Fifty years ago the Nebraska Supreme Court sealed the sad fate of the Omaha Two

Black Panther leaders Edward Poindexter and David Rice [Wopashitwe Mondo Eyen we Langa] were convicted of murder at a COINTELPRO-tainted trial in April 1971. Poindexter remains imprisoned at the maximum-security Nebraska State Penitentiary, Mondo died at the prison in March 2016. (credits: Omaha Police Department)

Fifty years ago, on July 14, 1972, the Nebraska Supreme Court ruled on the joint appeal of Edward Poindexter and David Rice [Wopashitwe Mondo Eyen we Langa] upholding their April 1971 convictions for the bombing murder of Omaha police officer Larry Minard. The decision sealed the sad fate of the two Black Panther leaders who would become known as the Omaha Two.

Unknown outside a small circle of Federal Bureau of Investigation agents and top officials, including Director J. Edgar Hoover, the trial of the two men was manipulated under the clandestine counterintelligence program code-named COINTELPRO.

Poindexter and Rice filed an appeal with the Nebraska Supreme Court but justice was not to be had. The affidavit for the search of Rice’s house was a central issue.

“In making the determination of what searches are reasonable we must also weigh society’s interest in continuing to allow such searches. We must be extremely careful not to completely disarm the enforcement officials of the weapons necessary to maintain order, which in turn would leave us all at the mercy of the unhindered criminal. Were we to uphold appellants in this case the bloody shirt worn into the police station by the murder suspect would be kept from the eyes of the jury. To use this would be deplorable folly. Therefore, we do not propose to initiate a rule that would dictate such a patently unjust result.”

Duane Peak, the actual perpetrator of the crime, testified for the State.”

“In addition to the physical evidence found in the search of August 22, 1970, at 2816 Parker Street, Peak’s testimony is corroborated by the following….Scientific examination of a jacket taken from Poindexter disclosed particles of ammonia dynamite which is the type used in the bomb and the type found in Rice’ basement. Like particles were found on Rice’ pants. Scientific testimony indicated that Rice’ pliers had been used to cut a bit of copper wire like that used in the bomb and found in the basement of 2865 Ohio Street, next door.”

Justice McCown concurred with the rest of the court but offered his own rationale. “I cannot agree that the affidavit involved here met standards previously applicable. The United States Supreme Court and this court have uniformly held that where informants are involved, an affidavit for a search warrant must inform the magistrate of (1) some of the underlying circumstances from which the informant concluded that the articles were located where he claimed they were; and (2) some of the underlying circumstances from which the officer concluded that the informant was credible.”

“The majority opinion concedes that recitals in the affidavit that the police had been informed explosives were kept at the residence and defendants had said that explosives should be used against police officers would be insufficient standing alone….Whenever active membership in an organization which advocates violence against the police or any other group or segment of society, and a public expression of individual approval of such views, standing alone, become justification for the issuance of a search warrant whenever an incident of such violence occurs, the Fourth Amendment has lost its meaning.”

“I would place the decision on a different ground. At the time of making the affidavit for the search warrant, the police department had ample information to constitute probable cause for the issuance of the warrant, but much of the information was omitted from the affidavit….The facts here indicate the advisability of an ad hoc approach permitting some flexibility in the court’s analysis of the individual circumstances of each case.”

Two years later, U.S. District Chief Judge Warren Urbom issued a Supplemental Opinion in Rice’s appeal. The opinion supplemented Urbom’s decision three months earlier regarding a new trial. Urbom set out the facts and procedural history before offering his rationale for a new trial. Urbom also reflected on Chief Justice Warren Burger’s philosophy of criminal prosecution presaging Burger’s eventual action in Rice’s case.

“In part the Supreme Court of Nebraska rested its finding of validity in the search warrant upon information which the police officers had but which was not revealed to the magistrate. In my opinion, such consideration is not acceptable under federal constitutional standards. The fundamental purpose of a warrant is to place behind the force of the warrant a detached magistrate’s objective evaluation of information.”

Judge Urbom anticipated that his decision would be appealed and given the nature of the crime that the Supreme Court might well review the case. Seeking to inoculate his ruling from reversal, Urbom took pains to follow the judicial logic of the Chief Justice by specific and repeated references.

