Rice/Poindexter Case

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David Rice (now known as Mondo we Langa) and Edward Poindexter were charged and convicted of the murder of Omaha Police Officer Larry Minard. Minard died when a suitcase containing dynamite exploded in a North Omaha home on August 17, 1970. Officer John Tess was also injured in the explosion.

Poindexter and Rice were members of the Black Panther Party, and their case was, and continues to be, controversial. The Omaha Police allegedly withheld exculpatory evidence at trial. The two men had been targeted by the FBI's COINTELPRO (Counter Intelligence Program), which operated against and infiltrated anti-war and Civil Rights groups, including the Omaha Black Panthers.[1] Amnesty International has been following the case and demands a retrial or release for Rice and Poindexter.[2] The state's parole board have recommended the men for release, but political leaders have not acted on these recommendations.[3]

Rice and Poindexter[edit]

David Rice was born in Omaha in 1949, graduated from Creighton Preparatory School and took courses at Creighton University. Both are Catholic institutions of learning. He wrote for the local underground paper, Buffalo Chip, from 1969 to 1970 and was a member of the Black Panther Party (BPP). He played guitar at Holy Family Roman Catholic Church, a center of progressive activism in the 1960s and 1970s under the pastorate of Fr. John McCaslin. Rice also ran a breakfast program for inner-city youth and was a well-known community activist. Today David Rice/Mondo we Langa is a published poet and playwright. Even writing from prison, he has become a major voice for justice and the arts in Nebraska.

Ed Poindexter was born in Omaha in 1944. He is a Vietnam veteran. Like Rice, Poindexter was a community activist in North Omaha and a delegate to the 1968 county Democratic convention. He has published various materials on self-esteem and has worked on educating and motivating prison inmates who are near release. In the late 1970s, he transferred to prison in Minnesota to earn a Master's degree, and transferred back to Nebraska around 2006.

Context of the Events in the summer of 1970[edit]

In the wake of the assassination of Martin Luther King, Jr., racial tensions in cities across America were high. In March 1968, riots in Omaha led to the shooting of a local high school student during an event in support of segregationist George Wallace's presidential campaign. In the summer of 1970, there was a rash of bombings in the midwest. Five bombings had occurred in neighboring Iowa, explosions occurred in Wisconsin and Minnesota, and both a police precinct and the Component Concept Corporation suffered bomb damage in Omaha. Members of the Black Panther Party were the prime suspects in these bombings. In July, a warrant was issued to search Omaha BPP headquarters for bomb making materials. Luther Payne, a former BPP member, was arrested in Omaha for possessing dynamite.

August 17[edit]

At 2 a.m., a call was made to the Omaha police 911 operator reporting a woman dragged screaming into a vacant house at 2867 Ohio Street. Patrolman James Sledge and his partner were assigned to the call. Two other cruisers volunteered to go on the call including Larry Minard and John Tess. The police officers noticed a suitcase sitting just inside the door. With Tess nearby, Minard is assumed to have moved or inspected the suitcase. The resultant explosion killed him and seriously injured Tess.

Duane Peak[edit]

After hiding out for nearly a week, Duane Peak was arrested for the crime on August 28. In his first statement to police, he said that there was an envelope for him at NCCF headquarters. Inside, a note told him to go in back of the Lothrop Drug store and pick up a suitcase. He was instructed to take the suitcase to an address near 28th and Ohio that night and leave it on the field side of a fence. It also said for him to go to a particular payphone before 2 a.m. and wait for a phone call. The phone rang and a woman's voice told him to call 911 and report a woman dragged into 2867 Ohio. The police report indicates that he admitted to placing the 911 call. Peak mentioned neither Rice nor Poindexter. There are no police reports for August 29 or August 30, so it is unknown what transpired over that weekend. On August 31, Peak told the County Attorney in a deposition that Rice and Poindexter had made the bomb, told him to plant it, and then lure the police to the vacant house with an anonymous phone call. ATF Agent Tom Sledge, brother of the Omaha police officer assigned to the call, was present during Peak's deposition.

Subsequently, Rice and Poindexter were charged with Larry Minard's murder and convicted.

In an interview with the Washington Post on January 8, 1978, County Prosecutor Art O'Leary admitted that he had made a deal with Duane Peak to prosecute him as a juvenile in return for his testimony. O'Leary acknowledged that without Peak's testimony, the pair would not have been convicted.

