ACLU cites COINTELPRO misconduct of FBI in 'Omaha Two' case pending before Nebraska Supreme Court

"Poindexter's original trial reflected COINTELPRO bias on the part of the prosecuting attorneys, as they introduced inflammatory newsletters and other Black Panther materials.  The written materials introduced by the prosecution were clearly protected by the First Amendment yet were calculated to inflame the jury's emotions against the defendants….While the zeal of prosecutors in the early 1970's before Congress had fully uncovered the depths of COINTELPRO's illegality could be excused as a symptom of the times, it is of concern that at Poindexter's 2007 evidentiary hearing, the state repeated the same effort to color the case against Poindexter by re-introducing the issue of BPP's political work.  There is simply no explanation for a modern prosecutor to return to the issue of Poindexter's political work--unless Poindexter continues to be a target of retaliation for his First Amendment activities of almost forty years ago."

"Finally, there is similarity between Poindexter's situation and the Jones, Pratt and Wahad cases above.  First, Poindexter was convicted primarily on the testimony of Duane Peak.  While it is not known whether Peak was an FBI or Omaha Police informant, there are facts that suggest that his testimony may have been in exchange for leniency.  Most notable is that he was charged as a juvenile and not an adult, and thus received an extremely light sentence.  Second, key exculpatory evidence (the actual 911 tape) was kept away from the defense in Poindexter's case.  Memos between the FBI and OPD indicate a clear plan to deliberately avoid doing any testing on the tape for voice identification.  In October, 1970, one such memo said, "Omaha PD advised that…any use of tapes of this call might be prejudicial to the police murder trial against two accomplices of Peak."

"The FBI's COINTELPRO operations violated the civil liberties of American citizens.  This program has been condemned by the United State Senate and the Federal Judiciary.  It is demonstrably clear that prior to the August, 1970 bombing, Edward Poindexter and the Omaha NCCF were COINTELPRO targets.  Given the deliberate withholding of key evidence such as the 911 tape and the reliance on a single juvenile witness, Poindexter's prosecution appears to have been a continuance of COINTELPRO.  This was clearly a politically-motivated prosecution of a black leader."

"The facts in this case bear too close a resemblance to the illegal activities that resulted in wrongful convictions of other black activists.  We urge this Court to bear these historical facts in mind while weighting the evidence in this case, particularly in regard to the plausibility of the government's evidence and in evaluating the amount of misconduct demonstrated by police and prosecutors."

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