Rice/Poindexter Case

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Omahans David Rice (who later changed his name to Wopashitwe Mondo Eyen we Langa) and Edward Poindexter were charged and convicted of the murder of Omaha Police Officer Larry Minard, father of five. 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 the case was very controversial. The Omaha Police 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 claims Rice and Poindexter are Nebraska's "prisoners of conscience"--AI's term for political prisoners^[2]. The state's parole board have recommended the men for release, but political leaders have not acted on these recommendations.^[3].

Contents 1 Rice and Poindexter 2 Context of the Events in the summer of 1970 3 August 17 4 Duane Peak 5 The Trial 5.1 Preliminary Hearing 5.2 April 1971 Trial 5.3 Controversy over Evidence 5.4 Circumstantial Evidence 6 Appeals 7 COINTELPRO 8 Commuting Sentences 9 Cause célèbre 10 See also 11 References 12 External links

[edit] Rice and Poindexter

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 1960's and 70's 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 on November 1, 1944. He is a Vietnam veteran. Like Rice, Poindexter was a community activist in North Omaha. He too has published plays, and has also published various materials educating and motivating prison inmates who are near release. While in prison, he earned his Master's degree. He also suffered from diabetes, which went untreated in Nebraska prisons. He was eventually transferred to a Minnesota prison, where he received appropriate care.

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

In the wake of the assassination of Martin Luther King, Jr., racial tensions in inner-cities across America were high. In March of 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.

[edit] August 17

A call was made to the police reporting a woman screaming at a vacant house near 28th and Ohio Street^[4]. Patrolman Michael Lamson and five other members of the Omaha Police Department (OPD) responded to the call. They noticed a suitcase sitting in the front room. Shortly afterward, Patrolmen Larry Minard and John Tess arrived. With Tess looking on, Minard picked up the suitcase. The resultant explosion killed him and seriously injured Tess.

[edit] Duane Peak

After hiding out for over a week, Duane Peak was arrested for the crime on August 28. He confessed to placing the bag and implicated six others, but mentioned neither Rice nor Poindexter. In a later statement, Peak told police that Rice and Poindexter had made the bomb, told him to plant it, and to lure the police to the vacant house with an anonymous phone call.

This led to the charging of Poindexter and Rice with murder on August 31.

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.

[edit] The Trial

[edit] Preliminary Hearing

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.^[5].

[edit] April 1971 Trial

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. Judge Donald A. Hamilton sentenced them to life in prison. The lone black juror later stated that he accepted the guilt of the pair on the condition that the death sentence was not requested.

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 found in a cubbyhole 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, 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, at the trial noted 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. ^[6].

[edit] Controversy over Evidence

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-police officer Marvin McClarty.

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.^[7]. 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.

In 2005, the tape of the emergency 911 call that lured police to the North Omaha home was discovered. The tape had been suppressed at trial. Police had claimed that it had been destroyed. Expert analysis hired by the defense determined that the voice on the tape was not the voice of Duane Peak. This renewed community appeals for Poindexter and Rice to be released.

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.^[8].

[edit] Circumstantial Evidence

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.^[9]. 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."

[edit] Appeals

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 ^[10].

[edit] COINTELPRO

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 1970's. 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.

[edit] Commuting Sentences

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.

[edit] Cause célèbre

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 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.

The Fraternal Order of Police believes both men are guilty and supports maintaining their original sentence. On May 5, 2006, the Nebraska State Lodge Fraternal Order of Police at its yearly convention passed a resolution that we "strongly condemn this attempt to re-try these convicted murderers."

[edit] See also

• Civil rights movement in Omaha, Nebraska
• Timeline of riots and civil unrest in Omaha, Nebraska
• Crime in Omaha

[edit] References

[edit] External links

• "Nebraska's Two Political Prisoners:
• A Political Prisoner Speaks: "From on African to Another" by Mondo we Langa
• Fraternal Order of Police viewpoint

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