Shasta County, Feb 2000

Calaveras County, Jan 2000

Placer County, Dec 2000

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 Francisco-based lawyers.

"We really feel like our rights were trampled on," Allen said. "We're going all the way with it. We're not going to back down."

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 Attorney's Office.

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 illegitimate claims.

"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 people."

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 determination:

"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 specified conditions.

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 them.

Standards on when to arrest and when to prosecute can save taxpayers money and ease the burden on law enforcement, Zalkin said.

"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 said.

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 supplying others.

"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 clear."

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 personal use.

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 conferences.

Conrad said police vastly overestimated the amount of usable marijuana that Allen could have yielded from his plants.

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 three-bedroom home.

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 mbaker@fresnobee.com or 441-6465.


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 use.

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 yield.

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 adrenal cancer.

*********************************************************

THE AMERICAN MEDICAL MARIJUANA ASSOCIATION

Release Date: 12/18/00. Web site: http://www.drugsense.org/amma/

CONTACT: Steve Kubby, AMMA National Director

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 p.m.

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.

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WITH JURORS DEADLOCKED 11-1, MISTRIAL DECLARED IN POT CASE

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: ajournal@foothill.net . Related: http://www.kubby.com/

WITH KUBBY CASE MOSTLY OVER, FOCUS SHIFTS TO BALDWINS

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 for sale.

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 office.)

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 comment.

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 race.

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 Kubbys.

"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 Act."

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 waves."

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 cases.

"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: smobley@calaverasenterprise.com)

(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, Logan said.

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 Chris 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 police."

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 for comment.


Redding Record Searchlight (CA) Feb 5, 2000, Front Page
Address: PO Box 492397, Redding, CA 96049-2397 Website: http://www.redding.com/

POT PUNDIT DISPUTES COP CLAIMS AT MARIJUANA TRIAL

By Maline Hazle <mhazle@redding.com>

(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 it.

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 plants.

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 injured back.

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 plants.

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 year.

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 marijuana?

"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.