Edward Poindexter`s Closing Argument Brief

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IN THE DISTRICT COURT OF DOUGLAS COUNTY, NEBRASKA STATE OF NEBRASKA,

DOCKET 81 PAGE115

) ) ) ) ) ) ) ) )

Plaintiff, Vs EDWARD POINDEXTER, Defendant

CERTIFICATE OF SERVICE

---------------------------) The undersigned hereby certifies that a true and correct copy of the Defendant's Post Hearing Closing Argument and Legal Memorandum was served on counsel of record by First Class United States Mail, sufficient postage prepaid this

--4

day of June, 2007..

Mr. Steve Gabrial Douglas County Attorney's Office Hall of Justice 17th & Farnam Omaha, NE 68183 EDWARD POINDEXTER, Defendant,

By:

~--j~

Robert F.. Bartle, #15010 BARTLE AND GEIER LAW FIRM 1141 H Street Lincoln, Nebraska 68508 (402) 476-2847

IN THE DISTRICT COURT OF DOUGLAS COUNTY, NEBRASKA STATE OF NEBRASKA, Plaintiff, vs EDWARD POINDEXTER, Defendant.

) ) ) ) ) ) ) )

DOCKET 81 PAGE 115

DEFENDANT'S POST HEARING CLOSING ARGUMENT AND LEGAL MEMORANDUM

TABLE OF CONTENTS

PRELIMINARY STATEMENT

1

STATEMENT OF THE CASE

1

ISSUES PRESENTED

3

STATEMENT OF FACTS

4

ARGUMENT

5

1.

POINDEXTER'S RIGHT TO DUE PROCESS WAS VIOLATED BY ACTS OF 5 AND OMISSIONS OF INVESTIGATING OFFICERS AND PROSECUTORS, CONSTITUTING PROSECUIORIAL MISCONDUCT A

The Constitutions of the United States and the State of Nebraska guarantee due process of law and case law establishes that prosecutorial misconduct violates defendant's right to due process

5

R

The Nebraska Discovery Statute authorizes a defendant to request, and a court to or der, disclosure of certain information

8

C.

Poindexter requested, and the district court ordered, disclosure of materials as provided in the Nebraska discovery statute, but the prosecutor failed to comply with that order

9

D

The prosecution's failure to disclose those materials and information was not only a violation of the district court's order, and a violation of the Nebraska Statute, but also constitutes an infringement of Poindexter's state and federal constitutional rights to due process oflaw

II

1

11

2 3

4.

Information regarding the existence of a tape recording of the 911 call The fact that the OPD had arranged with the FBI to do a voice analysis of the 911 call and to withhold the results of that analysis Information regarding promises ofleniency and/or threats of prosecution made by the prosecutor to Duane Peak in exchange for his testimony against the leaders of Omaha's National Committee to Combat Fascism (NCCF), Ed Poindexter and David Rice Information regarding the seizure on July 28, 1970 of 40 sticks of DuPont Red Cross 50% Extra Strength dynamite by officers Jack Swanson regarding the arrest of Lamont Mitchell, Comoy Gray, and Luther Payne in Omaha

14 16

18

1

TABLE OF CONTENTS

PRELIMINARY STATEMENT

1

STATEMENT OF THE CASE

1

ISSUES PRESENTED

3

STATEMENT OF FACTS

4

ARGUMENT

5

I

5

POINDEXTER'S RIGHT TO DUE PROCESS WAS VIOLATED BY ACTS OF AND OMISSIONS OF INVESTIGATING OFFICERS AND PROSECUTORS, CONSTITUTING PROSECUTORIAL MISCONDUCT A

The Constitutions of the United States and the State of Nebraska guarantee due process of law and case law establishes that prosecutorial misconduct violates defendant's right to due process

B

The Nebraska Discovery Statute authorizes a defendant to request, and a COUlt to order, disclosUle of certain information

5

8

9 C.

Poindexter requested, and the district COUlt ordered, disclosUle ofmaterials as provided in the Nebraska discovery statute, but the prosecutor failed to comply with that order

D

The prosecution's fililUl e to disclose those materials and information was not only a violation ofthe district COUlt'S order, and a violation of the Nebraska Statute, but also constitutes an infringement of Poindexter's state and federal constitutional rights to due process oflaw

11

11

1. 2

3

4

Information regarding the existence of a tape recording of the 911 call The fact that the OPD had a11'anged with the FBI to do a voice analysis of the 911 call and to withhold the results of that analysis Information regarding promises ofleniency andlor threats of prosecution made by the prosecutor to Duane Peak in exchange for his testimony against the leaders ofOmalra's National Committee to Combat Fascism (NCCF), Ed Poindexter and David Rice Information regarding the seizUle on July 28, 1970 of 40 sticks of DuPont Red Cross 50% Extra Strength dynamite by officers Jack Swanson regarding the arrest of Lamont Mitchell, Comoy Gray, and Luther Payne in Omaha

14 16

18

1

Police reports from interrogations of Duane Peak on August 28, 29 and 30, 1970

5

E

II.

Duane Peak's credibility was the "lynch pin of this case."

19

20

POINDEXTER'S RIGHI TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED DURING HIS TRIAL AND APPEAL

21

A

Trial cOlllsel and appellate counsel failed properly to investigate and present to the jmy evidence conceming the 911 tape recording of the alleged Duane Peak call of August 17, 1970

25

B

Trial cOlllsel failed effectively to cross-examine Duane Peak regarding inconsistent testimony and statements

26

1 2 3 4

5 6.

7.

Duane Peak's first story contradicted other versions told by him and his later sworn testimony Duane Peak told inconsistent stories about the origin of the suitcase and dynamite Duane Peak told inconsistent stories about how he handled the bomb Duane Peak told inconsistent stories about how he handled the suitcase in Delia Peak's bathroom Duane Peak told inconsistent stories about how he left the suitcase at 2867 Ohio Street. Duane Peak told inconsistent stories about how the suitcase was armed by using thumbtacks . Duane Peak told inconsistent stories about the address Peak gave to the 911 operator and other information regarding the 911 call

27 27 28 28 29 29 30

C

Trial cOlllsel failed effectively to confront State witnesses Jack Swanson and Robert Pfeffer about conflicting police reports and inconsistent testimony r egar ding the location and the discovery of dynamite at Rice's house

33

D

Trial counsel failed to subpoena or inquire into missing police reports for August 29 and August 30, 1970 re statements made by Duane Peak

34

E

Trial cOlllsel failed effectively to investigate, research and offer testimony to discredit state expert witnesses Kenneth Snow and Roland Wilder despite the fact that these witnesses' testimony was speculative and not supported by reliable science

34

ii

I 2.

3

F

Trial counsel failed to investigate and present the following factual issues, which would have raised further doubt as to the guilt of Poindexter I

2

G

Metal particles on the long nosed pliers could have come from 34 anywhere Trial counsel failed to present expert testimony showing that 35 the long nosed pliers seized from Rice's house did not cut the copper wire found in the basement of the house next door T rial counsel failed to present expert testimony that the testing 35 done by Kenneth Snow was an inadequate scientific testing method to determine a specific match of one sample somce to another

Trial cOlllsel failed to inquire into the significance of Robert Cecil testing positive for dynamite on his clothing or in his possessIOn. The significance ofthe seizme of dynamite and arrest of three men by the same police officers who were involved in the Rice-Poindexter matter.

