Recollections of the 11TH Circuit Bar #2

RECOLLECTIONS OF THE OLD 11^th CIRCUIT BAR #2

LEARNING THE ROPES

Pat Morrison, Don Fellows, Governor Herseth and Parnell Donohue

Writing about fellow attorneys is an awesome task. However, the profession has, in the past, maintained a sense of personal respect and friendship for one another when not in the arena that the medical profession has always found unfathomable.

While the law has maintained the dignity of never offering personal insult medicine has been rife with personal animus.

But the story, like the arena itself must hue to the truth. Some never learn the lesson and the practice suffers. Favoritism should never trump an adversarial relationship.

In this writing I have worried over a vehicle that would make the story flow. Would an imaginary character work? Or a third person narrative?

In the end I knew who had to be used to make the story flow.

It was me-bitter and sweet-and I had to be fair and honest, yet adversarial in a way, but saving the indulgence of some poetic license to make a point. In short the tool that all good trial lawyers would use to tell the story of the old 11^th Circuit and Rosebud bar.

I started the practice of law in 1958 diplomas and certificate of admission in tow with no place to go.

I did have three choices. I had taken the Federal Service entrance examination and scored high enough that I was offered a job as a Foreign Service intern in Karachi Pakistan.

During summers I had worked as a National  Park Service Ranger and was offered a job at the Thomas Jefferson memorial museum in St Louis, Mo.

Or I could grit my teeth and see what the solo practice of law was all about.

After all, I and my debate partner, Todd Willy, at Madison High School had won just about every tournament in sight and won the South Dakota State Championship in 1949.

I never lacked forensic skills

In the words of Charles Dickens I knew that “something would turn up.”

With eyes firmly fixed on the horizon I started on one helluva journey.

I had been a young democrat at USD and helped George McGovern in his successful bid to unseat Harold Lovre. My friend, George Cunningham would dedicate his life to McGovern and later become his chief of staff.

McGovern had almost single handed built the South Dakota Democratic Party  from a small group that could hold its conventions in a deluxe “Eleanor Roosevelt” out house into a party that elected Dick Kneip Governor and for a period of time had more people registered than the republicans.

Democrat resurgence occurred in 1958 with the election of Ralph Herseth as governor and Parnell Donohue as Attorney.

General

Indeed, “something had turned up.”

My Dad’s friend Cliff Coffey had been Adjutant General under Tom Berry wanted to help me land a job with this Democrat’s windfall.

Cliff and I set sail for Pierre where he would meet his old Tom Berry Democrats and Parnell Donohue 

Irish to the core on arrival and meeting his old pals Cliff slipped into the Irish “lost weekend” mode along with most of his friends and Parnell.

Well a “lost week end” turned into three days. I had sought my Dad’s advice and he told me over the phone, “you’ll just have to wait him out-but save enough for gas to get home”, he said. “The Irish curse” will run its course and there’s nothing you can do but wait.”

Little did I know that the old time lawyers, Lynn and Don Fellows and Pat Morrison and yes even Parnell had as their first order of business  not good government as such, but revenge,

Old time democrat lawyers, who were delegates to the Al Smith convention in 1928 reads like a who’s who of great lawyers- They included:

Lewis W. Bicknell, Webster - William J. Bulow, Beresford - Holton Davenport, Sioux Falls - C. S. Eastman, Hot Springs - H. F. Fellows, Rapid City - Herbert Emery Hitchcock, Mitchell - Walter Weygint, Howard -  and Harold Doyle, Yankton –

When Tom Berry was elected in the 30’s he appointed a Democrat Unemployment Commissioner in Aberdeen. Thereafter a rule was made that the Commissioner could only be removed for cause. The statute required that a show cause hearing be held before the Govenor before he could be removed.

When the Republicans regained the governorship they desperately wanted this political plum.

Would it surprise you that some charges were trumped up claiming that the Democrat Commissioner had some way touched the backside of someone’s derriere? The Republican governor, after a statutory hearing, removed the Democrat and appointed a Republican office seeker.

          Pat Morrison and Don Fellows had vivid memories of the trumped up trial that removed their friend from the commissioner job. Now with the election of Democrat Ralph Herseth and their great Irish friend Parnell they would have their revenge.

          Morrison was from Mobridge but was known through-out the State for his trial skills and shenanigans and Don Fellows was one of three Fellows brothers that included Hub and Lynn Fellows, all legendary lawyers.

          Like me Pat had been chastised by the Bar.

          Morrison as a young lawyer had defended the killer of Dode McKenzie, who was shot, Gunsmoke style,  in Phil Dufran’s hell hole cowboy bar in LeBeau in 1909.
Permit me to digress 
That shooting  and the acquittal were an important part of West River History.
The following synopsis was printed at the time;

. “The great herds of Murdo McKenzie and Cap Mossman flowed in and out of LeBeau the year around.

