Winner Airport Daybefore Robert Kennedy murdered

Winner Airport Daybefore Robert Kennedy murdered
John and Freya Simpson, Senator Kennedy at Winner sirport -June 1968 primary

Monday, August 29, 2011

11th Circuit Recollections #8 George Johnson et al and Dudley R. Herman

Photo of John Simpson, Freya Simpson and then Senator Ted Kennedy at the Winner, South Dakota Airport during the first week of June, 1968 just prior to the South Dakota Democrat primary. Jim Dohmen, behind John Simpson, was the Kennedy for President regional chairman.
How did Kennedy get to the small town of Winner, South Dakota?
At the South Dakota State Democrat Convention in 1968, Bill Dougherty, Dick Kneip's Lt Governor, was running for South Dakota's seat as Democratic National Committeeman.
Dougherty was in a bitter fight and a few convention votes short of being elected. John Simpson and Randy Stenson were Tripp County delegates to the State convention - they controlled not only Tripp Counties votes, but several other west river counties as well.
In return for Tripp Counties and other west river votes Dougherty promised that he would use his influence, if elected, to get a nationally known democrat personality to appear in Winner, SD.
Simpson was Tripp county democrat chairman at the time and Tripp County would often secure national and state democrat figures to their Jefferson- Jackson day dinners, with the help of George Cunningham, who was George McGovern's principal aid, and a life long friend of Simpson.
When Lyndon Johnson decided not to run for re-election and the Vietnam War was raging, Robert Kennedy opted to challenge Hubert Humphrey for the Democrat presidential nomination.
Dougherty was elected as South Dakota's central committeeman and soon became a lifelong close personal family friend of the Kennedy's
When Robert Kennedy entered the primary in South Dakota Dougherty repaid his promise to Stenson and Simpson and scheduled a campaign stop in Winner, South Dakota just prior to Robert Kennedy’s assassination
Introduced by the singing of Guthrie's famous "This land is your land, this land is my land" Ted Kennedy spoke to a packed group of young and old Tripp County residents at St Mary's Hall in Winner.
Tragedy would soon follow.
Robert Kennedy was assassinated by Sirhan Sirhan on the night of the California and South Dakota Primaries. RFK won both primaries and also carried Tripp County South Dakota with 522 votes compared to Humphrey's 229 and Gene McCarthy's 222.
Jim Dohmen of Winner, SD was a Kennedy delegate and was thus elected and attended the famous, riot ridden, democratic convention in Chicago.
Humphrey was nominated by the Democrats and Richard Nixon by the Republicans. Nixon went on in 1968 to defeat Humphrey nationally and in South Dakota, but only beating Humphrey by one lone vote in Tripp County.

Please be patient and helpful. This is a work in progress and will be proofed and edited when finished. If you find errors or obvious faults please tell me by e-mail at Thanks.

I was intrigued by this early newspaper sketch which I recall having seen in Geroge's offic e. Few ould ever know that he qwas a star basketball player for Arizona.

In January of 1960 I decided to join Dudley Herman in Gregory South Dakota in private practice of law. Over the next 50 years I would try cases with and against Dudley R. Herman, George Fielding  Johnson,  Charles “Rick” Johnson , Stephanie Johnson Pochop  and last but not least George F. Johnson’s grandson, young George Johnson, Robert Riter. Bob Hofer, Bill Janklow. Bill Wernke. Stan Whiting, Bill Day, numerous assistant US Attorneys including Gene Bushnell. Ron Claybaugh, Travis Lewin, Dave Vreoman  Randy Seiler  and others, Harold Doyle, Parnell Donohue. A.C. Miller, Mick Strain, Paul Jensen, Bernie Duffy, Alvin Pahlke , John Frank Lindley and the one attorney who became my courtroom nemesis, Mick Grosse burg. He upset me so badly one time during a deposition tha tMick  took one look at me and exclaimed” Get him away from me” and hurriedly escaped through the court tom door. An escape, I later learned he had mastered at the Paecock bar in Winner.
 It was some trip, indeed. Let me tell you that the journey made the trip in itself something to enjoy.At that time the City of Gregory had two of the best trial lawyers in the state in the person of George Johnson and Dudley Herman. When it came to criminal defense or personal injury natters they were the best.
My first trial was against George Johnson in Burke South Dakota in 1961. George’s client, Lee Hornbeck, had hired the local welder to build him a pontoon boat to be used on the Missouri River. Mr. Hornbeck was an elderly gentleman who had a terrible temper. He would daily visit the welding shop and like all older people would wonder why his pontoon boat was not built overnight.
He constantly argued with the welder and taking matters in hand grabbed his diamond willow came and proceeded to beat the welder about the head and shoulders. Although the welder appeared not to have any serious long term injury he did contact Dudley Herman who brought a lawsuit for him against Lee Hornbeck.
At the time alleging punitive or exemplary damages was not a commonplace thing. Dudley however was always first in the forefront of new and novel ideas in the practice of law.
Of course this was not a big case so it was assigned to me the young lawyer who had never tried a jury case ever. I was to battle George F Johnson the giant of the trial lawyers in South Dakota.
George had recently received state wide recognition for defending and winning a murder trial in Brule County in what would be known as “are you a man or mouse murder case”.
Donald G Grieves was the circuit judge and he treated me with respect and I think sometimes admiration over the fact that I would challenge George Johnson. I don’t know whether George or Dudley ever suspected it but Don Grieves, who was a “law minded’ rather than an equity type judge, sometimes demonstrated a lack of respect for George and Dudley. He may have been showing some latent jealousy of the successful trial lawyer.
 When it happens that a lawyer “falls” on the bench quite often his or her only road to the court is paved by political not legal skills. As such they are often jealous of those who are effective trial lawyers.