The Trial[edit]

Preliminary Hearing[edit]

At a preliminary hearing on September 28, Peak took the stand and recanted his story, testifying instead that neither Poindexter nor Rice were involved. After a recess, Peak changed his testimony yet again and implicated Poindexter and Rice. Peak was at that time wearing dark glasses, which he removed at the request of Rice's attorney, David Herzog. Peak appeared to those present to have been beaten. Herzog asked Peak if he had been threatened during the recess, and if he had discussed his confession to help him remember it. Peak replied in the affirmative to both questions, telling the court that his lawyer was not present when he discussed his confession with county attorney O'Leary.[4]

April 1971 Trial[edit]

Poindexter and Rice were tried in Douglas County District Court by a jury consisting of eleven white jurors and one black juror. Deliberations lasted four days before both men were found guilty. The jurors had the opportunity to choose the death penalty or life in prison. They gave them life in prison. The black juror later stated that he voted with the majority on the condition that the death sentence was not imposed.

The case was built upon both Duane Peak's testimony and evidence that Rice and Poindexter had been involved in the manufacture of dynamite explosives such as the ones used in the bombing. Three pieces of dynamite the police claimed to have found in David Rice's basement were similar to that used in the bomb. Also found in Rice's house were needle-nosed pliers with copper shavings matching wire found at the scene of the bombing. Alcohol, Tobacco and Firearms Bureau witness Roland Wilder suggested there were more dissimilarities between the samples than similarities. Also, the prosecution claims that ammonia dynamite particles were found in Poindexter's jacket pocket and Rice's pants pocket. The chemist, Alcohol, Tobacco and Firearms lab worker Kenneth Snow, conceded at the trial that these traces could have come from matches. To establish the characters of the pair, the prosecutor presented the court with newsletter articles in which Rice and Poindexter publicly advocated violence toward police.[5]

Controversy over Evidence[edit]

In addition to Peak's testimony, the state offered three pieces of dynamite found in Rice's home as evidence. The officers could not find Rice's or Poindexter's fingerprints on the dynamite, and were not clear as to the exact location of the dynamite in Rice's house. Accusations have been made that the dynamite was planted, suspicions which were even held by ex-Omaha police officer Marvin McClarty, who described the search of Rice's house as having deviated significantly from accepted police procedure.

In at least one of the appeals, a judge declared that the search of Rice's house where the dynamite was found was illegal and inadmissible.[6] Shortly after Rice's conviction, his house burned to the ground. This eliminated any possibility of exploring the accuracy of police testimony about the dynamite.

Luther Payne and his associates were not discussed in the proceedings of the trial. After the trial, charges against Payne and his associates were dropped, although skin tests found that one of the men had recently handled dynamite. Skin tests for Rice and Poindexter were negative. Peak was not tested.

On October 23, 1980, a copy of the 911 call that lured police to the North Omaha home was discovered at the police station. The tape had never been played at trial. After the trial, the Omaha Police claimed in post-conviction proceedings that the original recording had been destroyed. An FBI memo dated 10/13/70 released after a Freedom of Information Act request quotes Omaha Assistant Chief of Police Glenn Gates as advising that "any use of tapes of this call might be prejudicial to the police murder trial against two accomplices of PEAK and therefore... he wishes no use of this tape until after the murder trials of PEAK and the two accomplices has been completed." Expert analysis hired by the defense determined in 2006 that the voice on the tape was not the voice of Duane Peak. State and Federal appeals courts denied a new trial based on the voice analysis. The deposition of Duane Peak submitting to voice analysis can be heard in its entirety on YouTube along with a one-minute comparison of the 911 caller with Peak's voice.

Peak claimed that he lowered his voice to disguise it. In the weeks after the bombing, Peak's brother was said to have identified the voice as Peak's.[7]

Circumstantial Evidence[edit]

The state also brought forward as evidence at trial political literature the two men had written. These included the opinion that "I believe that pigs look very good roasting on a stick... Barbecue for the pig,", which had been published by "David L. Rice, Deputy Minister of Information," in a 1970 publication of the United Front Against Fascism.[8] These articles were among many published by various political groups in the context of the Vietnam War and the Civil Rights Movement. Former Nebraska Governor Frank B. Morrison, who had represented Poindexter at his trial, is quoted: "The reason they were suspected was because they were members of the Black Panthers. [Authorities] had a couple of young Blacks who everybody knew used incendiary language — hateful things that irritated the police. They weren't convicted of murder. They were convicted of rhetoric. The only thing these young fellas did was try to combat all the racial discrimination of the time the wrong way."

In a 1990 BBC documentary about the case, the officer in charge of the investigation, Detective Jack Swanson, affirmed the Omaha Police Department's fear of the Black Panther Party: "We feel we got the two main players in Rice and Poindexter, and I think we did the right thing at the time, because the Black Panther Party ... completely disappeared from the city of Omaha ... and it's ... been the end of that sort of thing in the city of Omaha — and that's 21 years ago."