Urbom did not believe all of the police testimony in the case. “There was further testimony before this court which, if believed, would tighten the connection between Duane Peak and David Rice’s house. Lieutenant James G. Perry testified that Delia Peak had told him that David Rice, Duane Peak and Edward Poindexter were constant companions and that he, Lt. Perry, was present when Donald Peak, Jr., told Officer Pitmon Foxall that Duane Peak was at David Rice’s house when the bomb was made….The remainder of the record before this court specifically contradicts the claim that the police knew from Donald Peak, Jr., that Duane Peak was in David Rice’s house when the bomb was made….Given these facts I simply cannot credit this testimony of Lt. Perry.”

“On the basis of the entire record before this court and having heard and seen Lt. Perry testify, it is impossible for me to credit his testimony in the respects mentioned. Consequently, I find that his testimony in these respects cannot be included in the above catalog of facts within the knowledge of the police at the time they entered the home of David Rice.”

“Before turning to the last issue still unresolved by this court, a word about one other argument of the respondent is necessary….No one can doubt the important public interest in apprehending an accused murderer of a police officer, but I think the respondent seriously mischaracterizes the interest involved in preventing invasions of privacy by the police. The privacy of one’s home and the concomitant ability to decide whom it shall shelter and when is one of the most precious rights we possess as citizens. Entry into the home by police absent probable cause to enter is precisely what the Fourth Amendment forbids.”

“The remaining unresolved issue concerns the introduction into evidence of the dynamite particles found in David Rice’s clothing….His clothing was taken from the petitioner as a part of the normal routine at the Douglas County jail for incarcerating persons accused of crime.”

“Since it is clear that the introduction of the evidence seized in the illegal search and the dynamite particles substantially contributed to the petitioner’s conviction, that introduction was not harmless error. Therefore, the petitioner must either be released from custody or granted a new trial free from the tainted evidence.”

Urbom defended the correctness of the decision in his autobiography and complained that Rice was denied a new trial.

The U.S. Court of Appeals for Eighth Circuit issued its decision in Nebraska’s appeal of the order of a new trial for Mondo. Although the International Association of Chiefs of Police and Americans for Effective Law Enforcement filed amicus briefs in support of the prosecution the court upheld Chief Judge Warren Urbom and concluded that Mondo’s constitutional rights were violated.

“The decisions of the Supreme Court convincingly demonstrate, and we so hold, that the district court was left with no choice but to conclude that the affidavit of Sergeants Pfeffer and Swanson was insufficient to establish probable cause. Consequently, the district court was correct in holding that the search warrant was invalid.”

“Moreover, it is clear that on the facts of this case petitioner had no effective remedy still available in the state courts when he filed his federal habeas petition. The state supreme court had already ruled on direct appeal that the search warrant was valid….Clearly, any attempt by petitioner to further attack the search of his house as illegal in any state post-conviction proceeding would have been an exercise in futility.”

“In fact, the testimony of the various police officers at the evidentiary hearing held before the district court strongly suggests that the police had no evidence whatever that Peak was at petitioner’s house and that they were acting on nothing more than a hunch or random guess.”

“The State, however, points to certain testimony given by Lt. Perry….But Judge Urbom discredited this testimony after finding that it was uncorroborated and indeed contradicted by the rest of the record. After reviewing the record, we find that Judge Urbom’s decision to discredit this particular testimony was amply supported by the record.”

“We consider it necessary to point out that the record discloses a widespread search for the suspects Peak and Poindexter which evinced at least a negligent disregard by the Omaha police for the constitutional rights of not only petitioner but possibly other citizens as well.”

“In concluding this lengthy opinion, we are mindful that a brutal crime was perpetrated in which the life of a police officer was ended without justification. It cannot be gainsaid that Judge Urbom recognized the seriousness of the offense and the general public outrage over the crime. Against this background, Judge Urbom exercised painstaking care in resolving the factual and constitutional issues in this case. Having done so, Judge Urbom conscientiously and courageously concluded and demonstrated in two soundly reasoned opinions that the petitioner had been deprived of a basic constitutional right.”

