Omaha judge to rule on prosecutorial misconduct in 1971 COINTELPRO case against imprisoned Black Panther leaders

by Michael Richardson
June 1, 2007 at 11:20:07

Douglas County District Judge Russell Bowie will rule next month on Ed Poindexter's request for a new trial after review of six volumes of 1971 trial records according to the Omaha World-Herald following four days of often emotional testimony and 160 new exhibits.

Poindexter, head of a Black Panther spin-off group, the National Committee to Combat Fascism, was convicted along with David Rice, now Mondo we Langa, for the bombing murder of Omaha police officer Larry Minard on a hot summer night in August 1970.

The Black Panthers and other radical groups were the targets of an illegal Federal Bureau of Investigation operation called COINTELPRO. FBI director J. Edgar Hoover had ordered FBI agents assigned to COINTELPRO to get the Panthers off the streets and in jail. COINTELPRO tactics included withholding evidence and witness manipulation.

The FBI had already been working with the Omaha Police to solve a series of bombings in the Midwest when a late-night emergency phone call about a woman screaming in a vacant house lured police to a deadly booby-trap where a suitcase bomb killed Minard and injured other officers responding to the call.

A police dragnet soon snared 15 year-old Duane Peak who confessed to the crime after incriminating statements were given against him by family members. However, the targets of COINTELPRO were not Minard's killers, but Poindexter and Langa. Peak gave multiple versions of his confession implicating various people. After Peak denied Poindexter and Langa were involved during his preliminary hearing and was removed from the courtroom his story changed and he implicated the two NCCF leaders. When Peak returned to his preliminary hearing, he was wearing sunglasses. When asked to remove the glasses by David Herzog, Langa's attorney, Peak revealed tear-swollen red eyes. Peak then stated that Poindexter and Langa had built the bomb he used while he delivered the deadly suitcase and made the emergency call to the police.

Peak, in exchange for his testimony against Poindexter and Langa, was sentenced as a juvenile and has enjoyed freedom his adult life despite his confession to planting the bomb, is now living in Washington under the name Gabriel Peak. Poindexter and Langa are in the Nebraska State Penitentiary serving life sentences.

Testimony in early May in Poindexter's hearing for a retrial centered on the emergency call and dynamite found in Langa's house. The emergency tape was never used in the combined trial of Poindexter and Langa and was kept from the defense. The tape even turned up missing and has never been found. Meanwhile, the dynamite was never photographed inside the house in a crime scene evidence photo and only first showed up in the truck of a squad car. Conflicting police versions of where and who found the dynamite have been offered in sworn testimony at different times.

However, a secret FBI file, bearing fingerprints of COINTELPRO, discussing the emergency call tape as damaging to the police case emerged from a Freedom of Information request. Later, a duplicate copy of the tape was found and it became obvious why the tape would harm the official version of the case--the voice on the tape does not sound like that of Peak.

Tom Owen, a vocal analyst testified the voice was not that of 15 year-old Duane Peak. Owen then played the tape in the courtroom, contrasted with a tape of Peak, repeating the chilling call that drew police into the lethal trap. Peak says he disguised his voice, a claim disputed by Owen.

The dynamite testimony offers such sharply contrasting accounts of the alleged discovery of explosives in Langa's basement that a question of perjury is raised. At the trial, the official version was that detective Jack Swanson found the dynamite and carried it upstairs where it was witnessed by fellow detective Robert Pheffer. However, Pheffer, testifying before Judge Bowie, now claims that he, not Swanson, found the dynamite. At the trial, Pheffer said he never went into the basement. At the recent hearing, Pheffer claimed he was the first one downstairs.

When Poindexter's attorney, Robert Bartle, confronted Pheffer with his contradictory statements, he became angered. Pheffer also embellished his 1971 trial testimony claiming he discovered three suitcases with wires. The purported suitcases were never included in any police report, where not mentioned at the trial, were not included on the search inventory of the house, and not witnessed by anyone else.

David Herzog, the defense attorney for Langa at the trial, was the last witness in the retrial hearing. Herzog testified that he did not know of the existence of the emergency call tape and that he was only aware of a computer-generated punch card. "Today, I'm frankly appalled that I didn't pursue the tape. I suppose to my grave I will regret not pursuing it."

Herzog told Judge Bowie that in his opinion it was prosecutorial misconduct to have withheld the tape and that the jury may well have not convicted Poindexter and Langa had it heard the tape and realized that Peak's story could not be trusted.

Poindexter's attorney, Frank Morrison, was a retired three-term Nebraska governor serving as a new public defender. Before his death, Morrison would write an open letter to the Omaha World-Herald. "The self-confessed murderer was turned loose after a slap on the wrist. I now believe and always have believed that the true role of law enforcement is truth. Real justice can only be built on truth. I hope the Congress and other policy makers will reestablish this policy. I feel both I and the system failed Ed Poindexter."

Michael Richardson is a freelance writer based in Boston. Richardson writes about politics, election law, human nutrition, ethics, and music. In 2004 Richardson was Ralph Nader's national ballot access coordinator.

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