Appeals[edit]

At David Rice's appeal in March 1974, Judge Warren Urbom of the Federal District Court found that the police had no evidence to allow a search of his home, where they had allegedly found the dynamite. Judge Urbom also noted the inconsistencies in a Police Lieutenant's testimony about the reasons for a search warrant, and concluded "[I]t is impossible for me to credit his testimony". He overturned Rice's conviction and ordered a new trial in which the evidence of the dynamite could not be used to corroborate the state's case. This ruling was upheld by the Eighth Circuit Court of Appeals in 1975.

The State of Nebraska then appealed to the U.S. Supreme Court. The Supreme Court was in the process of ruling on a landmark case, Stone v. Powell (July 6, 1976), which in a decision taken together with Wolff v. Rice, the Court held that where states had provided opportunities for full and fair litigation of Fourth Amendment claims, the Constitution did not require the granting of federal habeas corpus relief.

As a result, David Rice had to go through state courts to decide the question of the legality of the search of his house. However, the Nebraska Supreme Court refused to hear his case on the grounds that the time limit for appealing through the state court had been exhausted.[9]

COINTELPRO[edit]

After COINTELPRO became public (in 1977) and the Freedom of Information Act was passed (in 1978), Rice and Poindexter were able to access their FBI files. Each file was over a thousand pages long, though they only received small portions upon request. In 1978, Amnesty International published a report finding that irregular conduct by the FBI during its COINTELPRO operations had undermined the fairness of trials of a number of political activists during the 1970s. This led to the 1980 conviction (and 1981 pardon by President Ronald W. Reagan) of FBI Director L. Patrick Gray and Agent Edward S. Miller. However, beyond the general campaign to discredit and smear BPP members, the particular links between COINTELPRO and this case were uncertain until Senator Chuck Hagel facilitated release on over a thousand pages of relevant documents in 2001.

Commuting Sentences[edit]

Since 1993, the Nebraska Parole Board has voted unanimously and repeatedly to commute both men's sentences to time served. As of September 2005, the Nebraska Board of Pardons has refused to schedule a hearing in the matter. One Board member has even asserted that there are "no circumstances" under which he would consider commutation.

Cause célèbre[edit]

David Rice and Ed Poindexter have become folk heroes of a sort, along with Leonard Peltier. These men are often called political prisoners, as their arrests and convictions were marred by circumstantial evidence and allegations of police falsehoods, and occurred in a time of intense political turmoil. Controversial Omaha police officer, Tariq Al-Amin, has led the charge in Omaha for the freedom of Rice and Poindexter. Their case has gained the support of luminaries such as Danny Glover and Angela Davis. Amnesty International and the NAACP are among the national organizations which support the immediate release of the two men.

See also[edit]

References[edit]

  1. ^ Jones, Charles E. The Black Panther Party (Reconsidered). Black Classic Press (1988) p 426-427
  2. ^ AIUSA asked the London International Secretariate in 1999 to adopt the two as political prisoners, but this hasn't been done.
  3. ^ Moore, Jim. Very Special Agents. University of Illinois Press (2001) p 105
  4. ^ Taken from a letter to the court in support of the parole of David Rice by Former Nebraska Gov. Frank Morrison Sr. who was trial attorney for Poindexter, reported in Schmitz, Rae Ann. "More Facts on the We Langa Case". Omaha World-Herald, December 22, 1994
  5. ^ Burbach, Chris. "At Rallies to Free Pair, Supporters See Gains The Rice-Poindexter Case" Omaha World Herald August 30, 2000, chemicals came from matches and wire inconsistencies noted in Schmitz, Rae Ann. "More Facts on the We Langa Case". Omaha World-Herald, December 22, 1994
  6. ^ Burbach, Chris. "At Rallies to Free Pair, Supporters See Gains The Rice-Poindexter Case" Omaha World Herald August 30, 2000
  7. ^ Cooper, Todd. "After 35 years, witness still says he was 911 caller. Duane Peak holds firm on the recording that led to the death of an Omaha officer and the convictions of two men in the 1970s.". Omaha World-Herald. May 14, 2006
  8. ^ Buttry, Stephen. "Officer's 1970 Murder Still Resounds Killers Paroled in Post-1971 Crimes" Omaha World Herald, March 2, 1997
  9. ^ Schmitz, Rae Ann. "More Facts on the We Langa Case". Omaha World-Herald, December 22, 1994

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