Legal chess and booby-traps.
It was 1954 and radio station KW why are of Winner had become the voice of south-central South Dakota. Traveling across the state and venturing into kwyr’s domain one would often hear of quote former F BIA agent and Tripp County states attorney Marvin Talbot announced today that a combined effort of the FBI, the State Attorney General's office, the Department of criminal investigation, and State agencies of Montana in cooperation with his office had broken the largest rustling ring west of the river since the days of Jack Sully.
Marvin was the son of C.E. Talbott an early homesteader and lawyer in the settlement of Tripp County West River South Dakota. His father Clarence Talbott was a hard charging, dominating attorney for many years in Winter, he had amassed his fortune by trading Homestead shacks on Winners town lots for Indian allotments of rural land. When Bill Janklow became an attorney for the legal services in Rosebud representing Native Americans he openly accused Marvin Talbott of being a quote slum lord".
Woodrow Peterson was the defendant who was arrested as the kingpin of the largest rustling empire since the days of Jack Sully.Woodrowwas the son of Herman Peterson who had been one of the first ranchers to locate West River on the headwaters of Minnecheduza crick North of Cody Nebraska and just across the border in South Dakota. Peterson had been legendary ranchers in the area since the days of Jack Sully.
The Peterson family hired Dudley R Herman of Gregory South Dakota to defend Woodrow. It appears that Woodrow had been charged with stealing cattle fromL.D Putnam . a Nebraska rancher former resident of Gregory who had ranch holding on the reservations in South Dakota. County who had ranches on the Rosebud reservation.
In fact former FBI agents and states attorney Marvin Talbott together with CFP I the Atty. Gen.'s office the division of criminal investigation and the Sheriff in Wyoming had selected George Samis a Highway Patrol officer from Lemmon South Dakota as an undercover agent to be used in breaking up this largest cattle rustling ring since territorial days.
The evidence against Woodrow seemed insurmountable as Samis had been an undercover agent who bought all the rustled cattle from Woodrow Peterson.
Former FBI agent and now States attorney Marvin S. Talbott it was a slam dunk except he didn't know that Dudley Herman was a master legalchess player and a booby-trap expert.
Dudley carefully prepared the only defense he had and it was a bold move indeed. He had found a look-alike who agreed to participate and Dudley carefully prepared the booby-trap.
The trial started in June of 1955 and Dudley had Woodrow seated beside him at the counsel table in the trip County Courthouse in Winner South Dakota and he carefully had the defendant wear sunglasses and read comic books throughout the trial as if oblivious to anything that was happening.
Now the Supreme Court and many other judges thought that Dudley’s contact was not only despicable but downright unethical. Everyone thought he could be dis-barred.You must remember that this criticism came from a group of judges had never tried a criminal defense case that ever amounted to anything and most of whom had been former prosecutors and been elevated to the bench by political maneuvering. Things haven't changed much.
However risky the setting of the booby-trap was Dudley had the foresight to get the trial Judge Frame’s approval before the trap was set. Judge Frame from Burke was the trial judge and he agreed that Dudley could proceed with his booby-trap shenanigans.
It was also well known at the time that former FBI agent and now States attorney Marvin Talbott was being groomed by the powers that be to be the lead prosecuting attorney in the future attorney general's office. Dudley Herman and a Democrat election of Ralph Herseth and Parnell Donohue would put a stop to those dreams.
The trial proceeded with the mass of evidence collected against Woodrow Peterson. Over the noon hour on one of the last days of the trial while the undercover agent sameness was on the stand Dudley substituted Charles R Lewis who was wearing the clothes of Woodrow Peterson complete with sunglasses and comic books in hand for the defendant. Previously
I had written that Dudley could “drive wooden slivers up the ass” of any witness and he proceeded to do this with witness undercover agent Samis. Dudley's cross-examination would be withering and Samis must have felt the slivers in his back-side Dudley was also maddeningly repetetive and for me at least downright boring, but as he would tell me, John it isn't boring to the jury. After a long cross-examination and when Dudley felt he had Samis where he could risk it he asked the undercover agent who had bought the stolen cattle to please identify the person he had bought the stolen cattle from. Samis asked the defendant to stand and remove his glasses and after careful examination sprung the booby-trap by identifying Charles R Lewis of Chadron Nebraska as the man he had bought the stolen cattle from.
