But on that cold January day near Lake Tahoe, California, Sarah watched armed government agents remove her family’s belongings, and her parents, from their mountain home. She became a drug war orphan for three agonizing days, while her mother and father languished in Placer County jail cells.
Sarah’s parents, Steve and Michele Kubby, had medical marijuana recommendations that they and their lawyers believed qualified them for legal immunity under California’s medical marijuana law. Steve Kubby helped pass the law, Proposition 215, in 1996. In 1998, he ran a marijuana-laden Libertarian campaign to be California’s governor. Last year, Kubby was nearly chosen as the federal Libertarian Party’s vice presidential candidate.
After the Kubby’s arrest, police sabotaged their ski magazine business, told neighbors and associates that the Kubbys were drug dealers, and forced the family to flee Placer County. Sarah, Steve, and Michele became refugees, living with Michele’s parents and other kind-hearted people.
Police charged the Kubbys with 19 drug-related crimes; many were dismissed. Last September, the Kubbys went on trial in Auburn, California, with prosecutors claiming that the 265 plants found in the Kubby’s basement grow room were a cash crop destined for Bay Area medical marijuana clubs.
The beleaguered family experienced happiness in the midst of suffering. Sarah got a special Christmas present in 1999: a baby sister.
I first met Sarah while visiting the Kubby’s home in 1998 to interview them for a Cannabis Culture article. I saw her again in November 2000. Her parents were downstairs in a spacious temporary home provided them free of charge by a gracious, sophisticated Libertarian couple, discussing their ongoing trial with attorneys Tony Serra, David Nick, and Carrie Hagin.
Upstairs, Sarah seated herself at a piano. She told me she has “scary dreams” about her parents’ arrest.
She’s received no music training, but immediately began sounding out a plaintive song that reminded me of Romantic-era classical music. While Sarah played, she softly sang: “A big bad witch came and took my parents away. The mean witch hurt mommy and daddy. Now I’m left in the woods without any food. Where did they go? Why am I all alone? Will they ever come home?”
The Kubbys utilized several sets of attorneys in their long legal odyssey, but were represented at trial by two of California’s most respected pot lawyers — Tony Serra and David Nick.
Serra’s four decades of radical legal work provided inspiration for a compelling 1988 movie, True Believer, starring James Woods. Nick has ten year’s experience representing marijuana defendants; both he and Serra have represented med-pot pioneer Dennis Peron.
“The Kubby case hinges on who decides how much marijuana patients can grow and use — doctors and patients, or police and prosecutors,” Serra explained. “The government ignorantly says Kubby’s growing too much, so he must be selling. That’s their position in most medical pot cases. The best experts in the country testified that the Kubbys were not even growing enough for the two of them, based on standards established by the federal program that gives patients like Elvy Musikka 300 joints a month.”
Nick also scoffed at government speculations.
“The government believes Steve Kubby was a horticultural miracle man who could get 25 pounds out of a 12 by 16 foot room!” Nick said, with the merciless sarcasm that has become his trademark. “If prosecutors win against Kubby, they’ll think they’ve been given a green light for obtaining more false convictions by asserting fictitious quantities of projected yields without any real evidence, and completely ignoring medical and agricultural evidence that says otherwise.”
Steve Kubby expressed “boundless gratitude for the professionalism and dedication” of Serra and Nick, thanked the “many marijuana activists and Libertarians” who provided financial and moral support, and praised the “fairness and intelligence” of presiding Judge John Cosgrove.
He had a less charitable opinion of Deputy District Attorney Chris Cattran.
“Cattran follows orders from higher up. The origin of this case can probably be traced to Dan Lungren’s office,” Kubby said, referring to the pot-hating Republican Attorney General and 1998 candidate for governor who was soundly defeated at the polls. “But Cattran’s no dummy. He hoped this case would be his stepping stone to a position with the Attorney General’s office. And no matter how bad it has gone for him, he marches forward, trying his hardest to destroy my life.”
Cattran’s task was especially difficult because he had no evidence that Kubby sold marijuana to anybody.