George did not have the best client. Lee Hornbeck did not have the best reputation in Burke and was a hot tempered irascible old man.
The jury found in my favor and all although the damages were not great they did find that the welder was entitled to $2000 in punitive damages in a new context at the time.
I recall that Dudley was ecstatic. He and George would fight like cats and dogs, Dudley always finding some way to trick the heard charging George and their mutual combat bordered on paranoia but when that question of local Gregory causes were apparent they swallowed their differences and represented the interests of the city of Gregory.
In the first year that I was in Gregory George burst into the office announcing  “ we’ve got to sue  Winner since they just cancelled the traditional Gregory-Winner high school football game” that was played on Armistice Day, November 11th.
“Those liars have said that the game would be canceled for fear of the flu epidemic”. “They are just plain chicken and we must find a way to sue the sobs.  That was George all right. Could anyone imagine any other prominent trial lawyer wanting to sue over a cancelled Armistice Day football game?
I recall that George called Dudley and told him that if that Simpson ever did that again (In an impish impulse I had made fun of George’s boxing career in my closing argument) he was going to get it. This made Dudley jump with joy.
Many of you never knew George Johnson or Dudley Herman. Permit me to introduce them to you as I remember them some 60 years ago. They were polar opposites.
George always had a slouchy pork pie hat that seemed to have survived the last dust storm; Dudley on the other hand had a snap brimmed felt fedora that I would liken to the headgear that was always warm by an FB I or IRS agent.
While George’s tweedy suits always looked like he had slept in them for several weeks Dudley on the other hand, always wore a tailor-made silk like dark suit. Dudley also had an immaculate white shirt ready for any occasion and a silk tie tied four  in hand. George  on the other hand usually had a crumpled white shirt and a tie that he had specially prepared. At one time in a bar fight his opponent had grabbed his  tie  and almost choked him to death. Thereafter George took his ties and at the small portion of the tie  that would be just about the place where it would  be at  the place of his Adam’s apple he took a scissors and cut the tie so that if he ever had another such fight and his opponent took his tie and tried to choke him the tie would tear and George would be free.Clip on ties became a joy for George and also for his son Rick, who coukld do almost anything with one hand except tie a tie.
Many attorneys during that time wore wellington boots. Such foot ware was common with M.Q.Sharpe and his protégé John Larson. Whereas M.Q.”S and John’s wellingtons were always well shined Georges’ wellingtons appeared to have just come in from doing the morning farm chores. It was not uncommon for those who had “bellied up to the bar” at the legendary Peacock or Stockmen’s bar  in Winner, S.D. to judge a man by his attire
Dudley was simply excused as a “slicker’ but knowing this he would buy the bar a round  and was immediately welcomed into the local camaraderie. George, however, was a secret or what we would call a “pick up”  or “little brownbag”drinker and like the local realtor,  John Lunn would do all his drinking straight from a half pint stored in his car. While John Lunn would announce to all the widows who sought  his advice that “evil whiskey has never crossed my lips” Gerome on would never try to hide the fact. By the way have you ever wondered why every liquor store always “disguised” a customers whiskey bottle by placing it in a brown paper bag? Even Woody and Willie would sing of “pass the paper bagged wrapped bottle” in  John  Goodman’s classic: “I’m the train they call the City of New Orleans.”
To be sure I never saw George “knock down drag out drunk” or ever in a bar. He was always the “pass the paper bagged wrapped bottle’ drinker.
Dudley used the local bars to entertain and impress the lpcals  with an eye to eventual jury selection. His “ give the bar another round” was all carefully planned.
He never went so far as Bud Merrill’s father, Halley, who dsaw that every male on the jury panel, in a rustling case invoving his son, tried in an old Episcopal church in Pine Risdge had a case of untaxed ½ pint whiskey delivered before the trial. I was second chair to the ultimate criminal  trial defense attorney, “Roddy” Bottum of Rapid City.

George would appear  in court with one pant leg stuffed inside his wellingtons, by his appearance the jurors knew that he was not “ all show and no cattle”.
When examining a piece of evidence in front of the jury he would produce a pair of dome store reading glasses, which had never been cleaned since he bought them off the dime store rack, perch them askance on his head and demonstrate that he was not the  Sioux  Falls  ( Ellsworth Evans) or Pierre (Bob Riter) slicker who was opposing him in court.
Whiule Pat Morrison and Ramon Roubideaux ould show up for court driving  a shiny new four door Cadillac or Lincoln Continental, both Geroge and Dudley would make an inaupsious appeaerance driving a little Ford Falcon.

If G George smudged glasses  was not enough to deliver his message he would  .whenever the occasion arose. simply whisper to those in the front row of the jury box, “He’s not one of us,  you know”.

Whereas many lawyers who endeavored to try cases looked upon the attorney’s opening statement as being just a formal ritual, both George  and Dudley taught me that if used effectively it could win the case before any witness was ever put on the stand.
One classic example always comes to mind. Bob Maule had become States attorney by default when Bill Day was called to active duty during the Cuban Missile crisis. John Penne’s state auditor’s office had uncovered what they thought was corruption  in Tripp County government.
Bob, always eager to exert any authority he might possess, launched what would become a witch hunt against all of those who had been chastised in Penne’s report.
Among those indicted was Howard Sorber, chairman of the county board. Howard hired George Johnson and the matter was to be tried before a Tripp County jury. Bob Maule, who I can’t ever remember winning a jury trial;, sought assistance from the Attorney General’s office and they sent a young assistant, Bob Miller, to help prosecute.
Bob had been a friend, so on the opening of the trial I edged my way into the seating in the front of the courtroom, which at that time was reserved for lawyers, and listened to the opening arguments  .(Nnow used by a multitude of sheriff’s deputies who guard the handcuffed and shackled 13 year old girls and other   local native defendants who are to appear before the Judge.
As an aside at the call of the criminal calendar in White River Sheriff Perry Hitching would when the court recessed for noon turn to the assembles unshackled criminal defendants and say “  Go up town to Bob’s café, get a hot beef sandwich, sign the ticket and get back here at 1:O.clock”.
Maule and Miller gave opening statements rthat carefully followed legal guidelines.
When  George gave his opening statement he was oratorical; he reminded the jury what a great public servant Howard was, using the County equipment to help those in need and rescuing snow  bound pregnant farm wives from the throes of unaided child birth to  always going out of his way, as chairman of the county board to help any and all Tripp County  residents with whatever local government could do to help them with their  problems. George read  them a litany of all the good deeds Howard had done as chairman of the board. It seemed to be  inexhaustible.
Maule  or Miller never objected’ and George, being the skilled advocate he was really poured it on.
When he had finally   finished, before he sat down, he stopped to whisper to me, “John I have just won this sob”.
The court adjourned for lunch and I walked with Bob Maule and Bob Miller to Pee Wee Foltz’s Home Café for lunch. On the way I overheard the conversation between the two Bob’s. Tthey concluded that George Johnson was not the hotshot attorney  they had expected because in his  opening statement  he had never mentioned  anything that had to do with the case at hand.
Needless to say the jury found Howard Sorber  not guilty, Bob Maule would recognize that he possessed no trial skills and would become a very effective office and tax attorney, the young assistant attorney general  would learn his lesson and eventually become  Robert A. Mueller, Chief Justice of the South Dakota Supreme court.
Dudley, on the other hand, found his own ways to impress jurors since he always wore kangaroo Florsheim well-polished clean pointy toed shoes with immaculate silk socks. He appeared to be the ultimate successful riverboat gambler that you see in the movies.
Dudley, like George, knew the benefit of argument and tricks before the jury and demonstrated them in the case of Binegar v Day in Hughes county where we were soundly excoriated by the Supreme court for going bout of bounds.

