Douglas County District Judge Russell Bowie has denied Black Panther leader Ed Poindexter a new trial for the 1970 bombing murder of an Omaha police officer.
Judge Bowie had spent the summer reviewing the transcript of the 1971 trial which convicted Poindexter and Mondo we Langa, formerly David Rice, of first-degree murder and resulted in life sentences for the two men. Poindexter's bid for a new trial was based largely on voice analysis of a tape of the emergency call that lured police to a vacant house where a booby-trapped suitcase bomb awaited them and conflicting testimony about dynamite purportedly found at Langa's home.
The Nebraska chapter of the American Civil Liberties Union had filed an amicus brief in the case informing the court about the Federal Bureau of Investigation's discredited COINTELPRO operation that targeted the Black Panthers for dirty tricks and harassment. Although Bowie allowed the ACLU brief into the record he did not address the concerns raised about improper conduct by FBI agents working on the case.
Poindexter and Langa were implicated in the crime by the confessed bomber, Duane Peak, after giving multiple conflicting statements. Following his testimony that the two Panther leaders were involved Peak was prosecuted as a juvenile and only served several years in juvenile detention facilities while Poindexter and Langa, who continue to proclaim their innocence, received life sentences.
The critical evidence against the Panthers was Peak's testimony and dynamite allegedly found in Langa's basement. At the murder trial, Omaha detective Jack Swanson testified he found dynamite in a coal bin in the basement of Langa's house and was backed up by detective Robert Pheffer who testified he first saw the dynamite when Swanson carried it up the stairs. However, crime scene evidence technicians took photos of the basement but no dynamite is present in the photos. The explosives first appear in an evidence photo in the trunk of a police cruiser and were never photographed in the house.
In 1974, during Langa's federal appeal in a hearing before U.S. District Judge Warren Urbom the police story changed. Then both Swanson and Pheffer claimed to have seen dynamite in the basement but against the furnace instead of in the coal bin.
In May of this year, in an evidentiary hearing before Judge Bowie, Pheffer changed his story yet again. This time he testified he found the dynamite in the basement, not Swanson, contradicting his own trial testimony. He also alleged he found more bomb-making supplies in the house that were never previously introduced and are not on the police search inventory of Langa's house.
Rather than dismiss the conflicting police testimony or attempt to determine which version might be truthful, Bowie sidestepped the crucial dynamite issue and declared, "Other than the conflicting reports about who found the dynamite in Rice's basement, there is no evidence to suggest that dynamite was planted by police. The bottom line is that dynamite was found in Rice's basement, who found it is immaterial."
The other critical element in the case against Poindexter and Langa was the testimony of Peak. Besides confessing to planting the bomb, Peak also testified at trial that he placed the emergency call that lured police officer Larry Minard to his death. However, the dictabelt recording of the emergency call was never put into evidence and turned up missing. Years later, following a Freedom of Information request, a COINTELPRO memo to FBI Director J. Edgar Hoover surfaced that explained the police did not want use of the tape because it harmed their case.
In 1980, a reel-to-reel copy of the original recording was found. Last year the tape copy was subjected to voice analysis and expert witness Tom Owen scrutinized the recording using new technology unavailable in 1970 when the tape was first made. Owen testified to Judge Bowie that in his opinion the voice on the tape was not that of Duane Peak.
Poindexter's attorney, Robert Bartle, argued that if Peak's credibility about placing the emergency call cannot be trusted then his implication of Poindexter and Langa also cannot be trusted--particularly in light of his reduced sentence.
Judge Bowie sidestepped the testimony of Owen and avoided making a ruling on the credibility of Peak. Bowie admitted the copy of the tape was genuine but decided that it was insufficient to undermine the conviction.
"Mr. Poindexter has not shown that Mr. Owen's opinion would most likely produce an acquittal in a new trial. This is not a case where the guilt or innocence of the defendant hinges on whether a jury believed that Mr. Peak made the 911 call. That is but one part of the evidence against the defendant."
With key elements of the case now in question, Peak's testimony and the dynamite, Poindexter's next legal step will be an appeal to the Nebraska Supreme Court. Interviewed in prison two days before Judge Bowie's ruling, co-defendant Mondo we Langa said it would be a "good thing" to get a new trial but that the 37 long years behind bars gave him "low expectations" about a favorable ruling in a Nebraska courtroom.
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