The Real Story of the Rice/Poindexter Case The Rice/Poindexter case is 32
years old, but 9/11 has made the counter-terrorism policies of the sixties
and seventies newly relevant: Congress has recently voted overwhelmingly
for Pres. Bush's anti-terrorism bill, again giving the FBI, the CIA and
local police the  powers they so abused in the past. Again the government
can  spy on citizens and ignore the Bill of Rights, just as they did 30
years ago.  It's COINTELPRO redux.

For those too young to remember that time, the Rice/Poindexter Case is a
valuable history lesson.  Edward Poindexter and David Rice (who later
changed his name to Mondo we Langa) are currently serving life sentences
for the August 17, 1970 bombing murder of Omaha policeman Larry
Minard.  Both continue to maintain their innocence -- and evidence that has
come to light since their conviction is persuasive enough to convince
Amnesty International, among many others, that, at the very least, they did
not receive a fair trial.  Some familiar with the case even believe it's
possible they were framed.

The group seeking their release is Nebraskans for Justice (NFJ), a
non-profit organization which focuses on human rights in the justice
system, and publishes Buffalo Chip.  NFJ board member Mary Dickinson has
organized a team of attorneys, law students and other specialists.  After
reviewing court transcripts, police reports, thousands of pages of
government documents obtained  through the Freedom of Information Act
(FOIA), and other relevant material, NFJ has concluded: first, that serious
doubts exist about the guilt of these men; second, that the FBI and local
police committed many abuses from 1968 until their conviction; and finally,
that the court system itself behaved with such cruel ambiguity that
Poindexter and we Langa should be freed.
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Background

A good place to start is 1968, with the FBI's Counterintelligence Program
-- COINTELPRO.  It  was initiated by FBI Director J. Edgar Hoover, to spy
upon and infiltrate groups of political activists  In Hoover's eyes this
included everyone from Malcolm X to Dr. Spock.  Hoover considered the Black
Panthers "the greatest threat to the internal security of the country".  It
should be noted that he also considered Martin Luther King, Jr. a national
menace, and that King was another victim of COINTELPRO.  A September 16,
1970 memo from Hoover to the field is a good example of the FBI's
intentions.  In it Hoover stated, "The effectiveness of counterintelligence
depends on ... the imagination and initiative of Agents.  Purpose of
counterintelligence action [COINTELPRO] is to disrupt BPP [Black Panther
Party] and it is immaterial whether facts exist to substantiate the [charges]."

In Omaha, NE, racial tensions were high in the sixties.  Four Blacks and
two whites had been shot by Omaha police between 1966 and 1968, and one of
those killed was a 14-year-old girl, Vivian Strong.  Her death at the hands
of a white policeman set off a riot and destroyed so many businesses in
Omaha's North Side that the neighborhood has yet to recover from its
losses.  It was in this climate that Ed Poindexter, David Rice and other
young Black leaders joined the Omaha chapter of the Black Panther
Party.  We Langa (Rice) has written from prison, "We ... set about to make
ourselves more visible in the African community, participating with other
organizations in community meetings; holding frequent rallies; starting a
newsletter (Freedom By Any Means Necessary); doing cop patrols, in which we
would document police behavior, sometimes show up at scenes of cop
harassment of our people and have our guns in plain view, etc.; opening up
our Vivian Strong Liberation School for Children; and otherwise doing what
we could to serve the African community."  Though it may not seem so now,
all these activities were considered radical behavior at the time.  For
African-Americans to be so bold as to offer classes in Black History, to
speak out about the right of citizens to defend themselves against police
brutality, to ostentatiously monitor police activities on the streets, to
keep track of Omaha Mayor Leahy's schedule and attend many of his meetings,
was threatening to public officials.  They aroused implacable hostility in
both the Omaha Police Department and the local office of the FBI.  It is
important to note that the FBI, the ATF and police kept a daily watch on
them.  As Poindexter told the BBC in a1990 documentary about the case, "We
were under constant surveillance ... We couldn't leave a building and enter
the streets without being frisked or harassed.  This went on around the
clock."  Yet their secret files maintained by FBI in the two years before
the Minard murder show no criminal activity.  They may have enraged and
frightened public officials, but they acted within the law.
                                                        Top
Chronology 1970

