Ex-Candidate Faces Trial in Medical Marijuana Case

OLYMPIC VALLEY, Calif. —  Before the bust, Steve Kubby’s claim to fame was political trivia at best: Just who was last year’s Libertarian candidate for governor?

Then came the January day that narcotics officers raided Kubby’s home on a scenic slope near the Squaw Valley ski resort. Agents confiscated 265 marijuana plants growing in the basement and arrested the politician and his wife.

The drug case has thrust Kubby, who said he smokes pot daily to control a rare form of cancer, into the forefront of the roiling battle over medical marijuana. It comes at a pivotal juncture in the fight.

Last month, a federal advisory panel declared that pot has therapeutic merits for patients with AIDS or cancer. Meanwhile, advocates are hopeful that last year’s Democratic political sweep in California--and the departure of Republican drug warrior Dan Lungren as attorney general--will yield a friendlier environment for patients who smoke marijuana.

That hasn’t been the case even with approval of Proposition 215, California’s landmark 1996 medical marijuana initiative. Despite the new law, drug agents closed cannabis clubs in numerous cities. Overall, marijuana arrests statewide jumped to a record 57,677 in 1997, the law’s first year of life.

Dozens of people have tried to use the law as a shield against prosecution, but few have succeeded. Kubby’s case promises an unusual test. Although other patients say the drug helps them cope with illness, Kubby goes farther. Marijuana, he contends, has kept him alive.

Kubby was diagnosed in the 1970s with a type of cancer that attacks the adrenal glands and typically kills within five years. Early on, he suffered through operations, chemotherapy and radiation. But for the last 20 years his most regular form of treatment has been cannabis.

“As long as I have pot, I can lead an active and healthy life,” said Kubby, 52. “I can be as physical and intellectual as any other adult. Without this medicine, I would drop dead in a few days.”

Prosecutors aren’t even debating Kubby’s tale of herbal success. Instead, they contend the number of plants Kubby and his 33-year-old wife, Michele, cultivated were too many for personal medical use.

Authorities have charged the couple with possession of pot for sale as well as other felony counts for small amounts of hashish, psychedelic mushrooms and peyote buttons found at their home.

“If the jury feels 265 plants is sufficient for medical use, then justice is done,” said Christopher Cattran, a Placer County deputy district attorney. “If they decide 265 plants is too much, then justice is done, too.”

The case is set for trial May 18 in Auburn. Kubby refuses to plea bargain, though he could face a decade in prison if convicted on all charges. He claims he is a victim of political persecution by the district attorney and said his case will be “the Scopes monkey trial of medical marijuana,” a pronouncement that has even some allies rolling their eyes.

In Kubby’s corner is Dr. Vincent DeQuattro, a USC medical school professor.

A cardiologist who specializes in hypertension illnesses, DeQuattro treated Kubby more than two decades ago, but eventually referred him to cancer specialists in the Midwest and lost track of him. The doctor figured Kubby, like most others with the rare illness, had died.

Then he saw Kubby’s picture--smiling and looking quite well--in the voters pamphlet for last November’s election. DeQuattro said he was “flabbergasted Steve was still alive.”

He contacted the politician and performed tests, discovering lethal levels of adrenal fluids--10 to 20 times normal--coursing through Kubby’s system. Under such conditions a patient usually has blood pressure that skyrockets and faces the risk of heart attack or stroke. Kubby’s system remains somehow in check.

“I have no other way to deduce but that marijuana is controlling it,” said DeQuattro, who is continuing to study Kubby. “I’ve never prescribed medical marijuana, I’m not an advocate, I don’t use it. But in some way his therapy has kept him alive.”

Sophisticated Growing Area

Kubby said he began growing pot soon after voters approved the state’s medical marijuana law, which he helped to promote. He developed a sophisticated little plantation in the basement of his sprawling rental house.

Though now stripped clean by drug agents, it once featured blowers, a carbon dioxide generator, special air filters and grow lights hard-wired to timers. At the time of the arrest, narcotics agents said, 107 plants were capable of producing smokable marijuana. The rest were immature plants, some just seedlings.

The bounty of his basement garden will be a key issue in his upcoming trial. During a preliminary hearing last month, a state drug agent testified that the size of Kubby’s crop indicated he was operating a “commercial grow” that could have produced 20 pounds of finished product.

Kubby, however, said his indoor operation was yielding far less than that, and all of it was for himself and his wife, who smokes pot to control pain caused by a bowel condition she has suffered for more than five years.