Instead, Cattran relied on selective presentation of ambiguous circumstantial evidence seized during questionable searches, and on police officers, such as “expert witness” Frank Koehler, a Nevada County sheriff who claimed to have investigated 77 marijuana cultivation cases during his 27-year career.
Near the end of the case, prosecutors abruptly announced that they were bringing in infamous California Department of Justice narcotics officer Mick Mollica as an expert witness. In open court, Nick denounced Mollica as “a perjurer, liar and a fraud.”
The defense team had a file cabinet full of damaging information about Mollica’s past: he recently resigned from his narcotics “special agent” job under a cloud of scandal and suspicion.
Outside the courtroom during a recess, Nick told Cattran and Lyke that they were “slimy and cowardly.” When the trial reconvened, Cattran told Judge Cosgrove that Nick had said mean things to him. The judge replied that as long as it didn’t happen in the courtroom or in view of jurors, there was nothing he could do about it.
“Too many innocent defendants have gone to prison because of Mollica,” Serra said later. “His chummy stage presence and smoke and mirrors statements about marijuana convince juries that he knows more about marijuana than the people who grow and love it. Cattran had told David that Mollica wouldn’t be testifying, and David was upset.”
Mollica tried to convince the jury that Kubby’s garden could produce far more pot than defense witnesses had estimated. Cattran tried to elicit Mollica’s testimony about medical marijuana, but Cosgrove disallowed the questioning when Serra and Nick pointed out that Mollica had no medical expertise.
“We had two goals,” Nick explained. “We wanted the jury home before Christmas. The prosecution was wasting their time with worthless testimony. And we wanted to show that Mollica wasn’t a reliable, truthful witness. In front of the jury, we forced Mollica to admit that he’d grossly misrepresented important academic and employment facts in his resume. That’s all we needed to impeach him.”
Cattran also failed to get Cosgrove’s permission to put doctors on the witness stand.
“They had doctors who never met Steve Kubby who were going to try to tell the jury that there are other treatments for cancer, which is totally irrelevant,” Nick said.
Chief investigator Michael Lyke also fared poorly, reluctantly admitting he and a female companion had scurried around in the middle of the night peering into the Kubby’s windows. He also conceded that he’d been in error when he’d sworn to have seen Michele Kubby on New Year’s Day at the Kubby’s Tahoe home. Michele’s father testified that Michele had been with him in Southern California. He produced date-encoded photographs that proved absolutely that Lyke had not seen Michele Kubby that day.
“It was a joy to watch David and Tony eviscerate police testimony,” Kubby reported. “Koehler admitted he hadn’t read scientific studies and manuals he’d listed as part of his training. Koehler said my smaller plants were clones and claimed that only commercial growers used clones. David proved my plants were seed-grown, something Koehler should have easily determined because seedlings have a different set of first leaves than clones have. Koehler admitted that out of 77 cases he’d worked, only two were indoor gardens. The poor guy didn’t look like an expert when he left the witness stand!”
Nick and Serra’s defense put scientists, attorneys, physicians, authors, journalists, grow gurus, med-pot activists, and even the Kubbys themselves on the witness stand.
I was called to testify. Placer cops were spying on Kubby’s home when I visited for a 1998 interview and photo session for Cannabis Culture (CC#18, Candidate Kubby). They traced my license plate, and instructed Butte County narks to storm my house two days after the Kubbys were arrested. The narks confiscated journalism materials relating to my Kubby article, hacked my computer, and arrested me on sham drug charges that were later dismissed.
On February 4, 1999, Lyke called to say he would charge me as a co-conspirator unless I provided damaging information about Kubby. I refused, telling Lyke he should be ashamed for harming non-violent medical marijuana patients.
During Kubby’s trial, I told the jury what Lyke had done to me, but I was just one of many witnesses who challenged Cattran’s assertion that the Kubbys were recreational drug users and dealers.