It can't be stressed enough that, both the police and many individuals
believed the country was heading for anarchy.  After Martin Luther King,
Jr.'s assassination, cities went up in flames.  This was also the summer
that an epidemic of dynamite bombings struck in the Midwest.  There were
five bombings in six weeks in Iowa alone.  Other explosions rocked
buildings in Wisconsin and Minnesota, and both a police precinct and the
Component Concept Corporation suffered bomb damage in Omaha.  The Black
Panthers were the prime suspects in these bombings, so any confrontation
between Omaha Black Panthers and the police, however lawful, was bound to
increase tensions.

July

Agent Thomas J. Sledge of the Bureau of Alcohol, Tobacco and Firearms (ATF)
got a warrant to search the Omaha BPP headquarters, on the grounds that an
informant had told him a suitcase bomb had been made there.  He alerted the
Omaha police, and scheduled a raid for July 21, 1970.  The raid was called off.

July 28

Three men, Luther Payne, Conroy Gray, and Lamont Mitchell, were arrested in
Omaha for possessing dynamite.  One was an ex-Panther who had been expelled
from the party; the other two had no connection with the BPP.  Police
confiscated the dynamite and held the three men.

August 17

Police were lured to a vacant house by an anonymous 911 call which reported
hearing a woman screaming at a vague address on Ohio Street, in Omaha's
North Side.  Patrolmen Michael Lamson and James Sledge (brother of ATF
Agent Sledge) were routed to the call.  Other officers also
responded.  Five officers entered 2867 Ohio Street.  They noticed a
suitcase sticking halfway out the door.  [This call occurred less than a
month after cancellation of the raid on BPP headquarters to search for a
bomb -- and in the aftermath of the Midwest bombings.]  The officers passed
it, and went to the rear of the house.  Patrolmen Larry Minard and John
Tess arrived later.  As Minard approached the suitcase, patrolman Tess
stood only a few feet away.  The suitcase exploded and killed Minard, the
father of five, instantly.  Tess was seriously injured.
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August 28

Fifteen-year-old Duane Peak was arrested.  In his first of several
confessions, Peak implicated no one else.  In his second statement to
police, he implicated six others, but not we Langa or Poindexter.  Then in
a subsequent statement Peak told police that we Langa and Poindexter had
made the bomb and told him to plant it at the vacant house and to lure the
police to the house with an anonymous phone call.  Peak was charged with
first degree murder.

August 31

Poindexter and we Langa were charged with murder.

September 28

At a preliminary hearing, Peak took the stand and recanted his story,
testifying instead that neither Poindexter nor we Langa were involved.  The
prosecution was then granted a recess.  When Peak returned to court he
changed his testimony yet again and implicated Poindexter and we
Langa.  Witnesses state that on his return he wore dark glasses, and when
David Herzog, we Langa's attorney, asked him to remove them, his eyes were
red and swollen.  We Langa's attorney questioned him about changing his story:

Q:  You had a conversation between the time you were placed on the witness
stand this morning and the present time ... Weren't you reminded of a few
things that would happen to you if you didn't testify?

A:  Yes.

Q:  And those 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?

A:  I didn't have a chance ...

Q:  You are doing what they want you to do, aren't you?

A:  Yes.

Q:  Has anyone gone over your confession with you to help you to remember it?

A:  Yes.

Q:   Who did?

A:  Mr. O'Leary [the County Attorney].

Q:  Was your lawyer there ... when you went over it with Mr. O'Leary?