The U.S. Supreme Court heard oral arguments in Rice’s case. However, the decision to deny a new trial had already been made by Chief Justice Warren Burger who wanted to reduce prisoners’ legal rights.

Rice, now known as Mondo, was represented by Jesuit lawyer and law professor William Cunningham. The prosecution was represented by Nebraska Assistant Attorney General Melvin Kammerlohr who recited the facts of the case and attacked the exclusionary rule of evidence. Kammerlohr told the court “nobody here wants an innocent man convicted.”

Cunningham opened up on Jack Swanson’s search warrant “so wanting in probable causes to leave no doubt in the mind of four Federal Court Judges in very careful opinions…exhaustive, painstaking evidentiary hearings to find that there simply was no basis for the warrant that was based, quite frankly as the officer testified upon his speculation.”

“That is neither reasonable, good faith nor probable cause.”

Warren Burger questioned Cunningham by summarizing his own view of Mondo’s guilt. “The unarticulated premise of your whole position, I take it must be…that the case presented by this record, where a man who has set a booby trap with dynamite in a suitcase, in pursuit of his own objectives, obviously criminal, if we believe this record, is to get off scotfree and that that is an appropriate price to pay for mistakes in a warrant application.”

Back and forth the two men dueled. Burger pressed Cunningham. “Is it not a fair statement that this man…is to go free because of the constable blunder?”

Cunningham replied back. “I would say that the man is not to be imprisoned if the trial at which he was tried was wanting in federal constitutional guarantees, if the trial was unfair.

Cunningham explained to Justice Lewis Powell his concern over restricting prisoner appeal rights. “I think that for example, when a court allows evidence to be placed before it, that they know has been seized in contravention of the constitution…that the state, if it be a state prosecution, is in some way in complicity in allowing illegal activity to become the basis for a prosecution.”

Burger came back in suggesting Cunningham sought to avoid “abstract truth.” in a trial. Cunningham replied, “I would want to say that any legal proceeding in its best aspect is precisely a search for truth.

Burger rebutted “the exclusionary rule frustrates, defeats the search for truth as this case so richly demonstrates.”

“So that as a result, ultimately…the Federal Courts have excluded the actual evidence of the body of the murder victim because of the way in which the police learned the location of the concealed body.”

Burger was upset that dynamite evidence would be excluded because of the insufficient search warrant. Cunningham reminded Burger the dynamite “could have been planted.”

Burger queried, “The dynamite fragments in the cuffs of his pants too?”

Cunningham replied, “Could have been, Your Honor.”

Powell had another question. “Telling the truth is really not always the objective, the primary objective in litigation in our Courts?”

“No it should be, Your Honor, it should be,” responded Cunningham.

Cunningham then made a final request that if the court were to restrict prisoner appeals that Mondo’s new trial order be allowed to stand as “my client must not be penalized for taking the decisions that were the law at that time seriously…and to now tell him at this stage of the game that he has pursued the wrong avenue.”

Kammerlohr closed the session by attempting to repair James Perry’s shattered credibility.

“Judge Urbom arrived at the conclusion that Lieutenant Perry was perjuring himself, and I think he put a lot of weight on this and this is just one of the bad things that happened.”

“I say that Lieutenant Perry might have learned about it in a number of ways and forgot how he learned about it, and did not necessarily perjure himself.”

On July 6, 1976, the Supreme Court declined to rule on the merits of Mondo’s case and instead sent Mondo back to Nebraska courts. Mondo’s case was consolidated with that of a California vagrant convicted of murder, Lloyd Charles Powell. The decision became known thereafter as Stone v. Powell and reduced federal appeal rights of prisoners. COINTELPRO was not discussed in the decision and the FBI counterintelligence role in Mondo’s case was kept secret from the Supreme Court.

Justice Powell delivered the opinion of the Court, in which Justices Stewart, Blackmun, Rehnquist, and Stevens joined. Chief Justice Burger filed a concurring opinion. Justice Brennan filed a dissenting opinion joined by Justice Marshall, while Justice White filed his own dissent. ”In sum, we conclude that, where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.”

