ACLU cites COINTELPRO misconduct of FBI in 'Omaha Two' case pending before Nebraska Supreme Court
by Michael Richardson
The Nebraska chapter of the American Civil Liberties Union has filed an amicus brief with the Nebraska Supreme Court in the case of Ed Poindexter urging the court to consider abuses of the criminal justice system by the Federal Bureau of Investigation.
Poindexter and co-defendant Mondo we Langa (formerly David Rice) were leaders of Omaha's chapter of the Black Panthers called the Nebraska Committee to Combat Fascism and targets of a clandestine operation code-named COINTELPRO. The 'Omaha Two' were prosecuted and convicted for the 1970 bombing murder of police officer Larry Minard. Poindexter is now seeking a new trial from the state high court based on withheld evidence.
ACLU attorney Amy Miller has formally asked the Nebraska Supreme Court to consider the improper role of the FBI in cases against members of the Black Panther Party and wrongful convictions that have been documented in other states.
"In the 1960s and the 1970s, the Federal Bureau of Investigation systematically infringed upon the constitutional rights of many political groups under an expansive operation called the Counterintelligence Program, or COINTELPRO…In 1976, the United States Senate Select Committee on Intelligence published the Church Committee's findings decrying COINTELPRO as a shameful infringement on the rights of citizens."
"The strategy of the program was to neutralize the "Black nationalist" groups through a program of disruption and fomenting distrust among members, particularly by targeting the leaders of these groups."
"As the Black Panther Party rose to national prominence, it became the focus of the Black Nationalist COINTELPRO and the FBI instructed its field offices to develop measures to cripple the party….The Church Committee found these operations "utilized dangers and unsavory techniques which gave rise to the risk of death and often disregarded the personal rights and dignity of the victims."
"There is no question that COINTELPRO was one of the worst abuses of law enforcement power in American history….Historians and scholars have also documented how COINTELPRO was a politically-motivated operation that systematically infringed upon the rights of American citizens and specifically targeted black leaders."
"The effects of COINTELPRO in specific situations are hard to uncover due to the secrecy of the program….In Jones v. FBI, Harllel Jones was a former Black Nationalist leader who sought to compel the release of documents related to COINTELPRO investigations of him and his party, Afro Set."
"Jones's investigation into the targeting of Afro Set was initiated after he was convicted of second degree murder.…The facts of that are eerily similar to the case at bar. On August 7, 1970, there was a shooting of two men resulting in one death. The shooting was apparently in retaliation for the killing of an Afro Set member by a security guard. Relying primarily on the testimony of Robert Perry, an FBI informant and Afro Set member who was offered leniency in exchange for testimony, Jones was convicted of having conspired with the actual killers….Based on the State's misconduct in hiding exculpatory evidence…Jones was finally exonerated and freed in 1979."
"Another case parallel to the case at bar is that of Elmer Pratt, a member of the Black Panther Party. Pratt was convicted of a 1968 murder of a woman and the shooting of her husband during a robbery. Pratt's conviction was based almost entirely on the testimony of a single witness, Julius Butler. Butler had been a deputy sheriff prior to joining the BPP, and sometime between the incident and Pratt's arrest, he became an FBI informant even though he had been convicted of several felonies. After becoming an informant, Butler's felony convictions were reduced to misdemeanors, parts of his record were expunged, and he was given probation with jail time for the felonies. However, much of this information was withheld from the defense by prosecutors."
"Finally, this same pattern resulted in the successful habeas corpus petition of Black Panther leader Dhoruba bin Wahad (formerly Richard Moore) after he spent 20 years in prison on falsified evidence. Wahad was a leader of the New York chapter of the Black Panther Party from 1968 to 1971. In 1973, he was convicted in New York State for the 1971 attempted murder of two New York City police officers, and sentenced to 25 years in prison. The evidence against him was based on an FBI informant who lied under oath."
"Each of these cases offer a similar pattern with elements that fit the COINTELPRO mold. In each case, the defendant was charged with a murder, based on the testimony of an FBI informant. The informant was either expressly under a leniency deal or there is evidence of such a deal. Exculpatory evidence was withheld in each instance. This pattern appears to be symptomatic of COINTELPRO-era prosecutions of Black Nationalist leaders."
"It is clearly established that Edward Poindexter and the Omaha chapter of the BPP/NCCF was targeted by COINTELPRO prior to the events of August, 1970. The FBI already had a file on Poindexter, containing references to his political activities. As early as 1968, the FBI records indicate an active "harassment campaign" against Omaha BPP members."
"Thus we know COINTELPRO was active in Omaha and was targeting Poindexter. This targeting did not end after the isolation of the Omaha NCCF. [Jack] Swanson was in charge of the Omaha Police Department Intelligence Division at the time. He testified that the Intelligence Division amassed a file of the NCCF's publications as part of their surveillance. Swanson also testified that it was part of his job to gather evidence about the NCCF. Swanson also suugested that as the NCCF advocated violent killing of police officers so it was natural to arrest members of the NCCF when such a killing occurred. However, he acknowledged that the BPP's platform did not advocate killing."
"Placed in context with what is known about COINTELPRO, Swanson's testimony verifies the Omaha Police Department was engaging in COINTELPRO activity on behalf of the FBI. First, the Intelligence Division was gathering information on the Black Panther Party, a known target of COINTELPRO. Second, the use of informants for gathering information was the main COINTELPRO tool. Third, the FBI records with false disruption letters prove there were active efforts to neutralize Poindexter."
"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, 1979 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."
Michael Richardson is a freelance writer based in Boston. Richardson writes about politics, law, nutrition, ethics, and music. Richardson is also a political consultant.