A: No.
                                                         Top
April 1971

Poindexter and we Langa were tried in Douglas County District Court.  The
jury of eleven whites and one Black deliberated for four days before
finding both men guilty.  Judge Donald A. Hamilton sentenced them to life
in prison.

Corroborative Evidence:

The Dynamite

Nebraska law requires corroboration.  In addition to Peak's testimony, the
state offered three pieces of evidence ... the dynamite!  Though police
claimed to have found it in we Langa's home, in their court testimony they
couldn't agree on exactly where it had been found, nor on who had
discovered it.  Nor could they produce we Langa's or Poindexter's
fingerprints as evidence that they had handled it.  Ex-police officer
Marvin McClarty, in a TV interview, stated he thought something was wrong
because of the way the search was conducted.  "It could have been something
was planted in that house, and to this day I still believe that."

The names of Luther Payne, Conroy Gray and Lamont Mitchell -- the three men
from whom the police had confiscated dynamite (just nineteen days before
the bombing murder) never came up at the trial.  Four days after the trial
ended police dropped the charges against all three.  They were released and
disappeared.  The state also alleged that particles of dynamite were found
in the clothing of each defendant, but cross-examination revealed that the
substances found lacked several characteristics of dynamite, and could have
come from other sources.  Skin tests of both we Langa and Poindexter were
negative, whereas one other suspect's skin indicated that he had handled
dynamite.  Duane Peak was not tested.

The Rhetoric

The state's third allegation was that both men had written inflammatory
literature.  It should be noted that this was the era when underground
newspapers thrived throughout the country, and "inflammatory literature"
addressing racial issues and the war in Vietnam was epidemic.  For example,
in 1969 the underground New York city paper Rat published a very graphic
cartoon of  President Nixon raping "Miss Liberty".  Muckraking is of course
an honorable tradition going back to Thomas Paine, among others.  The
Constitution calls it freedom of speech and freedom of the press.

Indeed, former Nebraska Governor Frank Morrison, who had represented
Poindexter at his trial, believes Poindexter and we Langa are
innocent.  "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."
                                                     Top
March 1974

We Langa appealed his conviction.  Judge Warren Urbom of the Federal
District Court found that the police had no evidence to allow a search of
we Langa's home, where they had allegedly found dynamite.  Judge Urbom
noted the inconsistencies in a Police Lieutenant's testimony about the
reasons for a search warrant, concluded "it is impossible for me to credit
his testimony", and overturned we Langa's conviction, ordering a new trial
in which the evidence of the dynamite could not be used to corroborate the
state's case.  However, shortly after his conviction, we Langa's house was
burned to the ground, eliminating any possibility of exploring the accuracy
of police testimony about the dynamite.

1975

The State of Nebraska appealed to the Eighth Circuit Court of Appeals.  The
Court  upheld Judge Urbom's ruling and ordered a new trial for we Langa --
without the evidence of the dynamite.

The 'Non-Decision Decision'

July 1976

The State of Nebraska appealed to the U.S. Supreme Court.  Although up to
this time appeals like we Langa's did not go through state courts, but were
taken directly to the federal level for adjudication, the U. S. Supreme
Court did not rule on the order of the lower courts that we Langa should
receive a new trial without use of the dynamite in evidence.  Instead the
Court ruled that, beginning with this and one other case, defendants could
no longer bring appeals of illegal search matters to the federal courts
without first going through state court systems.

We Langa duly took his appeal to the Nebraska Supreme Court.  He was turned
away, on the grounds that the time limit for appealing through the state
court had been exhausted.  Activist Anne Else, who has worked for years to
free we Langa and Poindexter, has written, "Suppression of evidence usually
overturns a conviction; so does an illegal search ... [A] later appeal to
overturn their conviction by showing the court the FBI's own memo
documenting the suppression of evidence did not succeed "nor have any other
appeals to date".

