[Pnews] Mondo we Langa - COINTELPRO appeal dismissed by Nebraska Supreme Court without opinion
ppnews at freedomarchives.org
Fri Dec 5 11:22:20 EST 2014
COINTELPRO appeal dismissed by Nebraska Supreme Court without opinion
December 4, 2014
The Nebraska Supreme Court dismissed, without opinion, the
post-conviction appeal of COINTELPRO <http://vault.fbi.gov/cointel-pro>
target Mondo we Langa <http://www.examiner.com/topic/mondo-we-langa> on
Sept. 26. Mondo, former David Rice, was not given a hearing or even a
written decision by the state high court. The perfunctory dismissal
notice issued by the court only stated Mondo's appeal was "time barred."
Mondo we Langa and Edward Poindexter, now known as the Omaha Two
serving life sentences at the Nebraska State Penitentiary for the 1970
murder of Omaha police officer Larry Minard, Sr. The two men were
subjects of the infamous COINTELPRO
<http://www.examiner.com/topic/cointelpro> counterintelligence operation
of the Federal Bureau of Investigation. Director J. Edgar Hoover
ordered an exculpatory FBI Laboratory report to be withheld from the
jury that convicted the two Black Panther leaders.
The controversial trial put the two men at the mercy of inexperienced
lawyers, an agent of the Alcohol, Tobacco and Firearms Division bent on
conviction, the FBI's withheld evidence, hostile police officers with
conflicting testimony, an alleged sleeping jury foreman, and a teenage
killer looking for a way out of trouble.
Both Poindexter and Mondo filed an appeal with the Nebraska Supreme
Court after their April 17, 1971 conviction which upheld the verdict
against them. Mondo then filed an appeal in U.S. District Court and
after an evidentiary hearing, Judge Warren Urbom ordered Mondo released
or granted a new trial. Urbom tossed out dynamite evidence against Mondo
after an improper search of his home. Two different Omaha police
detectives, Jack Swanson and Robert Pfeffer, have claimed they found
dynamite in Mondo's basement contradicting each other. With conflicted
testimony Pfeffer backed up Swanson's account at trial but changed his
story after Swanson's death to claim credit for the purported discovery.
Prosecutors appealed Judge Urbom's order and the Eighth Circuit U. S.
Court of Appeals reviewed the matter. A three judge federal panel upheld
the District Court decision and commended Judge Urbom's careful analysis
of the case again ordering that Mondo be released or retried.
Prosecutors then appealed the Eighth Circuit ruling and the case went to
the U. S. Supreme Court. Chief Justice Warren Burger, eager to make his
own stamp on the court, consolidated Mondo's case with a California
murder case and returned the matter to state court in the landmark
/Stone v. Powell/ decision on procedural grounds. The Supreme Court did
not consider Mondo's case on the merits but instead retroactively
applied a new restriction on prisoner appeals.
In a sharp dissent to sending Mondo back to state court, Justice William
Brennan wrote of the "Nebraska Supreme Court's distortion of the Fourth
Amendment in an emotionally charged case."
Brennan wrote, "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."
When Mondo returned to the Nebraska Supreme Court, as directed by the
Supreme Court, he was told he had exhausted his appeal time while in
federal court. Mondo we Langa never got the new trial that four federal
judges said he was entitled to receive.
In 2012, Mondo filed for post-conviction relief and his case was
assigned to Douglas County District Judge James Gleason
After a year of waiting, Mondo was turned down by Gleason in part
because he supposedly did not claim to be innocent. Somehow Gleason
overlooked or ignored Mondo's claim of innocence authored by attorney
"Defendant Rice [Mondo] is entitled to a new trial because he did not
commit the crime charged and he is not guilty of the crime leading to
the death of Officer Minard in 1970, and further, the defendant's
presumption of innocence was lost as a result of the errors alleged herein."
The current "time barred" ruling comes after years of revelations about
the case. The lodestone that pointed at J. Edgar Hoover was a memorandum
to Ivan Willard Conrad, the director of the FBI Laboratory, to not make
a formal laboratory report on the identity of the anonymous 911 caller
that lured Larry Minard to his death. Omaha Deputy Chief Glen Gates had
sent a recording made by the operator of the caller's voice to the FBI
for analysis. Conrad spoke by phone to Hoover about the unusual request
and Hoover ordered Conrad to follow the directive and issue no report.
The information about COINTELPRO manipulation of the trial by
withholding evidence was not available to the Nebraska Supreme Court at
the time of Mondo's first appeal. Those dirty secrets only came to light
years later after hard-fought litigation effort.
The number of important post-conviction issues raised by Mondo would
seem enough to open the courtroom door had the Nebraska Supreme Court
been guided by a search for truth. With no opinion, one is left to
speculate the court's rationale. One of the issues addressed in Mondo's
appeal brief, written by Omaha attorney Timothy Ashford, was timeliness
of the appeal. Thus, even a dismissal only for that reason merits an
explanation by the court.
Mondo we Langa's next legal step being contemplated by Ashford is an
appeal to the U.S. District court to take advantage of a recent U.S.
Supreme Court ruling allowing appeals like Mondo's in cases alleging
ineffective counsel. Nebraska's "time barred" ruling, without opinion,
is the judicial equivalent of thumbing one's nose at the Supreme Court.
Mondo's case, standing at the state-federal divide, gave rise to /Stone
v. Powell/ and limited legal actions by innumerable state prisoners
nationwide under the theory the state courts would treat them fairly. In
light of the injustice done to Mondo, an improper search of his home,
retroactive application of appeal restrictions, denial of a new trial
ordered by four federal judges, the first timeliness denial by the
Nebraska Supreme Court, and now the new "time barred" without opinion
dismissal, it is time to revisit /Stone v. Powell/.
The United States is to undergo a review by the United Nations next
spring over its compliance with human rights treaties. A multi-year
effort led by Efia Nwangaza of the Malcolm X Center for
Self-Determination to include the plight of COINTELPRO targets and other
political cases in the Universal Periodic Review
has moved the Omaha Two <http://www.examiner.com/topic/omaha-two-1> case
into an international political arena. The Obama administration will be
asked what it has done to ameliorate the injustices done in state
courts. The Nebraska Supreme Court's no opinion dismissal will leave
President Obama with some explaining to do.
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