Dudley then announced that undercover agent Samis had identified Charles R Lewis and not the defendant Woodrow Peterson. He then asked Woodrow Peterson to stand and he did so as he was seated among the spectators at the packed courtroom.
The case was finally submitted to the jury and after several days of deliberation found the defendant Woodrow Peterson not guilty.
While Dudley had become an anathema to many judges for his booby-trap he was celebrated by the people of West River as a masterful legal chess master.
In fact L.D. Putnam who had had his cattle rustled soon hired Dudley R Herman of Gregory as his own personal attorney and when I worked with Dudley I tried the case of James holy Eagle,et al versus the United States in Federal district court before Judge George T.Mickelson in Sioux Falls a case that had been bought and paid for by L.D. Putnam and organized by his Indian agent Edison Gerry Ward. L.D has lost his lease of graing land and had the Indian lanbdholders bring the action to define their rights. Edison was an enrolled member at Pine Ridge he was also a descendent of Elbridge Gerry, a signer of the Declaration of Independence and the inventor of Gerrymandering.
When Judge Mickelson ruled against me because he was “worried what the cattle would eat if L.D. Indians were successful” I lost my temper and offered my opinion that the ruling showed that he lacked the perispicasity of a fourth grader. Harold Doyle the US attorney who is representing the government passed me a note that he would visit me in jail. I think Judge Mickelson was so taken aback that he merely adjourned the matter. Later in Federal court in Deadwood before judge Axel Beck I would defend
deputy sheriff Raymond Fernen from Mission who was charged with shooting the tribes last Buffalo Bull. Before the trial Judge Beck called me aside in his chambers and told me the following “I know what you told Judge Mickelson in Sioux Falls and I want you to know, Simpson, that it doesn't bother me one god dammed bit.”
No George Johnson or Rick Johnson would have been caught by Dudley's booby-trap. Dudley and Rick Johnson would continue to try cases against one another both in South Dakota and Nebraska most cases involving L.D. Putnam and they had a mutual respect for one another. Ack wend finding that Dudley had terminal cancer after his father's death from that dreaded disease sponsor an event celebrating the life of Dudley Herman.
Dudley had taught me the importance of having the other attorney trip the trap. Rick Johnson had told a friend that I had learned the procedure well since one he tried cases against Spain he could hear traps going off all over the courtroom.
After I had left Dudley's office and been elected states attorney of Tripp County I prosecuted a homicide case in which Dudley was the defense attorney. There had been a fight outside the Peacock bar and an elderly farmer had been thrown to the sidewalk by the defendant and he died from the results of this encounter. Dudley represented the defendant and we proceeded to trial and the defendant was found guilty.
During the trial a witness to the event, Wllin would regularly come to the states attorney's office and want to visit about the caseas he had been present the night of the fight. Ed Wollin had come to town as part of S. P. O'Malley's magazine sales crew. Ed was not only smooth, he was slippery. I suspected him of being Dudley Herman’s plant to gather information and if I should call him as a witness he would be the booby-trap.
The strange thing is Dudley never called him after I failed to call him myself so the case went to the jury without Ed Wolin’s testimony. Afterwords when talking to Dudley I asked him why he had not called Ed Wolin as a witness. He told me that he had not called Wolin because he thought he was my booby-trap for him to trip the wires. He turned the question on me and asked why I had not called Wollin and I replied I sure thought he was your booby-trap.
My experiences States attorney as a successful prosecutor as opposed to Bob Maule and Marvin Talbott who seldom if ever won a case caused me to be appointed to defend Indians charged with crimes in Federal court. I would soon receive such appointments for homicides and would take Bill Janklow with me to Federal court to defend those cases. More of that later.
The steel penis case.
After I had returned to practice following my suspension by the Supreme Court for tax problems I was requested by Karen Artichoker of the white buffalo women's society to defend an Indian lady who was being sued by Harold Whiteman a teacher on the reservation who was claiming that my clients two Indian children were his and he was requesting full custody of them.
To say that Harold Whiteman was such a man as could only be found on the Rosebud reservation might require some stretches of the imagination but not much. The case was tried before Judge Trandahl Trental and Harold came up with all kinds of theories as to why he should have custody of the children notwithstanding
he was not their biological father nor was he legally married to the defendant although they were living together. Harold was a Mormon and kept the religiously mandated supply of food in the basement of their home. He was irritated that the two children would secretly break into the supply and eat other than that he intended for them.