Dr Vincent DeQuattro, a Southern California cancer specialist, testified that Kubby was diagnosed with a rare form of adrenal cancer 16 years ago, and had used medical marijuana after conventional treatments failed. All other DeQuattro patients with the same type of cancer who had not used medical marijuana had died. Kubby was the only one left alive, and DeQuattro affirmed that medical herb was responsible for his survival.
Dr Tod Mikuriya, a trailblazing California med-pot physician, told the jury he’d recommended Michele use marijuana to help her relieve a painful gastrointestinal spasm condition. Dr Eugene Schoenfeld testified that marijuana was useful for Steve’s medical problems and was the “best treatment available” for Michele’s condition.
Representatives of med-pot clubs accused of buying weed from Kubby testified that he’d never sold to their clubs, and verified that money given Kubby by members of the “marijuana movement” were campaign contributions.
The Kubby’s former attorneys testified that the couple had repeatedly asked if they were in compliance with Prop 215, and had been assured that they were.
Friends and business associates of Steve Kubby testified that Kubby was a medical marijuana “chain-smoker” who consumed massive amounts of marijuana in a desperate attempt to stay alive.
“I met Steve in a chemistry lab during college,” Dr Jason Saleeby told me. “We’ve been friends all these years. Steve was preparing to go diving in the Tropics, but the next thing I knew he had cancer and was in surgery getting chopped up. I’ve seen Steve incinerate several pounds of marijuana because it wasn’t the variety he preferred for medical uses. After his arrest, a Placer County detective called and asked if he could question me. I refused. Then he showed up at my office very early in the morning and harassed me until I threatened to have campus security remove him.”
In 1999, I had the pleasure of photographing Kubby’s plants, and was one of the last people to see his green beauties alive before police murdered them.
He was trying to breed superweed with a cannabinoid profile that would defeat cancerous tumors, relieve pain, nausea and anxiety, stimulate creativity, and provide a performance-enhancing high that helped him ski the dangerous slopes near his Squaw Valley home.
Kubby’s grow room was sophisticated, clean and efficient, enhanced with carbon dioxide. His plants were lovingly-tended, like orchids or African Violets. Kubby had pet names for some of them. He doted on them like children.
“Growing pot is an art and a science,” he told me before his arrest. “Commercial growers rely on clones of mega-yielding varieties, but I’m conducting a pharmaceutical research project here, and it’s a matter of trial and error and careful attention to details. I might grow a strain that would knock somebody else out, but if it isn’t therapeutic for me, I’ll throw it away and work on another strain. I spend a lot of time examining individual plants, sexing them, and trying to develop good stock. It’s better to grow from seed. Seed-grown plants are more vigorous and potent.”
Kubby’s favorite breeds were Sativa-dominant varieties that take a long time to flower and ripen.
“Hawaiian Sativa, Bubbleberry, Northern Lights by Haze, Northern Lights by Shiva, I tried them all,” he said. “They’re beautiful plants, but slower than molasses. Another thing I discovered was that different strains have different resistance to mites. Shiva had a low resistance to mites, it took me forever to get rid of them. I also had problems with mold. Anybody who thinks marijuana is an easy-to-grow weed is kidding themselves.”
Prosecutors and Mollica asserted that Kubby easily produced dozens of pounds of saleable bud in his small grow room, but expert witnesses like Bill Logan, Mikuriya and Chris Conrad ripped holes in government agricultural speculations.
“The Oakland Guidelines are scientifically-determined plant number and yield calculations designed to accommodate medical marijuana patients and botanical reality,” Mikuriya said, referring to the generous Oakland, California med-pot ordinance that he helped write. “Kubby’s garden was totally within those guidelines.”
Chris Conrad, author of several acclaimed books on cannabis and the drug war, also weighed in.
“I examined Kubby’s garden configurations using DEA and NIDA yield formulas. I weighed evidence seized from Kubby,” Conrad said. “He had scrupulous quality controls. He got slightly more than average yield from his crop, but at best he was getting 3.5 pounds per harvest. Police found notes addressed to law enforcement in his garbage telling them he’d have as much as 3.5 pounds at any time. That’s what his garden was calibrated to produce. Police found he was throwing away substantial amounts of stems and leaf, along with 1/3 to 1/2 gram roaches. He was growing Silver Haze Sativas that are not high yielding. Clearly a personal use garden.”
