Medical marijuana on trial in Placer County

AUBURN - While Steve Kubby's marijuana trial - still in the prosecutory stages - has so far focused on proving criminal activity, the defense promises to shift legal gears and test the legitimacy of a four-year-old law allowing California residents with a doctor's prescription to possess and grow marijuana for medical use.

"Our case is no more about marijuana than the Boston Tea Party was about tea," said Kubby. "It's not about the guilt or innocence of any one person, it's about playing by the rules."

Kubby and his wife, Michelle, were arrested on a number of drug-related charges after a January 1999 raid on their Olympic Valley house yielded 265 marijuana plants.

Claiming protection under Proposition 215, also known as the Compassionate Use Act, Kubby said he was growing the plants for his personal medical use. Kubby, the Libertarian Party's 1998 gubernatorial candidate and an active player in getting Proposition 215 on the ballot, suffers from a rare form of adrenal cancer for which he says marijuana is the only relief.

Since the trial began in Auburn's Placer County Superior Court last month, the prosecution has presented the jury with testimonies from expert witnesses in an effort to show the Kubbys were growing marijuana for the purpose of sale, according to Assistant District Attorney Christopher Cattran.

Called by the prosecution to give the people's expert opinion, Frank Koehler, an investigator with the Nevada County Sheriff's Department, said his review of the evidence - including a videotape of the raid and a piece of Marriott Hotel stationery with nondescript numbers written on it - led him to believe the Kubbys were growing for both personal use and sale.

According to Cattran, Koehler is a 27-year law enforcement veteran with extensive experience in investigating the sale and cultivation of marijuana. The prosecution has rejected the idea of the couple growing for personal, medical use due to the size of the operation.

"He's allowed to grow and possess an amount that is reasonably related to his medical condition," Cattran said in an interview last February.

Although some counties have since assigned specific limits on how much marijuana a patient may grow and possess, there were no such limitations at the time of Kubby's arrest. Maintaining that they were working within the boundaries of the law - "we wrote the police ... invited them over to see our garden, to take samples" - Kubby believes this case will revolutionize the medical-marijuana issue and social politics in general.

"You know, when they took us away in the paddy wagon, my wife looked at me in tears and said 'what's going to happen to us now?' And I said, 'this is their turn, then we'll have our turn,'" Kubby said. "This is history being made. I honestly believe this case will turn the tide on the drug war."