How could two men be convicted and sentenced to life in prison, on the
basis of highly questionable testimony of a former Panther, the results of
a search ruled illegal by two federal courts, and police testimony which a
judge called "unbelievable?"  The Civil Rights movement, and soon after,
the war in Vietnam, brought thousands of people into the streets.  The
rhetoric, the police dogs, the cattle prods, the burning draft cards and
the burning cities created a climate of fear that made it possible to
overlook the flimsy evidence in the case, and to crush at any cost what was
perceived to be a dangerous menace to the Republic.
                                                        Top
Detective Jack Swanson, the officer in charge of investigating this case,
made a  comment in the 1990 BBC documentary about this case which seems to
reveal the real reason the police targeted Poindexter and we Langa:  "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."

The Washington Post (1/8/78) asked County Prosecutor Art O'Leary if it was
conceivable that we Langa could have been set up by local or federal
officials.  O'Leary replied that he had made a deal with Duane Peak to
prosecute him as a juvenile in return for his testimony, and acknowledged
that without Peak's testimony, Rice (and Poindexter) could not have been
convicted.

The full story of this case is still not known.  Poindexter and we Langa
themselves were themselves unaware of its circumlocutions.  But years
later, the prosecution's case was seriously compromised with the emergence
of the 911 tape and the evidence that the government had purposely
suppressed it at the time of the trial.

COINTELPRO became public in 1977, after a break-in of an FBI office in
Media, PA (remember Watergate?).  COINTELPRO documents were stolen and
leaked to the press.  Senate hearings led to passage of the Freedom of
Information Act (FOIA) in 1978, which opened government files to
COINTELPRO's victims.  The FBI stonewalled for nineteen months before
releasing a small portion of we Langa's FBI file, and Poindexter's first
request garnered only six pages.  They later learned their files were
thousands of pages long.  In 1980 former FBI Director L. Patrick Grey and
Edward S. Miller, former head of COINTELPRO, were convicted for having
"conspired to injure and oppress the citizens of the United
States."  Neither spent a day in jail.  President Ronald Reagan pardoned
them in 1981, because their misdeeds had occurred during a turbulent and
divisive period in our history.  It was time to "put all this behind us",
he said, and to "forgive those who engaged in excesses" during the
political conflicts of the era.

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.
                                                     Top
The Evidence of the Witness

The tape of the 911 call which had lured police to Ohio Street was never
presented as evidence in the trial, and we Langa's attorney, William
Cunningham, had been told it no longer existed.  Then Poindexter and we
Langa obtained a copy of an FBI memo, dated 10/13/70, from the Omaha office
of the FBI, and addressed to "Director, FBI" in Washington.  It stated, in
part:  "... Assistant Cop Glenn Gates, Omaha PD, advised that he feels that
any use of tapes of this call might be prejudicial to the police murder
trial against two accomplices of Peak and, therefore, has advised that he
wishes no use of this tape until after the murder trials of Peak and the
two accomplices has been completed ... [N]o further efforts are being made
at this time to secure additional tape recordings of the original telephone
call."

As a result of this information, Cunningham finally forced the police to
release the 911 tape of the call purportedly made by Duane Peak.  Upon
hearing it, it seemed clear to the defense why the police and the FBI had
colluded to withhold it at the trial.  David Herzog testified at the
post-conviction hearing that this was not the voice of Duane
Peak.  Certainly the voice heard on the tape which the BBC used in its 1990
documentary is neither "raised" or "excited", as Peak had described it in
his deposition  before the trial.  Nevertheless, the Judge ruled that we
Langa had not proven the voice on the tape was not Duane Peak's.

Amnesty International's Secretary General Ian Martin noted on November 7,
1990, that  withholding the 911 tape until after the trial "raised an
inference that the FBI had performed scientific tests, including a voice
print of the caller's voice, which may have been damaging to the state's
case", and noted that the jury might have decided differently than the
Judge, had they had the opportunity to hear the tape.  Indeed, if the FBI
memo had come to light in 1970, would there have been a trial at all?

