November 28, 2008
'Omaha Two' prosecutor: "It doesn't make any difference what the truth is"
By Michael Richardson
The Nebraska news media doesn't like to dig too deep into the 1970 bombing murder in Omaha of police officer Larry Minard. The conventional story that the deadly ambush against police was the work of the Black Panther leadership has been well accepted by the general public and news media for almost four decades. However, the fabric of the story presented to the jury in April 1971 has been unraveling ever since it was spun together. A search of the voluminous court file in the case reveals disturbing details left out of news reports.
Unknown to jurors, the 'Omaha Two', Ed Poindexter and Mondo we Langa (formerly David Rice), were targets of a clandestine operation of the Federal Bureau of Investigation code-named COINTELPRO. FBI director J. Edgar Hoover had secretly ordered a lab report not be issued on the recording of the killer's voice that lured police to a vacant house where a suitcase bomb waited. The two Panther leaders were COINTELPRO targets and Hoover wanted to make a case against them.
Also unknown to the jurors, Art O'Leary, the chief prosecutor who stood before them, did not care about the truth. In a police interrogation room, O'Leary would tell 15-year old Duane Peak, the confessed bomber, "As a practical matter, it doesn't make any difference what the truth is concerning you at all."
"You realize now that it doesn't make any difference whether you did or didn't. That doesn't really make one bit of difference at all at this stage of the game but I want to make sure concerning somebody else that might have been involved. Because you see what it amounts to, Duane, is that eventually you are going to have to testify about everything you said here and it isn't going to make one bit of difference whether or not you leave out one fact or not, as far as you are concerned. Do you understand what I am trying to tell you?"
Peak got O'Leary's message and after a half-dozen different versions of his story finally implicated the two Panther leaders. Poindexter and Langa headed the Omaha chapter called the Nebraska Committee to Combat Fascism. In exchange for his testimony Peak received leniency and was sentenced as a juvenile only serving 33 months in detention before walking free.
One problem with the official version of events was the tape recording of a killer's voice that Peak claimed was his. The recording of a male voice is gruff and sounds more like a middle-aged man than a 15-year old. By ordering no report of a vocal analysis conducted by the FBI Crime Laboratory, Hoover was able to keep defense attorneys clueless about the outcome of testing. In 2007, vocal analyst Tom Owen testified in an Omaha courtroom that the voice on the emergency call tape was not that of Peak.
On the day of his preliminary hearing Peak was still offering differing versions telling the court in the morning that Poindexter was not present when the bomb was made. However, a hastily convened recess of several hours before the teenage killer returned to the stand in the afternoon changed his story yet again. After the recess, Peak wore sunglasses to the witness stand. When asked to remove the glasses Peak's eyes were red and puffy. Peak was also noticeably trembling and shaky. Defense attorney David Herzog asked Peak about his sudden change of demeanor.
ATTORNEY: "What happened to make you shake and bring your nervous condition about now?"
PEAK: "I don' know."
ATTORNEY: "You had a conversation between the time you were placed on the witness stand this morning and the present time now, isn't that correct?"
ATTORNEY: "And there were the same things that the police officers told you about that would happen to you, like sitting in the electric chair, isn't that correct?"
PEAK: "I didn't have a chance."
ATTORNEY: "You didn't have a chance, did you?"
ATTORNEY: "You are doing what they want you to do, aren't you?"
O'Leary, the man for whom the truth did not matter, also released Raleigh House from custody after only one night in jail. House was the named source of the dynamite used to kill patrolman Minard and was blamed at trial for supplying the explosive yet O'Leary released him on his own signature and never brought formal charges against House for his role in the murder. The get-out-of-jail-free pass granted by O'Leary for the supplier of the dynamite suggests that House was a police informant.
Robert Bartle, Poindexter's attorney is blunt about the prosecution behavior. "Prosecutorial misconduct is an offense which undermines the integrity of our justice system. When those who have been entrusted with the enforcement of our laws ignore the prohibitions imposed on them by the legislature through statutes, and by the judiciary through case law, they insult the entire legal system, and upset the scales of justice."
"When prosecutorial misconduct is coupled with ineffective assistance of counsel, presented in this case, a defendant has two strikes against him from the start. Edward Poindexter has met his burden of proving both prosecutorial misconduct and ineffectiveness of trial and appellate counsel. He did not receive a fair jury trial in 1971 because of these fundamental constitutional violations. Accordingly, he must be given a new trial to prevent a further miscarriage of justice."
The 'Omaha Two' remain imprisoned at the maximum-security Nebraska State Penitentiary where they are both serving life sentences. Both Ed Poindexter and Mondo we Langa deny any involvement in Minard's death. The Nebraska Supreme Court now has Poindexter's request for a new trial pending before them. No date has been set for a decision.
Michael Richardson is a freelance writer based in Boston. Richardson writes about politics, law, nutrition, ethics, and music. Richardson is also a political consultant.