Trial counsel failed properly to investigate and present evidence to thejmy that Duane Peal, knew nothing about who made the bomb

37

37

37

38

III

TRIAL COUNSEL AND APPELLATE COUNSEL FAILED TO PRESERVE THE ERROR OF A UNIFIED TRIAL WHICH VIOLATED ED POINDEXTER'S RIGHT TO A FAIR AND IMPARTIAL JURY

38

IV

APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE THE FOREGOING ARGUMENTS

40

V

THE DEFICIENCES CITED BY THE NEBRASKA SUPREME COURT IN THE APPEAL OF THE RICE POST CONVICTION PROCEEDINGS HAVE BEEN RECTIFIED IN THE INSTANT PROCEEDINGS

40

CONCLUSION

41

iii

PRELIMINARY STATEMENT Defendant Poindexter's closing argument and post-hearing memorandum follows four days of hearing before tbis court on May 8, May 9, May 10 and May 30, 2007 The evidentiary hearing in this case involved live testimony :from six witnesses on May 8, two expert witnesses, Thomas Owen and Robert Webb on May 9, and testimony of defendant Poindexter and an additional witness, Robert Pfeffer, on May 10,2007 On May 30, 2007, the court heard fiom former defense cOlmsel for co-defendant David Rice, David Herzog Additionally, the court received some 160 exhibits, and a complete exhibit list is attached as an addendum to tbis memorandurn This action, filed pursuant to Neb. Rev. Stat §29-3001 et seq., challenges Poindexter's original conviction for first-degree murder, following five days of jury deliberations and a verdict entered April 17, 1971 Poindexter was convicted, along with co-defendant David Rice, for tbe bombing death of Omaha police officer LallY Minard on August 17, 1970 Defendant's conviction and sentence were affirmed by tbe Nebraska Supreme Court upon direct appeal in State v. Rice and Poindexter, 188 Neb 728 (1972)

STATEMENT OF THE CASE The present post-conviction action began on June 25, 2003, with the filing of a petition alleging four grolmds for relief In tbe COUlt'S preliminary order, Judge Richard J Spetbman described defendant's four claims as follows: 1

Ineffective assistance oftrial counsel;

2

Prosecutorial misconduct, depriving defendant of due process of law;

3

Ineffective of assistance of appellate counsel; and

4

Denial of due pIOcess by way of the "unitary" trial pIOceeding relative to the issue of guilt and the imposition of sentence

In Judge Spethman's order of November 18,2003, an evidentiary hearing was granted on Claims I and III, denied with respect to Claim IV, and allowed to go fillward with discovery on the claim ofpIOsecutorial misconduct (Claim II) On April 27, 2004, Poindexter filed his amended petition for post-conviction relief, primarily clarifYing certain allegations in Claim IV of his petition On December 30,2005, Judge Spethman sustained Poindexter's motion to obtain a voice exemplar from prosecutorial witness Duane Peak for pm poses of voice analysis testing by defendant's expert witness, Thomas Owen With respect to that motion, this comt provided, pmsuant to the order of Judge Thomas Otepka on March 2, 2006, that then Deputy County Attorney Brent Bloom, working in cooperation with defendant's counsel, RobeJt F Bartle, could release Exhibit 9 in the post-conviction proceeding of State v Rice, a cassette-sized, small reel-to-reel tape recording of the 911 call, for pmposes of voice analysis and testing performed by Thomas Owen of Owl Investigations of New Jersey. On Febmary 28, 2006, Duane Peak, now Imown as Gabrial Peak, provided a voice exemplar as ordered by both Judge Spethrnan and the district COUlt in Spokane, Washington Following Thomas Owen's testing and release of the test results, on May 2, 2006, defendant Poindexter requested leave to file a Second Amended Petition. On June 5,2006 this COUlt allowed the Second Amended Petition to be filed

2

On hme 1, 2006, defendant Poindexter asked this comt to reconsider the ruling of July 19,2005, denying an evidentiary hearing on Count IV of defendant's Second Amended Complaint That motion was ovenuled by this comt in its order of August 2, 2006 The evidentiary hearing followed, plOviding testimony and documentary evidence relative to Poindexter's Second Amended Petition, including certain offers of proof relative to COlmt IV. By request of counsel, a two-volume transcript of the evidentiary hearing is available for the comt's review, and this memorandum will relate the legal argument to the specific evidentiary testimony in both this proceeding and in the postconviction action of State v Rice, found at Docket 81 Page 116 Further, separate references will be made to the original transcript of the 1971 jmy trial, which was received as evidence in this proceeding

1

ISSUES PRESENTED

Ultimately, Poindexter's claim for relief, apart from the comt's separate ruling on Claim IV, presents the following issues: 1.

Whether defendant Poindexter was denied his right to effective assistance of trial and appellate counsel, sufficient to warrant a new trial in this case; and

1 The form used in this memorandum for citatiou to the record is as follows: Trial transcript, TT; Trial Exhibits, T Ex.; Rice Post Conviction Tr31Iscript, RPCT; Rice Post Conviction Exhibits, RPCEx ; Poindexter Post Conviction Transcript, PPCT; Poindexter Post Conviction Exhibits, PPCEx For example, PPCEx 102 at 20:13-18 is a reference to Poindexter Post Conviction Exhibit 102 at page 20, lines 13 to 18

3

2.

Whether the acts and omissions of the plOsecution in the OIiginal trial constituted plOsecutOlial misconduct, denying defendant Poindexter due process oflaw

It should be noted that corollary issues, such as the admissibility of the 911 tape

recording, and the expert witness testimony concerning the 911 tape recOlding (PPC Ex.), have been separately addressed in earlier memOlanda to the court STATEMENT OF FACTS

Following a two-week trial in the spring of 1971, defendants Edward Poindexter and David Rice were convicted of fir st-degree mur der in the death of Officer Larry Minard, as a result of a "booby-trap" suitcase bombing that occurred in nOlth Omaha in August 1970. At his OIiginal tlial, defendant Poindexter was represented by the late Frank Morrison, then Douglas Courrty Public Defender, and the late Thomas Kenney, one of Monison's deputies On appeal to the Nebraska Supreme Court, Poindexter was represented by the late Bennett Hornstein, also a deputy public defender Trial cOlmsel for David Rice at his original trial was David Herzog of Omaha, Nebraska The defendants were convicted by a Douglas County jury, after five days of deliberation, in a ''rmitary'' trial plOceeding where the questions of guilt 01 innocence, together with the question of the apPlOpriate penalty, were tried in a single plOceeding After five days, the Douglas Courrty jury fourrd defendants guilty of first-degree murder, and sentenced each defendant to a term of life imprisonment Federal plOceedings followed the conviction where defendant Rice was granted a new trial by the habeas corpus Older of Judge Warren Urbom in 1975 Judge Urbom's decision was affirmed by the Eighth Circuit Poindexter was not afforded such relief, as

4

to he lacked jUl isdictional "standing" in the Fourth Amendment challenge

evidence

States seized at the Rice residence at 2816 Parker in Omaha. In 1976, the United in Nebraska, and Supreme COUlt reversed the decision of the United States District COUlt . Following those the Eighth Circuit, relative to the habeas relief initially affOlded to Rice xter brough t no federal proceedings on the Fourth Amendment issues, defendant Poinde pr esent further legal proceedings until the post-conviction claims at issue in the

matter

this COUlt in Co-defendant David Rice brought claims for post-conviction relief in 1982 1980 resulting in decisions of the late Judge Paul Hickman in 1981 and post-conviction Evidentiary elements and the three-volume trial transcript from the Rice proceedings in 1982 are part of the evidentiary recOld in this case ing in the A multi-volume trial transcript flom the Oliginal criminal trial, occUlr s exhibits from spring of 1971, is also part of the lecOld in this case, together with variou that trial ARGU MENT

I

BY ACTS POIN DEXT ER'S RIGHT TO DUE PROC ESS WAS VIOL ATED ECUT ORS, AND OMISSIONS OF INVE STIGA TING OFFICERS AND PROS CONSTITUTING PROSECUTORIAL MISCONDUCT A

tee The Constitutions onhe United States and the State of Nebra ska guaran due process of law and case law establishes that prosecutOlial misconduct violates defendant's right to due process

ination The law on prosecutOlial misconduct derives fiom our nation 's determ Justice states, "The that, as an inscription on the walls of the United States Department of courts " In Brady United States wins its point whenever justice is done its citizens in the by the prosecution v. Maryland, 373 U.S 83 (1963), the Court held that "the suppression s where the evidence of evidence favorable to an accused upon request violates due proces

5

is matelial either to guilt or to punishment, inespective of the good faith or bad faith of the plOsecution" Id at 87 A claim ofplOsecutolial misconduct involves two questions; 1) did the plOsecution act implOpeIly; and 2) did such conduct prejudicially affect the defendant's substantial rights so as to deprive him of a fail tlial If a COUlt leaches the second question, the Eighth Cilcuit considels three other factors; 1) the cumulative effect of the misconduct; 2) the strength ofplOpeIly admitted evidence of defendant's guilt; and 3) any cUlative actions taken by the trial COUlt United States v Beckman and Kelly, 222 F 3d 512 (8th Cil. 2000)

