product possessed.
For example, the Humboldt County District Attorney's
Office allows for up to 99 plants to be cultivated under
The bill signed by Davis would set limits of 8 ounces of
dry marijuana and six mature or 12 immature plants beginning
Jan. 1. Counties could increase the amounts, but not reduce
Standards on when to arrest and when to prosecute can
save taxpayers money and ease the burden on law enforcement,
"At least if the California Supreme Court has clearly
recognized authorized use of medical cannabis, it only makes
sense that it be a huge factor at the time of arrest," she
Even with amount guidelines, Fresno County would still
look at the cases individually, Egan said. Just because a
person has a doctor's note and only grows a certain amount
of marijuana would not automatically mean they would not be
"We've been waiting for guidance ... but then it will
still depend on the facts of the case," she said. "It may
clear up some cases, but very often it's not quite that
Scharton, who is prosecuting Allen, said the law simply
allows a person to claim a medical marijuana defense, but
does not protect somebody from arrest. Scharton said if a
defendant can prove a legitimate medical need and use, then
he or she can be immune from prosecution but not arrest.
Scharton would not comment on the specifics of Allen's case.
But given the charges filed -- cultivation of marijuana,
possession of more than 28.5 grams of marijuana and
possession for sales -- prosecutors are doubting the
sincerity of Allen's claims of growing the plant solely for
Detective suspects sale
On the witness stand Wednesday, detective Lincoln said he
believes Allen was growing marijuana for both personal use
and for sales.
Allen was growing enough marijuana to supply 10 joints a
day and could harvest three crops a year with a street value
between $25,000 and $30,000, Lincoln said.
Lincoln, a 13-year police veteran, said several other
factors played a part in his determination:
Nobody was living in the house. Expensive equipment was
used to set up the "moderately sophisticated" operation.
Heavy plastic coverings on windows concealed the marijuana.
Given Fresno's attitude toward medical marijuana growers,
of course Allen covered his windows, Zalkin said.
"The fact that Fresno has a zero-tolerance policy toward
marijuana would make sure you had to be very private for
fear of being wrongfully charged," Zalkin said.
Outside court, Allen said he bought his growing equipment
from a friend at a discount. The equipment -- lights, wires,
fans and irrigation supplies -- came from a junkyard.
Allen has been on disability for 14 years because of a
crushed ankle and debilitating back pain from years of heavy
manual labor, Zalkin said.
Zalkin and her co-counsel, Shari Greenberger, said that
Allen is a perfect example of a person who meets the medical
marijuana exception. In fact, when police came through the
door of his house, the first thing they should have seen was
a posted certificate on the wall.
The note was signed by William Turnipseed, a doctor
practicing in Loomis, east of Sacramento. Turnipseed
recommended marijuana use to alleviate Allen's pain.
Further, the lawyers argued, Allen had none of the items
usually associated with marijuana sales: scales, pay/owe
sheets, pagers, cell phones and packaging material.
Zalkin and Greenberger also called on the testimony of
their own expert, Chris
Conrad, who once served as the curator of the
Hash/Marijuana/Hemp Museum in Amsterdam.
Conrad has qualified as an expert in 30 county courts and
two federal districts. He also is an author and consultant
and has been a speaker at scientific and medical
Conrad said police vastly overestimated the amount of
usable marijuana that Allen could have yielded from his
Given the plants' size, low grade and growing conditions,
Allen would have been lucky to yield 12 ounces from a
harvest, Conrad said. That's enough for three to five
marijuana cigarettes a day, about the amount Allen would
need to alleviate his pain.
If Allen wanted to sell his product, he would have used
the entire house for growing marijuana, Conrad said. Allen
used 371/2 square feet for flowering plants in the
Conrad is expected to continue testifying when the
preliminary hearing -- held to determine whether there is
sufficient evidence to hold a person for trial -- resumes
Dec. 16 in the courtroom of Judge Wayne R. Ellison.
The reporter can be reached at firstname.lastname@example.org or
Published in: Auburn Journal, 13 December
2000, page 1:
WITNESS QUESTIONS POT GROW FIGURES IN KUBBY TRIAL
By Gus Thompson, World News Service
Auburn - The prosecution in the Steve and Michele Kubby
medical marijuana trial put one of its key witnesses on the
stand Tuesday in an attempt to rebut earlier defense
testimony on the average yield from an indoor pot grow.
