Omaha Two alibi not disclosed by prosecutor is new evidence to reopen 1971 Black Panther case

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Former Douglas County Attorney Donald Knowles and alibi witness Rae Ann Schmitz (credits: Nebraskans for Justice/Rae Ann Schmitz)

Don Kleine is the current Douglas County Attorney in Omaha, Nebraska. Kleine has been asked to reopen the 1971 case against Black Panther leader Edward Poindexter for the 1970 murder of an Omaha policeman. Poindexter and co-defendant David Rice (later Wopashitwe Mondo Eyen we Langa) were Black Panther leaders in the Midwestern city and were convicted for the bombing murder of Patrolman Larry Minard. Unknown to the jury that convicted the two men was a clandestine law enforcement conspiracy against them code-named COINTELPRO by the Federal Bureau of Investigation.

Kleine was first hired to work for Douglas County by Donald Knowles, the man who prosecuted Poindexter and Mondo. Kleine has never been involved in any aspect or appeal proceeding of the murder case and could not be expected to be familiar with the myriad of details of the controversial April 1971 trial. When asked by the Omaha World-Herald about the reopening request by the author of FRAMED: J. Edgar Hoover, COINTELPRO & the Omaha Two story, Kleine answered he would look at any old case if new evidence came to light. Kleine said nothing has yet emerged that convinces him Poindexter is innocent. Mondo died at the Nebraska State Penitentiary in March 2016 while serving a life without parole sentence.

Kleine has chosen to be unconcerned about four completely redacted pages in Mondo’s FBI file containing information shared with the Omaha Police intelligence unit. If new evidence is hiding under the censor’s stamp Kleine won’t know because he has not yet bothered to look.

While the four redacted FBI pages fall in the category of possible new evidence, Kleine can find some new evidence by looking through files in the Douglas County Courthouse and examining the trial testimony of alibi witness Rae Ann Schmitz.

Schmitz was called to testify as an alibi witness for Mondo at the time of the bombing. Poor witness preparation by defense attorney David Herzog left him unaware that Schmitz could also provide an alibi for Sunday afternoon, the day before the murder, when confessed bomber Duane Peak allegedly picked up the bomb from Mondo. During cross-examination of Schmitz by Donald Knowles she unknowingly contradicted Peak but Knowles did not tell jury about the challenge to Peak’s credibility.

In an interview, Schmitz reflected back on her testimony, still unaware of the second alibi she provided, first for the crime itself and second for the alleged bomb transfer.

“I don’t remember having any contact with anyone on the defense team between the date of the event in August of ’70 until the trial. I did not know what the evidence revealed. At trial I believe the witnesses were sequestered. I do not remember hearing the testimony of any other witnesses. I do not know what other people said. I had no idea of the defense’s theory of the case. I remember meeting the lawyers briefly in the hallway outside the courtroom a few minutes before I took the witness stand.”

“I do know that I did not realize I was providing an alibi defense! That thought had not ever crossed my mind. I did not know that Duane Peak had alleged Mondo had been with him….I never did put it together until years later.”

Schmitz testified that Mondo was with her at Memorial Park at an anti-war rally on Sunday afternoon from 1:30 p.m. until 4:30 p.m. when she drove him to Kountze Park for another rally arriving close to 5 p.m. Schmitz did not know, and Herzog apparently forgot or did not know, was that Peak claimed he met with Mondo at the headquarters of the National Committee to Combat Fascism sometime around 3:00 p.m. on Sunday afternoon. However, Peak did not tell the jury the time of the supposed rendezvous, that detail was only told to police and prosecutors on August 31, 1970 in an interrogation that was recorded by a court reporter. While it was Herzog’s duty to develop the Sunday afternoon timeline it did not happen. As much as was revealed at trial about Sunday afternoon came as a result of Donald Knowles’ cross-examination of Schmitz. However, the contradiction of Peak by Schmitz is one detail known to Arthur O’Leary, the chief assistant of Knowles and present at the prosecution table, that the two prosecutors kept from the jury.

The court reporter captured more than Peak’s false claim of a mid-afternoon meeting with Mondo. O’Leary was also caught encouraging Peak to lie. “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 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.”

The Omaha police knew that Mondo could not have met with Peak in mid-afternoon because they had established Mondo’s whereabouts on Sunday within hours of the bombing. The day of the murder, two officers of the intelligence unit, Dennis Taylor and Glen Steimer, visited the home of Andrew Liberman, a member of Students for a Democratic Society. Steimer wasn’t home but the two officers learned from his mother that Steimer had spent Sunday afternoon at Memorial Park with “militants” Ernie Chambers and Mondo. “There were approximately 100 young people in attendance at the meeting.”

At this late date it cannot be known if Knowles intentionally kept the jury from learning about Peak’s claim of a mid-afternoon meeting or if the prosecutors failed to read the police report and forgot about O’Leary’s interrogation of Peak. In any event, the overlooked alibi for the bomb delivery is significant because it compromises Peak’s credibility and constitutes new evidence because it was overlooked at trial and on appeal. The alibi witness did not even recognize the critical importance of her testimony.

Redacted pages in a censored FBI file on the case and undisclosed alibi testimony are now balanced against Don Kleine’s reluctance to investigate possible prosecutorial abuse by his old boss. Meanwhile, Ed Poindexter sits in a tiny cell at the maximum-security Nebraska State Penitentiary, forty-nine years behind bars, where he steadfastly proclaims his innocence.

This article contains excerpts from FRAMED: J. Edgar Hoover, COINTELPRO & the Omaha Two story, in print edition at Amazon and in ebook. Portions of the book may be read free online at NorthOmahaHistory.com. The book is also available to patrons of the Omaha Public Library.

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Author: richardsonreports

Author of FRAMED: J. Edgar Hoover, COINTELPRO & the Omaha Two Story.

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