In Beckman and Kelly, a case from MissoUli, the COUlt found that a plOsecutOl' s comments dUling his closing argument not only were improper conduct, but constituted plejudice to the defendant Despite testimony to the contrary, the prosecutor asselted f2.CtS not in evidence and attempted to argue and imply inferences fr om those facts Aftel detelmining that the prosecutor had acted implOpeIly, the COUlt addJessed the thIee factOls contained within the prejudice prong of the test: When we consider the cumulation of enOl in limiting clOss-examination of two clitical govemment witnesses, the impropel final argument, and the inadequacy of the distJict COUlt'S instmction to the jUly following objection to the impropel final argument, we find the eIlOlS cannot be said to be harmless

Beckman and Kelly, 222 F 3d at 537 Nebraska takes the position that "whether a prosecutOl 's faihue to disclose evidence lesults in plejudice depends on whethel the infOlmation sought is material to the preparation of the defense

." State v. Kula, 252 Neb.. 471 (Neb 1997). "Matelial"

means "there is a strong indication that the information will play an impOltant 101e in uncovering admissible evidence, aiding preparation of witnesses, cOlloborating

6

testimony,

01

assisting impeachment or rebuttal." ld (emphasis supplied).. In State v

Brown, 214 Neb 665 (Neb 1983), the comt held that "matters affecting the credibility of

a critical

01

major witness are material to the defense in a criminal case." Both Kula and

Br own wer e post conviction pr oceedings.

In Kula, after a guilty verdict, defendant's counsel discovered till ee notebooks containing notes stating that someone other than defendant had committed the crime. There were also notes on an anonymous phone call one of the witnesses had received The court found that failure to hun over these notebooks was a violation ofthe comt's discovery order and constituted prosecutorial misconduct "We do not know what, if anything, an investigation by Kula into this anonymous phone call would have revealed However, that is precisely the point

'[a] cat and mouse game whereby the [State] is

permitted to withhold important information requested by the accused cannot be countenanced

' " State v. Kula, supra, 252 Neb at 488 (citation omitted)

In Commonwealth v. Lykus, 2005WL 3804726 (2005), a case with facts which are frighteningly similar to the case at bar, the Superior Court of BIistol County, Massachusetts granted defendant's motion for a new trial, thirty-two (32) years after his conviction for filst degree murdeL The court's decision was based in part on prosecutorial misconduct, to wit: the failure of the prosecutor and the FBI to disclose exculpatory evidence - FBI labOlatory repOlts on voice recordings - to defense at trial, notwithstanding defendant's specific request fOl such evidence Defendant argued that this failure constituted a violation of Brady v. Maryland, depliving him to his rights to due process undel both the state and federal constitutions, and the court agreed Failure to disclose these documents also violated the trial court's 1973 discovery order

7

Defendant argued successfully that the FBI's decision not to release the evidence was attributable to the Commonwealth of Massachusetts because of the "substantial level of cooperation that existed between the FBI and the state police and District Attorney's Office, the malfeasance of the federal sovereign is to be imputed to the state sovereign Because the FBI failed to disclose exculpatory material to the defendant at trial, and because that failure is imputed to the Commonwealth as a result of the federal authorities being intimately involved, both independently and jointly with various state agencies, the comt finds that these actions amount to a Brady violation by the District Attorney's Office that is only remedied by the granting of a new trial to the defendant Lykus, 2005 WL 3804726 at 9-10.

B

The Nebraska Discovery Statute authorizes a defendarrt to request arrd a comt to order, disclosme of certain information.

The Byown comt noted that Br ady imposed a constitutional marrdate for disclosme in criminal cases . Brown, 214 Neb at 675 A statutory design for discovery, however, carr exact more tharr the constitutional minimmn so that comts must focus on information potentially useful to the defense . ld In Nebraska, the statutory provision that Brown refers to is Neb Rev Stat. §29-1912 (enacted dming the 1969 legislative session)

which provides that: (1)

a defendant charged with a felony may request the comt where the case is to be tried, at arry time after the filing ofthe indictment, information, or complaint to or de! the prosecuting attorney to permit the defendant to inspect and copy or photograph (e) The results arrd reports of physical or mental examinations, and of scientific tests, or experiments made in connection with the particular case, or copies thereof; and (f) Docmnents, papers, books, accounts, letters, photographs, objects, or other tarrgible things of whatsoever kind or natme which could be used as evidence by the prosecuting authority

In Kula, the district comt had ordered the prosecutor to tum over certain police reports that would point to former defendarrts and would be exculpatory The prosecutor 8

did not tmn these reports over, however, until the first day of trial. When the defendant requested a continuance, it was denied Kula, 252 Neb. at 484 The Supreme Comt held that suppression of these materials was a violation of Neb Rev Stat §29-·1912 as well as the comt's discovery order; and that the district comt ened in not granting the defendant's request for continuance. In Brown, the defendant filed a motion, pursuant to Neb. Rev Stat. §291912(l)(e), seeking disclosure of results and reports of physical and mental examinations, and of scientific tests, but the prosecutor stated that he had no lmowledge of such material. The State had obtained, however, a report nom a pathologist who had expressed an opinion which contradicted that of the victim's and eyewitness' version of the incident The comt stated that this report was within the pm view of Neb Rev.. Stat §29-19l2(1)(e) and should have been disclosed to the defendant because the information was material to the preparation of defendant's defense and without the requested information, the defendant was denied a fmr trial. Brown, 214 Neb. at 676 These disclosure requirements were applicable to pIOsecutors in Poindexter's 1971 trial, pmsuant to the requirements of Brady v. Maryland, decided in 1963, and the Nebraska discovery statute, enacted in 1969. C

Poindexter requested, and the district court ordered, disclosure of materials as provided in the Nebraska discovery statute, but the prosecutor failed to comply with that or del.

On January 6, 1971, Poindexter filed his discovery request which included: 6 7

Each and every written, recorded, or transcribed statement made by each . witness relative to this case The names of any party or parties who wer e pr esent when any such statement was made by any such witness.

9

8

10.

13.

The results and reports of physical and mental examinations and of scientific tests or experiments made in connection with this particular case, Documents, papers, books, accounts, letters, photographs, objects, or other tangible things of whatsoever kind or natUie which could be used as evidence by the state. Any other evidence or facts favorable to the defendant either as to guilt or punishment or which might otherwise aid the defense in accord with the requirements of the United States Supreme COUIt as manifested in Brady v. Maryland, Giles v. M81yland, and related decisions.

PPCEx.154 On January 20, 1971 the district cOUit granted defendant's motion for discovery, except for paragraphs 4 and 13. Thus, the requests in p81agraphs 6, 7, 8 and 10 were granted, and in paragraph 13, inexplicably, overruled It is noteworthy that paragraphs 8 and 10 of the discovery request were couched in exactly the same language as the statute PUisuant to the cOUit's order, the prosecution should have disclosed to the defense the following materials and information: (1)

information regarding the tape recording of the 911 call made by the Omaha Police Department (hereafter OPD), so that defendant could have had the call analyzed to determine the identity of the caller;

(2)

the fact that the OPD had 81ranged with the FBI to do a voice analysis of the 911 call and the results of that analysis;

(3)

information reg81ding promises ofleniency and/or tlueats ofplOsecution made by the prosecutor to Duane Peak in exchange for his testimony against the leaders of Omaha's National Committee to Combat Fascism (NCCF), Ed Poindexter and David Rice;

10

(4)

t infOImation regarding the seizure on July 28,19 70 of 40 sticks of DuPon d, Red Cross 50% Extra Strength dynamite by officers Swanson, Howar and Dailey and Steimer and the arrest of Lamont Mitchell, Cornoy Gray, Luther Payne, who were charged with possessing explosives, and bound over to Douglas County District Court on September 1, 1970 (It is notewOIthy that on April 21, 1971, four days after Poindexter was convicted, their cases were dismissed.)

(5)

30, police reports from intellogations of Duane Peale on Augus t 28,29 and 1970.

