When it comes to closing arguments, Tony Serra has an undeniable sparkle. By his own observation, however, “sparkles are a surface manifestation,” and this holds true to the defense attorney himself. The internal phenomena behind his shine are a fluency in the language of the emotional intellect and a gift of lyricism perfectly synced to the heartbeat of humanity. Simply put, it’s genius.
“I’ve been doing this a long time,” Serra said as he started off, “ but I always have butterflies every time I step to the podium for closing.”
With a gracious excess of words, he thanked the jurors for their patience and attentiveness. “This is the crucible of justice, and you participate in it admirably.” He bowed his head slightly in appreciation.
“You are the figurative peer group of our clients.” Serra gestured towards Mollie Fry and Dale Schafer at the defense table. “You should feel that. You should give the justice that you would want for you and your loved ones.”
Serra’s form was beginning to take shape, the rhythm and speed of his speech finding balance with the pace of his imagery. “Dr. Fry and Dale Schafer are not aliens,” he told the jury. “They are in the bosom of their community. They are good people. Give them justice.”
Illustration by Dr. Care
He wanted the jurors to recall the scales of justice hanging in the entry. “The scales of justice tilt. They bend. They bend towards mercy. They bend towards compassion.” Serra stated that morality is a part of every case, announcing with conviction, “Law that is divested of morality cannot perpetuate itself.”
Part of that morality was reflected in the testimony of the character witnesses, and Serra put great emphasis on this concept. “It was extraordinary to see the girth and magnitude of the character witnesses,” he observed, noting the demographic range of these people. “All different levels of society came forward to attest to Dr. Fry and Dale Schafer’s good character. Other defendants don’t come with such pedigree, such community—”
“I’m sorry, your honor, but I’m going to have to object,” Assistant U.S. Attorney Anne Pings broke in, taking issue with the reference to other cases. Judge Damrell, while clearly not pleased with objections during closing, curtly advised Serra to talk only about this current case.
Serra got back to his point, continuing to sketch a portrait of his client – a man who was raised and schooled locally, who joined the armed forces, became a lawyer, and married a woman with whom he raised five beautiful children. The family was, as Serra described it, happy and prosperous, and the lifestyle exemplary. The couple built their professions, became a valuable part of their church and their community, and deeply devoted themselves to their children. “Is that not the American way? Is that not the American dream?” Serra then gestured towards Schafer, who had a look of humility as he sat near his wife. “Is he not symbolically our son, our brother, our father?”
Illustration by Dr. Care
Jurors were reminded of the catastrophe that befell this family when Fry was diagnosed with breast cancer, and how Schafer testified tearfully on the stand about his wife’s struggle against death. “You saw him emote. You think that was somehow counterfeit?”
At the defense table, Fry was gripped by full, open-mouth sobbing, but she did it all in perfect silence, reminding the audience of Serra’s description, “She’s all courage…she’s been hurt but she’s so brave.” The defense attorney was passionate in his appeal, and all ranges of his address fell neatly into their distinct grooves. He had hit his stride.
After failing to find relief with a number of conventional therapies, he recounted, Fry found that she was helped by marijuana. Serra then tried that term out, reciting it over and over with careful articulation. “Marijuana. Marijuana. Marijuana. Marijuana. It’s not a dirty word.”
The defense attorney explained that words acquire positive and negative connotations through social constructs. He listed other words – narcotics, methamphetamine, terrorism, molestation – and acknowledged that they get automatic cerebral and emotional reactions. “If this case did anything at all, ladies and gentlemen of the jury, understand that marijuana, for her, Mollie Fry, and for him, Dale Schafer. Marijuana is medicine.” Serra jumped immediately forward into the assertion that this was not a defense, and that his descriptions were merely providing context. “It was an epiphany, an enlightenment, a bolt of lightning…it was an angel of mercy for her, as it has been for many—”
Pings raised her second objection at this point, indicating that she desired a sidebar to discuss the matter, but the judge merely reminded Serra to keep his comments specific to the case at hand. “Proceed” said the judge.
The defense attorney nodded, returning directly to his narrative about the impact this medicine has had on the defendants. It saved Fry from pain and despair, rescued her from death, brought her redemption… and the family’s priorities were reordered accordingly. As a result, Schafer voluntarily chose to devote his practice to a specialty that earned him less money, a move that contradicted the government’s claim that the defendants were motivated by profit. “What they were doing, from their perspective, was good. What they were doing, from their perspective, was right. And what is good and right can never be illegal.”
Serra quickly tacked on the clarification that he was describing the defendants’ mindset, but this amendment was not enough to satisfy Pings, who simultaneously shouted out her objection. “It’s not a defense,” Serra admitted, but he directed his focus back to the defendants’ reputations for honesty and trustworthiness.
Vouching for his client, of course, were the extraordinary character witnesses that Serra mentioned earlier in his speech. He briefly traced their history back through English common law tradition and into Middle Eastern practices of justice that extracted ‘an eye for an eye.’ In this system, as Serra described it, “Justice was swift, and punishment was certain.”
