Always a Man of His Convictions
He could have been sitting at his own funeral. J. Tony Serra -- the ponytailed, pot-smoking criminal defense attorney famous for fighting the government and celebrated in the 1989 film “True Believer” -- listened as a gallery of some of the Bay Area’s most respected lawyers honored him.
He was praised as a humanist who practiced law out of love and saved the government “millions of dollars” with back-to-back pro bono cases, funded from his threadbare pocket. He was a “warrior” with a “touch of sainthood,” “a national treasure” and a “hero.”
The testimonials supplemented more than 100 pages of character letters submitted on Serra’s behalf.
But ultimately it mattered little. U.S. Magistrate Judge Joseph Spero on July 29 sentenced Serra to 10 months in federal prison for willfully failing to pay taxes. It was Serra’s third tax conviction in nearly three decades.
The showdown with the government in U.S.A. vs. Serra has offered a distilled look at an influential legal character who many agree is the last of a breed.
The 70-year-old Serra has represented -- with mixed results -- Black Panther leader Huey Newton, the Hells Angels, Symbionese Liberation Army soldier turned soccer mom Sara Jane Olson and hundreds of murderers and drug dealers driven to the fringes, he says, by sociopolitical forces.
He has won honors as one of the nation’s best trial attorneys, earned the respect of adversaries and riled some judges with his hippie ways and overburdened schedule.
His tax offense, Serra said in an interview, is a point neither of pride nor shame, just the complex product of a man who, like everyone, is “compromised, flawed ... a bag of self-contradictions and reciprocating cancellations.”
He is taking his sentence in stride. After all, he said, singing out, “I can do 10 months standing on my head.... The blacks love me, the whites love me, the Hispanics love me, the Asians love me. I talk law 24 hours a day. And I find the people in custody are far more interesting than the bourgeois people who populate society.
“I would rather get down with inmates,” Serra rang out in the oratory style -- part poetry, pure conviction -- that helped make his mark in court. “They’re interesting, they’re dramatic, they’ve overstepped the bounds of society. Some of it is high principle; some of it is low principle. But these people are extraordinary. They’re not ordinary. These are my people!”
If prison officials follow the court’s recommendation, Serra will surrender in late January at Lompoc’s Federal Correctional Institute, which he dismisses with typically pointed good humor as a “pleasure camp.”
Serra knows. After failing to file tax returns in protest of the Vietnam War, he served four months there in 1976, meditating on a mantra that one of his brothers, famed sculptor Richard Serra, whispered in his ear during a prison visit. He also “read 26 novels, wrote lots of writs and practiced a lot of law.”
In the years since, protest devolved into a mix of defiance and negligence. The eccentric praised for his intellect and passion never got around to paying.
A guilty plea for not filing returns prompted a second sentence -- in 1986 -- of one year in prison, suspended in favor of five years’ probation. Serra has since filed returns but not paid.
The U.S. Justice Department’s tax division handled the matter after the U.S. attorney’s office in San Francisco -- where Serra’s 6-foot, 2-inch frame and white mane are a common sight in federal and state courtrooms -- recused itself.
Though Serra owes nearly half a million dollars, he pleaded guilty in April to two misdemeanor counts of willfully failing to pay for 1998 and 1999. His plea agreement also calls for restitution of $100,000, which is his unpaid debt from 1997 through 2001. Serra has pledged to now pay his taxes -- along with restitution -- with help from friends.
In pressing for the harshest sentence -- a minimum 12 months in prison and a year of supervised release -- prosecutors pointed to Serra’s “chronic and willful disregard for the tax laws,” noting that he “has been candid about his desire to stick a figurative finger in the eye of the Internal Revenue Service.”
Serra was savvy enough about money, they noted, to try to channel $74,500 from the “True Believer” film starring James Woods into a trust for his five children. The attempt was foiled when the IRS got to the money first.
Officials tried more recently to seize fees from a $4-million civil award to Earth First! activists who claimed persecution by police and federal agents. But Serra refused payment, instead allowing colleagues to accept what would have been his share, co-counsel Dennis Cunningham said.
A federal probation officer recommended five months’ incarceration and five months of home detention.
Then dozens of the region’s top lawyers weighed in, arguing that the aging Serra, who recently had both hips replaced, be spared prison and given a more creative sentence -- working for free, for example, at the San Francisco public defender’s office.