Despite strenuous objections from defense attorneys J.
Tony Serra and J. David Nick, retired state Department of
Justice special agent supervisor Mick Mollica was allowed to
testify. He said a single marijuana plant, grown indoors,
could yield about four ounces of high-potency bud.
The Kubbys were arrested and charged with possession of
marijuana for sale after a January 1999 raid on their
Olympic Valley home netted 265 plants. Depending on the size
of the plant, amount of light and other factors, the yield
would range from three to six ounces, Mollica added.
Earlier in the trial, "Hemp
for Health" author Chris
Conrad testified as an expert witness for the
defense on yields. Conrad, who has also served as a curator
of a museum in Amsterdam devoted to marijuana, said the
Kubby yield would be about 3.5 pounds.
Mollica was also asked to give his opinion of a 1992
University of Mississippi study for the federal Drug
Enforcement Administration that estimated the average
cannabis plant would produce a half ounce of marijuana. The
study had been used by Conrad as a basis for his estimate of
the Kubby crop. Taking into account parts of the plants that
were not smokable, dirt and "assorted trash" found in the
evidence bags of pot confiscated from the Kubbys, Conrad had
told jurors in the Placer County Superior Court trial that
the indoor grow's yield would be consistent with personal
Mollica said that he believed the marijuana grown in
Mississippi isn't the same as the marijuana grown in
California because of different growing techniques.
"It's just not possible to have the same yield study for
this and the plants we chop down in Northern California,"
Mollica said. "We grow it differently here than they do."
California growers use techniques like deflowering tops to
get a bigger unit, he said. "Our yields in California are
much more," he said.
The Mississippi study used outdoor plantings, but indoor
gardens provide an "all away better situation for growing,"
Mollica said. Mollica said that by controlling the carbon
dioxide in the air, indoor growers can increase yields. He
added that there is less product indoors than outdoors
because of height limitations and subsequently, less
Mollica was blocked by objections from Serra and Nick
from giving testimony on the question of whether the Kubby
garden was consistent or inconsistent with a medical grow.
The two defense attorneys had argued before Judge John
Cosgrove that Mollica had no medical expertise.
Prosecutor Chris Cattran attempted to move his line of
questioning toward the garden's yield and the amount the
Kubbys could smoke, based on Mollica's estimate. Again,
objections by Serra and Nick to questions on the size of
joints Mollica had seen were sustained by Cosgrove.
The Kubbys contend that they grew marijuana for their own
personal, medical use. Both had doctor's recommendations to
use marijuana at the time of their arrests - Michele Kubby
for irritable bowel syndrome, Steve Kubby for a rare form of
THE AMERICAN MEDICAL MARIJUANA ASSOCIATION
Release Date: 12/18/00. Web site:
CONTACT: Steve Kubby, AMMA
JURORS REQUEST READING OF CHRIS CONRAD TESTIMONY
AUBURN -- Shortly after 2 p.m., jurors in the Kubby
medical marijuana trial asked the judge if they could have
testimony by defense expert Chris Conrad read to them. The
jurors also requested that they be allowed to stay until 7
Judge John L. Cosgrove denied the request for extended
hours and told the jury to recess at 5 p.m. today and return
tomorrow, along with the defendants, their attorneys and the
prosecutors for an open session of court at 8:30 a.m.
Tuesday morning. At that time, the testimony of Chris Conrad
will be read to the entire court.
WITH JURORS DEADLOCKED 11-1, MISTRIAL DECLARED IN POT
Kubby found guilty of two felony charges
By Gus Thomson, Journal Staff Writer
A mistrial was declared Thursday in the trial of Steve
and Michele Kubby, with a jury that leaned 11-1 toward
acquittal on possession-of-marijuana-for-sales charges
deciding to give up efforts to convince a lone, female juror
to come over to their side.
Jurors were sequestered for 211 2 hours over five days
after hearing testimony that spanned four months. In the
end, the jury could only decide to convict Steve Kubby on
comparably minor felony drug possession charges involving a
magic mushroom stem and peyote buttons.