 Both  impressed in me that jurors were always observant and that even when the trial was not going on that the lawyer should appear kind polite and
 joking to all the court personnel, including the reporter. especially the clerk (who thankfully at the time was elected) and thus well like and any other officer who was present. Dudley was always more carefree while George never lost his straight on no nonsense focus.
They were opposite in many other respects. George had put together a farming and hunting acreage that was located just past the Gregory Cemetery. He would usually spend all of the early morning hours on that farm driving a bulldozer creating ponds and wildlife habitat planting gardens and trees. Dudley was the son of a prosperous rancher who widowed at   an early age amassed a small fortune of ranch land north of Draper South Dakota. That ranch was known for its Black Angus cattle and Dudley would spend his weekends driving through the ranch and checking on his widowed father.

On August 14, 2011 I contacted Marjorie McMeen who is now celebrating her 100th birthday. Marjorie graduated from Gregory high school in 1929 and from a Sioux Falls business school in 1931 the year of my birth.
I had called her to visit about W.J. Hooper and Dudley R. Herman who she had worked for from 1931 to 1986.
Marjorie reinforced my recollection that W.J. Hooper was “a ladies man”. She also told me that Dudley eventually followed in Hoopers footsteps. (But more of that later)  
Now Dudley was not an easy man to fool, but Hooper fooled him.  Hooper not only had liaisons with West River ladies but was known to have affairs in Nebraska as well.
Marjorie told me that when Dudley first joined the law firm, Hooper who was elderly at the time, convinced Dudley that there was some law business to be done in Nebraska. Dudley then drove Hooper to Nebraska where he ditched Dudley for several days. Lo and behold Dudley was to find out there was no law business in the Nebraska but Hooper had taken him on a trip where he was the chauffer for Hooper’s monkey business.
About the time I left Gregory to practice in Winner SD in 1962 Dudley was actively engaged in such monkey business himself.  But more of that later.
I had told you that George was an early morning riser. Dudley was just the opposite, his mental ability did not engage until well in the afternoon and extended into the evening hours and George’s mental ability by the time afternoon wore on became severely limited. Dudley knew this and tried to take advantage of it during every trial they had. So did George.
George would actively lobby the court to start as early as eight in the morning on any trial day. They would argue over such an early start and if the judge would grant George’s request Dudley would simply turn up about three quarters of an hour late. He would always have some excuse, but the real reason was to extend the trial into the late afternoon where he knew he could take advantage of George.
Dudley kept himself in extremely good physical condition, and to be a successful trial attorney one must either do that or have a physical constitution that is well-suited for long hours of hard trial work or become a whiskey addict. George became addicted to the trial lawyers curse. Dudley told me that that one of the best methods to advertise your law business was to do well in front of a 12 person jury who would remember the trial and your abilities the rest of their life.
In examining a  witness  who he felt was particularly dangerous and had hurt his clients position with their testimony he would adopt and attitude and a method of cross-examination fully intended, in his words, “to drive slivers up his ass” so that in the end his cross would overcome any damage that the witnesses testimony had done to his  case. To be sure, Dudley Herman could drive slivers up the witness’s ass better than any lawyer I have ever known.

 George Johnson was not a religious man, however when he passed the graveyard on the way to his farm and hunting operation he often told me that someone out there must really like him because by the time he was passing the cemetery he would often get the most fruitful legal ideas he ever had. More about George Johnson’s spiritual feelings will come later.
George would keep on m using opening statements to win his cases. He would however meet his match in the person of Oswald J. Kaupp, a graduate of the fourth grade, in a trial in Burke, South Dakota when he asked the witness, Why?
George, like Bill Janklow carried a grudge forever against anyone who had crossed him in life.
Oswald  J Kaupp  a fourth grade dropout, who amassed a small fortune of cattle and ranch in southern Gregory County and northern Nebraska and E. B. Noah who started the Gregory sale ring and other enterprises were high on George’s hate list.
It was a dangerous place to be. George would sue anyone  at the vaguest opportunity. Dudley was more inclined to sue those who had money but with George and Bill Janjklow it was a matter of principle.
Just before I left Dudley for Winner George sued Oswald. At the time all personal property, including cattle were assessed for taxes. Oswald, the fourth grader, was smart enough to have all of his livestock in Nebraska on the date that personal property was to be assessed in Gregory county and vice versa on the Nebraska date.
George saw his chance. Bill Grady, Gregory County States Attorney was George’s friend and George got himself appointed a special deputy States Attorney to collect property taxes. Of course the only taxes he tried to collect were those of the hated Oswald J. Kaupp the fourth grade graduate.
George hired airplanes, photographers and spies to back up his lawsuit to collect the tax. In the process he served a set of interrogatories on Oswald and I had been assigned the case by Dudley. In the process of answering the questions I invoked the 5th amendment for Oswald.
George promptly noted Oswald’s deposition before Judge H.P. Gilchrist in Burke.
Building up to a climax in the questioning of the fourth grade graduate, George finally pounced and demanded to know why Oswald had taken the 5th amendment.
Without any rehearsal Oswald answered.
“It’s because of unwashed sob’s like you, George Johnson, that the founding fathers saw fit to include the 5th amendment as part of our Constitutional right”, Oswald stopped to clear his throat and was ready to proceed. George violently objected and Judge Gilchrist reminded him that he was the one who asked, Why? and overruled the objection. George stormed out of the courtroom and Oswald proceeded to tell the court anything he wanted to.
The lawsuit had come to an end. .
George and Oswald would continue to fight until George’s untimely death. During his lifetime George was not a particular religious person and in fact would often express some  contempt for the Catholic Church.
When he was buried however, the new Catholic Church was the largest in town and it is there that the funeral was held.