D

was The prosec ution's failure to disclose those materials and infOImation the of on not only a violation of the district court's order, and a violati Nebraska Statute, but also constitutes an infringement of Poindexter 's state and federal constitutional rights to due process oflaw .

in Following the sequence set forth in the foregoing section, the prosecutor defendant's trial failed to disclose the following: 1,

Information regarding the existence of a tape recording ofthe 911 call..

by the The recOId in this case is replete with references to a tape recording made surfaced, however, OPD of the 911 call allegedly made by Duane Peak. The information made, and 1973 after defendant's trial Betwe en August 17, 1970, when the 911 call was ted Alfied when he retired, GeOIge Winkler, Chief of Police Communications, instruc -reel tape RPCT at "Bud" Jones of that department to malce a copy of the OIiginal reel-to read "Minard, 330:7-335:4 That copy ofthe 911 call was identified with a note which hereafter referred August 17, 020 I, OperatOI Huffman, recorded by Albert Jones" and is

11

to as the "Winkler Iape" RPCI at 330:7-335:4. On Aplil18, 1978 the State of Nebraska erased the original large leel-to-reel tape RPCI at 341:15-25 Apparently in response to a subpoena duces tecum issued by Rice in his Post Conviction proceeding, OPD Lt James PellY asked Bud Jones ifthere was any copy of the original reel-to-reel tape and ML Jones lesponded that a copy of that tape was in some of the material George Winklel left in his office when he letired. Jones recognized it from the distinctive label it bore . RPCI at 332:10-333:3 PellY gave the Winklel I ape to Samuel Cooper (RPCI at 307:9-308:22), who took it to Donald Knowles' office (one of the prosecutors in the original trial), and secm ed the assistance of a comt rep alter so that he could play it and make a copy because "[tJhe tape I had was not a cassette tape She had a reel-to-Iee! tape so we could play it We had no means of playing it" RPCI at 435:22-437:4 Coopel made a cassette copy and gave the Winlder I ape to Judge Hickman Id Cooper also played a copy of the tape to David Herzog, David Rice's trial counsel, who was a witness in this cmrent proceeding. RPCI at 320:25-323:21. Ihe Winlder I ape was offeled into evidence as Exhibit 9 in the Rice Post Conviction proceeding on Decembel 16, 1980 Judge Hickman did not receive Exhibit 9 into evidence, however, until five months aftel the evidentiary hearing was complete In his Septembel 9, 1981 Ordel Judge Hickman desclibed Exhibit 9 as a "cassette tape lecOJding

. identified by AlbeIt F. Jones, the plesent Chief of Public Safety

Communications for the City of Omaha, from a label on the cassette which contained the notation 'Minard

August 17

0201, operatOJ Huffinan, recorded by Albert Jones'"

Ihe Judge continued: "Although he had no personal recollection of having made the

12

cassette tape, Jones testified that he believed the tape had been made eight or nine years previously, probably at Winkler's request, but he was unable to state precisely when, tor what reason, or with what equipment the cassette had been made.

Whatever founda-

tional deficiencies there may be in the cassette, there can be little question that it is, in fact, genuine; indeed, the State does not appear to contend otherwise" PPCEx 4 at 2. Although the Judge referred to the tape as a "cassette" when it appears to be a cassette-sized reel-to-reel, the key is the identifYing factor of the attached notation, which Judge Hiclanan clearly described . That same notation is still affixed to Exhibit 17 in the cunent proceeding. The evidence is clear that the Winkler tape, Exhibit 9 in Rice's post conviction pr oceeding, is Exhibit 17 in Poindexter's post conviction case. In fact, the State has stipulated to that fact In his testimony in this proceeding David Herzog, trial cOlllsel for co-defendant

David Rice, denied that he had ever been given a copy of the tape, or made aware ofthe existence of the tape . He testified that the reference to "a voicegram" made by Thomas Kenney, one of trial counsel for Poindexter, dming his opening statement, referred to a "[mJethod of mechanically recording the date and time and the instructions to the cruisers That's what I understand it to be I have never seen that system. All I know about it from talking to other lawyers and retired police officers That's what I Imow about the 911 system. There was a PlllCh card . That was the document Mr. Kenney refened to" PPCT at 444:3-9. Elaborating on that testimony, Herzog stated: "The voicegram is not [aJ tape recording It's not electronic monitoring It's not, you know, a cassette It's not a tape. It's not a reel-to-reel A voicegram is like a telegram . It's a printed document" PPCT at 444: 12-15. Thus, Herzog's testimony clarifies that Thomas

13

Kenney refene d Kenney was not refeni ng to a tape recOIding ofthe actual 911 call when to a "voice gram" during his opening statement at Poindexter's trial

2"

The fact that the OPD had arrang ed with the FBI to do a voice analysis ofthe 911 call and to withh old the result s oftha t analysis

From documents secured by David Rice's former counsel William C. Cunningham through a Freedom of Information Act Request lodged in

approximately

e) in Omaha 1977, we know that on August 17, 1970, the SAC (Special Agent in Charg sent an Airtel to the Director of the FBI stating: ed from the Enclosed for the laboratory is one copy of a tape recording obtain Omaha Police Department recording The enclosed tape was recorded from an existing tape (the original) one calls used by the Omaha Police Department in their normal emer gency teleph am for the period of 8117170 between the homs of 12:00 Midnight and 9:00 individual [Name redacted] inquired into the possibility of voice analysis ofthe would be making the call by the FBI Laboratory.. He was advised the matter pattems voice uent considered and that if such analysis were made and if subseq informal, were transmitted for comparison, such analysis would have to be strictly report oral an only also, ; as the FBI could not provide any testimony in the matter tment. of the results of such examination would be made to the Police Depar enhance Any assistance rendered along the lines mentioned above would greatly area, and I the prestige ofthe FBI among law enforcement representatives in this thus strongly recommend that the request be filVorably considered. ne enclosed In view ofthe foregoing, it is requested that the FBI Laboratory exami comparison tape Iecording and make the appropriate voice print to be letaine d fen against other tape recordings of suspects to be submitted at a later date" is of the 911 call PPCEx 66 Not only did the OPD ask the FBI to conduct a voice analys and agreed not to tape, but apparently the OPD agreed to the terms set forth in this letter "emba nass the FBI at a later date" Id

14

lmicated On October 13, 1970, the FBI Special Agent in Charge in Omaha comm preliminaty healin with the DirectOl in Washington about Duane Peak's testimony at the

g

on Septembel 28, 1970 The memo states: any use of Assistant COP GLENN GATES, Omaha PD, advised that he feels that two t agains trial r tapes of this call might be prej udicial to the police murde ofthis accomplices of PEAK and, therefore, has advised that he wishes no use been has plices accom two tape until afiel the mUlder trials of PEAK and the completed nal tape UACB, no furthel efforts ate being made at this time to secure additio recOldings ofthe Oliginal telephone call PPCEx. 64 (emphasis in original) the OPD These communications regatding the 911 tape ate cleat evidence that e only an OlalrepOlt anang ed with the FBI to conduct voice analysis on the tape, to receiv l of any written on the results of that analysis (thereby colluding to deprive defense counse Gates of the documents to be disclosed by the pIOsecutOl) and, at the request of Glenn could be OPD, to cease any "use" ofthe tape until after the trial because such use unication meant "preju dicial" David HelZog has testified that this exchange of comm l. PPC T at that the existence of the tape was "not to be exposed" to defense counse in my life as a 424:19-20 . He nuther stated: "I have never seen anything like that before trial lawyer " PPCT at 425:2-3. ant documents is The state's failure to tll1n over the 911 tape recording and attend

items pIOve that the all the mOle pIOblematic in light of the fact that it now appeats those is, has testified state's key witness lied. Tom Owen, an expert in spectrographic analys Duane Peak. If that there is a high pIObability, that the voice on the tape is not that of would have been Poindexter's trial counsel had the tape available to him during trial, he by playing the tape able to attack Peak's credibility either by similar expert testimony Ol

15

and asking the jmy to compare the voice with that of the witness, Duane Peak. Herzog's testimony clearly cOllobOIates that fact

3.