     Some of the businesses that left Evarts for Duroc came back and settled in LeBeau. Phil DuFran with his saloon was one of them.

     Most of the town was set up to cater to the cowboy. So with the endless flow of cattle and the money the cowboys were willing to spend to get the gumbo dust out of their throats etc., LeBeau became a thriving cowtown with little worry about the future. The fall

of 1909 alone saw over 150,000 head of cattle loaded out of LeBeau for shipment to eastern markets. Everyone had plenty of money and everyone was spending it. LeBeau was destined to go down in history as the greatest shipping point of all time, until fate changed it's destiny in the fall of 1909.

     Murdo McKenzie's son David "Dode" as his friends called him, was manager of the Matador herds on the Cheyenne River Reservation in South Dakota. Lacking his father's reserve he was inclined to get as loud and impetuous, when loaded with barroom

whisky, as most of the cowboys after the fall roundup and shipping.

     Bud Stephens who had formerly worked for the Matadors in Texas, was the bartender for Phil DuFran. He and Dode McKenzie had had some trouble before coming to South Dakota.

     When Dode and some of the Matador cowboys rode into town on the morning of December 11, 1909, they stopped at a saloon to get the dust out of their throats and celebrate a little. Dode began to get a little boisterous but wasn't looking for trouble.

     To spice the monotony of a dull Saturday morning some town punks told Bud Stephens he had better have his gun ready as Dode McKenzie was coming in to get him. So Bud had his gun in easy reach when Dode came in the door just before noon.

Bud grabbed his gun without warning and shot Dode twice in the chest. Dode slowly turned around and staggered out the door, falling by the steps. Bud followed him out and shot him in the back two more times. Dode died in the dust just beyond the steps of DuFran's saloon. Bud was put in jail in the county seal at Selby and was tried for murder in March of 1910. Most of the citizens of LeBeau strongly felt Stephens should be convicted.

     Murdo McKenzie hired a lawyer he thought to be the best, to prosecute Stephens.

Phil DuFran hired a 23 year old attorney named Pat Morrison, from Mobridge to defend Bud Stephens.

     Though LeBeau was located on the east side of the Missouri it was a cowtown but Selby was the center of a farming community. Pat Morrison was careful to select a jury composed of homesteaders who didn't like the cattlemen anyway. Bud pleaded self defense, he said that he was tipped off that Dode was out to get him and he had feared

for his life when Dode came in the saloon wearing a gun (which was standard wearing apparel of that time among the cowboys). The jury of homesteaders acquitted the bartender. Bud Stehens spent no time in leaving the country and Pat Morrison became known as one of the best criminal lawyers in the state.

Pat and Don trumped up their charges against the Republican commissioner in the same manner charges had been manufactured when he displaced their Democrat friend years earlier. They would have their revenge.

          Parnell chose me to be their gopher. The two rented a suite in the St Charles and had the time of their lives trumping up the charges that would lead to their revenge.

          “Do you know the definition of a son of a bitch Simpson/?” Pat shouted to me. “No I don’t “ I replied.

“ A  son of a bitch is just like this guy an Irishman who has left the church and votes Republican” he chortled  “we are going to get that son of a bitch”

          Bob Riter, who I would try cases against over the coming years  when he partnered with Bob Hofer, carried the water for the Republican (who incidentally was a real nice guy-he just happened to be the object of our old gents revenge)

          The hearing was set before Governor Herseth (D) and Pat would lead the charge. He reminded me of a silent movies Charlie Chaplin with his shenanigans and poses. After all this was 1958 some 50 years after he had gained fame for the acquittal of  Bud Stephens in 1909. The old gent was near the end of his years and revenge would be his. All of his acting skill went in to his presentation. Herseth, ever the Norwegian opposite of the Irish Pat, was not impressed.

          They didn’t know Ralph Herseth. Although a Democrat he would not let politics interfere with his judgment. In fact he was known to make the State Democratic  Chairman Jim Magness cool his heels in the hallway while he visited with Republican favor seekers.

          When the Governor ruled from the bench that the case would be dismissed, Pat in a show of utter disgust, yet with a twinkle in his eye, turned, faced the audience grabbed his silk tie and promptly pretended to blow his nose in it. So much for you Ralph  Herseth.

Pat had entertained the whole assembly but lost his revenge. Bob Riter a legendary attorney in his own tight had no sense of humor whatsoever, but he had won the day.

Lesson learned.

Back at the St Charles Pat and Don discussed their loss.

“Pat” Don asked “ We are good Democrats and we are trying to right a wrong, Tell me Pat why does Herseth hate us so much/”

“Easy” Pat answered “He’s a Christian.”