Several days after the funeral a large windstorm swept through Gregory and the wind twisted the new steeple of the Catholic Church.
I met Oswald in Gregory after the storm and commented on the damage to the steeple.
Bitter to the very end and beyond Oswald replied “It was not the wind at all, John. It was the Spirit of George Johnson, wreaking revenge for going to his grave through the doors of the Catholic Church.”
George finally got an opportunity to sue E.B. Noah. It was at a time when I was on my own and he shared the lawsuit with me. While George demonstrated poor judgment in bring the Kaupp lawsuit, he demonstrated the talents that only he had and his son, Rick,  would demonstrate in the case of Hannah v Noah. 158 NW2d , 83 S.D. 296.

Hannah  best exemplifies the sense of justice, Geeorge’s intellect and tenacity and above all his belief that trial lawyers were the only force that stood in the way of manifest injustice. George was a tiger.

Noah  rented this particular farm l and ranch to Delbert Hannah and eventually had him run the operation for $300.00 a month plus use of the farmhouse.

Under such circumstance with a wife and kids it is no wonder that Hannah was forced  to sell what littlee he had accumulated.

Noah waited until the auctioneer started the sale and then had the Sheriff serve an agister’s lien on the auctioneer and Hannah.

The sale came to a stop and many who had come to bid left, before arrangements could be made for the sale to proceed. When the sales finally started Hannah’s meager farm accumulation only brought about $6200.00.
George, semsing the unfairness sued Noah for  real and punitive damages.

Now this case was small potatoes for everyone except Hannah and George. Most attorney’s would have told Hannah to take his loss and get sown the road. Not George.

The trial was to be in Winner and George asked me to help. Herman and Werneke represented Noah so the scene was set for a real battle.

During the trial George sensed that our legal footing began to fail. While the trial was in process George whispered to me, “ John take charges of the corss examination, I’m gouing in the Law Library to see if I can find a way to improve our legal position.” George did just that and tweaked out pleadings so that we were able to stay in court. In lieu of the Supreme court’s 3-2 decision in our favor, George had been right. The Jury found in our favor and gave Hannnah about 2,500.00 actual and $2,000.00 punitive o damages. Herman and Werneke appleaed,ad the matter was set for oral argument in Pierre before the Supreme court.

George  picked me up to drive to Pierre for the argument. We left Winner heading  west, when George made a u-turn and started back. to Winner. He pulled into O’Malley’s drive in liquor store and got a “paper bagged wrapped bottle” and a small baottle of selzer  water. ( this was before the esent bottled ater craze) .

Proceeding  toPierre George hander me the seltzer saying,” John take the top ioff  and  drink half of it.” George took the “paper bag warpped bottle’ and in two swift swallows swamped the bottle; grabbed the half full seltzer chaser and we proceeded on out happy way to argue Hannah v Noah in Pierre, SD

We would fight other battles with and against each other, but George  always knew what trial lawyering was all about. 

(More to come.)


Notes on Binegar v Day argument.

On the day that Binegar  v. V-Day was argued in the Supreme  Court, Dudley had sent me to argue that case and two others that were scheduled for argument on that particular day.

It  should be noted that the Supreme Court upon hearing of Dudley is many shenanigans in the old 11th circuit were waiting anxiously for him to appear when Herman and Simpson had scheduled three arguments on that day. It first should be noted that at the time it was the rule of the day that all cases that were appealed could be set for hearing and argument as opposed the present Supreme Court procedure  which sweeps many appeals under a legal rug of unreported ( and perhaps reads only by a clerk ) slip opinions.

While awaiting my turn for argument I looked through the edge of the entrance door glass of the Supreme Court just to note where they were in the terms of my schedule. I heard a whisper in my ear. It said “John when you go in there don’t argue and  face the court and argue but turnaround and talk to those young kids with their fancy suits who are sitting in the front row. They write all the opinions nowadays.” I glanced up and noticed that it was retired justice Alex Rentto who had whispered in my ear. We had always been friends when I worked for the Attorney General  and I knew that he was speaking from the heart.

When it was my turn the five justices looked down at me and turned their attention to Justice Charles Hanson who asked me “and where is he?”

I knew they thought that I was making things up but in fact Dudley was on his way to Rochester for a cancer checkup and that’s what I told Justice Hanson. Needless to say I was never bothered by any further questioning about Dudley R Herman during the course of my three arguments.

You may note that this is a work in progress. Please feel free to send any corrections or comments or critiques to me at Thanks

Thursday, August 25, 2011

Where did this Simpson stubborn streak come from?

I had five brothers. all oldeer than me. Dom Mauro Simpson OSB was one of them. He, perhaops,  more than any other demonstrates the stubborn srtreak we all  ingherited from that old civil war solder George Riley Knapp.

Since 10 September Dom Mauro Simpson OSB, 77, has been a prisoner awaiting trial in Puerto Rico. A monk of San Antonio Abad, Dom Mauro was arrested during a protest of the US Navy's continued presence on the island of Vieques. "Vieques residents and their supporters are protesting the exercises by illegally entering the testing grounds in an effort to make the Navy suspend operations. As of 11 September a total of 17 protesters had been arrested. These included Mauro Simpson, a retired Catholic priest from South Dakota who served in Puerto Rico for 50 years" ( President Bush has made a public commitment to cease military exercises in Vieques no later than May of 2003


