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Author’s Note

The idea for a biography of Fay Stender struck me near the turn of this century. I was attending a federal lawyer-judge conference in Napa County, California. One panel drew a capacity crowd to hear what makes a great trial lawyer. Historically, trial lawyers have seen themselves as courtroom gladiators. Federal prosecutors were taught that trial lawyers were “the fighter pilots and emergency room surgeons of the law.” To craft persuasive storylines to win over juries time and again, top trial lawyers have to not only master the facts and law of each case, but possess charismatic personalities. In the traditionally macho world of the courtroom, top practitioners have often been compared to champion boxers. Like Muhammad Ali, many hone the ability to “float like a butterfly and sting like a bee.” Great trial lawyers have drawn overflow galleries of spectators to admire how they established rapport with prospective jurors, landed punches in opening argument, then took punches and punched back in direct and cross-examinations and in closing arguments. As the panel discussion concluded, the moderator put up on the screen a list of about twenty famous American lawyers he thought best fit the criteria they had agreed upon. All but two of those listed were male. The two women seemed hastily named as an afterthought.

Justice Sandra Day O’Connor (one of the women named) graduated in 1952 near the top of her class at Stanford Law School. (Chief Justice William Rehnquist was first in the same class; my senior law partner John Wells was second.) Nevertheless, despite scores of applications, she could not find a job in any private law firm. (Justice Ruth Bader Ginsburg had the same disheartening experience after graduating first in her class at Columbia Law School in 1959.) At the start of her career, O’Connor juggled raising her two sons with part-time work as a government attorney. She became known for her negotiating skills –- not for mastering the grueling combat of jury trials, where women litigators were still shunned. O’Connor’s career path took her to working for Goldwater’s 1964 campaign for the presidency, then to state political office in 1965, and a decade as an Arizona trial and appellate judge before President Reagan elevated her from relative obscurity to become the first woman justice on the highest court in the land.

The other woman lawyer listed at the panel discussion was Sarah Weddington, known for trying one landmark case before a panel of three federal judges in Dallas, Texas, in 1970 — Roe v. Wade. Weddington had graduated from the University of Texas Law School just three years earlier, only to face the same repeated rejection by private law firms in 1967 as Sandra Day O’Connor and Ruth Bader Ginsburg had experienced in the 1950s. Weddington instead joined activists researching ways to challenge the constitutionality of anti-abortion laws. In 1971, the twenty-six-year old advocate gained instant fame when she won her maiden argument before the United States Supreme Court. Weddington was then elected to the Texas legislature, served in the Carter administration and made her career as a professor and speaker.

Sitting in the audience as a former litigator and judge, I felt that the gray-haired male jurist who chose Weddington and O’Connor as great trial lawyers on a list headed by Clarence Darrow displayed an appalling double standard. So few women lawyers apparently came to mind that the moderator just picked two with instant name recognition for pioneering achievements in the law, regardless of their lack of jury trial experience. When the program ended, I asked Chief Judge Marilyn Hall Patel if she could think of a woman trial lawyer who should have made that list. She instantly named her deceased former colleague Fay Stender, who had served with her in the mid-1970s on the San Francisco board of the American Civil Liberties Union.

I was already aware of Stender’s reputation for relentless pursuit of justice for unpopular causes. Nearly two decades earlier, California Women Lawyers, on whose board I served, began giving out an annual award in her name to outstanding women lawyers exhibiting similar passion for serving the disadvantaged and effecting societal change. Yet I knew almost nothing about Stender’s legal career other than the realization that she must have overcome extraordinary challenges. Women litigators were still rare when I graduated from law school in 1974, a generation after Stender graduated.

I decided to follow up. I talked to Drucilla Ramey, one of the founding mothers of California Women Lawyers, who had since become the Executive Director of the San Francisco Bar Association. Through Dru I met her husband Marvin Stender, who had previously been married to Fay. Marvin Stender was himself a veteran trial lawyer still practicing in San Francisco. When I told him I wanted to write about Fay’s career, he said, “It’s about time,” and handed me a box of her legal files he had just fetched from his attic.

I soon read a controversial tribute to Fay Stender penned by former Ramparts magazine reporters Peter Collier and David Horowitz. “Requiem for a Radical” was first published by New West magazine in March 1981, two months shy of the first anniversary of her suicide. Though cathartic for the authors, this insider criticism of the Movement by fellow Leftists caused an immediate uproar among the circle of Bay Area activists to which Collier and Horowitz were still thought to belong. Most provocative of all was their quotation of a colleague at her funeral, who called her death the “end of an era.” Some branded the authors traitors to the cause. “Requiem for a Radical” did in fact presage the pair’s total public rejection of Movement politics. In 1989, the two former radicals emerged as Neocons embraced by the right for their bombshell best-seller, Destructive Generation: A Second Look at the Sixties.

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