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

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