Volume 54, Number 9

The People of Vieques, Puerto Rico vs. the United States Navy

by Linda Backiel

David Brandishes a Slingshot
On April 19, 1999, two F-18 jets mistook the navy’s red-and-white checked observation post on the island of Vieques, Puerto Rico for a target, and dropped 500 pound bombs on it. Vieques resident David Sanes was working at the observation post as a security guard for the navy. He was killed almost instantly. Three other men from Vieques were seriously injured. Sanes’ death sparked a wave of protest—civil disobedience, marches, petitions, resolutions, and lobbying—which resulted in the promise, made by then U.S. President Clinton and reiterated by his successor, that the navy will leave Vieques by May 2003. The navy says these plans will not be affected by war on Iraq. As veterans of earlier navy promises, the Viequenses, and the people of Puerto Rico, are wary.
That promise from a U.S. president represents an unprecedented victory for Puerto Rico. It is a victory not only over the Colossus of the North, to whom Puerto Rico is still in colonial thrall, but also over the perennial divisions created by the uncertainty about its relation to the United States and the rest of the world. To appreciate the significance of that victory, some history is necessary.
Vieques is a fifty-two-square-mile island about fifteen miles to the southeast of the main island of Puerto Rico. It has a population of 9,400 and is one of Puerto Rico’s seventy-eight municipalities. According to the United States Supreme Court, Puerto Rico is legally an “unincorporated territory” which “belongs to, but is not part of” the United States. Under U.S. law, Puerto Rico is neither an independent nation, nor a state. Its official title “Estado Libre Asociado” literally means “free associated state,” but the United States has decreed that the only acceptable translation is “commonwealth.” Puerto Rico enjoys none of the sovereignty of members of the British Commonwealth. Instead, it has a degree of autonomy over local government, but no power whatsoever over issues related to international relations, defense, and relations with the United States. U.S. laws, except those few specifically determined “locally inapplicable” are applied in Puerto Rico by U.S. law enforcement and regulatory agencies. One symbol of this relationship is the United States District Court for the District of Puerto Rico.
Puerto Rico enjoyed considerably more autonomy in 1898, when it was invaded by the United States, than it does today. It was then an autonomous territory of Spain, with its own legislature, courts, and money. Invaded and colonized by the Spanish during the previous four centuries, it had developed a unique culture within clearly defined natural borders. As the result of the nineteenth century wars of liberation in Latin America and Puerto Rico’s close collaboration with the movements that generated them, Spain negotiated a Treaty of Autonomy with Puerto Rico. The relationship between Puerto Rico and Spain, which included deputies sent to the equivalent of the Spanish legislature, could not be altered without mutual consent.
After the U.S. Navy invaded Puerto Rico at Guánica and bombarded San Juan (resulting in civilian casualties) during W. Randolph Hearst’s “splendid little war,” the United States demanded Spain “cede” Puerto Rico as part of the price of peace. Its eastern coast would provide a coaling station and strategic outpost in the Caribbean for the navy. Under the December 10, 1898 Treaty of Paris (in which no representative of Puerto Rico was involved or consulted), Spain purported to cede to the United States as war booty what it had no right to cede: the territory, seas, natural resources, and people of Puerto Rico. Vieques was part of that war booty.
Between 1941 and the mid-1950s, the U.S. Navy expropriated 26,000 of Vieques’ 33,000 acres by process of eminent domain, as an annex to its huge Roosevelt Roads base located on Puerto Rico’s eastern coast at Ceiba. Only the largest landholders—primarily the sugar companies—were compensated, resulting in the forced eviction, often on little or no notice—of thousands of families. Many lived under something similar to a sharecropping system under which they obtained rights to the land and homes in which they lived, farmed, and supported their families, often through fishing, between the sugarcane harvesting and planting seasons. Others were small landholders whose families had lived in Vieques since the time it was a refuge from the Spanish Conquest for the indigenous Tainos, and cimarrones—free Africans or escaped slaves. Because they never registered their holdings in the Registry of Deeds, they were neither notified of the proceedings by which the navy acquired their lands, nor compensated for them.
Many Viequenses recall being told the navy would leave when the war was over. But for the Viequenses, the war never ended. The navy acquired the eastern and western portions of Vieques to conduct ship-to-shore, air-to-ground, small arms, and other kinds of target practice, to practice amphibious landings, and to store weapons and ammunition in hundreds of bunkers. They also used it, in conjunction with weapons manufacturers and related industries, to test napalm, Agent Orange, and all sorts of conventional and unconventional weapons and ammunition. The navy also advertised Vieques as a site for “one stop shopping” for NATO allies that wanted to practice amphibious and land war simultaneously.
It was a formidable military presence that the civilian population of Vieques set out to challenge after the death of David Sanes. The most powerful weapon discovered by the people of Vieques is the practice of putting their bodies in the line of fire during target practice. Theoretically, as soon as the navy is aware of civilians on the firing range, it is “fouled,” and exercises must be suspended. Between April 21, 1999, and May 4, 2000, thousands of civilians overran the navy’s Camp García on the eastern end of Vieques, where David Sanes was killed. The December 2000 agreement between Governor Rosselló of Puerto Rico and President Clinton provided that the protesters would be removed, and Puerto Rico would cooperate in securing the range to permit resumption of the bombing. In the meantime, the people of Vieques would have the opportunity to vote on whether the navy should stay or leave. Two hundred people were removed from protest camps on May 4, 2000. Ten days later, civilians began showing up on the firing range again. As of December 2002, nearly 2000 people have participated in this human embrace of what Puerto Ricans call their “daughter island” (Isla Nena). I have had the honor of representing almost a hundred of them. Here are some of their stories.
Too Dangerous for Bail, Father Mauro Simpson
It was about 3 o’clock on a Sunday afternoon. I broke a rule of survival and checked the office fax machine. A letter from a law office in South Dakota was inquiring about a seventy-seven-year-old Benedictine priest, who was being detained without bail in the federal jail near San Juan.
The letter was from one of his brothers, who had practiced law for the last forty years. He wanted to know what was going on. The offense the priest had been charged with was punishable by a maximum of six months in jail. He had not been tried. He was not young, and suffered from diabetes. Why was he in jail?
The facts were simple: Fr. Simpson had been arrested for stepping on some of the navy’s 26,000 acres in Vieques. He was one of scores of religious men and women arrested for civil disobedience in Vieques, consistent with the official policies of the major denominations, including the Diocese of Caguas, of which Vieques is a part. These policies, developed over decades of theological study and experience in Vieques, supported those who defied the law in obedience to the precept that “if you want peace, struggle for justice.” The diocese had actually set up a camp on navy lands to provide “spiritual accompaniment” to the protesters. Fr. Simpson had been part of that camp.