During my first interview with Kubby, he called himself an “educator rather than a politician.”
He referred to his excellent book, The Politics of Consciousness, which uses history, anthropology, science, and spirituality to establish that humans are killing themselves and the planet, and that they need to use enlightening drugs to alter consciousness and achieve personal growth. Kubby’s fiery, uplifting book also protests the brutality and hypocrisy of institutions and individuals who oppose altered consciousness.
On the witness stand, Kubby sat facing the jury, calmly describing surgery, chemotherapy, death fear, shamanistic plants, and his discovery of medical marijuana, which helped him kick dangerous prescription drugs.
Cattran put Kubby’s ideas on trial. He introduced famous books about psychedelics into evidence — books that had been seized from Kubby’s library. Cattran also made issue of Kubby’s writings about hallucinogens.
Responding to charges that a tiny, shriveled “magic mushroom stem” and four miniature peyote cacti buttons had been found in a guest bedroom in his home, Kubby turned the courtroom into a church.
Using his book and the Bible’s Old Testament as references, Kubby explained the concept of “Manna,” which the Bible refers to as a “small round thing” that appeared in wetlands, had the color of coriander seed and produced spiritual visions.
Kubby asserted that magic mushrooms are Manna, and that his alleged possession of entheogenic plants was for academic rather than criminal purposes.
Michele Kubby also testified.
“I have two beautiful daughters and a husband I love, but stupid government people are trying to kill him because he believes in healing plants,” Michele Kubby said, before she took the witness stand. “They’ve stolen from us and lied about us. I look forward to testifying about their terror tactics.”
Michele told the jury about her husband’s medical use of hemp oil and marijuana. Steve Kubby makes a delicious condiment combining garlic, hemp oil, tofu, and spices, which the entire family loves, Michele said.
Michele denied that the Kubbys sold marijuana, and told of living in fear during the 1998 campaign season.
“We’d find footsteps in the snow behind our house,” she said. “Undercover cops parked outside our house. They were looking through our garbage and our windows. It was creepy.”
Cattran upset Michele by repeatedly forcing her to watch a videotape of the January, 1999 raid.
“It was terrible to see that,” she said later. “He had the sound turned down. When he turned the sound up, you could hear Sarah crying hysterically. You could hear Steve saying, ‘I’m a medical marijuana patient’ and the cops saying ‘fine, fine, we don’t care.’ It brought back so many horrible feelings. I started crying.”
The Kubby trial was a rallying point for Libertarians and marijuana activists from across California. That’s because the Kubbys vigorously attacked their attackers by filing grand jury complaints against police and prosecutors in several California jurisdictions.
Kubby also formed the American Medical Marijuana Association, a statewide network of medpot activists, lawyers, doctors and lobbyists. He also filed public challenges against California’s past and present attorney generals, as well as opponents of Prop 215.
“Early on, Michele was pregnant with Crystal, and I was sick, and we were basically homeless and bankrupt,” Kubby recalled. “I felt like: this really sucks, my wife is sick, I’m sick, I can’t help her, what have we gotten ourselves into? Then, I felt the presence of the Great Spirit, and I was shown that my family had been chosen to stand up for justice, and that the Spirit would help us triumph over suffering.”
“He’s an inspiration to Libertarians,” explained a 43-year-old woman who refused to identify herself. “He and his wife put their life on the line for our freedoms. They fought back hard. His book is the best thing I ever read. It changed my life. It shows why Libertarians believe that this dumbass government has no right to invade our bodies and our homes.”
An elderly couple, also unwilling to let me describe them or use their names, told of police charging into their home at gunpoint with a “wrong-address” search warrant.
“I am a veteran and a conservative, but I will never trust my government again,” the gray-haired man said. “Kubby is a true patriot. I hope he walks free without any criminal record after this, so he can have our vote when he runs again.”
