Pubdate: Fri, 06 Oct 2000
Source: Sacramento Bee (CA)
Copyright: 2000 The Sacramento Bee
Contact:  P.O.Box 15779, Sacramento CA 95852
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Author: Wayne Wilson, Bee Staff Writer
Cited: http://www.kubby.com/

KUBBY DEFENSE LAWYERS MOVE TO DISQUALIFY DA

Harsh words filed this week in Placer County Superior Court by defense 
attorneys accuse District Attorney Bradford Fenocchio of prosecuting 
medical marijuana activists Steve and Michele Kubby for "improper political 
and blatantly bias(ed) purposes."

The allegations are contained in a motion asking the court to disqualify 
Fenocchio and other attorneys from prosecuting the Kubbys' criminal trial, 
which is scheduled to resume Wednesday before Judge John L. Cosgrove.

Attorneys J. Tony Serra and J. David Nick claim that a "careful review of 
the testimony received" during the first two days of the Kubby trial 
revealed "an impermissible conflict of interest that cannot be cured 
without recusal."

Deputy District Attorney Christopher M. Cattran, the lead prosecutor in the 
case, dismissed the motion as "specious, baseless and meritless."

"It misstates the facts that have been presented at trial so far. We will 
be prepared to litigate the matter on Wednesday," Cattran said.

The motion claimed that prosecutors used a "charging process (that) was 
tainted by not only a desire to discriminate against medical marijuana 
users, but by a design to eradicate from Placer County supporters of 
medical marijuana that the Kubbys so openly represent."

The Kubbys were arrested in January 1999 after a police raid turned up a 
garden of 265 marijuana plants at various stages of growth in the couple's 
Squaw Valley home.

Steve Kubby, 53, a former Libertarian candidate for governor, and Michele 
Kubby, 34, insist the pot was being cultivated as medicine to help Steve 
fight cancer and Michele to ease symptoms of a bowel disorder.

The motion by their attorneys claims that prosecutors did not act 
evenhandedly in their approach to the Kubbys, alleging that they:

- -- "Actively took part in the six-month costly and intrusive investigation.

- -- "Assured that the Kubbys would be charged even when sheriff's 
investigators did not find evidence of illegal activity.

- -- "Drove out to the scene when the search warrant was executed to 
guarantee that the Kubbys would be arrested.

- --"Oversaw collection of evidence at the Kubbys' residence.

- --And "questioned the Kubbys themselves." The defense alleges that since 
the deputy district attorneys were so actively involved in the 
investigation and arrest, they are witnesses to conduct that may prove the 
Kubbys innocent and therefore should not be permitted to continue as 
prosecutors.

Serra and Nick said the first detective assigned to the investigation was 
"let go" when he "failed to find sufficient evidence to justify searching 
or arresting the Kubbys." And in his place, authorities "brought on board 
as case agent" a "young and inexperienced detective ... as a puppet for the 
District Attorney's Office," the defense alleged.
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