The Nebraska Supreme Court will hear the appeal of Ed Poindexter of his 1971 conviction for the bombing murder of Omaha Policeman Larry Minard. Poindexter was the head of Omaha's Black Panther chapter, the National Committee to Combat Fascism, when he was arrested shortly after the August 1970 murder of Minard.
Poindexter and his co-defendant, Mondo we Langa (formerly David Rice), who both maintain their innocence, were convicted largely on the brokered testimony of 15 year-old Duane Peak, the confessed bomber, and dynamite allegedly found in Langa's basement. Peak implicated Poindexter and Langa in exchange for a lenient sentence as a juvenile instead of facing the electric chair.
The state high court will examine two key points that emerged from testimony in May 2007 in the courtroom of Douglas County District Court Judge Russell Bowie. Contradictory police testimony about the dynamite and expert witness testimony that Peak did not make the emergency call that lured Minard to his death have opened a huge breach in the prosecution case against the two Panther leaders.
Unknown to the public at the time was the clandestine and illegal COINTELPRO operation that Federal Bureau of Investigation director J. Edgar Hoover had ordered into operation against the Black Panthers. Both Poindexter and Langa had been under surveillance since a 1968 visit to Omaha by national Panther Minister of Information Eldridge Cleaver. Langa, then Rice, had managed to get the attention of federal authorities as well as local police, evidenced in a letter from a Nebraska district U.S. Attorney to Representative William Scherle on the U.S. House Committee on Internal Security calling Langa, "this American rat."
"Dear Congressman Scherle: I bless you for your activities in turning the cold light of dawn upon those who would destroy our Country's development….Such a man is David L. Rice, who can be most easily identified by the enclosed clipping out of the Sun Newspapers of Omaha, Nebraska, where this bum operates. As you notice he sneers at the Constitution and its provisions, but saw it to take the Fifth Amendment when called before a Federal Grand Jury inquiring into the installation of a school designed to train young Blacks to bomb, kill and take over the Country."
Federal COINTELPRO agents worked the Minard case with Omaha Police and helped cover-up the fact that Peak's voice did not sound like that on the tape of the emergency call. The tape was not submitted to the defense attorneys and was not part of the trial. The recording disappeared until years later a copy, made by the dispatcher, emerged.
Langa raised the issue of the voice on the tape in a 1983 appeal to the Nebraska Supreme Court. At that time, the Court noted there had been no "expert in voice analysis" examination of the tape and thus, "there is insufficient evidence to support the claim that Duane Peak did not make the call." However, in May 2007 Judge Bowie did hear expert witness testimony about the voice on the tape. Voice analyst Tom Owen testified that in his opinion the voice was not that of Peak thus undermining the credibility of the state's chief witness.
Judge Bowie sidestepped the tape issue leaving the matter for the Supreme Court to grapple with again. "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."
One other part of the evidence that convicted Poindexter and Langa was the police testimony about finding dynamite in Langa's basement. At the trial, Sgt. Jack Swanson testified he found the dynamite in a box in the coal bin of the basement. Detective Robert Pheffer backed up Swanson testifying he first saw the explosives when Swanson carried them up from the basement.
However, in May of last year before Judge Bowie, Pheffer changed his story and forcefully claimed he found the dynamite, not Swanson, contradicting his own sworn testimony from 1971. He also alleged he found bomb-making supplies in the house that were never previously introduced and are not on the police search inventory of Langa's house.
Judge Bowie, after spending months deliberating ruled in September, "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 the police. The bottom line is that dynamite was found in Rice's basement, who found it is immaterial."
An appeal "bill of exceptions" was filed with the Nebraska Supreme Court on Dec. 12th and Poindexter's brief is due January 28th to be followed by the state's brief before oral arguments are scheduled. Poindexter and Langa have been behind bars since August 1970 and are both are presently in the maximum security Nebraska State Penitentiary serving life sentences.Permission granted to reprint