The defense attorney also highlighted the brutality of those trials. “They would take the accused to the stoning wall, and the jurors, more or less, would stone him or her to death. However, if a respected member of the community placed himself in front of the accused at the wall, the participants were faced with two options: either kill both parties, or exonerate. That, as Serra drew the comparison, is the function of the character witnesses in this case. “They come forward and say, ‘Spare them. These people warrant your judgment, your compassion, your fervent consideration of the evidence.”
Illustration by Dr. Care
Schafer’s honor was not only confirmed by these witnesses, the defense attorney suggested, but his character was also demonstrated in the testimony he gave on the stand. “He said he grew marijuana,” Serra recalled from Schafer’s testimony. “He doesn’t expect to walk out of here without a conviction.”
It was surprising to hear that the defendant, in essence, expected a guilty verdict. But there was method to this madness – Serra then told the jurors that they could trust Schafer’s testimony because he had taken responsibility and spoke honestly about his deeds. This showed his integrity, his honor, his veracity. As such, the defense attorney concluded, his client’s word has far more weight than the word of a witness like Paul Maggy. Just in case any of the jurors were wondering precisely how much more weight, Serra went so far as to suggest a rate of conversion: his client’s word was over twenty-five times more valuable than the word of the government’s lead witness. The jurors were urged to consider Schafer’s testimony with an eye to its greater worth, giving special attention to his declarations that his wife had nothing to do with growing marijuana. “His word alone, because he has integrity, raises reasonable doubt.”
As for the witnesses who testified against the defendants, Serra advised the jurors not to rely on their testimony. They were lacking in credibility, the defense attorney proclaimed, and he followed up with detailed descriptions of the character flaws of these witnesses.
With regard to Paul Maggy, Serra had many points of concern. “Dr. Denney testified that Paul Maggy is a liar and a thief, in his opinion,” the defense attorney reminded the jurors, going on to detail Maggy’s extensive criminal history. “You can’t ever take the word of a liar and a thief over the word of an honest human being, a wholesome human being.”
Beyond deception and theft, however, there was another factor that made Maggy’s testimony suspect. Just like so many other witnesses on the government’s case, he was seeking leniency in sentencing. Serra reiterated that giving testimony in this case was a requirement of the plea deal Maggy took to avoid a 5-year mandatory jail sentence in his own cultivation case.
“You get a few vignettes that symbolically open the door to your understanding,” Serra said to the jurors, going on to describe the fear Maggy was experiencing during his interviews with federal agents. “They put him in cuffs and interrogate him. ‘We know there were more plants than that! How many plants were there?!’ He gets the idea. He sees a crack in the door of the jail. He will say anything to save his own skin. He is flawed. He is a coward. You can’t believe a word he says.”
The defense lawyer compared this situation to the highly problematic practice of extracting confessions through torture, and then went on to call it a form of bribery. “The government says, ‘Give us what we want, and we will give you years of freedom,’ and what is more valuable than money? Liberty.” As with other forms of bribery, Serra implied, the result is corruption. “This system produces, ultimately, a system of justice that has no validity, that has no integrity. How can the building blocks of truth be built through witnesses who are paid?” he asked rhetorically. “They’ll say anything.”
The defense attorney’s poetic symbolism was vivid. “These are the halls of justice,” he continued. “And into our halls comes that viper, that flawed human being, that Judas, and wants you to take his word and condemn this beautiful couple!”
Mike Harvey, Serra contended, was not any better than this. “The Judas syndrome comes easily to the weak,” he said.
The defense attorney informed the jurors that one of the factors they can use to weigh the credibility of a witness is the manner in which that witness testified. “Do I really need to say much?” Serra asked about Harvey’s testimony. “He stuttered. He contradicted himself. He had a look of blankness like the proverbial deer in the headlights. He made admissions of almost hateful bias against Dr. Fry.”
Referring back to a contentious time during cross-examination when he called Harvey a rat, the defense attorney was without regret. “I called him an ugly name,” Serra recalled. “I don’t take it back.”
The better analogy, however, was saying that these traitorous witnesses preyed upon the defendants like spider mites preyed upon Schafer’s hapless clones. “The spider mites come around – they want the money, they want the ease, they want to suck off the gravy.” Serra shook his head at the shame if it all, concluding to the jurors. “I beseech you to never convict on the word of a Mike Harvey.”
As for Sean “Nacho” Cramblett, the defense attorney saw him in a similar light. Like the other witnesses Serra described, Cramblett testified in exchange for leniency in his own criminal case. But there was another factor that complicated things with this witness – the obvious financial motive. “He ripped my client off,” Serra alleged, referring to the $8500 loan Schafer made to Cramblett. “That was no agreement to grow marijuana. That was for his glass-blowing business.” The loan, of course, was never repaid. And, as Serra suggested, if Cramblett’s testimony could get the defendants in jail and out of the way, it might never have to be.