Sacramento journalist Michael Pulley spoke of a Placer County medical marijuana defendant named Michael Baldwin, a dentist whose thriving medical practice and happy marriage were destroyed by the drug war.
“He was a test case before Kubby,” Pulley explained. “Baldwin was a well-liked professional white collar guy; he was a highly skilled dentist. He used medical marijuana. Then his family is torn apart by sheriff’s drug squad. His dental practice is destroyed. His reputation ruined. They got a hung jury.”
With Baldwin’s assistance, Pulley investigated police tactics, and published revelatory articles documenting falsified affidavits and other questionable procedures used against dozens of marijuana defendants in the Placer County area.
Despite the war stories, Kubby found reason for hope.
“We justifiably complain about Prop 215 not being completely implemented, but we are grateful that some progress has occurred. [Federal marijuana patient] Elvy Musikka and other patients smoked medical marijuana right out there in front of the courthouse, and nobody interfered. People with big gardens are being acquitted in some counties. The presidential election was stolen, but California voters are at least partially being respected.”
Med-pot patient Ryan Landers marveled at the “more than zero tolerance” attitude displayed by sheriff’s deputies guarding the courthouse, who let him smoke bud less than 20 feet from where the Kubbys sat on trial.
“I had rolled joints in papers with little green pot leaves, and I had them in a silver holder,” Landers recalled. “I went up to the entrance station to the courthouse with my umbrella, prescriptions, keys, water, and cell phone. And out of all of that, I dropped the joint holder, and all the joints popped out right with two lines of people waiting, and four guards searching. I showed my medical recommendation. One young sheriff said, ‘Do we have to let him in?’ Later, that same cop vouched for me when another officer objected to my joints.”
During closing arguments, Serra and Nick appealed to the jury’s sense of fairness and logic.
“I wasn’t part of the jury selection process, but I think we have some good jurors,” Serra told me. “This is a tough county. It didn’t even pass 215. Some jurors came in with prejudices against us. At least they had some fun during the trial — they came in costume on Halloween.”
Serra told jurors they were making a “profound and meaningful decision” that would determine whether the will of the voters, the protections of Prop 215, and the rights of medical patients, would be respected in Placer County.
Serra noted that during the 1998 campaign season, Kubby appeared in front of television cameras with big buds in his hands, vowing to arrest DEA agents if he was elected governor. As a result, Serra alleged, police saw Kubby as a dangerous Libertarian — a potential “big trophy” that needed to be shot down by law enforcement.
Cattran’s closing argument repeated the claim that Kubby’s grow room produced “too much marijuana” for personal medical use, but Nick’s closing argument ripped into Cattran’s expert witnesses.
“They’re not experts at anything except ripping up and burning medicine,” Nick said. “Not even one of the prosecution witnesses has any legitimacy or scientific background in botany or data collection and analysis. Their so-called expertise is self-awarded by sitting around at a police convention talking about marijuana. They know nothing.”
Serra hoped the eight woman, four man panel would remember what they’ve learned about government tactics.
“In this case, as in too many others, the government’s charges are redundant and fraudulent,” he said. “They charged him with marijuana for sale, but also with hashish, which is just another form of marijuana, and they wanted to charge him with having hashish oil, because he had hemp oil. If he’d had brownies, they’d have charged him for that. And they charged him with possession for sale, and cultivating for sale, and conspiracy to grow and sell, which is all just different ways of saying the same thing, but they made three new felonies out of it. They also charged him with two other felonies, each involving unmeasurable and unusable amounts of alleged cacti and mushrooms. It’s overkill.”
After closing arguments were over, Steve and Michele went home to wait with their daughters, their fate in the hands of twelve former strangers who’d sat with them through hundreds of hours of courtroom drama.
Jurors had seen Michele Kubby brutalized by a prosecutor until tears flowed. They’d seen Officer Lyke clench his fists and grimace as defense attorneys proved he was a liar. They’d seen a cancer patient pot grower politician read his Bible from the witness stand, and laughed as the judge laughed, when District Attorney Cattran objected to that Bible as “hearsay evidence.” They’d heard a police witness claim that people who ingest psychedelic mushrooms are “fiends.”
