Medical marijuana advocate and former libertarian candidate for governor Steve Kubby claimed a victory Thursday when a Placer County jury deadlocked on five counts of possession of marijuana.
Steve and Michele Kubby were relieved when they exited the courtroom.
"We made our case," Kubby, 53, stated in a parking lot interview. "I don't think we could have done any better."
Kubby was convicted of two other counts of possession of a controlled substance, namely a mescaline stem and a peyote button.
He faces up to three years in state prison on each of the two felonies, though the small amounts would allow him to receive probation.
The Kubbys were directed to return to court Feb. 2 - Steve Kubby for sentencing, both to learn if they will face a second trial on the mistried marijuana counts.
Prosecutor Christopher M. Cattran said after the verdicts were read that his office hasn't decided if it will pursue the matter.
"We're going to evaluate it and make a determination," Cattran said. "The jury has spoken. We'll take it from there."
Pumped up after nearly four months of proceedings, attorneys for both sides ripped into the opposing case like boxers battling for crucial points in the final minutes of a title fight.
Placer County Deputy District Attorney Chris Cattran told jurors that the sheer volume of marijuana grown by the Kubbys could be for no other reason than illegal sales.
And his voice rose in response to defense arguments that prosecution of the Kubbys was a "cynical" attempt to break the medicinal marijuana movement and Proposition 215. Cattran said Prop. 215 "is the law and it is enforced as the law."
"What the Compassionate Use Act doesn't stand for is people like the Kubbys profiting from the sale of marijuana," Cattran said.
Defense attorneys Tony Serra and David Nick argued there is no direct evidence to suggest the Kubbys were profiting from their grow. Serra's mouth was flecked with a pea-sized froth of foam during a particularly scorching attack on the prosecution's case something he would joke to the jury about later. Nick delivered a whirlwind of pointed thrusts with his forefinger as he conducted a nonstop verbal assault on the prosecution, its witnesses and the Kubby investigation.
Serra told jurors that Steve Kubby was a lightning rod for medicinal marijuana activism and money poured his way to support his work for the cause not from marijuana sales. Steve Kubby was a key player in the passage of Prop. 215 in 1996 and ran for governor in 1998 as a Libertarian.
"Medical marijuana for many people is like a miracle drug," Serra said. "The big money came to him not because he was running for governor, it was because he was, and is, a symbol of medical marijuana and now a symbol of false prosecution."
Nick took the Kubby prosecution one step further, describing Steve Kubby as a potential "big trophy" for prosecutors "trying to make a name for themselves."
Nick said the prosecution was a cynical attempt by "certain law enforcement officials" to fight the validity of the voter approved Prop. 215.
"Stop the madness," Nick told the jury. "Stop the crusade. Help the Kubbys or the madness will continue."
The eight-woman, four-man jury filed out of the courtroom in the evening, and considered a total of 16 charges against the Kubbys that came after a January 1999 raid on the couple's Olympic Valley home.
A total of 265 pot plants were seized from the Kubbys indoor grow.
The Kubbys contend the marijuana was for their own personal, medicinal use under Prop. 215.
The prosecution's case has included a record of Kubby bank deposits totaling $103,000 over 18 months. Many of the sources were anonymous but $27,000 came from an Oakland Cannabis Buyers Club official. The Kubbys say the money was a gift over time, from supporters, to allow Steve Kubby to continue his advocacy work.
"Ladies and gentlemen, do some math," Cattran said, as he used a marker and large sheet of paper to illustrate the prosecution's calculation that the 107 plants coming to harvest in the Kubbys main grow room could produce 12,198 one-gram joints. Testimony indicated Steve Kubby smoked six to eight joints a day and Michele Kubby smoked a joint every night, he said.
The 12,198 joints would be more than a three-year supply, Cattran said. The prosecution is using an estimate of four ounces per plant a figure defense attorneys say grossly inflates yield. The Kubby defense team of Tony Serra and David Nick produced their own expert witnesses, who pointed to a Drug Enforcement Administration-approved study in 1992 that estimated a quarter ounce per plant. The defense calculation is the Kubby grow would be fewer than four pounds.