Information regarding promises ofleniency andlor threats of prosecution made by the prosecutor to Duane Peak in exchange for his testimony against the leaders of Omaha's National Committee to Combat Fascism (NCCF), Ed Poindexter and David Rice;

Duane Peak was arlested on August 28, 1970 and charged with first degree mmder He was intenogated nmnelOUS times and "admitted" planting the bomb that killed Officer Minard See, e g ,PPCEx. 140 at 59:7-16, PPCEx 131 at 141:11-12; PPCEx 151 at 474:7-11 He was held in the Douglas County Jail until moved to Fremont, Nebraka on or about August 31, 1970, and on May 4, 1971 was moved to the Youth Development Center in Kearney, Nebraska PPCEx 127 at 7:23.. In his deposition taken in 1980, John McCarty, Superintendent of that facility since before Duane arlived (PPCEx 127 at 14:14-19), testified that Duane left Kearney on May 17, 1971, having been fmloughed to IvIontana (PPCEx. 127 at 9:8-9; 14:11-13).. He was released on parole in Montana on February 12, 1974 (PPCEx . 127 at 12:2···13) The records indicate that the State of Nebraska was paying maintenance for Duane while he was in Montana PPCEx. 127 at 20:6·25 The recOIds also indicate that when he left Montana he went to NOIth Carolina (PPCEx 127 at 23:1-15), and the State of Nebraska continued to subsidize him. PPCEx 127 at 24:5-25: 16 Thirty-tinee months passed f10m his anival at Kearney until his release in Montana. That was the extent of his "punishment" for his involvement in the Minard bombing When Duane Peak testified in the morning at the Preliminary Hearing on September 28, 1970, he did not implicate David Rice OI Ed Poindextel In fact, he denied having seen Poindexter the day the bomb was supposedly constructed PPCEx. 140 at 16

pressm e applie d to 15 This drama tic tum-arOImd in his testim ony speaks loudly of the ony In the Peak dming the recess betwe en his mornin g arId his afterno on testim he was "shaki ng and afterno on, he told a very differe nt story DUarIe acknow ledged that been "shaki ng arId nervou s" in the afterno on (PPCE x. 140 at 78-2), arId that he hadn't the prelim inary nervou s" in the morning. PPCEx . 140. at 78-4 . In the afterno on at d as follows: hearin g, during cross exami nation by David Herzog , DUarIe testifie Question:

What happen ed to make you shake arId bring your nervou s condit ion about now?

Answe r:

I don't know

Question:

Answe r: Questi on:

You had a conver sation betwe en the time you were placed on the witnes s starId this mornin g arId the presen t time now, isn't that COllect? Yes And there were the same things that the police officer s told you about that would happe n to you, like sitting in the electri c chair, isn't that conec t?

Answe r:

I didn't have a charIce.

Questi on:

You didn't have a charrce, did you?

Answe r:

No.

Question:

You are doing what they WarIt you to do, aren't you.

i~~svver:

Yes.

PPCEx . 140 at 78:5-2 2 that in All indica tions are that the prosec utors made a deal with DUarIe Peak, treat him with consid eration of his testim ony agains t Rice arId Poinde xter, they would they were true to lenien cy, arId as a juveni le The record earlier cited establi shes that their word 17

had been The prosecutOls never disclosed to the defense that such an arrangement Neb. at 486 made. Thus, they withheld infOlmation material to the case Kula, 252 will play an "Material" means that "there is a stlOng indication that the inicnmation of witnesses, important role in uncovering admissible evidence, aiding preparation asis added) cOlIobOlating testimony, or assisting impeachment 01 rebutt al" Id (emph this case were Notwithstanding the clear law requiring disclosure, the prosecutOIs in silent about the deal that was made with Duane Peak

4"

Information regarding the seizure on July 28, 1970 of 40 sticks of DuPo ut Red Cross 50% Extra Strength dynamite by officers Jack Swanson regarding the arrest of Lamont Mitchell, Conroy Gray, and Luther Payne in Omaha .

ation A police repOlt dated July 28, 1970 recounts that Lt Perry received inform past," (PPCExs fr om an informant "who has given good information on dynamite in the cases of 92 and 93) regarding "three negro males" who were trying to sell seven not get a warrant dynamite "Due to the danger that might be involved" the police did ClOSS 50% They stopped the vehicle and found in the trunk 40 sticks of DuPont Red and Luther Extra Strength dynamite OPD arrested Lamont Mitchell, Como y Gray and Payne) They Payne. PPCExs 84, 85 and 88 (the auest records for Mitchell, Gray t Court were charged with possessing explosives and bound over to Omalra Distric r on April 21, Charges against all three men were dismissed by PlOsecutor Sam Coope 1971,f our days after judgment was entered against Poindexter

See PPCE xs 84-88,

90-91 never The facts regarding these arrests and the seizure of the dynamite were by OPD on disclosed to the defense before or during trial PlOperty allegedly seized Cross Brand Both 8/22170 at 2816 Parker S1. was described as "14 Sticks of DuPon t Red 18

on identified as a 40% and 50% Extra Strength Dynamite," PPCEx. 106, with Jack Swans of cOlllsel Had Reporting Officer, and was admitted as evidence at trial over objection the discovery and defense cOlillsel been aware of these facts - the auest of thIee men and discovered similar seizure of dynamite by Jack Swans on in July, 1970, who supposedly have been led dynamite in David Rice's house approximately 3 weeks later - they could and the Nebraska to significant discovery In any event, lillder the rules stated in Brady ure of that discovery statutes, Kula and Brown, the law in Nebraska requires disclos do not know what, information As the Nebra ska Supreme COUlt observed in Kula, [w]e would have if anything, an investigation by Kula into this anonymous phone call 674 (1983) revealed However, that is precisely the point." Brown, 214 Neb at 5,.

Police reports hom interrogations of Dnane Peak on Angus t 28,29 and 30, 1970"

Peak that Ihe record is replete with references to OPD inteno gation s of Duane

See, eg, were conducted after he was arrested on August 28,29 and 30, 1970. -590:20; at PPCEx.J51 at 2:13-18; at 564:14-565:18; at 576:22-578:25; at 589:22 t 28, 1970 615A:16- 618A:I0; and Ex 29, at 2:13-18 . A police report from Augus inteno gation born reflecting one inteno gation (PPCEx . 110), and a copy ofa transc ribed are no reports for August 31,197 0 (PPCEx. 29) were supplied to defense cOlillseL Ihere additional iIltenogations on August 28,

01

for August 29 or 30, that were disclosed to

s took place. See, Poinde xter's counsel . Yet the record recolillts that such inteno gation he had been e g PCCEx 131 at 231 :9-232:20 At the preliminary hearing, Duane said 28 th "abou t two questioned "the uext day" after his arrest at 02:30 on Friday, Augus t e Duane times " (I ex 29 at 64-66) Ihis testimony is somewhat confusing becaus g, contrary to the apparently believed he had been aneste d Friday night/Saturday mornin 19

actual date of arrest which was very early on Friday, August 28

th

(PPCEx. 131 at 231 :8-

interrogated on 19. When asked by Poindexter's counsel how many times he had been matter which days Sunday he answered "two or tlnee" times PPCEx. 131 at 64:25. No s where police Duane is refelling to, his testimony accounts for at least tlnee interrogation reports and/or transcriptions were not provided to defense counsel those Because of the variations in Duane Peak's story, it was apparently during ld, that Duane 's intenogations for which police reports or transcriptions have been withhe xter story was modified and expanded to involve defendants Rice and Poinde E

Duane Peale's credibility was the "lvnch pin ofthis case.".

the tape Ihe information withheld from defense counsel -- information regarding to do a voice recording of the 911 call; the agreement between the OPD and the FBI ation about the analysis of the 911 call and to withhold the results of that analysis; inform deal made by the OPD with Duane Peal, in exchange for his testimony

against Rice and

on August 28, Poindexter; and reports or transcriptions of intenogations of Duane Peale disclosure of 29 and 30 - were all critical and material to Poindexter's defense in that such information would have assisted cOlllsel in impeaching Duane Peak's

testimony

e to Herzog and before the jury Also critical was the failure of the prosecution to disclos Donnie Peale, Monis on a significant police reports indicating the caller may have been on as critical to not Duane 11354 :8-356 :24, PPCEx 107 . Herzog described this omissi the defense in this case PPCI at 392:22··393:22 David Herzog described Duane Peak as the "pivotal lynch pin of the State's testimony was evidence." PPCT at 388:14 According to Frank Morrison, Duane Peak's "the only reason [Poindexter] was convicted