Harold was the strangest man I ever knew. He had gone to a medical facility of some kind in Denver Colorado and had silver rings attached to his nipples and two stainless steel bars iimplanted horizontally in his penis. My client had given me a drawing of Harold's penis with the horizontally implanted steel bars which protruded from either side of his penis. I know you never heard this one before but check the court records and it's absolutely true.
My client told me that Harold would require her to have oral sex with him and that after the episode he would go over to his little Royal portable typewriter and type or on a check for 20 bucks. She also d told me that the steel bars had hurt her mouth and that had made her mouth sore.
Now what was to follow Judge Trandahl after the trial would tell me that I was just lucky and didn't know what was going to transpire. In fact when I placed the mother on the stand I had her describe the oral sex, the Royal typewriter, and a check for 20 bucks and then asked her if anything about the oral sex bother you about having oral sex with Harold? She replied that the only thing that bothered her was it having oral sex with him made her mouth sore. No more questions.
The opposing attorney fell into the trap after a rigorous cross-examination he now asked his final question. What in heavens name would make your mouth sore from having oral sex with Harold , he asked?
The steel bars she exclaimed. Steel bars he shouted what does that have to do with having oral sex? She then answered by describing fully and in complete detail the to steal iron bars that were implanted in Harold's penis and that made her mouth sore and if he didn't believe her just take Harold into the bathroom and look for himself.
Judge Trandahl dismissed Harold Whiteman's lawsuit and Harold went home to Mission grabbed a revolver and shot himself.
For some reason I never felt any remorse over Harold's actions since like most things in his life he was unsuccessful and didn't die he recovered and went on die and natural death.
I had told you earlier of the list of lawyers who had trained and cudgel me in the practice of defending persons charged with crimes. While Dudley Herman had been my main teacher I learned much from George and Rick Johnson who were All-Star trial lawyers from Gregory South Dakota a town just to the east of Winner South Dakota.
Baxter Berry had shot an unarmed Indian preacher in his horse corrals on the northern boundary of the Rosebud reservation. Bill Janklow fearing that nothing would be done in his capacity as legal director of the legal services Rosebud contacted the tribal chairman Cato Valandra to hire me to the apparent investigate and force a trial for murder.
I drove to the scene of the crime and interviewed the relatives of the Indian preacher who had been shot and viewed the scene of the crime and the place where the Berry ranch was located with respect to land that was owned by the decedent and his relatives.
With the help of Bill Janklow we were able to convince the Attorney General Gordon Mydland to prosecute Baxter Berry for murder. The venue would have been in Mellette County at the courthouse in White River.
The Attorney General sent James Zeiser to prosecute case. We had requested that I also be allowed to appear as a special prosecutor. This request was denied.
George and Rick Johnson were hired by Baxter Berry and George asked his friend Sam Masten to help with the defense.
While that Johnson firm would often turn a sow's ear into a silk purse in trying lawsuits they positively outdid themselves in defending Baxter.
Before they were done they ran roughshod over the prosecution and turned a simple minded unarmed native American preacher into a howling Peyote eating hateful Indian who would goout of his mind Indian so that Baxter Berry believed he was in fear of his life and the shot was fired in self defense.
So you may know the training that was available for both myself and Bill Janklow in the old 11th circuit in Gregory Winner and white River South Dakota.
Baxter was found not guilty and an uproar arose across the country which resulted in Rick Johnson bringing several lawsuits against NBC for maligning the name and reputation of Baxter Berry.
Just as George Johnson and his son Rick would not have tripped Dudley Herman's booby-trap in the big rustling case Dudley Herman would not have allowed George Johnson, Sam Masten and Rick Johnson to set up such an unimaginable the fence.
As part of the defense Rick Johnson while investigating the case found several spent 22 casings on a Bute where the defendant had maintained the dead Indian had fired shots at him. Some have said that Rick may have developed a habit of finding 22 shells and casings.There were few if any Indians on the jury panel that was selected to try this case. Janklow should be given his due that in his capacity as legal director he brought an action in Mellette County that would change the law and South Dakota on the selection of a jury panel for all time making it now possible to get a cross-section of the people of the c