The priest was detained because he refused to promise the magistrate conducting his bail hearing that he would not return to protest again. The logic of the detention order defies paraphrase. The magistrate wrote:
[T]hose now training are to immediately engage in active service in the war against terrorism upon completing their training sessions. Thus, by interrupting or threatening to interrupt military maneuvers at a time in which our daily lives evolve at an extreme or heightened security level, given the continued threat posed by terrorists, by itself is an act that places the military readiness and the Nation’s security at risk while endangering the community’s safety.
This seventy-seven-year-old priest thus joined the ranks of those preventively detained as either targets of, or obstacles to, the war on terrorism whose freedom would “pose a danger to the community.” His brother wanted to know, “Do you have the same federal court in Puerto Rico that we have up here?”
There was only one truthful answer: yes, and no. Puerto Rico is a colony. In a colony, everything about the metropolis is scrupulously imitated, and nothing is the same.
Félix Montalvo, Homicide Detective, Guilty of Civil Disobedience
Accompanying Fr. Simpson in his deliberate law-breaking was Félix J. Montalvo, a much-decorated retired homicide detective from New York. The judge declined to glance at his framed awards, including a commendation from the Secret Service.
The judge showed no more interest in the motion to dismiss the charges in the interest of justice. The motion pointed out that if Mr. Montalvo is called to testify regarding cases he has investigated, his credibility could be compromised by a criminal conviction. This motion was denied. Fr. Simpson’s motion, based on his obedience to the official policy of his diocese, suffered the same summary fate, notwithstanding the presence of the bishop, eminent experts in theology and law, and the priest’s abbot.
At sentencing, Mr. Montalvo explained that the same things that made him a good cop compelled him to commit civil disobedience: respect for human life, the truth, and the law. Firing depleted uranium, as the navy admitted doing in Vieques, is not only dangerous, it is illegal. Fouling the seas by sinking the USS Killen, used to test the effects of nuclear bombs on navy warcraft, close to the shores of Vieques, puts human life in peril. From what is the navy protecting the people of Vieques?
Francisco Saldaña, Former partner of the Navy in its ‘Dirty Tricks’
Sixty-five-year-old municipal assemblyman and retired teacher Francisco Saldaña told his judge before being sentenced:
I have two children in the navy of which I feel extremely proud. And I also served in the military. But this pride is erased by the immense repudiation that I feel for the abuses the navy is committing in my land in Vieques.
I live in Esperanza, a small community of fishermen, where my father, my uncle, practically the entire family has lived from the sea as fishermen....I used to belong to a pro-navy group whose purpose was chaos and destruction....My specific mission was the destruction of the fisherman’s association in Esperanza, the focal point of the attempts to rescue the Vieques lands from the navy.
Several decades ago, Mr. Saldaña and his wife, Lucy, left the organization when they learned of plans to kill a leader of the anti-navy movement. As a result, he was briefly kidnapped; an apparent plan to kill him was foiled by his rescue. Thus, they lost their fear of sharing the treatment reserved for “Communists” and joined in organizing to let the world know about the navy’s abuses in Vieques.
Rather than apologize for trespassing, as the prosecutor argued he should, Mr. Saldaña accused the navy of trespass. First, the navy trespassed when it expropriated the lands, bulldozed people’s homes as they watched, and dumped entire families, with whatever possessions and domestic animals they could carry, into abandoned sugar cane fields where women gave birth, “during hurricane season.”
The second trespass, he added, is when the uranium, mercury, and other pollutants generated by the military “trespass into our bodies.” Suffering from multiple ailments traced to heavy metals in his body, Mr. Saldaña asked:
Who will sentence these people for trespassing into the civilian area?
Your Honor, Vieques is dying. Vieques is disintegrating. Vieques is disappearing. Please give us peace. Thank you.
“Please give us peace.” As if the federal court in a criminal proceeding could issue such a remedy! But such is the power it has exercised over the lives of people in Puerto Rico, and particularly Vieques, that it seemed a not unreasonable demand.
The prosecutor was ready with a reply: “what I see is a sense of entitlement...that one can...basically waltz in here, having violated the law, and express shock and outrage that one might have to receive consequences for one’s actions.”
A Celebrity Trial
“I can’t believe this is a United States federal court,” said Rep. John Conyers (then chairman of the House Judiciary Committee) after observing the trial of a group of protesters that included Robert Kennedy, Jr. and union leader Dennis Rivera before the chief judge of the district of Puerto Rico. The judge was on his best behavior that day, having reserved most of the seats in the courtroom for the press and members of the Congressional Black Caucus who arrived to observe the trial. Kennedy was represented by Mario Cuomo, and former U.S. Attorney Benito Romano.
On trial with Kennedy and Rivera, was Myrta Sanes, the sister of David Sanes. Accompanying her on the tiny spit of land where the military police arrested them was former Puerto Rican secretary of state for the pro-statehood New Progressive Party and then-member of the Puerto Rican Senate, Norma Burgos. Burgos had presided over the Special Commission on Vieques named immediately after Sanes’ death to investigate the impact of the navy exercises on Vieques and recommend official policy for the government of Puerto Rico. Its first and principle recommendation, adopted as policy, is best summarized, “Not one more bullet, not one more bomb.” She told the judge she was on an official senatorial mission when arrested. He didn’t buy it.
What Burgos learned as she presided over this commission ultimately led her to serve sixty days in jail with valor and grace, and, a year later, to vow to return if necessary.
Arrested with Sanes and Burgos were the two Viequenses responsible for guaranteeing their safety and security during their sixty-hour odyssey in the contaminated wilderness during the bombing exercises. Rafi Ayala, fifty-something, is one of Vieques’ most experienced commercial fishermen. He looks the part, and carried his workingman’s dignity with him into the chill marble halls of the federal court. He has been diagnosed with vibroacustic disease, a heart abnormality caused by the shock waves from the bombings transmitted through the water. A study conducted by a group of cardiologists revealed that a much higher proportion of the fishermen tested in Vieques showed symptoms of this condition than in Ponce, Puerto Rico’s second largest city, on the Caribbean coast. The women’s second guardian angel was a young Viequense whose three-year-old daughter suffered from asthma, skin disorders, and unexplained precancerous growths since birth. “But has she been diagnosed with cancer?” the judge wanted to know.
The Justification Defense: ‘Irrelevant....Move On.’
The trial of Burgos, Kennedy, the sister of a Viequense killed by the navy, a fisherman, and a parent of an afflicted child was an important test of the determination of the district court to refuse to address the defense known as justification, necessity, or choice of evils. In essence, the defense exonerates a person whose acts, while literally in violation of the law, are justified by the necessity of choosing between two imminent evils, and who has no lawful means of avoiding the greater.