They even heard a nun testify that Kubby never sold marijuana to her.
With less than two weeks before Christmas, deliberating in rooms intermittently darkened by near-apocalyptic failure of California’s power grid, the jurors worked toward consensus.
The Kubbys and their supporters waited minute by minute for the telephone call announcing that they must return to the courthouse to hear the verdict read.
“Thank God marijuana is a great medicine for tension,” quipped Steve Kubby. “We heard all kinds of rumors about what was going on in that jury room. At one point, we heard they were headed for full acquittal on all charges, then it swung away from us. We were told that if they didn’t reach a decision by December 21, they’d recess and we’d have to spend our holidays worrying.”
Finally, early on the seventh day of deliberations, the call came. Michele and Steve bade goodbye to Sarah and Carrie* (*name has been changed) . Michele paused to look at her cheerful baby, whose face was comically covered with Steve’s tofu-hemp oil mixture.
Judge Cosgrove declared a mistrial. The jury had voted eleven to one to acquit the Kubbys on all marijuana counts, but Steve was found guilty of possessing a one half gram mushroom stem, and of possessing four peyote buttons so small that all four of them fit into a film container allegedly found in an obscure piece of furniture in the Kubby’s guest bedroom. Both convictions are felonies. Michele was found guilty of nothing.
“We made it abundantly clear during the trial that neither Michele nor I ever saw the peyote, we never touched it, the police have no proof it was even found in our home,” Kubby said. “The prosecutor planted in their minds that any amount of these substances, even so small that they could not produce any kind of ‘dose,’ was a crime, and that because I had written a book discussing shamanistic plants, I must be guilty!”
After the verdicts were read, the courtroom erupted in tumult, as media, jurors, the Kubbys and their supporters, and government pollywogs tried to wrap their minds around the two-year legal saga.
Some jurors hugged the Kubbys, apologetically saying that their understanding of the law made it seem that having possession of any amount of mushrooms or peyote had to be viewed as a felony.
“That one woman juror didn’t believe in 215,” a male juror said, referring to the lone holdout. “We spent all those days begging her, pleading with her to respect the law, to have some compassion. People were crying with rage and frustration. But she believed they should have been guilty just for having marijuana. She wanted to nullify 215.”
The District Attorney’s office refused to rule out a retrial, but admitted it would “take into account” the eleven to one balance in favor of acquittal. Serra, Nick and Kubby rejoiced that in “one of the most conservative counties in the state, eleven jurors upheld 215 and the Oakland guidelines.”
Federal pot recipient Elvy Musikka told reporters that she and other med-pot patients were going to enroll in a police course taught by Mollica at a local community college.
“We’ll make his life miserable,” the feisty cannabis activist promised.
But beyond public precedents and brave statements, the Kubbys are wounded and bereft, just another American family injured by the drug war.
“Those jurors should be ashamed of themselves for finding Steve guilty of anything,” Michele said. “He has cancer. Their verdict could get him jail time. If he goes to jail, I become a widow. He can’t run for office if these felonies stick. I’m grateful they respected 215, but I’m not celebrating. In a free country, we would never have been raided in the first place.”
Kubby said Nick and Serra assured him that the felonies would “go away,” and that at worse he’d be left with misdemeanors.
“If that doesn’t happen, there are many appealable issues, and we’ll fight this all the way,” Kubby vowed, indicating that his immediate goals are to relocate to a 215-friendly county and to redouble his efforts to get 215 uniformly and fairly implemented statewide.
Michele said she needed a “long rest and time with my family,” and then would consider whether she should run for office, as many Libertarians have urged.
In February, the Kubbys will return to Cosgrove’s courtroom for Steve’s sentencing.
If justice and compassion prevails on that fateful day, perhaps Sarah Kubby’s sadness and nightmares will recede. I pray that the next time I see her, she’ll sit down at a piano, and sing a happy song.
