[Pnews] Mondo we Langa - Omaha Two alibi witness tells of failure by lawyer to cross-examine bomber

Prisoner News ppnews at freedomarchives.org
Sun May 3 20:11:10 EDT 2015


Rae Ann Schmitz was a double alibi witness but no one new it at the 1971 
trial because defense lawyers never questioned her.

http://www.examiner.com/article/omaha-two-alibi-witness-tells-of-failure-by-lawyer-to-cross-examine-bomber
*
**Omaha Two alibi witness tells of failure by lawyer to cross-examine 
bomber *

May 1, 2015 2:48 PM MST

Rae Ann Schmitz 
<http://www.examiner.com/article/alibi-witness-for-mondo-we-langa-still-says-innocent-43-years-after-trial> 
was a key witness in a 1971 murder trial, but nobody, including defense 
attorney David Herzog, was aware she contradicted the testimony of the 
prosecution’s chief witness. Schmitz was unaware she was an alibi 
witness for Mondo we Langa 
<http://www.examiner.com/topic/mondo-we-langa>, then David Rice, before 
he was imprisoned for life at the Nebraska State Penitentiary for the 
1970 bomb death of an Omaha policeman.

Mondo was convicted with Edward Poindexter after a controversial trial 
and the two men became known as the Omaha Two 
<http://crimemagazine.com/j-edgar-hoover-and-framing-omaha-two>. 
Poindexter is also serving a life sentence at the state maximum-security 
prison in Lincoln. The two Omaha men were leaders of a Black Panther 
affiliate chapter and targets of an illegal, clandestine 
counterintelligence operation of the Federal Bureau of Investigation. 
Operation COINTELPRO <http://www.examiner.com/topic/cointelpro> was bent 
on destruction of the Black Panther Party under orders from J. Edgar 
Hoover 
<http://www.examiner.com/article/j-edgar-hoover-signed-off-on-secret-cointelpro-plan-to-guide-omaha-police>.

Schmitz was Mondo we Langa’s alibi witness for the time of the bombing. 
However, Schmitz was also an alibi witness for Mondo when he was 
supposed to have met with fifteen year-old Duane Peak 
<http://www.examiner.com/article/most-infamous-midwest-22-member-is-fifteen-year-old-killer-of-policeman> 
to give him the bomb. Herzog, who failed to adequately prepare Schmitz 
for trial, did not realize that Mondo was still with Schmitz when Mondo 
allegedly talked to Peak. Herzog failed to develop the timeline of the 
afternoon before the bombing when he questioned Schmitz and did not ask 
Peak any questions during cross-examination over the timing of the 
supposed rendezvous.

“I don’t remember having any contact with anyone on the defense team 
between the date of the event in August ’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 with the lawyers 
briefly in the hallway outside the courtroom a few minutes before I took 
the witness stand. I do not remember what they said to me,” said Schmitz.

“I do know that I did not realize I was providing an alibi defense!” 
exclaims Schmitz. “That thought had not ever crossed my mind. I did not 
know that Duane Peak had alleged that Mondo had been with him. The whole 
time I was testifying, I was thinking why are they asking me all these 
stupid questions that don’t have anything to do with anything. I never 
did put it together until years later.”

At the trial, Peak did not testify what time he met with Mondo to pick 
up a suitcase bomb only saying it was in the afternoon. David Herzog 
failed to ask Peak any questions about the time of the alleged meeting 
during cross-examination. However, in a pre-trial deposition, Peak said 
the two talked together at 4:00 p.m. Schmitz testified that Mondo was 
with her from 1:30 until sometime between 4:30 and 5:00 p.m. when she 
dropped him off at Kountze Park. Herzog apparently missed the conflicted 
testimony because he had not properly prepared the witness for trial and 
did not realize she could provide two alibis.

Rae Ann Schmitz, a retired attorney, was a first-year student at 
Creighton Law School when she testified at the trial. Schmitz thought 
she was being called as a character witness. Schmitz says, “I was very 
frustrated that I was never asked how I knew Mondo or what my 
relationship was with him or what kind of a person he is. I did not 
testify with any conviction because I did not know what they were 
getting at. I suspect neither did the jury.”

Schmitz testified that Mondo was at a party at her house from 8 p.m. the 
night before the fatal bombing until sometime after 2:30 a.m. when the 
party started to break up, placing him nowhere near the crime scene at 
the time of the blast and anonymous call that lured police to a vacant 
house.

What Herzog failed to realize about the importance of Schmitz’s alibi 
testimony for the purported meeting with Peak was magnified by Herzog’s 
failure to follow up on the recording of the 911 call that lured 
Patrolman Larry Minard, Sr. to his death. The prosecution claims Peak 
made the call but Herzog never heard the voice to make his own 
comparison. Although Herzog sought any recording made by the police, he 
failed to insist on release of the tape during discovery procedure. The 
prosecution claimed it had no knowledge of any withheld evidence and 
that Herzog could have come in the police station to listen to the 
original reel-to-reel recording at any time.

The 911 call was the subject of J. Edgar Hoover’s order to FBI 
Laboratory chief Ivan Willard Conrad to withhold a report on the 
identity of the caller’s voice. A copy of the tape had been sent to the 
FBI Laboratory by police to identify the caller and was reported on in 
the /Omaha World-Herald/. What wasn’t reported was the caller’s voice 
was not that of Peak, Mondo or Poindexter. The jury never got to hear 
the voice on the tape. The prosecution later claimed it did not know 
police had sent a tape recording to the FBI Laboratory.

Mondo raised the issue of ineffective assistance by counsel in a recent 
appeal. An Omaha judge tossed out Mondo’s appeal, in part, because Mondo 
purportedly did not allege his innocence properly in the appeal. The 
Nebraska Supreme Court then dismissed Mondo’s appeal without bothering 
to issue a written opinion explaining the decision. When Mondo’s 
attorney, Tim Ashford, asked for a written decision to address 
COINTELPRO, Mondo’s claim of innocence, and a constitutional challenge 
to the Board of Pardons, the Nebraska Supreme Court again denied Mondo 
without explanation.

David Herzog was called to answer about the 911 recording several years 
ago in a post-trial hearing and said he just did not have an answer why 
he didn’t demand the tape recording be evidence at the trial. At that 
time no one yet realized Rae Ann Schmitz caught Duane Peak in a lie and 
Herzog was not asked to account for his failure to cross-examine Peak on 
the alleged rendezvous with Mondo to pick up the bomb.

Mondo we Langa and Ed Poindexter continue to deny any role in the 
bombing. The case is under international review and may be on the agenda 
for the United Nations Human Rights Committee on May 11 in Geneva, 
Switzerland when United States compliance with a 1966 anti-racism treaty 
will be examined. The Omaha Two 
<http://www.examiner.com/topic/omaha-two-1> are not guaranteed their 
case will be examined by the UN committee as it also has to compete for 
attention with current events and the growing list of controversial 
shooting deaths by police in the United States.


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