The prosecutor’s objections lulled during the middle of Serra’s closing statements, but Pings was suddenly on her feet again once the defense attorney began discussing the testimony of real estate appraiser Tod Zimmerman. Serra reminded the jury of the witness’s insistence on an inaccurate recollection of two greenhouses on the defendants’ property, but more important was the revelation that Zimmerman admitted to the theft of marijuana plants during his youth.
“Marijuana is medicine,” Serra began, but an objection from Pings stopped him in his tracks. The defense attorney turned to the judge. “This is in the instruction,” he explained.
“I will instruct,” Judge Damrell insisted.
Serra, however, went right back into contentious territory. “He stole marijuana from sick people,” he started to recount about Zimmerman.
Pings objected yet again, petulance peeking through. Judge Damrell’s irritation was becoming similarly transparent. “Stay away from the law I will be instructing on,” he warned the defense counsel.
“Okay,” Serra yielded. Turning back to the jury, he said of Zimmerman, “I will just say that he stole plants, and leave it to you to conclude who from.” Suffice to say, in the defense’s characterization, the real estate appraiser was a thief who belonged in the same category as the aforementioned witnesses. Since their testimony was unreliable, Serra asked the jurors to take it out of evidence in their consideration. “Once you do that, there’s not much left,” the defense attorney noted. “She mentioned them every other word in her closing,” he said of Pings’s references to the suspect witnesses.
Serra then turned to what he called the centerpiece of the government’s case – the recording in which Fry encourages the undercover agent to grow his own marijuana for medicine. The defense attorney acknowledged there were times when Fry used the term ‘we’ when talking about providing marijuana clones, but he denied that the defendant ever actually intended to refer to herself. “If she said ‘we,’ she meant my client, and my client told you the truth,” Serra said to the jurors. After all, he continued, “There is a ‘we.’ We’re human beings and it’s a beautiful thing.” To illustrate, he directed the jury’s gaze out into the gallery and asked them why the seats were all filled. “They’re filled for these people,” he answered, indicating the defendants.
Serra next reinforced the notion that Fry’s interest was in being a doctor, which meant helping patients and gathering statistics while doing so. The argument was that the testimony about her intake forms demonstrated a focus on research, and one of the reasons for its importance was due to the relative newness of her field. “We were in the infancy of something,” Serra emphasized. “We were in a whole new medical world.”
The defense attorney paused long enough to let the idea penetrate the brains of the jurors, but promptly hopped to the next stepping-stone. “It’s not a defense,” he said in a conciliatory tone. He claimed he was just giving context, and continued to do so with some other analogies about promoting new theories and fields of research. “In the old, old days, if you expostulated that the earth circled the sun, you were prosecuted. It was heresy. At another time in history, you were ridiculed if you didn’t believe the earth was flat. Another time in more recent history, if you taught Darwinian Evolutionism in some corners of this country, you were prosecuted.”
As far as applying these concepts to the current trial, Serra began to address the jury about their duty. “If the ulterior motive is to stop the medical marijuana movement, then—”
Pings was quick to object, claiming that the defense was speaking about jury nullification. Serra maintained that he was addressing government witnesses and their biases, but Judge Damrell was unwilling to take this statement at face value. “You’re talking about the government?” he asked skeptically.
Illustration by Dr. Care
Serra answered, continuing the argument that any bias that rooted in political motivations would erase the credibility of the government witnesses. To explain the bias, he expanded his scope. “We’re not here, really, on just one case—”
“Objection, your honor!” Pings’s vigor had increased to true outrage, which was mirrored by the judge’s reaction.
The angry opposition only seemed to fuel Serra. The defense attorney launched into a series of questions he wanted the jury to ask itself about the prosecution’s intentions. First of all, he mused, why did the raid occur right before Election Day in Schafer’s campaign for district attorney? And why, Serra wanted the jury to wonder, was Pings so involved with this case? The prosecutor not only orchestrated the grand jury proceedings, offering immunity and eliciting testimony, but also participated so heavily in the investigation itself that she was even present for the raid of the defendants’ home. “Has she overstepped the bounds of a lawyer who’s supposed to be in the courtroom?” the defense attorney asked, his voice getting louder and louder as the intensity of his accusations increased.
While Serra was in the middle of a heated point about the prosecutor losing her objectivity and all directives coming from Washington D.C., Pings yelled out her final objection. She had Judge Damrell’s full backing, and he was heavy right back at Serra. “You’re way out of line here!” the judge said sharply, instructing the jury to disregard yet another of the defense attorney’s comments. “You’re out of the ballpark of biased witnesses here. You’re supposed to be going over evidence in this case.”
Serra went on to a description of what must be proven to find guilt in a conspiracy charge, telling the jurors yet again that there is ample reasonable doubt in this case. In parting instruction to them, he urged fearlessness. “There is no negative connotation when you find someone not guilty. It doesn’t mean the system has misfired. It doesn’t mean there’s injustice,” he assured the jurors.
“‘Not guilty’ are the two most beautiful words in our system,” Serra concluded, beaming. “It means you have, as the conscience of the community, addressed the issue and resolved it. It’s beautiful, it’s strong, and it’s appropriate for this case.”
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