CALL ME PHAEDRA. Lise Pearlman
By then, Fay’s work for the Garry, Dreyfus firm had evolved into a steady, half-time position. A side benefit was introduction into the inner circle of Garry’s Leftist friends Bob Treuhaft and his celebrity wife Jessica “Decca” Mitford. Almost a generation older than Fay, the Treuhafts made a strikingly odd couple. Bob was a thin, dark-haired Jew with a heavy Bronx accent. He had never made friends with any Gentile until he went to Harvard. Decca was tall and blue-eyed, a broad-boned brunette with an unmistakably upper crust enunciation.
The Treuhafts had been members of the American Communist Party from the mid-forties to 1958. Decca enjoyed being known as the defiant “red sheep” daughter of an ultraconservative British peer and his wife, Lord and Lady Redesdale. Both of her parents supported the German Nazi rise to power, as did one of Decca’s sisters, who joined Hitler’s inner circle.
The Oakland firm of Treuhaft and Edises had represented mostly black clientele since 1948, back when Fay was still in high school. In 1951, Senator McCarthy named Treuhaft one of the most subversive lawyers in America, which Bob and Decca considered high praise. When Fay joined the Garry firm, Decca and Bob were in the midst of exposing outrageous practices of the funeral industry. The American Way of Death became a best-seller. The book prompted Congressional hearings into the unconscionable fees the funeral industry charged unsophisticated mourners unprepared to resist aggressive sales pitches while still mired in grief over a lost family member.
Fay would later learn that Bob Treuhaft was one of Huey Newton’s childhood heroes. Treuhaft had gained instant renown in the black community for winning an improbable appeal in 1951 of a murder conviction. The defendant was a local black shoeshine boy named Jerry Newson, whom police had beaten to obtain a confession that Newson later repudiated. Even while still in elementary school, Huey Newton and his friends had appreciated the significance of that historic case.
In the early ’70s, Fay and Decca would work closely together on prison reform. What impressed Fay back in 1961 was that Decca and Bob knew anyone who was anyone nationally in radical politics; the couple threw the best Leftist parties around. When she joined the Garry firm, Fay made the “A” list of invitees. Decca did not mind when Fay brought Neal and Oriane along.
Jessica (“Decca”) Mitford Treuhaft (1917–1996)
Source: Everett Collection Historical / Alamy Stock Photo
Bob Treuhaft (1912–2001)
Souce: Spartacus educational http://spartacus-educational.com/USAtreuhaft.htm
In 1951, Senator Eugene McCarthy named Bob Treuhaft one of the most subversive lawyers in America. Bob and his wife Decca were delighted. When Fay joined Charles Garry’s firm, she made the “A” list to the Treuhafts’ famous Leftist parties. By the mid-1970s, Fay would stop speaking to Bob, and Decca would describe Fay as her “frenemy.” (Both photos circa early ’60s.)
Being at the Garry firm also placed Fay at the center of Leftist efforts to change the status quo. By 1961, Decca had already published her first memoir, Daughters and Rebels. In it, Decca famously observed that “You may not be able to change the world, but at least you can embarrass the guilty.”8 By then, Garry and Dreyfus had both achieved widespread recognition as criminal defense lawyers for getting psychiatric evidence admitted to avoid the death penalty. The partial defense of diminished capacity was afterward known in California as the Wells-Gorshen rule for the last names of their clients in two landmark cases. Expert testimony was now permitted to show that a homicide might have resulted from uncontrollable psychological impulses. Garry credited the Wells-Gorshen rule with being “an invaluable lever in the plea-bargaining process,” dramatically reducing the number of executions for what would otherwise have been capital crimes.9 “Sleepy Nick” Gorshen only served three years of his sentence before he was paroled and went back to work as a longshoreman. When Fay started work for the firm, Garry was still working periodically to secure Bob Wells’ release, a long-term project finally realized in 1974.
Fay started out by assisting the partners with research and drafting briefs for personal injury and criminal matters. The Garry firm handled personal injury cases the same way as did other lawyers in the field, on a fee contingent on whether they won or settled a case. The firm made substantially less money from its personal injury practice than many other lawyers because their black clientele routinely received smaller jury awards than whites with similar injuries. Newspapermen covering Oakland reflected similar prejudice. Warren Hinckle, who became the editor of the Leftist Ramparts magazine in the late ’60s, later recalled the guidelines followed when he had started out as a cub reporter. The newsworthiness of traffic deaths depended on the race of the victim. Working for a leading San Francisco daily, Hinckle was taught: “No niggers after 11 p.m. on weekdays, 9 p.m. on Saturdays (as the Sunday paper went to press early).”10
Fay handled the appeal from one particularly discriminatory verdict. She accused the defense attorney of appealing to racism for telling the jury that “Negroes have a tendency to exaggerate their complaints, to have poor memories, and to be unable to remember events.” But Charles Garry had failed to ensure that the court reporter typed up the closing arguments — a lesson for Fay for the future to make sure that every significant misstep by opposing counsel was captured on the record.
The partners soon realized that no matter how routine the assignment, Fay would exhaust all possible avenues, thinking both inside and outside the box. Garry liked her unrelenting approach. Fay found a sharp contrast in working with Barney Dreyfus. Unlike Garry, Dreyfus demanded disciplined writing and never simply signed his name to an associate’s draft. She later reflected that Dreyfus was “not the easiest type of person for a woman to work with in sexist America. Despite his name, his identity as Jewish is virtually non-existent. We are representatives of completely differing styles of being, personality, expression, consciousness. There was a lot of pain (for me—whether for him, I never was sure).”
Dreyfus held doors open for women and displayed great chivalry, but in meetings either ignored women altogether or behaved in a patronizing manner, often admonishing the object of his dismay with “Now, now, little girl.” Yet Fay grew to admire Dreyfus. She credited him with “charm, manners, elegance, wit, elitism, anachronistic integrity, enigma; one would not mistake another for him.” After years of his tutelage, Fay conceded that “He taught me more than anyone else about the practice of law. ‘It is,’ he said, ‘the meticulous attention to detail.’ Truer words few people have spoken.”11
To Fay’s relief, as the firm’s business expanded, she retained a permanent part-time position. Among the appeals she handled, Fay found she particularly enjoyed wrongful termination cases even though she lost a major case about the scope of the Regents’ authority to fire university staff. It would be cited again and again over the years by lawyers on the other side. Still, administrative appeals were the type of “bread and butter” cases Fay would turn back to in the ’70s after she no longer represented criminal defendants.
In 1962, the partnership moved to more spacious quarters and added a new associate, Don Kerson, in the office next to Fay’s. Though the two did not interact much, Don always knew when she was in her office because the walls shook whenever she typed. Don could also hear her yelling at hospital administrators over the telephone as she pursued her ICEA mission to transform delivery room policies.
It was not long before the partners decided it was time to let Don and Fay try a criminal case together to gain trial experience. The case was a “dog” — one the partners expected to lose. People v. One 1954 Ford Station Wagon involved a car confiscated by police after they claimed to have found a marijuana cigarette in it. Don could not dissuade Fay from challenging the routine test the police used for analyzing the presence of marijuana. Watching Fay emphatically wave her hands in court to underscore her arguments, Don could