County Attorney Sam Cooper told the BBC, "The forensic evidence of the
dynamite is all we would have had ... Without Duane ... it would have been
questionable if you could have filed it ... [A]bsent the testimony of Duane
Peak, it would have been a weak, circumstantial case ... He was critical to
the case."
                                                   Top
Pardons and Paroles:  An Alternative?

U.S. Supreme Court rulings have increasingly limited access to court
appeals by petitioners.  The Herrera case is another in which the U.S.
Supreme Court seems to have changed the rules of the game.  Herrera was on
death row in Texas for murder when his brother confessed to the crime.  The
Court refused to overturn his conviction, saying that if a trial and
appeals process is conducted fairly, the defendant doesn't have a
constitutional right to a new trial just because there is new evidence of
innocence.  With this case, the court established that the role of the
judiciary is no longer to address the question of what happened in the
trial and appeals process, only how it happened: was it done
fairly?  According to the constitution?  State law?

As one prisoner advocate put it, "After Herrera, you no longer have a
constitutional right to a new trial, even if you're innocent."  The court's
reasoning was that state pardons boards can deal with the question of when
or if a convicted person should be freed or be shown mercy.  The outcome of
these decisions neither reflects well on the U.S. justice system, nor on
the Nebraska Board of Pardons.

The Pardons Board

All the states have Pardons Boards.  It is the means by which the state can
alter a court verdict.  States also have parole boards to review inmates'
records and grant parole for good behavior or special circumstances.  The
existence of Pardons and Parole Boards is a tacit admission that time can
alter conditions, and that humans make mistakes -- even in the justice
system.  The number of people released from Death Rows over the past few
years is testimony to that.

Can anyone believe such mistakes are limited to Death Row cases?  There are
also moral and ethical considerations involved when the state locks someone
up: should a convicted person be freed?  Should the state show mercy to
those condemned to death?  And how can the state redress an injustice?

This system functioned almost unnoticed until the eighties, when
politicians found they could win elections by running "tough on crime"
campaigns (the Willie Horton Syndrome).  We now live in a country which
incarcerates over 2 million people, and spends much more money on prisons
than on higher education.  Paroles and pardons are hard to come by, no
matter what the circumstances.
                                                   Top
Nebraska is a case in point.  In their 1996 Senate race, then Governor, now
Senator Ben Nelson, and Attorney General Don Stenberg used their positions
on the Nebraska Board of Pardons as a campaign platform.  At the expense of
petitioners, they vied with each other to prove who was tougher on
crime.  Governor Nelson also politicized the Parole Board during his term
as Governor by his "tough on crime" appointments.  The Nebraska Board of
Pardons is free to do what it wishes, no matter how politically motivated
or how unfair it may seem.

The Nebraska Supreme Court has ruled that a pardon is an "act of grace",
which can be granted for any reason, or for none -- the Nebraska Board of
Pardons has full authority to decide.  So the Governor, the Attorney
General and the Secretary of State can go wherever their politics takes
them, as far as the courts are concerned.  Nor must they impose the same
standards on each petitioner:  one may be freed and another held, and for
opposite reasons.

So the burden of doing justice, case by case, falls upon the Board of
Pardons.  We can all hope this duty will supersede any election campaign,
but if Mondo we Langa's history with the Nebraska Board of Pardons is any
criterion, it is a sad commentary on how much the need to be elected
overrides the duties of office.

It should also be said that in Nebraska, there is no parole in life
sentences:  a petitioner must first obtain a commutation of his sentence to
a specific number of years before he can be paroled.  Of late, the Nebraska
Pardons Board rarely even grants petitioners a hearing.  The Nebraska Board
of Pardons has a history of inconsistent and contradictory decisions.  For
example, in 1994 under Governor Ben Nelson, Attorney General Don Stenberg
refused to commute the life sentence of Ronald E. ("Arch") Kirby, stating
that a perfect record of no infractions of the rules for fifteen years was
not a reason for pardon.  Also, on the same day, Nelson and Stenberg
refused even to grant a hearing to Mondo we Langa, stating that his minor
infractions were a factor (Secretary of State Alan Beerman voted for the
petitioners).