You [would have gotten] directed verdict

20

in the case

if it hadn't been for Duane Peak's testimony, we [would have] had a

20:13-18 Duane directed verdict, it would n't have even gone to ajury " PPCEx 102 at ce that would Peak's credibility was essential to securing a conviction Thus, any eviden exter's defense demonstrate weakness in that credibility was absolutely crucial to Poind withheld such This memorandum chronicles numerous instances where the prosecution because of a evidence, and defendant has spent the last thirty seven (37) years in prison l violations conviction based on these examples of falsehood, deceit and constitutiona Under such circumstances the materiality of evidence withheld by the

prosecution is

Brown, supra abtmdantly clear. See Brady v. Maryland, 373 U.S at 87; Kula, supra;

II

SEL WAS POINDEXTER'S RIGHT TO EFFECTIVE ASSISTANCE OF COUN VIOLATED DURING HIS TRIAL AND APPEAL. the Poindexter has argued in Claim I that the law enforcement officials and

on with respect prosecutors in his trial were responsible for acts of commission and omissi over to his to evidence and discovery matelials that should have, by law, been ttuned tive in counseL In the alternative, Poindexter argues that his counsel were ineffec significant ways that substantially plejudiced him and v. The main authOlity for an ineffective assistance of counsel claim is Strickl

several duties, Washington, 466 US 668 (1984). Cotmsel fOl a criminal defendant has counsel has the such as loyalty and avoiding conflicts of interest, but most impOltantiy, reliable duty to bring to bear such skill and knowledge as willre ndel the trial a tive adversarial testing plOcess. Id at 688 The standard for determining ineffec proper functioning assistance of counsel is whether counsel's conduct so undermined the of the adversarial process that the trial carmot be lelied on as having produ

ced ajust

test: 1) counsel's result Strickland, 466 U.S 668. The Court sets forth a two-plOnged 21

performance was deficient and 2) any deficiencies in counsel's performance must be prejudicial to the defense Whether counsel's performance was deficient is judged by the standard of reasonably effective assistance, and a defendant must show that counsel's representation fell below an objective standard ofreasonableness, considering all ofthe circumstances, on the facts oj the particular case, viewed at the time ojcounsel's conduct Strickland,

466 US at 690 (emphasis supplied) In discussing counsel's duty to investigate and make decisions based on such investigation, the COUlt said [S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable pr ecisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary In any ineffectiveness case, a particular decision not to investigate must be dir ectly assessed for reasonableness in all the ciIcumstances, applying a heavy meaSUle of deference to counsel's judgments. Strickland, 466 U.S. at 690,691

In addition, it must be shown that the deficiencies in counsel's performance were prejudicial to the defense, or that counsel's performance had an adverse effect on the defense Defendant does not need to show, however, that the deficient conduct was more likely than not to have altered the outcome of the case. Strickland, 466 US. at 693 What the defendant must show is that there is a reasonable probability that, but fOl counsel's enors, the result ofthe proceeding would have been different A reasonable probability is a probability that is sufficient to undermine confidence in the outcome Str ickland, 466 U S at 694 The assessment of prejudice should proceed on the basis that

22

ng the standards the decision-maker is reasonably, conscientiously, and impartially applyi that govern the decision Strickland, 466 U S at 695 deficient The appIOpriate question to be asked when assessing whether counsel's that, absent the performance was prejudicial is whether there is a reasonable pIObability guilt of the enors, the fact-finder would have had a reasonable doubt regarding the before the judge or defendant; in asking this question, the totality of the evidence that was out that the jruy must be considered. Strickland, 466 u.s at 695. Strickland points on the faimess of ultimate focus of the ineffective assistance of counsel inquiry should be the trial

fd

ed an InParkus v Dela, 33 F 3d 933 (8th Cir. 1994), the Eighth Circuit assess district corut had ineffective assistance of counsel claim. The corut determined that the ' main defense ened in denying the defendant (Parkus) an evidentiary hearin g Parkus rate upon the was that due to a mental disease or defect he lacked the capacity to delibe first degree crime Missorui required "deliberation" as the requisite mental state for l health records, but mruder. Defen dant's counsel requested defendant's childhood menta fruther was told that they had been destroyed Defendant's counsel made no eration," defense investigation regarding those records. The jruy rejected Parku s' "delib l, through and convicted him offirs t degree mmder Later, defendant's habeas cOlllse l health medical more rigoIOus investigation, discovered that defendant's childhood menta mental condition records had not been destroyed and contained diagnoses of defendant's

v Dela, 33 ranging fiom mild mental retardation to childhood schizophrenia Parkus F 3d at 936.

23

During the original trial, a defense psychiatrist examined defendant and formed the opinion, without the unavailable childhood mental health records, that he suffered from no mental disease or defect Once the records were discovered, the psychiatrist was allowed to examine them and concluded that had he seen the childhood mental health records before previously testifying, he would have opined that defendant did suffer from a mental disease or defect as defined by Missouri law Id The defendant based his ineffective assistance of counsel claim on trial counsel's reliance on the statement that the defendant's childhood mental health records had been destroyed and his failure to investigate whether there were any other institutional records . Trial counsel knew that Parkus' sole defense centered on having impaired mental capacities. Counsel could not have known, however, the extent of defendant's mental impairments as shown by mental health records from his various youth placements because counsel didn't lmow such records existed . Parkus v Dela, 33 F 3d at 936-37 Had the mental health records been made available to him, the psychiatrist that testified at the original trial would have changed his clinical opinion because after seeing the records, he was of the opinion that the defendant did suffer from a mental disorder Furthermore, the records could have had a strong impact on the penalty phase and the court determined that a reasonable probability existed that ifthe jury had been given the opportlmity to consider this additional evidence they would not have convicted the defimdant of first degree murder at the guilty phase or would not have imposed the death penalty at the penalty phase Thus, the defendant was prejudiced by counsel's failure to

fin ther investigate the defendant's mental health r ecor ds and was entitled to an evidentiary hearing on the claim. Parkus v Dela, 33 F 3d at 938-39

24

The circumstances ofthe Parkus case me dramatically similm to the instant case Here, Poindexter's lawyers were denied access to materialregmding Duane Peale, e g. the tape recording and police reports of his intellogations, and information regmding the July, 1970 mrest of three men and seizure of dynamite similm to that supposedly found in Rice's basement Since Poindexter's trial and conviction, counsel has discovered the existence of that information plus the existence of COINIELPRO (see Amicus brief filed in these proceedings by the Nebraska ACLD) and the collusion of the OPD and the FBI in withholding information about the 911 tape As in Par kus, trial counsel was ineffective in failing to discover some of that information See also Simmons v Luebbers, 29 F 3d 929 (8th Cir. 2002).

Applying the for egoing law to the pr esent case, the following instances and circumstances fiom Poindexter's trial me evidence that his cOlllsel were ineffective in a number oirespects. Absent such errors, the jury would have had a reasonable doubt regmding Poindexter's guilt, and the result of the trial would have been an acquittal A

I rial cOlllsel and appellate COlllsel failed properly to investigate and present to the WLV evidence concerning the 911 tape recording of the alleged Duane Peak call of August 17, 1970.

Trial counsel knew, or should have known that a 911 tape recording existed, and should have obtained a copy for review. Analysis of that 911 call would have illustrated that the voice on the tape was not that of Duane Peak There were indications at the time of trial that a tape recording had been made of the 911 call The most obvious of these was the comment by Thomas Kermey, cocounsel for Ed Poindexter, during his opening statement, "the police have a voicegram; in other words, every call that is placed to the emergency number at the police station is

25

recorded

" PPCEx 151 at 143 :6.. This comment should have alerted counsel to

inquire into the possible existence of the tape recording and to question whether Duane Peale had actually made the call at the instigation of their client(s) Because we now have evidence adduced by a qualified expert witness with an international reputation that the voice on that tape is not the voice of Duane Peak, we can assume that had such evidence been presented to the trial jury, and had the jury had the opportunity to listen to the tape, there is more than a "reasonable probability" that the outcome of the proceeding would have been different

And beyond the expert's

conclusion that the voice was not Peak's, we note also the common sense conclusion that the voice does not even sound like a IS-year old boy

In this context, a reasonable

probability is a probability that is sufficient to lmdermine confidence in the outcome, i e whether, "absent the enOlS, the fact-finder would have had a reasonable doubt regarding the guilt of the defendant." Strickland, supra, 466 US at 691. The following discussion focuses on other significant issues impacting Peak's credibility B

Trial counsel failed effectively to cross-examine Duane Peak regmding inconsistent testimony and statements.