? Steve Kubby: www.kubby.org
Interview with California’s legendary civil-liberties attorney, Tony Serra.
Tony Serra is one of a handful of marijuana attorneys who has achieved “legend” status.
According to attorney Carrie Hagin, who assisted Serra and David Nick, younger lawyers view Serra as a hero.
“Tony is inspirational, warm, caring, and dedicated,” Hagin said. “A lot of lawyers don’t care about clients. They just want to make money. Tony wants us to win. Attorneys like Tony lose a lot of income by being a civil liberties lawyer instead of a tax lawyer. I decided to work for these causes after Tony spoke at one of my law school classes. Tony is like a father to idealistic young attorneys.”
After earning a philosophy degree at Stanford, Serra graduated from the prestigious University of California, Berkeley law school, just in time to join San Francisco’s 1967 hippie revolution. Serra danced at Jimi Hendrix concerts all night, then went to court representing anti-establishment defendants accused of civil disobedience and terrorism.
He’s represented approximately 3,000 marijuana defendants, and also represents other accused citizens, including murder defendants. A major feature film starring James Woods, called True Believer, was based on Serra’s iconoclastic persona and one of his murder cases.
Serra inhaled a phattie while giving Cannabis Culture this exclusive interview.
Why are you known as a radical attorney?
I jump into risky situations and take on tough clients and causes. Early in my career, for example, the Black Panthers had two houses and they wanted a lawyer, preferably a white lawyer, to argue with police if they were raided, or to be a witness. They had sandbags and rifles ready for government assaults. I’d arrive, and they’d strip me down and search me for recording devices.
I’ve represented every level of drug defendant, from airplane smugglers to people caught with less than an ounce, to people accused of having huge boatloads containing 60 tons of hashish off Hawaii. I had a cocaine boatload case ? the amount of kilos would fill an auditorium!
Did you like True Believer?
The movie wasn’t totally accurate. I’m pro-marijuana and I wanted that in the movie, but they made my marijuana use seem like a bad habit. They had me giving up marijuana when I took the murder case, but that was total bullshit. Marijuana helps my work. But the movie was worthwhile because it showed outlandish police behavior and a prosecutor who didn’t care if somebody was innocent.
The IRS stole the money I was supposed to earn from the movie, because I’m a tax resistor. I stopped paying taxes during the Vietnam War. I didn’t want my money paying for war. I did six months in federal prison for it, and practiced law the whole time!
You’ve said that some cops belong in prison.
A lot of cops are criminals. And most police abuses occur in drug cases. Drug cops are trained to lie. Their survival depends on being good liars and good actors. If not, they get caught and they get killed. They lie on the street; they lie in court.
Too many lawyers are scared to take them on. In the Kubby case, we questioned a female narcotics officer who had put lots of people in jail, but no defense lawyer had ever challenged her credentials before.
You have to do a lot of prep if you want to nail them. Get transcripts of the narc’s testimony in previous cases. See if he’s beaten his wife. Find every bad act he’s ever committed on the force or off the force. Get his medical and psychiatric records. The jury is like a big Buddha head with 24 eyes staring at a narc, and it spooks him.
Questioning narcs is like a boxing match. If you draw blood, wade in with more punches. You tell the narc, ‘You just admitted you lied, and now the truth is coming out of you, and you can’t control it.’ When you testified that Lyke was a mean man who threatened you and tried to make you provide evidence against Kubby, Lyke’s face turned beet red. The jury was looking at him and they knew he’s a liar and a bully. His aura just shrunk right up in front of everyone.
What makes you work hard for your clients?
Justice. I had a recent case that was a shocking example of government misconduct. A Northern California pot grower was set up by his wife at the instruction of a DEA agent. The agent apparently slept with the man’s wife, and encouraged her to do things like come out of the shower, initiate sexual contact with her husband, and then when they were about to make love, with a hidden tape recorder running, she’d ask questions like, ‘Did you pay so and so to harvest the marijuana?’
