Destructive Generation led off with “Requiem for a Radical” as chapter one. The authors’ portrait of Fay — her background, career and relationships — raised more questions in my mind than answers. I then spent over a decade researching her cases, reviewing newspaper coverage of her achievements and reading her hefty FBI file, her published articles and publications by others covering Movement activities in which she participated, plus her correspondence and related papers preserved in private collections and in university libraries. I wound up interviewing several dozen people, including her husband Marvin, her sister Lisie, and friends from childhood, college and law school through her final days, “frenemies,” lovers, clients, neighbors, former colleagues, opposing counsel, judges familiar with her work, and journalists who covered her unorthodox career as a Movement lawyer. The interviews took me from the greater Bay Area to Monterey, to Reed College in Portland, Oregon, to New York, New Haven, Boston and an island off the coast of Maine.
Along the way, I became fascinated by the 1968 death penalty case that rocketed Fay Stender to Lefty celebrity status and put her high on the FBI watch list. The murder trial of black militant Huey Newton for the death of a policeman first garnered international attention for audaciously seeking to put America’s justice system itself on trial for a history of racism. Against all odds, the defense team was determined to seat a ground-breakingly diverse “jury of one’s peers” to decide the fate of the co-founder of the Black Panther Party.
Stender was then an associate in an Old Left San Francisco law firm that often represented politically unpopular clients, including those facing the death penalty. In the Newton case, she put in grueling hours assisting renowned “streetfighter in the courtroom” Charles Garry. Though Garry garnered all the attention for his extraordinary courtroom skills, it was Stender who oversaw the equally important research and motion work and coordinated the pioneering team of experts on racism. The mostly female jury panel then chose as their foreman the only African-American among them — the first known black man ever to serve as foreman of a major murder trial in the United States. That jury spent four days poring over the evidence before deciding Newton was guilty only of voluntary manslaughter, a stunning victory for the defense. The next year, the innovative handiwork of the Newton defense team was captured in a guidebook by National Lawyers Guild historian Ann Fagan Ginger: Minimizing Racism in Jury Trials, which quickly became a “Bible” for criminal defense lawyers nationwide.
In August 1970, Fay Stender’s brilliant brief on appeal resulted in the unexpected reversal of Newton’s conviction and his release from prison. Despite its lasting impact on jury selection across the country, People v. Newton soon fell off the radar screen of most legal scholars. That motivated me to write a book in 2012 about that extraordinary trial, The Sky’s the Limit: People v. Newton, The REAL Trial of the 20th Century? The Sky’s the Limit has led to a documentary project, “American Justice on Trial: People v. Newton” (www.americanjusticeontrial.com) and a companion book of the same name. There was no time to waste before filming interviews with surviving participants and observers of that pivotal trial if we were to preserve their viewpoints for posterity.
Fay Stender’s pioneering role in the Newton trial made more people curious about her life story. As I started readying this biography for publication, along came the 2016 election, with relentless attacks on the value of diversity amid calls to turn the clock back to an earlier time of presumed American greatness. I detoured to write another book seeking to put the yearning for a bygone era of white male monopoly power in the context of pivotal cases from a century ago that helped galvanize support for minority and women’s rights. Fay Stender would have undoubtedly endorsed my 2017 book, With Justice for Some: Politically Charged Criminal Trials of the Early 20th Century That Helped Shape Today’s America. Months before her death, she outlined a history course she wanted to teach on “socially significant cases” for college or law school students. She never got that chance. Now, here at last, is my take on Fay’s own unique story, including the trailblazing cases in which she and her circle of Movement lawyers played such pivotal roles from the 1950s through the 1970s.
Lise PearlmanOakland, CaliforniaFebruary 2018
Prologue
The gunman waited in the shadows near Fay Stender’s front door as his companion rang the buzzer. It was after one a.m. on a quiet, tree-lined section of Grant Street in the flatlands of West Berkeley within walking distance of the police station. A young, half-dressed man, turned on the porch light and pushed aside the frayed front door curtain. He saw a light-skinned black woman standing on the doorstep and he immediately thought she must be in distress to arrive at his family home at that hour. As he opened the door, she quickly turned and ran while a black man wearing a leather jacket and a blue knit cap suddenly forced Neal Stender back inside the house at gunpoint. He then made Neal lead him to Neal’s mother as she lay sleeping upstairs. The gunman followed Neal into the master bedroom and was surprised to find two women in the bed and a dog lying on top of the covers near their feet. Once Fay identified herself, the gunman told her to put something on. Her nakedness made him uncomfortable. When she had donned a nightgown in her closet, the gunman then asked her if she had ever betrayed anybody. He mentioned George Jackson, the revolutionary Soledad inmate who had fired Fay as his lawyer in early 1971 and months later died in an escape attempt from San Quentin. Fay denied that she had betrayed Jackson or anyone else.
The gunman then forced Fay to sit at her desk to write, “I, Fay Stender, admit I betrayed George Jackson and the Prison Movement when they needed me most.”
Fay chided the gunman. “I will write this because you have a gun,” Fay said. “But it is not true.”1 When she finished her “confession,” the gunman put it in his pocket. Then he asked his three hostages for money and left Neal and Fay’s lover Katherine Morse (a pseudonym) tied up. Fay offered to lead him downstairs, where she offered him a twenty-dollar-bill fetched from her kitchen drawer. Instead of taking it, he shot her five times at close range and fled out the front door, disappearing down the quiet street as she cried out for help.
The shooting early that Memorial Day of 1979 dominated local radio and television reports. Banner headlines in Berkeley and Oakland papers proclaimed, “Attorney shot, near death”2 and “Political Murder Try?”3 Then national wire services picked it up. For the next nine months, Bay Area media covered every development: the arrest of the suspect, his attempted escape, the contentious preliminary hearings, and the dramatic trial. Newspapers speculated that the attacker belonged to a notorious prison gang that traced its founding back to death row “Soledad Brother” George Jackson, who was killed in the prison yard at San Quentin in August 1971, days before he was to face trial for the murder of a guard at Soledad the year before. After the home invasion that nearly killed his wife, Fay’s husband Marvin considered his family to continue to be at extremely seriously risk. He acquired a gun permit, armed himself and hid their two children thousands of miles away, while Fay remained, incapacitated, at another secret location in the Bay Area.
At first, no one knew if the forty-seven-year-old lawyer would survive. If she did, would she be willing to become the star witness for the prosecutor? Few reporters failed to mention the irony of the District Attorney determinedly seeking justice for a victim most members of his office despised as an enemy — a woman state prison officials nicknamed “The Dragon Lady.”
Fay had once considered this slur a badge of honor. In the late 1960s and early 1970s, she had nothing but contempt for the state correctional hierarchy. She took great pride in her zealous legal representation and political organizing on behalf of Black Panther co-founder Huey Newton and death row inmate George Jackson, both accused of killing lawmen. In championing the causes of the two revolutionaries, she remained undaunted by whispered rumors that Oakland police officers used her image for target practice.
The scathing labels were, in fact, recognition of her extraordinary effectiveness. The soft-spoken attorney considered