Attorneys spanning several generations credited Serra for influencing their commitment to represent the downtrodden.
As they compromised their ideals to make mortgage payments and bolster retirement plans, older colleagues noted, Serra lived the “informal vow of poverty” he took in the heyday of Haight-Ashbury, driving $500 cars, wearing Goodwill suits hemmed with staples or electrical tape, and making his home -- for $411 a month -- in the cramped North Beach apartment he has occupied for three decades.
(He has no savings and no health insurance. As for the money he earns, he says, he plows it into the cases he takes for free.)
There were reminiscences aplenty: of the paper bags used to haul legal pleadings, of the meal and gas money he gave Native Americans so they could travel to court to support Patrick “Hooty” Croy, the death row inmate acquitted of killing a police officer at retrial in 1990.
Serra used a pioneering “cultural defense” in that case, convincing jurors that a deep history of racist persecution against Indians had led Croy to believe the officers would kill him.
“Money is just of no interest to him,” said Penelope Cooper, a respected trial lawyer who defended the Hells Angels with Serra in the 1970s and praised his inclusion of female lawyers when that was rare. “Deep down, I really think he has some views of it being the root of all evil.”
It was that rejection of -- some say obliviousness toward -- money, not greed or self-aggrandizement, that lay at the root of his offense, said his attorney, Randolph Daar.
In fact, Serra’s pro bono caseload had saved the federal and local governments “millions,” an administrator of the San Francisco Bar Assn.'s indigent defense program said, far exceeding his debt.
But prosecutors scoffed at the irony. “The law does not provide defendant, valiant or not, with a special tax exempt status because he claims to do better things with his income than pay his share of taxes,” they wrote.
“Indeed, the courtrooms where he has built his practice and made his self-described ‘extraordinary civic contribution that has forwarded the ends of justice in America’ are funded by other people’s tax money.”
The judge agreed: Serra was not free to choose which laws to follow.
The sentence marks another unconventional turn in an unconventional life.
Serra and his two brothers -- both artists -- were raised in San Francisco by a Russian Jewish mother and Spanish Moorish father from Mallorca who worked as a foreman in a jellybean factory.
At Stanford he boxed, played varsity football and baseball, and worked nights at a cardboard factory while earning a philosophy degree. He got his law degree from UC Berkeley’s Boalt Hall and was admitted to the California bar in 1962.
After a short stint as a prosecutor with the Alameda County district attorney’s office, Serra embraced the counterculture, rising through the ranks of a generation of lawyers representing those who, they believed, were targeted or harassed by government.
San Francisco County Public Defender Jeff Adachi was a 20-year-old college student when he met Serra.
He and other Asian community activists were searching for a pro bono lawyer to take the case of Chol Soo Lee, a young Korean convicted and sentenced to death for a 1973 killing in San Francisco’s Chinatown. Dozens of attorneys had turned them down. Stuart Hanlon and Serra didn’t, and won acquittal in a retrial.
The experience propelled Adachi into public defense law.
“To say that Tony uses theatrics in court would be inaccurate,” said Adachi. “He is theater.... He scowls, he hoots, he mimics, he cries, he screams, he whispers, and ... moves people to a place most would think wasn’t possible.”
The theatrics have charmed plenty of juries but annoyed others. Though many conservative judges respect and admire him, others have chafed at his packed schedule. Serra has been hauled into court on contempt charges for missing appearances; he riled the judge in the Sara Jane Olson case when, after missing a plane and a key hearing, he blamed it on “bad karma.”
Serra had hoped to avoid prison but conceded that “from another perspective, didn’t I get a light sentence? I haven’t paid taxes for 40 years -- my whole career!”
He pledges not to come out until he has written two novels, including a Platonic dialogue set on an island in World War II that has been “in my pen” for years. Within the experience, he said, is a blessing.
“You seldom get a eulogy before you’re dead,” he said. “I thought I should slit my wrists at the end of the proceeding and float into the ether. Lawyers whom I respect -- one of whom is even older than I -- spoke so eloquently.... It was like a psychological unraveling for me, because I don’t understand anything.”
His friends promise a proper send-off to prison. Said Cunningham: “We’ll carry him in a sedan chair right up to the gates of the prison.”