Judges are fond of pointing out that defendants have other lawful alternatives for bringing about change, for example, through the courts, the legislative process, petitions, and demonstrations. What the courts cannot bring themselves to see is that their major premise, that Puerto Rico is part of a democratic political system, is contrary to fact. Puerto Ricans, with no legislators in Washington, and no say in who gets to be commander in chief of the nation that sets their foreign policy, can hardly be faulted for not confining themselves to writing letters and knocking on the doors of congressmen, 90 percent of whom do not even speak their language. Here the proof of having exhausted legal alternatives was particularly strong. On the witness stand, Burgos detailed her testimony before Congress as the designated representative of the government of Puerto Rico, and her letters to the secretary of the navy in her capacity as secretary of state and president of the Governor’s Special Commission on Vieques. She testified about the commission’s conclusions and recommendations, which led to Puerto Rico’s official policy of “not one more bullet, not one more bomb.”
When asked to describe the conclusions of the commission over which she had presided, Burgos replied, “One of the conclusions is that more than 9000 American citizens who reside in the Island Municipality of Vieques are being deprived of their life, liberty and the enjoyment of their property.” At which point, the navy prosecutor (a judge advocate general with the rank of lieutenant commander) objected, and the court ruled, “Irrelevant....Move on.”
“You cannot violate the law for the sake of your own belief or to advance a cause,” warned the judge in sentencing Senator Burgos to forty days in jail. When she asked him when he would judge the navy for its gross violation of the law, she was sentenced to twenty additional days for “becoming defiant.” “Marshal, please take over,” the judge ordered.
Robert Kennedy, Jr. ‘I thought the law could fix this.’
Kennedy’s defense fared no better. He sought to show that his incursion was justified as the only means available to prevent further damage to the environment and human health. Eight months earlier, as attorney for the Waterkeeper Alliance and other environmental organizations, Kennedy had filed a civil suit asking for an emergency order prohibiting navy exercises. The exercises, he argued, were causing irreparable injury to the health and safety of the people of Vieques, and were in violation of a number of federal environmental laws.
The same judge about to convict him had, he suggested, failed to rule on his emergency motion to enjoin the bombing for an unreasonably long time. Before being sentenced, Kennedy told him what made him cross the line from environmental lawyer to conscientious lawbreaker. He loved the United States Navy and the law, he said. But he could not accept what the navy had done and was doing in Vieques.
He found Vieques in agony. Along with the highest rates of cancer, infant mortality, and overall mortality in all of Puerto Rico’s seventy-eight municipalities, its residents are dangerously contaminated with arsenic, cyanide, lead, mercury, antimony, uranium, and other toxins associated with the detonation of ordnance. These substances leach into the groundwater, and are carried by the prevailing easterly winds from the bombing range to the homes and schools, the seas where the fish are caught, the fruit trees, and the soil where tubers are grown.
But the worst devastation Kennedy saw in Vieques was the alienation and demoralization of a people whose rights were not respected. In Vieques, his talk of “adherence to democracy” and a “strong system of justice” was received with the skepticism of those who have lived in an abandoned corner of a colony all their lives. Their desperation, and his loss of confidence in the ability of the legal system to stop clear violations of environmental laws, carried the day. It was not until after two additional rounds of bombing over a period of eight months, during which his request for emergency relief languished on the desk of the stern judge before whom he now stood accused, that he decided to break the law. He told the court, “Under these circumstances, I felt for my conscience that I had an obligation to these people, who I have promised the system is going to work for, to do something that would at least share part of their suffering.”
He got thirty days in jail, as did Rivera and the two men from Vieques. Sanes was given six months probation.
As the numbers of protesters swelled—the Chief Judge cited 711 cases at the time of the Burgos-Sanes-Kennedy-Rivera trial—so did the sentences. Sixty days was no longer shocking. Four and six month sentences were meted out. Alberto de Jesús, known as “Tito Kayak” for his derring-do with a one-person vessel (who at one point inscribed “Navy Out! Vieques or Death!” on the side of a navy destroyer docked in San Juan for a “good will” visit), was given a year in jail (two consecutive maximum sentences) and exiled to Manhattan’s Metropolitan Correctional Center. He had been sent there for sentencing for stepping on Lady Liberty’s crown without first getting the permission of the National Park Service. He left his calling cards: a flag of Vieques, a flag of Puerto Rico, and a banner reading “Navy out of Vieques.” For that offense, the federal magistrate in New York sentenced him to time served and a fine collected from supporters in the courtroom.
The Senator’s Cellmate, Nationalist Heroine, Dona Lolita Lebrón
One of Senator Burgos’ cellmates during her sixty days in jail was Puerto Rican Nationalist Party heroine, dona Lolita Lebrón. In 1954, Lebrón led a Nationalist Party action to protest the imposition of Puerto Rico’s current legal status. From the visitors’ gallery of the U.S. Congress, she unfurled a Puerto Rican flag and cried “Viva Puerto Rico!” while firing shots at the chandelier. Five congressmen were wounded. She spent twenty-five years in jail, and was released as the result of an intense campaign for amnesty for the jailed Nationalists.
Now in her eighties, Lolita Lebrón has lost none of her incandescence. On June 1, 2000, she walked all night through pathless brambles across Vieques’ tiny mountain range, to participate in a religious ceremony. About thirty protesters, mostly women of Vieques, gathered at dawn on the beach where Puerto Rico’s first ecumenical chapel had stood until the navy tore it down when it took the range back from protesters on May 4, 2000. They were dressed in black and wore white crosses with the names of women from Vieques who had died of cancer, and consecrated the land in the name of their friends, in order to stop the cycle of death.
Released on her own recognizance, Lolita Lebrón gave precise instructions to her lawyer: the only thing she was authorized to do was challenge the jurisdiction of the United States District Court in Puerto Rico. The theory was first developed by the brilliant Harvard-educated lawyer and U.S. Army-trained father of Puerto Rican nationalism, don Pedro Albizu Campos. Albizu was the president of the Nationalist Party at the time of the attack on Congress, and Lebrón’s political, and perhaps also spiritual leader.
Impressed by the nationalism of Eamon de Valera and Mahatma Ghandi, Albizu Campos challenged his countrymen to throw off the yoke of submission and fight for their rights as a free and sovereign people. The legal theory he developed anticipated international law by almost half a century. As elaborated by Lebrón in her motion to dismiss the charges in federal court in 2001, it goes like this:
