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16
A: Yes, sir, it is possible.
Q: And that same thing could go for a pen or a pencil or any other object that happened to contain
dynamite particles?
A: Yes, sir.
Well, if that's true, then the converse is also true. If you put your hands in your pockets, and your pockets contained
particles of dynamite, you would have to transfer those dynamite particles to your hands, your hands would test
positive for dynamite, especially if your hands are wet, and sweaty and nervous on a hot August day. There is proof
that Mondo put his hands in his pants pockets before they were tested for dynamite particles. That proof comes
from the Omaha World Herald. On
Page 19 there is a copy of a newspaper clipping showing David Rice, "hands in
pockets" immediately before he turned his clothes over to the police and had his hands tested for dynamite
particles.
There was no dynamite in Mondo's pants when that photograph was taken. The dynamite must have been put in
his pants after they were turned over to the police.
The fingernail swabs and clothes taken from Duane Peak were also tested in the ATF lab in Washington. They
were not entered into evidence at the trial. The prosecutor NEVER asked the ATF chemist if Duane's clothing or
hands tested positive for dynamite. The defense did not ask him either. Thus, there was no evidence presented that
Duane Peak actually had dynamite on his hands or his clothing.
The entire trial took two weeks. The jury comprised middle aged to elderly white people and one middle aged black
man. They deliberated from Wednesday to Saturday. They found them guilty and gave them life in jail, but they had
the option to give them the death penalty. The jury told the World Herald that they made a pact never to divulge
what happened during the deliberations.
In 1995, some of the female jurors were contacted. One juror, who was then ninety years old, indicated that she
thought Rice and Poindexter were innocent. She thought the state had nothing but circumstantial evidence. She
did not believe the testimony of Duane Peak. When asked why she agreed to vote guilty, she responded, "I was so
disgusted with the other jury members I never saw any of them again and I swore I would never serve on another
jury in my life." She declined to repeat those words on tape.
Another juror indicated that only the lone black juror thought they were innocent and he was responsible for
keeping the jury out for four days. Years after the trial, Ed Poindexter was told that this man agreed to vote guilty if
the others agreed to spare their lives. That's called a compromised verdict.
Ed Poindexter was outraged that one of the members of the jury kept falling asleep during the trial. At one point, Ed
says they called a recess so the man could get a pair of sunglasses and then he came back and propped his head
against the wall and continued to sleep. This man had the gall to read the guilty verdict to them after sleeping
through the trial. The lawyers assured
Ed that it was not an appealable issue.
SUPREME COURT
Mondo and Ed appealed their convictions. Ed could not appeal his conviction based upon the illegal search of
Mondo's house. Mondo's claim of a Fourth Amendment violation wound up being heard by the United States
Supreme Court. His case, Wolff v. Rice was decided along with a landmark case, Stone v. Powell (428 US 465) in
1976.
A prisoner cannot appeal a conviction on a claim of actual innocence. Mondo's lawyer applied for a writ of habeas
corpus to the federal courts because the search of Mondo's house was illegal. Habeas Corpus literally means "to
have the body." An inferior court must have the body of a prisoner in front of a superior court and they must prove
to that superior court that they are not holding that prisoner in violation of the Constitution. The writ of habeas
corpus is older than the Bill of Rights itself. It is in the main body of the Constitution.
The police did not have probable cause to search Mondo's house. There was nothing to connect Mondo to Duane
Peak and his suitcase. The police had no reliable tip that Mondo had dynamite in his house. They simply wanted to
search his house and they went ahead and did it without probable cause but with a warrant.
The Federal District Court agreed that the police did not have probable cause to search the house. They ordered
the state to give Mondo a new trial without the dynamite, without the dynamite particles in the clothing (the
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