24 Dec, 2000: Auburn Journal (CA)
Copyright: 2000 The Auburn Journal, 1030 High St.,
Auburn, CA 95603 http://www.auburnjournal.com/ Email:
email@example.com . Related: http://www.kubby.com/
WITH KUBBY CASE MOSTLY OVER, FOCUS SHIFTS TO
By Patrick McCartney, Journal City Editor
Eleven jurors gave Steve and Michele Kubby an early
Christmas present this week, rejecting the prosecution's
charge that the former Olympic Valley couple grew marijuana
While the jury convicted Steve Kubby, the 1998
Libertarian candidate for governor of California, of two
unrelated drug charges, only time will tell whether or not
Placer County law enforcement has had its fill of arresting
sick people for growing marijuana under the 1996
Compassionate Use Act.
On Thursday, Superior Court Judge John L. Cosgrove
declared a mistrial in the five principal counts against the
Kubbys, after one juror held out for conviction following
five days of deliberation.
The jury acquitted Michele Kubby of possession of a
psilocyben mushroom stem and peyote buttons - the same
charges they found her husband guilty of. (Unless Cosgrove
reduces the two felony convictions to misdemeanors, Steve
Kubby would be prohibited from ever again seeking public
Now it will be up to Placer County District Attorney Brad
Fenocchio whether to try the Kubbys again on the
cultivation-for-sale and conspiracy-to-cultivate charges
that were the heart of the prosecution case. Fenocchio took
the afternoon off Friday and was unavailable for
But most people in the legal community expect the
district attorney to throw in the towel in light of the
jury's 11-1 vote for acquittal.
Far less clear, but potentially more important, is
whether Fenocchio will choose to retry Michael and Georgia
Baldwin, the Rocklin dentist and his wife whose case closely
paralleled the Kubbys.
Both were Libertarian Party officers who possessed
medical recommendations for using pot under the auspices of
Proposition 215. Authorities raided both homes and seized
all plants under cultivation. And later, both the Kubbys and
Baldwins filed bankruptcy.
Last year, a Placer County jury deadlocked 6-6 in the
case against Michael Baldwin, and voted 7-5 to acquit
Georgia Baldwin. Afterward, county prosecutors announced
they would retry the couple, but the case has been delayed
pending the outcome of the Kubbys' trial.
The Kubbys became subjects of a 6-month investigation by
the now-defunct Lake Tahoe Drug Task Force in 1998 when an
anonymous letter sent to authorities claimed Steve Kubby was
selling marijuana to finance his gubernatorial campaign.
"A utility worker has stated to expect to find 1,500 to
2,000 plants," falsely claimed the anonymous letter, which
was mailed from Marina del Rey during the governor's
When investigators searched the Kubbys' trash they found
a notice to law enforcement that invited officers to knock
on the door and inspect their garden. The notice stated that
Steve Kubby was a terminal cancer patient growing his own
medicine and warned police, "If you destroy the garden, I
will hold you financially and morally responsible."
Instead of paying the Kubbys a visit, investigators
conducted 10 acts of surveillance and raided the Kubbys'
rental home on Jan. 19, 1999. The evidence prosecutors used
to try the Kubbys largely came from financial and other
records seized from the couple's home computer - plus 265
plants in varying stages of growth.
Once Cosgrove declared the case a mistrial, jurors
explained their reasoning to journalists and attorneys. One
juror said the difference in caliber of expert witnesses
weighed in favor of the Kubbys. While prosecutors relied on
narcotic officers, who said the Kubbys would harvest 25
pounds of pot, the defense referred to peer-reviewed studies
by the Drug Enforcement Administration and the actual weight
of the seized marijuana. No law-enforcement or prosecution
expert bothered to weight the plants taken from the
"Hopefully this will send a message that (the issue of
medical marijuana) needs to be dealt with," said juror Jan
Halbern. "My mind was opened up to the Compassionate Use
Another juror, Robert Pineschi, said Gov. Gray Davis and
the California Legislature need to set clear guidelines on
how Prop. 215 is implemented. "One statement by defense
attorney J. David Nick stuck with me," Pineschi said. "They
(prosecutors) did this all backward. They arrested first and
then tried to figure out if there was a crime."