Chief Justice Burger filed a concurring opinion critical of the exclusionary rule of evidence. “Over the years, the strains imposed by reality, in terms of the costs to society and the bizarre miscarriages of justice that have been experienced because of the exclusion of reliable evidence when the “constable blunders,” have led the Court to vacillate as to the rationale for deliberate exclusion of truth from the factfinding process The rhetoric has varied with the rationale to the point where the rule has become a doctrinaire result in search of validating reasons.”

Justices William Brennan and Thurgood Marshall joined in dissent. “Today’s opinion…marks the triumph of those who have sought to establish a hierarchy of constitutional rights, and to deny for all practical purposes a federal forum for review of those rights that this Court deems less worthy or important….the Court today rewrites Congress’ jurisdictional statutes as heretofore construed, and bars access to federal courts by state prisoners with constitutional claims.”

“This denigration of constitutional guarantees and constitutionally mandated procedures…must appall citizens taught to expect judicial respect and support for their constitutional rights….What possible justification then can there be for denying vindication of such rights on federal habeas when state courts do deny those rights at trial? To sanction disrespect and disregard for the Constitution in the name of protecting society from lawbreakers is to make the government itself lawless, and to subvert those values upon which our ultimate freedom and liberty depend.”

“If proof of the necessity of the federal habeas jurisdiction were required, the disposition by the state courts of the underlying Fourth Amendment issues presented by these cases supplies it.”

“Even more violative of constitutional safeguards is the manner in which the Nebraska courts dealt with the merits in respondent Rice’s case. Indeed, the manner in which Fourth Amendment principles were applied in the Nebraska Supreme Court is paradigmatic of Congress’ concern respecting attempts by state courts to structure Fourth Amendment jurisprudence so as not to upset convictions of the “guilty” or the “unworthy.” As Judge Urbom fully detailed…the affidavit upon which the Omaha police obtained a warrant and thereby searched Rice’s apartment was clearly deficient under prevailing constitutional standards….Yet the Nebraska Supreme Court upheld the search on the alternative and patently untenable ground that there is no Fourth Amendment violation.”

“In any event, since we are fully familiar with the records in these cases, respondents are owed at least review in this Court, particularly since it shuts the doors of the district courts in a decision that marks such a stark break with our precedents….that ensures respondents’ continued unconstitutional confinement.”

In a footnote, Justice Brennan continued his criticism of the decision. “Such hostility to federal jurisdiction to redress violations of rights secured by the Federal Constitution, despite congressional conferral of that jurisdiction, is profoundly disturbing.”

Mondo put the ruling in simpler language. “The Supreme Court, rather than hearing the case on its merits, decided, that even though federal courts have had jurisdiction of this kind of case for decades at least, that lower federal courts do not have jurisdiction in this case and we are going to make it retroactive so your ass is going to remain locked up.”

The decision was one of five Fourth Amendment cases announced on the last day of the court term. It was a high point of Burger’s campaign to overturn Warren Court decisions with all five cases against citizen rights in favor of government authority.

Justice Brennan dissented vigorously and complained about Burger’s “continuing evisceration of the Fourth Amendment” by the five decisions. Clerks in the Supreme Court began calling the day “Black Tuesday.”

When Mondo’s case was returned to the Nebraska Supreme Court for a redetermination of the July 14, 1972 decision, the court ruled Mondo’s state appeal deadlines were exceeded while the case was in federal court and no new trial was ever given, despite four federal judges ruling that Mondo was entitled to a new trial.

Duane Peak, the confessed teen-age bomber who implicated the two Black Panther leaders, made a deal with prosecutors and never served a day in prison despite his admission he planted the bomb. Edward Poindexter, in poor health, remains imprisoned at the Nebraska State Penitentiary over a half-century after the controversial trial where he continues to deny any guilt. Mondo died at the maximum-security prison in March 2016, proclaiming his innocence to his last breath.

Excerpted from FRAMED: J. Edgar Hoover, COINTELPRO & the Omaha Two story. Available from Amazon and ebook. Portions of the book may be read free online at Patrons of the Omaha Public Library may read the book free of cost.

Author: richardsonreports

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

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