as rotten, and “tie it up.”2 The only clients Charles Garry could never imagine defending were Nazis or fascists. His empathy for Newton was reinforced by reading the revolutionary literature Newton assigned him as homework: if one viewed the black community as a colony oppressed by its mother country, then crimes like those Newton was charged with were either self-defense or self-liberation.
Garry instantly realized that any chance of winning the case required him to orchestrate two high-powered defense strategies: one, a traditional defense relying heavily on research and writing assistance; two, and more importantly, a political defense of the Panthers as peacekeepers protecting their community from police oppression. As Garry planned his public relations campaign, he knew the audience he really needed to convince was an as-yet unpicked panel of jurors, likely unfamiliar with life in black ghettos. In the crucial jury selection process, he would need help from experts as well as top-notch support staff. The best person to ask was right there in his office.
Now thirty-five years old, Guild lawyer Fay Stender had been a part-time associate at Garry’s firm since 1961. Working for clients she believed in put the five-foot-eight, dark-haired Jew in an enviable position — few established local firms then hired any women lawyers, or Jews for that matter. Stender was the only woman lawyer ever hired by the firm. Women were considered especially unsuited for criminal trial practice, especially among old war horses like Charles Garry. Yet, after six years, Stender had become Garry’s right hand for legal research and briefing. The son of immigrant Armenians fleeing Turkish massacres had never fully mastered English syntax and had little interest in paperwork.
For Garry — unlike his far more genteel partners — it was not unusual to instruct his secretary to “get that motherfucker in here to pay his child support.” Uniquely structured phrases became “Garryisms” fondly repeated in the office.3 Recently, in light of landmark Supreme Court rulings, court practice had evolved. Defendants now had more procedural rights. Instead of the shoot-from-the-hip style Garry was used to at trial, defense lawyers were starting to file strategic pretrial motions ahead of time to preclude the prosecutor from calling challenged witnesses to the stand in front of the jury or to prevent the admission at trial of improper testimony or illegally obtained evidence. If Stender’s sexist mentor had had his way, the former Supreme Court clerk would have stayed his assistant for her entire career.
With her two children now both in elementary school, Stender had just begun working full time. When she started at the Garry firm in 1961, she had much preferred library research and writing that she could do on a flexible schedule. At the time, Stender was recently separated from her husband Marvin, and needed to race back from San Francisco each work day to relieve the patchwork of babysitters she had cobbled together for her toddler daughter and three-year-old son. By the late fall of 1967, the Stenders had been reunited for the better part of three years. Fay Stender was eager to take on new challenges at work to prove she was partnership material.
Though she had little criminal trial experience, Stender had honed her knowledge of the law by assisting Garry’s highly demanding partner Barney Dreyfus on several death penalty appeals. Garry considered Stender’s skills essential to this difficult defense. He popped his head into her tiny cubicle as the dowdily dressed lawyer pounded away on her typewriter. Stender typed faster than any secretary in the office and prepared all her own filings. When Garry asked Stender to join him when he made his next visit to Newton, she instantly realized this might be the career break she was looking for.
Stender had some background handling civil rights cases and had even spent a week in Mississippi during the 1964 Freedom Summer, but by 1967 had made her niche representing draft dodgers. Over time, she had grown disenchanted. “I knew for every one I handled [for a white, middle-class male], there were many Third World people who really needed a lawyer and couldn’t get one.”4 Here was Charles Garry offering her the type of satisfying challenge she much preferred. Instead of yet another white middle class draft dodger, Stender would be right at the center of the hottest Movement case around, with the client’s very life dependent on their efforts.
Like everyone else, Stender had heard about the Panthers’ bold appearance in the Assembly months earlier. She had also met Eldridge Cleaver when he came with Beverly Axelrod to the book release party for Soul On Ice in the spring of 1967. Stender had joined in a toast to their engagement. Like Axelrod, Stender was passionate about social justice. She had worked together with her husband, Axelrod, and other local leftist lawyers a couple of years back in a group they called the Council for Justice. As volunteers, they took on anti-war clients and politicized cases for Cesar Chavez and the farmworkers until the group folded for lack of funding. Whatever Garry needed her to do, Stender was game.
By the fall of 1967, though the police viewed the Panthers as thugs, they were beginning to appreciate that the Party was unlike any street gang they had previously encountered. It unnerved them to see pig graffiti on the walls of West Oakland with messages of “off the pigs” scrawled alongside. The defense soon found out that the OPD began furnishing patrol cars with a list of known Panther vehicles to stop on any pretext. Anyone who lived in East or West Oakland could see deadly conflict ahead.
One of those people was teenager Leo Dorado. Back in the days before it ever crossed his mind he might become an Alameda County prosecutor let alone a pioneering Latino judge, Dorado starred in basketball and baseball games played all over the city. He made it a point to know where trouble might lie. The tall Mexican-American had his eyes fixed on getting into Cal and not getting mugged or arrested first for being in the wrong place at the wrong time. That had happened to too many of his friends. So, when Dorado first heard of this new, armed, black gang following police around in West Oakland, he paid attention. When news hit that the Black Panthers had shown up armed at the State Capitol, Dorado thought it could only mean they were bent on becoming martyrs.
That fall at Cal reinforced Dorado’s assumption: “We heard a lot about how . . . extremely militant they were. . . . The general feeling was they weren’t going to last very long because they were going to step over lines . . . Oakland police . . . were a very, very strong police department, and they would meet force with force. . . . all the force and violence they needed to put them down. . . . If it was a matter of them getting hurt and injured and killed, then that was going to happen . . . they would get killed.” When word spread of the October 28, 1967, shootout, Dorado assumed that Newton had just stepped forward as the first martyr. There was no question in Dorado’s mind — or the mind of anyone he knew — that Newton would get the death penalty.
Charles Garry had the opposite reaction — not if there was anything he could do about it. He could not wait to have an opportunity to speak to his new client alone in the hospital. The veteran trial lawyer’s first advice to Huey as he lay recovering from surgery was what Garry told all of his clients: “Make no statements to anyone.” Garry had to make sure Newton did not blow whatever chance he had of avoiding the gas chamber by bragging about offing a pig to his friends or saying anything at all about the incident that could come back to haunt him at trial. Newton’s chances of success were low enough already. Even a good friend or relative, not to mention a cellmate, might be forced to reveal anything Newton said about the case.
After Garry came back from visiting his brother, Melvin Newton asked Garry, “Did he do it?” Garry said he never asked. Melvin also decided against asking his brother to tell him what happened on Seventh Street that morning — there wasn’t much Melvin could do with the knowledge one way or the other. In his short acquaintance with the Panther Party, Melvin had already learned not to ask questions that would lead to answers he could do nothing about.
Like Charles Garry, many criminal defense lawyers don’t want their client’s story. The defendant has a right not to testify on his own behalf and knowing what he has to say could limit the array of defenses. In fact, Garry did not seek any information from his client about the shootout until a few days before Newton took the witness stand in the middle of the trial. When asked why not, Garry later explained, “I wasn’t particularly interested.”5 Garry’s primary aim matched that of Huey Newton himself — to conduct a political defense, painting a picture of a racist