As far as the Kubbys are concerned, the 11-1 vote by a
Placer County jury was a ringing endorsement of the Oakland
guidelines, which allow a medical marijuana patient to grow
up to 144 plants in different states of maturity.
Relaxing afterward at their borrowed Meadow Vista
residence, Michele Kubby expressed relief that the case had
come to an apparent end nearly two years after police
knocked on their door.
"At first I thought that fighting the charges would be
easy, since we were innocent," she said. "But it proved to
be a lot bigger ordeal than I could have imagined. I feel
like I've surfaced after diving through a series of
As the Kubbys discussed their case, Mike Baldwin called
and Steve Kubby filled him in on the jury's decision. Kubby
told Baldwin he hoped the mistrial would discourage
Fenocchio from retrying Baldwin.
"How much more money is the district attorney willing to
waste on high-profile show trials that don't go anywhere?"
Kubby asked Baldwin.
For now, the Kubbys will wait to see if Placer County's
district attorney re-files charges, or seeks to work with
the medical marijuana community rather than pursue similar
"We want to give Mr. Fenocchio the benefit of the doubt
before making any decisions of our own," Steve Kubby said at
the end of the day.
Published in Calaveras Enterprise
(Front Page) Jan 29, 2000
MEDICAL POT LAW TESTED IN LOCAL CASE
Cops seized 64 plants in 1998
By Scott Mobly (209-754-4396. Emailto:
(Note: Since the publishing of this article, the
patient was found not guilty on all charges relating
to his use and cultivation of marijuana, but guilty of the
gun charge. Furthermore, Mr. Conrad is a court-qualified
legal expert on cannabis, as recognized by 15 counties, or
more than one-fourth of the state. )
San Andreas -- An Angels Camp man who has prescriptions
for medical marijuana is on trial this week in a case
advocates hope will blow away the haze shrouding how much
medicine pot users need to grow and smoke.
William Harrison, a local sculptor, faces felony
marijuana cultivation and possession for sale charges. He's
also charged with being an ex-felon with a gun. The trial
opened last Wednesday in Calaveras County Superior Court and
will continue today, Friday.
Authorities raiding Harrison's outdoor gardens near Camp
Nine Road and Douglas Flat seized 64 cannabis plants on
Sept. 17, 1998. Local sheriff's deputies arrested Harrison a
few days later despite finding his written doctor's
prescription for marijuana while searching his home said
Bill Logan, the defendants attorney.
Harrison, who suffers severe pain nausea, tinnitus and
vertigo stemming from a chest infection he suffered a number
of years ago, has permission from Dr. Eugene Schonfeld of
San Francisco and Dr. Mike Kifune of Arnold to use
marijuana, Logan said.
Patients can legally use marijuana with a doctor's
prescription under California's Prop. 215 or compassionate
use act, which voters approved in 1996.
Harrison has had a doctor's permission to use medical
marijuana since March, 1997, Logan said. But that meant
nothing to authorities arresting Harrison, who allegedly
told him he could use the prescriptions for toilet paper,
Prosecutors contend that Harrison was growing $500,000
worth of cannabis-way too much pot for his own consumption.
Barbara Yook, the Calaveras County deputy district attorney
trying the case, told jurors that Harrison would have to
smoke an ounce a day for a year, or 57 joints, to consume
all the pot he was growing.
But authorities are basing that accusation on faulty
assumptions about plant yield and patient consumption, said
Conrad, a self described [sic] cannabis
expert from El Cerrito who testified for the defence.
Agencies like the National Institute on Drug Abuse give
figures on how much pot a medical marijuana patient might
need, and these figures make Harrison's use seem reasonable,
Conrad said. He pointed out that a federal marijuana program
provides its patients six or seven pounds of cannabis a
year. But law enforcement authorities keep these figures
away from officers, according to Conrad.
"So the police officer thinks one pound is too much,"
Conrad told the Enterprise later. "Why don't the feds tell
the cops how much they give? I don't really blame the
Conrad added that patients such as Harrison need to grow
more than they can use in a year to insulate against the
risks of growing. He noted that cannabis loses about 10
percent of its potency per year, making it good for at least
a couple of years.
Logan, the defence attorney, said he hopes an acquittal
in the case will help protect legitimate medical marijuana
patients from arrest and prosecution.