In 1996 We Langa again petitioned the Board of Pardons to agree to hear all
the evidence that has come to light since the trial: COINTELPRO abuses,
withheld evidence, and the failure of a court system which first orders a
new trial without the use of tainted evidence, then, on a technicality,
shuts the door on the possibility of that trial.  We will never know
whether Governor Nelson, Attorney General Stenberg and/or Secretary of
State Scott Moore would have agreed with Amnesty International that
"serious doubts remain about the fairness of  the proceedings", and would
have made we Langa eligible for parole by commuting his sentence to time
served --  because the Board unanimously voted "no" to a hearing.  The
Board overlooked the Herrera case, and stated that the evidence of
innocence was not cause to grant a hearing, and that guilt or innocence was
the purview of the courts.
                                                    Top
The Parole Board

The Nebraska Parole Board annually reviews eligible inmates.  Before the
year 2000, eligibility included a requirement that there be no major
infractions (e.g., acts of violence) on the part of an inmate.  For five
consecutive years. Poindexter and we Langa were recommended for parole by
the Nebraska Parole Board.  However, in yet another 'turn of the screw',
the current Parole Board (now as politicized as the Pardons Board) has
ruled that even minor infractions disqualify petitioners for parole for
five years.

As we Langa wrote in the Fall 1999 issue of Buffalo Chip, it is almost
impossible for a prisoner to know all the rules and regulations, and they
are arbitrarily imposed.  If any guard wishes to charge a prisoner with an
infraction, there is no way to avoid one.  We Langa, who has committed no
violent act during his thirty-two years in prison, is currently
disqualified for parole for five years, due to two infractions. They are,
first, he did not wear socks to the cafeteria; and second, he (who is a
vegetarian) gave his meat to another inmate.

This case is just like a "Catch-22" but written by Franz Kafka.  Nebraskans
for Justice asks:  If not in the courts, if not with the Nebraska Board of
Pardons, if not at the Nebraska Parole Board, where is there justice for Ed
Poindexter and Mondo we Langa?

An Update, and an Appeal

The legal team of Nebraskans for Justice continues to move forward.  We
have hired a private investigator, who is making out-of-state trips to
obtain key witness statements.  The lawyers working on the case anticipate
a filing for Ed Poindexter before the end of 2002.  His filing could
ultimately benefit Mondo as well.

We ask that you help to bring out all the information that was suppressed
at Ed and Mondo's trial, so that they can have their day in court, at
last.  All the attorneys are working pro bono, as is the whole legal team,
but there are many expenses to cover -- for example, petitioners must pay
for the cost of copying FBI and ATF files (which does seem to add insult to
injury, but there you have it).   We need your help.

[Financial appeal omitted in accordance with CERJ list policy.  However,
gifts are welcome if you wish to respond by subscribing to Buffalo Chip
newsletter, and will help with case expenses as well.  Kindly write email
to Gloria Bartek if you wish to get involved in that way.  Gloria has now
been on the CERJ list for many years, and her concerns deserve our support.
-- John Wilmerding]
                                                    Top
Many, many thanks!

Gloria Bartek <GLOBARTX@aol.com>

==================================
CERJ@igc.org            wilmerding@earthlink.net
-------------------------------------------
John Wilmerding, Convener and List Manager
Coalition for Equity-Restorative Justice (CERJ)
1 Chestnut Hill, Brattleboro, VT, ZIP: 05301-6073
Phone: 1-802-254-2826 | 1-802-380-0664 (cellular)
CERJ was founded in New York in May, 1997.
-------------------------------------------
"Work together to reinvent justice using methods
that are fair; that conserve, restore, and even
create harmony, equity and good will in society."