Presente! The Spirit of Pedro Albizu Campos
The fruit of an act of aggression—military invasion of a country not at war with the United States—the United States’ claim to sovereignty over Puerto Rico, and thus jurisdiction over Lebrón, was null and void. Albizu developed and tested the legal challenge to United States jurisdiction in the case of Luis F. Velázquez in 1936, decades before the United Nations would approve Resolution 1514 (XV) on the Right of Colonial Peoples and Nations to Self-Determination. Since then, that right, once a bold assertion erected over a solid theoretical foundation in the little-visited annals of international law, has become what is known as a “peremptory norm” of international law. A “peremptory norm” is universally binding, not on the basis of the number of nations that have signed a treaty, but because it has become so universally respected as to represent a consensus among all civilized nations about a fundamental proposition. All but a handful of the colonies that existed at the time Resolution 1514 was declared are now member states of the United Nations.
Lebrón’s motion was not expected to have any impact whatsoever on the district court, but her challenge was more radical than just filing the motion. Given her position that the court, as the representative of an invader and international outlaw, had no jurisdiction over her, she did not deign to appear for trial. Somewhat to her disappointment, the judge assigned to her trial declared that sending U.S. Marshals to arrest an eighty-year-old icon was “the last thing” he would do. He then began to describe a death-bed conversation with his father about Lolita Lebrón, a woman the father had met, and admired. She was sentenced to the time she had been detained prior to being released on her recognizance.
Undaunted, she returned to protest again. This time she was not released until she had served sixty days, during which she shared a tube of contraband lipstick with Senator Burgos.
An Overwhelming National Consensus
The arrests of the men and women of Vieques, many of whom were the sons and daughters of people whose lands had been expropriated by the navy, gave the lie to the navy’s assertions that the people of Vieques had no problem with the navy, and that the protests were the work of “outsiders,” and “left-wing” (i.e., pro-independence) organizations.
Not wanting to create a precedent for allowing communities to reject U.S. military presence, Congress postponed, and then cancelled the promised referendum on whether the navy should leave Vieques. Puerto Rico’s government held its own referendum, in which 68 percent of the voters said no, with voter participation close to 80 percent. Before the referendum, the navy had already handed out most of the $40 million in “community/economic development” funds allocated by Congress to—well, there is no other way to say it—buy the vote in Vieques. The navy promised that an additional $50 million would follow a yes vote.
The navy set up a community outreach office on this island where the median income is about $6,000 per year per person, and the mayor estimates the unemployment rate at 50 percent. It invited people to submit proposals for small business grants of up to $25,000. Most of those who were told their proposals qualified, but were rejected anyway, were known to want the navy out. The navy also began paying Vieques fishermen who signed up for compensation $100 per day for every day they were banned from the waters by the navy. Still, it could not muster a third of the vote.
The struggle for the demilitarization, decontamination, return of the lands, and sustainable development of Vieques is second only to hurricanes as the least sectarian phenomenon Puerto Rico has known, at least since the 1898 invasion. Not only has it united the people of Vieques and the people of the “large island” of Puerto Rico—separated by a ninety-minute-long ferry ride—but it has also ignored the legendary partisan political differences revolving around status options.
The Traditional Divisions: Independence, Statehood, or Something-In-Between
The three political parties each represent a status alternative: independence, statehood, and the present “free associated state” or “unincorporated territory” relationship. The “not one more bullet” policy was formulated by a pro-statehood governor, Pedro Rosselló.
Sila Calderón, the current pro-“free associated state” governor was elected largely because of Rosselló’s last-minute agreement to allow the navy to resume bombing, and her promise to get the navy out of Vieques within ninety days of taking office. Her inability to do so is emblematic of the distance between the rhetoric and reality of any theoretical autonomy allowed under the “free associated state.”
The leaders of the two parties that alternate governing the colony were both forced to assume their unusually strong positions by Puerto Rican Independence Party president, Rubén Berríos Martínez. He set up a civil disobedience camp within the navy’s high impact zone and lived there for over a year until arrested by U.S. Marshals when the United States ejected two hundred protesters and took back the bombing range for the navy. He returned twice more, and served two sentences, one of three months in jail.
Vieques is a case of parties and politicians following the lead of the people. David Sanes depended on the navy for his livelihood, but when he was killed—and three others terribly injured—by an errant bomb, Vieques erupted. Parents were not willing to risk losing another child for a paycheck. And Viequenses were tired of being told they must sacrifice their land, their safety, their health, and their tranquility to the national security of the United States.
Walking Towards an Uncertain Future in His Father’s Shoes
With the support of Franciscans International/Dominicans for Justice and Peace, I accompanied Carlos Ventura Meléndez the president of the Fishermen’s Association of the South of Vieques to the meeting of the United Nations Human Rights Commission in Geneva, Switzerland, last March. He was a remarkably efficient and indefatigable diplomat, managing to have personal conversations with the representative of virtually every Latin and Central American nation attending the session. The only diplomat who refused to speak to us—on the grounds of lack of time—was the U.S. diplomat in attendance.
The most delicate appointment came on the last day, when we met with the Vatican nuncio for human rights. Carlos did most of the talking. At the end of the interview, the nuncio turned and, assuming the role of parish priest, asked, “Carlos, what do you see for your future?” Carlos explained,
I live in a barrio called Luján, but they have changed its name. Many people now called it “the barrio of death,” or “the barrio of cancer.” We seem to go from one funeral to another. Someone gets diagnosed with cancer one day, and the next thing you know, he’s dead. So many of my classmates have buried their children....Most parents, when they get to my age, in their forties, start thinking what their children’s future will be....Will they be doctors, or teachers, or fishermen, or whatever. But we donask that question. We just wonder whether our children will have a future.
The shoes Carlos was wearing that day had been his father’s. He promised his father, before he died, that he would walk in those shoes from one end of Vieques to the other, free of barbed wire fences and armed navy guards. Carlos and four members of his family have all paid their dues in jail for ignoring those fences in order to claim their right to live on lands used, as he says, “to teach killing, to sow death.” Geneva was just one more step toward fulfilling his promise to his father.
Postscript: As this issue goes to press the navy has just advised the governor of Puerto Rico that it has scheduled twenty-nine days of bombing to begin on January 13.—Ed.