Duane Peak, the prosecution's main witness, was 15 years old at the time ofthe explosion which killed Officer Minard . Duane was a school drop-out (PPCEx at 64:79), who acknowledged dmg and alcohol use (PPCEx 151 at 383:8-25) He testified that he made the call to the 911 operator which summoned officers of the OPD to a vacant house where he had earlier planted a bomb Although his story about the entire incident changed with virtually every telling, he never wavered from his "admission" that he had made the call Duane's testimony was viltually incredible, however, because of the significant inconsistencies in his various stories.

26

him and his 1. Duane Peak's first story contradicted other versions told by later sworn testimony. Foxall he When he was first arrested on August 28,19 70 Duane Peak told Sgt because his cousin had gone to Headquarters [ofthe NCCF] on Sunday August 16,19 70 pe on his desk had told him that a womarI was looking for him He found a white envelo t tell anyone with his name written on it in green, which contained a note saying "Don' to go to the about the note. Keep it quiet. A top secret " The note instructed him e that contained Lothrop Drug Store in the alley by the incinerator and pick up a suitcas alley between highly confidential papers and, by 22:00 to 23 :00 hours, to take it to the a house across Lake and Ohio Street and leave it on the field side by the fence around booth at 24th th from 29 and Lake Street. The note also instmcted him to be at the phone and Burdette at 2:00 am on Monday, August 1f

n

,

and he would receive a telephone call

from a woma n He followed those instructions and at about 2:00 am he received a call tell them that a whose voice he did not recognize who toid him to call the police and Ohio Duane asked woman was screaming at 2867 Ohio, and to give his address as 2865 ever saw the suitwho the woma n was and was told not to ask questions, and to forget he He stated he left the case . Duane said he made the call, but used a different tone of voice. PPCE x 110 at 1-3. suitcase near a fence as instructed, but never took it to 2867 Ohio St involved vVhen he was inteno gated on August 31,197 0, it was the first time he Rice and Poindexter.

2.

Duane Peak told inconsistent stories about the origin of the suitcase and dynamite .

went to the During his August 31" interrogation, Duane stated that Ed Poindexter ite PPCE x 151 at basement in David Rice's house to get a suitcase arId a box of dynam

27

581:13-16; TEx 29 at 8:2-5 In his Preliminmy Hearing testimony (PPCEx 140 at 45), his Deposition testimony (PPCEx 131 at 74) and the trial testimony (PPCEx 151 at 423:1-424:4) he stated that Raleigh House gave him a ride and stopped at Raleigh's house where he picked up a suitcase full of dynamite which he gave to Duane and then drove Duane to David Rice's house Duane gave the suitcase to Poindexter and Rice, and then Poindexter told Rice to go to the basement to get a box and they then removed all but three sticks of dynamite from the suitcase and put them in the box which Rice retUined to the basement CUliously, Raleigh House was never prosecuted for his PaIt in the incident, although in Duane's deposition and trial testimony he implicated Raleigh House as the one who provided the dynamite Id 3.,

Duane Peak told inconsistent stories about how he handled the bomb .

At trial, Duane testified that when he picked up the suitcase from David Rice's house, he opened it and removed a blasting cap from the inside of the detonator (PPCEx 151 at 467:2-10) He never used the term "detonator" before in any of the other intenogations, his deposition, or the preliminmy hearing; nor did he previously assert that he had opened the suitcase when he picked it up

4"

Duane Peak told inconsistent stories about how he handled the suitcase in Delia Peak's bathroom.

Although he had testified several times that he had taken the suitcase into Delia Peak's bathroom, during his August 28 th interrogation he said he tried to open the suitcase with a fingernail file but couldn't (PPCEx 110 at 3). During his deposition, he testified that he unlocked the suitcase, looked at it, closed it, and locked it (PPCEx 131 at 131 :21132:13) At trial, he testified that when he picked it up he opened the suitcase, and took 28

-471:13), then the blasting cap and put it back inside the dynamite (PPCEx. 151 at 470:24 closed and locked the suitcase . Id 5.

Duane Peak told incons istent stories about how he left the suitcase at 2867 Ohio Street .

suitcase DUling an August 31 interrogation, Duane testified that when he took the TEx 29 at to 2867 Ohio St., he placed it in the middle of the floor of the f10nt room 19:25-20:4 He then "set it down and it was sitting straight up

"TEx 29 at21:1 1 At

he stated he set the preliminary hearing (PPCEx 140 at 59:13-16) and in his deposition, x 131 at 145:13the suitcase in the doorway of the house, and laid it on its side. (PPCE -17 At trial he 20, 147:2-6, 16-20 In his deposition he said he unlocked it Id. at 149:12 at 474:12-475:2 set the suitcase on the threshold, unlocked, lying on its side. PPCEx 151 to comport with From this sequence it seems clear that Duane 's story had to be clarified lying on its the descriptions of Officer Minard's colleagues that the suitcase was visible 248: 14,24- 25 side when they anived at the house PPCEx 151 at 213:20-22, and at 6..

Duane Peak told iucons istent stories about how the suitcase was armed using thumb tacks .

to get Dming his deposition Duane testified that when he anived at Rice's house it," and the suitcase, Rice opened the door and said to Peak "[j]use be careful with into house and nothing else PCCEx 131 at 118:7-21 At trial, Peak stated Rice let him because told him where the suitcase was Peak said he asked Rice for thumbtacks with a wire Poindexter had told him how to detonate the bomb using a clothespin wrapped around a thumbtack PCEx.151 at 465-66

29

7.

Duane Peak told inconsistent stories about the address Peak gave to the 911 operator and other information regarding the 911 call.

During his deposition, Duane said he gave the 911 operator his address as somewhere on Pratt, PCEx 131 at 179:10-19, and that he "just made it up" Attrial, he testified that he gave his address as 2865 Ohio PCEx 151 at 480:3. At trial, he said the 911 operator asked him for his telephone number (PCEx 131 at 180:8-10), but the tape and the transcript of the 911 call reveal that the operator did not ask for a phone number PCExs 17,116 and 117 While some variations in testimony are to be expected, those cited above render the story itself incredible, and the sequence suggests that the story changed and was clarified with each new telling, and with each new interrogation. At the August 31" interrogation, chief prosecutor AIt O'Leary told him "1 want to go over it once again As a practical matter, it doesn't make any difference what the truth is concerning you at all " TEx. 29 at 25:19-21 The following comment made O'Leary, demonstrates a very

cavalier attitude toward the truth: 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, Duaue, is that eventually you are going to have to 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. Do you understand what I am trying to tell you? TEx. 29 at 26:8-16

Trial counsel's cross-examination of Duane Peak (including the crossexamination conducted by David Herzog, trial counsel for David Rice) is transcribed

30

from pages 497 to 605A and re-cross from 626 to 630 in PCCEx 151 Those cross examinations were deficient in several respects, as discussed below: 1

Counsel recounted for Duane the different stories he had told, but never challenged him on the inconsistencies. Kenney asked Duane about the story he told on August 28 th (PPCEx 151 at 517:16-519:16), about the story he told on August 31, 1970 (PPCEx. 151 at 519: 17-525:12), and Herzog questioned him about interrogations on August 28, August 31 and September 5, 1970 (PPCEx 151 at 563:10-21), and showed him a chart (TEx 28) which listed the eight various dates when he was supposedly questioned PPCEx 151 at 565:3-590:20 These questions did not include any that were confrontational to Duane - so even though the stories differed in many respects, those inconsistencies were not pointed out specifically to the jury

2

The stories about the suitcase were contradictory - on August 31 he testified that Ed Poindexter went to the basement in David Rice's house to get a suitcase and a box of dynamite. PPCEx 151 at581:13-16;TEx 29 at 8:2-5. Later in the same interview he said that the suitcase had been in the bedroom, not the basement TEx [email protected] In the preliminaIY hearing and at trial he said that Raleigh House had given him a ride, had stopped by Raleigh's house where he (Raleigh) picked up a suitcase, drove Duane to David Rice's house where Duane callied it inside and gave it to Ed and David That suitcase was very heavy as it contained dynamite