He said he regularly throws away a lot of his crop, winnowing out inferior strains, and that he usually smokes only half a joint, reasoning the drug’s medicinal effects are best when drawn through unburned cannabis.

“I was trying to grow the absolute best medicine possible,” Kubby said. “I figured the better the medicine, the less I have to grow and smoke. I was working for stuff that didn’t make me stupid or stoned or have the munchies.”

Kubby also has an explanation for the mushrooms and other drugs found in his home: he said he had them on hand because of a book he wrote on drugs and politics. The Kubbys said they are undergoing tests to prove they only consumed cannabis.

Like his brand of medicine, Kubby’s career path has been anything but ordinary.

In his 20s, he ran an outdoor camp teaching wilderness living to teenagers. Later, while fighting the cancer, Kubby founded a ski magazine and got into politics. Michele Kubby worked at a San Francisco brokerage house before the couple’s 3-year-old daughter was born. Several years ago, they started an Internet magazine, Alpine World, which they edited from home.

The Kubbys first came to the attention of narcotics agents last summer, as he campaigned at the top of the Libertarian ticket. Tahoe drug agents got an anonymous letter containing a provocative tip. Kubby, it said, was growing pot to finance his campaign for governor.

Kubby denies the allegation, suggesting it was dreamed up by some foe troubled by his pro-pot stance on the stump. He talked openly about his own use of marijuana for cancer during the campaign. On election day he finished fourth, with 1% of the vote.

Off and on during the campaign, drug agents were keeping an eye on the Kubby home. They picked through the family’s garbage, peered through open windows and interviewed friends. Cattran, the prosecutor, said agents discovered marijuana seeds, leafy residue and other signs that Kubby was growing plants.

Along with the garbage were notes from Kubby. Tipped off about the surveillance early on, Kubby began leaving letters in his trash bin telling drug agents that he was a medical marijuana patient protected by Proposition 215.

Those missives didn’t help. Two months after election day, agents outfitted in bulletproof vests raided the couple’s home. Steve and Michele Kubby were jailed for several days after the Jan. 19 arrest before being released on their own recognizance.

During his incarceration, Kubby said, his blood pressure soared, as jailers scoffed at the notion he be allowed to smoke pot to control the condition. Officers, he recalled, “told us repeatedly: Proposition 215 may be fine in San Francisco, but it doesn’t fly in Placer County.”

In recent weeks, the couple have vacated the Tahoe rental house--too many bad memories, they say--and moved in with relatives in Orange County. Kubby said he and his wife recently declared bankruptcy. They say they have been hamstrung to publish their Internet ski magazine because agents seized computer software and equipment.

“He’s not a pot millionaire,” said Dale Gieringer, California coordinator for the National Organization to Reform Marijuana Laws. “The guy’s broke.”

Putting Muscle Behind Prop. 215

The politician’s plight has outraged others in the Libertarian Party, who awarded him their “Sons of Liberty Award” at a recent state convention. Party elders are feeling battered, noting that Los Angeles author and medical marijuana proponent Peter McWilliams was arrested in July after a speech at the Libertarian national convention blasting national drug policy.

Kubby’s legal prospects remain uncertain. Many medical marijuana defendants have been found guilty in court, despite Proposition 215.

An exception was the case of Charles Lepp, a 46-year-old Vietnam War veteran acquitted in December of charges that he grew marijuana for sale in rural Lake County. Lepp said his 131 plants provided pot for a variety of ailments, including chronic back pain, post-traumatic stress disorder and manic depression.

Kubby’s attorney hopes the upcoming trial will have an impact beyond the courtroom, helping push state lawmakers to adopt cleanup legislation clarifying Proposition 215, which has been attacked as too ambiguous by law enforcement officials.

“Right now, nobody knows how much pot is too much,” said Dale E. Wood, Kubby’s Truckee attorney. “That question just can’t be answered arbitrarily. In one county it might be a few plants is OK, in another a lot more might be allowed.”

As one of the people who helped put Proposition 215 on the ballot, Kubby said he feels a personal responsibility to push ahead with his case. He contends that pot patients in many parts of California now are actually at a greater risk than before the initiative.

Since 1991, marijuana arrests statewide have jumped 72%, including a slight increase in the year after voters passed Proposition 215, according to the state Department of Justice.

“Our task,” Kubby said, “is to win in the jury box what we couldn’t win in the ballot box.”

Michele Kubby has a more basic desire--to see her husband stay alive.

“If the jury sends Steve off to jail, they’ll kill him,” she said. “That’s what they’ll have on their conscience, that’s what they’ll do.”