What’s more outrageous is that even with this horrendous invasion of privacy, the judge refused to suppress the search warrant.
I worked a pot case in San Diego where a guy with AIDS, who had to be brought into court on a stretcher, died right after his case was dismissed. I won’t let him die in vain.
It’s vicious, this war against marijuana.
And it’s so stupid, because marijuana users are for the most part above average people, good people. They’re aesthetically oriented, artistic, sensitive, creative, caring, vegetarians, musical, adventurous.
They start out innocent and trusting. As kids, they were taught that police don’t lie, that police are there to protect you, they aren’t brutal. If you’re a nice person, nice things will happen to you. America’s a democracy. It’s brainwashing.
Pot smokers usually believe they’re safe as long as they don’t hurt anybody, and especially if they’re legal under a medical marijuana law. They don’t anticipate nosy neighbors, informants, bad cops, and betrayal by their own spouse! They’re good people. Perhaps too good. And that makes them victims.
My message is: don’t trust so much, especially don’t trust cops. They’ll lie. They’ll look at you, and if you fit a profile, you’re in the back of their police car before you know it.
Have you been a victim?
I’m vigilant. A former client of mine came up to me with a kilo of coke and said, “Oh Mr Serra, I never paid you the money I owe you. I have a kilo of coke I want to pay you with.” I said, “No thanks.” Later on, I found out the DEA had him wired with recording devices ? if I’d taken that coke I would’ve been busted and disbarred.
I don’t have time to worry about somebody trying to harm me. I’m concerned with extricating people from steel cages.
Any free advice for marijuana users?
Put a peephole and chain on your door. If cops knock at the door without a proper warrant and then force their way in, you’ll have proof. Otherwise, they’ll claim you consented to the search. Don’t let them in your car. Don’t consent to body searches. Don’t let them interrogate you. Use your rights!
Be discreet. Don’t blow smoke in people’s face. Don’t be out at 2 in the morning stoned out of your mind carrying dope. Don’t transact business in suspicious areas or in sloppy ways. Be a good person. So many busts occur because people are irresponsible, asinine or stupid.
All good criminal defense attorneys are overworked and underpaid. They work at least 14 hours a day and they never have enough time. If you’re a defendant, you want to be at the forefront of your attorney’s attention, but be clever about it. Stop by with flowers or chocolates for his secretary, and then ask if the attorney is in. Ask intelligent questions: “Have you filed that motion yet? I just remembered something the officer said, I wanted to write it down for you.” Treat the lawyer like a human and an important key to your freedom.
You’ve participated in 40 years of American political history. America has recently been gripped by unprecedented turmoil. Is this like the 60’s?
It’s worse. America is the embodiment of Orwell’s 1984. A spy society. The government creates snoops looking into people’s houses in the middle of the night, sifting our garbage cans, reading our emails. Because of drug laws, phones are tapped, search warrant standards relaxed. Draconian sentences force people to plea bargain or become snitches. There are so many different types of informants, we don’t even have legal nomenclature for all of them. The whole judicial system is riddled with corruption.
We’re headed towards totalitarianism. It’s the KGBing of America. We’ve fulfilled Orwell’s prophecy. Fourth Amendment rights are dwindling. It’s like the miner’s canary in a coal mine. The canary is suffocating under government oppression. It’s falling over in its cage.
What can we do to create more justice?
Any lawyer with a conscience should get into drug cases and fight the narcs. Fight the death penalty. Fight decrease of constitutional rights. Fight ruination of climate and atmosphere.
We need something like what happened in America in the 1960’s when young girls gave America a conscience by calmly putting flowers in the barrels of loaded guns pointed at them by the National Guard. We need that spirit again.
I’m puzzled by people’s complacency. Our rights are disappearing along with our oxygen. We’re the only form of life eagerly poisoning itself and destroying every other form of life. Our species persecutes the gentle, harmless and sensitive among us.
I chill out by smoking a joint, walking the beach, and readjusting my equilibrium. But I don’t just smoke pot for fun, I smoke it as a warrior would, to prepare for battle. The fight goes on!