He added, however, that he'd like more direction from the
state on Prop. 215. "I wish there was some kind of
uniformity and notice to people with terrible medical
conditions," said Logan. "If a cop can say what's too much
in his opinion, he might just say that one joint is too
much," Logan continued, adding that state law protects
patients from prosecution.
Medical marijuana users should not have to clear the
issue in court and taxpayers should not have to foot the
bill for these prosecutions, said Logan.
Yook, the prosecutor, did not return repeated requests
Redding Record Searchlight (CA) Feb 5,
2000, Front Page
Address: PO Box 492397, Redding, CA 96049-2397 Website:
POT PUNDIT DISPUTES COP CLAIMS AT MARIJUANA TRIAL
By Maline Hazle <firstname.lastname@example.org>
(Note: The marijuana expert's correct name is
Chris Conrad, author of Hemp, Lifeline to the Future
and Hemp for Health. http://www.chrisconrad.com/. His
name was misreported as Chris Conroy in the published
article. It has been corrected in the following text.)
Medicinal marijuana defendant Jim Hall wound up his
testimony Friday in Shasta County Superior Court, quickly
followed to the stand by a hemp expert who testified that
Hall and his mother weren't growing enough pot to be selling
That expert, Chris Conroy [sic. should be "Chris
Conrad"] of El Cerrito, later was challenged by
prosecutor Tim Kam with a cross-examination intended to show
that he supports not only medicinal marijuana use, legalized
four years ago by state Proposition 215, but wants to see
marijuana legalized for adult recreational use.
The [patients'] doctor, who lives in Redding,
recommended medicinal marijuana use for Lydia Hall, 62, for
glaucoma, said attorney Berg. Lydia Hall is the mother of
38-year-old Jim Hall. The mother and son, both of Redding,
are accused of cultivation and conspiracy to cultivate
marijuana. Jim Hall also is charged with possession of
marijuana for sale.
Friday's session opened with Jim Hall's second day on the
stand and questions from Kam about whether the defendant
learned to grow pot by reading "High Times," a
marijuana-oriented magazine. Kam has introduced two issues
of "High Times" as evidence and frequently notes in his
questioning that they contain articles on hydroponic growing
and commercial growing.
Hall admits that one of two gardens at his house was
hydroponic and that insecticides and plant foods
photographed by sheriff's deputies were to help grow the
Conrad, the marijuana expert who spent mid-day on the
stand, flatly contradicted testimony of the prosecution's
first witness, Shasta County sheriff's Detective Jerry
Shearman, who said the marijuana gardens found at the Halls'
house eventually would have yielded 24 pounds of "smokable
green bud" a year -- far more than Hall needed for his
The ponytailed Conrad, who has published two books,
worked with hemp growers in Europe and interviewed about
1,000 medicinal marijuana patients, is qualified as a hemp
expert in 14 counties in California. He characterized Jim
Hall's gardens as "sea of green" operations where "large
numbers of plants are grown with a small yield."
He estimated that Hall's small indoor garden would yield
only about 18 ounces of marijuana a year, if that, because
Hall had made a "significant mistake" in the way he cloned
the plants and used lights hot enough to dwarf and kill the
Conrad said Hall made another mistake when he surrounded
191 seedlings in his garage with black plastic, which
absorbs light and absorbs and traps heat. The garage garden
was likely to produce only about 2 pounds a year, Conrad
estimated. The expert went on to testify that a heavy
medical marijuana user would need 6 to 12 pounds of pot a
Kam attempted to discredit Conrad's credentials,
repeatedly asking questions about whether he had ever worked
with law enforcement, asking about his writings on the
Internet and about slogans repeated at pro-medicinal
marijuana rallies. Kam contends that studies Conrad used to
estimate how much pot a patient smokes are based on studies
of patients who were smoking far less potent pot than Hall
was attempting to grow.
Berg questioned Conrad again and asked "what kind of
things would you look for to indicate sales" of
"First and foremost, a sale," Conrad replied. "A sale,
pay sheets, evidence of wealth." He added to the list:
quality scales, coin bags (for packaging) and evidence of
traffic in and out of the house, police responses, a
confession, "something going on of a suspicious nature,
which doesn't seem to be in this case."
Testimony in the trial resumes Monday.