California -- A new legal team representing medical marijuana activist Steve Kubby appeared in an Auburn courtroom Wednesday requesting their client's case be heard by Judge John Cosgrove. Cosgrove presided over the original jury trial in which Kubby, 59, was sentenced in 2000 to 120 days jail time for possession of psilocybin and mescaline.

"What I want to do for Steve is have the case sent back to Cosgrove for a complete felony sentencing to occur," said Kubby's new attorney David Nick in a telephone interview. Nick did not appear in court, instead sending a representative. Nick said that during the original case Cosgrove reduced the psilocybin charge to a misdemeanor.

"Cosgrove agreed with me on the motion and sentenced (Kubby) to 12 days. We believe the sentence was an act of judicial balancing."

Kubby faced a jury trial in which he was convicted of possession of psilocybin and mescaline and sentenced as a felon by Cosgrove.

Chris Cattran, deputy district attorney prosecuting the case, said Cosgrove's decision was appealed and the appellate court agreed with the prosecution and reinstated the charge as a felony.

"(Kubby) doesn't have to be re-sentenced," Cattran told the court Wednesday. "We're here on a violation of probation."

Judge Robert McElhaney told the defense Wednesday that Cosgrove has since retired and the matter will be revisited at 8:30 a.m. Friday in Dept. 13 of Placer County Superior Court.

Kubby was allowed to leave Placer County to visit Canada and avoided incarceration in 2000 by not returning as ordered. He was arrested on a no-bail warrant last month and transferred to Placer County Jail where he remains.

About 20 medical marijuana activists filled the Auburn courtroom Wednesday to show their support for Kubby who looked tan and appeared to have regained some of his weight.

Wearing an orange jail-issued jumpsuit the one-time gubernatorial candidate and co-author of Prop. 215, California's Compassionate Use Act, looked appreciatively around the court at the throng of supporters.

Several spectators waived to Kubby and blew kisses in his direction as they left the courtroom, to the admonishment of the bailiffs.

Members of the Compassionate Coalition.org, Hemp Evolution and other medical marijuana advocates held signs in front of the jail Wednesday that read "Healing is not a crime, free Steve Kubby, Don't jail the Ill," and "Stop terrorizing patients."

Kubby contends he must have marijuana daily in order to survive and stave off the affects of a rare form of adrenal cancer. He credits a Canadian doctor who agrees with him, but a department chairman and UC Davis cancer specialist has said there is no scientific evidence to Kubby's claim that marijuana is keeping him alive.

Kubby is scheduled to appear at 8:30 a.m. Friday in Dept. 13 of Placer County Superior Court.

Michele Kubby was not in the courtroom for Wednesday's appearance and could not be reached for comment.

The Kubby family had been seeking to stay in Canada, however, the Canadian Border Services rejected the family's bid for protection Dec. 9 and ordered them out of the country.

Note: Judge switch requested for medical pot advocate.

Source: Auburn Journal (CA)
Author: Penne Usher, Journal Staff Writer
Published: Thursday, February 16, 2006
Copyright: 2006 Auburn Journal
Contact: ajournal@foothill.net
Website: http://www.auburnjournal.com/