PPCEx

140 at 45, PPCEx.131 at74,andPPCEx.151 at 423:1-424:4 DUlinghis

31

cross-examination, Herzog mentioned the different stories, but did not follow through . PPCEx 151 at 589: Again, counsel did not confront Duane with the specific inconsistencies and the jUly was left alone to identify those inconsistencies gloves 3. & 4. At trial was the only time he testified that he was given plastic ed before he handled the dynamite, and he had never before, in any record statement, used the term "detou ator" Counsel did not point out those idiosyncrasies to the jury. 5

The contradictions as to what happened in Delia's bathroom with the suitcase should have been heavily emphasized by trial counsel who should have confronted Duane with the markedly different stories In the bathroom he either tried to open the suitcase with a fingernail file, but couldn't (PPCEx..110 at 3), or when he picked it up at David 's house he opened the suitcase, and took the blasting cap and put it back inside the dynamite (PPCEx 151 at 470:24-471:13),01, in the bathroom, he at unlocked the suitcase, looked at it, closed it, and locked it (PPCEx. 131 131:21-132:13). Ml. Kenney mentioned the contradictory stories once, but didn't follow up and challenge Duane PPCEx . 151 at 501:5-13

6

Duane finally decided that he laid the suitcase on its side in the fiont doorway at 2867 Ohio St, PPCEx 151 at 474:12-475:2, arrd not sitting . 29 straight up in the middle of the fiont room as he had said earlier TEx at 21:11; TEx 29 at 19:25-20:4 Trial Counsel did not challenge Duane about these contradictions

32

At trial was the only time Duane stated that he had asked David Rice for

7

thumbtacks when he picked up the suitcase because that was how he could have triggered the bomb. PCEx 151 at 465-66 Again, no challenge from trial counsel 8

Clearly, Duane had some memory gaps with respect to the 911 call, and trial counsel did not confront him with those inconsistencies

C

on Trial counsel failed effectively to confront State witnesses Jack Swans istent incons and Robert Pfeffer about conflicting police reports and testimony regarding the location and the discoveJY of dynamite at Rice's house.

At trial, OPD Officer Swanson testified that he found dynamite in Rice's was also in the basement, PPCEx 151 at 712:5-16, and that OPD Officer Robert Pfeffer ry to Swanson's basement when he found it PPCEx. 151 at 714:2-3 at 734:4-6. Contra PPCEx 151 at testimony, Pfeffer testified that he never went down to the basement. r's testimony 732:20- 24 Whether perjury or simply an inconsistent statement, Pfeffe ely significant about being in the basement when the dynamite was found was an extrem ed the discrepancy about which trial counsel should have vigorously cross-examin inconsistency witnesses The trial record contains no such cross examination This 1 emains

d that a key issue in this case, as during the May 30 2007 hearing, Pfeffer testifie

him. PPCT he walked down first to the basement, and Jack Swanson was close behind th vehemently at 366: 15-23 . When confronted with this contradiction on May 30 , he

denied that he had testified thus at trial PPCT at 372-373

For Officer Pfeffer to now

testimony of both disavow his trial testimony calls into question the credibility of the trial Payne and Officers Swanson and Pfeffer, particularly when Swanson aneste d Gray, dynamite that was Mitchell just three weeks earlier and found some of the exact type of 33

claimed by Swanson and Pfeffer to be found in Rice's basement An effective counsel would have vigorously cross-examined these officers at trial. D.

Trial counsel failed to subpoena or inquire into missing police reports for August 29 and August 30, 1970 re statements made by Duane Peak

As discussed supra, reports andlor transcriptions of interrogations from August 29 and 30 and additional intenogations on August 28,1970 were not disclosed to trial counsel, who then failed to subpoena or further to inquire into those missing documents. I rial counsel apparently suspected that these extra interrogations took place, because during his deposition Duane was asked about the tluee intenogations that took place on August 28 th PCCEx 131 at 231 :9-232:20 Fmthermore, a reasonable person would presume that Duane was not left alone on August 29th and 30th , and would then suddenly change his story on August 31 st The faihue of trial cOlllsel to inquire further about these additional intenogations was critical because of the many significant changes that occurred in Duane Peak's story, and the possibility that, with information about these interrogations, counsel would have had additional opportunities to impeach this witness E

Trial counsel failed effectively to investigate, research and offer testimony

to discredit state expert witnesses Kenneth Snow and Roland Wilder despite the fact that these witnesses' testimony was speculative and not supported by reliable science. 1,

Metal particles on the long nosed pliers could have come flom an),\vhere.

Irial counsel failed to present expert testimony that any metal particles found on the pair oflong nose pliers (TEx. 35) could have come from a wide variety of sources. Had trial counsel presented such expert testimony, the testimony of Kenneth Snow that metal particles found on Exhibit 35 were the same type of wire (lEx 44) found in the basement of the house next door would have been discredited. PPCEx. 151 at 784:734

ny specifically to 789:23 PPCEx.151 at 746:16,789:23.. Moreover, there was no testimo house next door, to link the copper wire, found near a workbench in the basement of the

merely that the the explosion PCEx 151:740:2-746: 16; 789:21 Ihe testimony was laboratory for small piece of copper wire was found, collected, and taken to the FBI analysis

2.

Trial counsel failed to presen t exper t testim ony showing that the long nosed pliers seized hom Rice's house did not cut the coppe r wire found in the basem ent of the house next door.

d Wilder, Poindexter's defense counsel did not challenge the testimony of Ronal s David the FBI firearms and tool marks examiner, with an opposing expert witnes Herzog conducted the

ClOSS

examination of this witness eliciting from Mr Wilder the

and the wire, admission that while there were 15 points of similarity between the pliers exter's there were 25 points oj dissimilarity PPCEx. 151 at 866:21-867:6 . Poind testimony counsel's faillue to present an expert witness to discredit Mr Wilde r's constituted ineffective assistance of counsel

3.

Trial counsel failed to presen t exper t testim ony that the testing done by Kenne th Snow was an inadeq uate scientific testing metho d to determ ine a specific match of one sampl e source to anoth er.

d at Robert Webb, a special agent with the FBI for 17 years, now retired, testifie the FBI was in the May 30, 2007 hearing. peCI at 284:14-285:13 . His expertise with y 300 times in materials analysis, and he had testified as an expert witness approximatel : 14 his career, in many ofthos e cases about dynamite PPCI at 285: 18-286 Snow, Webb was extremely critical of the testimony given at trial by Kenne th in Poindexter's especially with reference to his identification of dynamite particles found s clothing PPCI at 298:10-299:2 Webb was particularly critical of Snow' 35

42 as annnonia chalacterization of the dynamite contained in trial exhibits 49, 50 and nia dynaIllite is a dynaIllite without fLUther classification: "As already described, ammo ite doesn 't tell general classification. Io say that two materials ale both annno nia dynam same class us much, because they could be very differ ent materials still within that

of

dynaIllite." PPCT at299:10-15. When asked if Frank MOllison's cross-exaIllination of Snow dealt with

any

nation palticulars about ammonia dynaIllite, Webb answered that the cross-exami and different" nom contained "absolutely no detail whatsoever," and that it was "unusual -20 . Webb cross-examinations he was used to encountering in 197L PPCI at 300:14 en different types described tests that could have been done in 1971 to differentiate betwe and x-ray of ammonia dynamite: thin layer chromatography, innme d spectroscopy powder denaction.

ppcr at 301:9-14. Although the first two of those tests were

ate and identify conducted by Snow, they were only used qualitatively - that is, "to sepal Without the material but not to quantitate formu lation s" PPCI at 301:15-24 nom a general quantitative analysis, the jmy only lmew that the ammonia dynamite was have to be a class . "In order to specifically associate all the materials, there would PPCI at 302:2-6 quantitative analysis to determine what the chemical formulations ale." e those specific areas No questions \Vele asked during CIOSs-examillation at trial to explor

of difference. PPCI at 302:7-9 ce that Ihus, defense cOlllsel made no effort to discolllt the prosecution's eviden there were all the dynamite was the annnonia type by going fmther to establish that n with the jmy different classes of ammonia dynaIllite Ihis fililme left the misimpressio

36

that any dynamite pmticles claimed to be in the pocket of Poindexter 's shirt matched the type of dynamite pmticles found flOm the bombing.

F

T rial counsel failed to investigate and present the following factual issues, which would have raised ftnther doubt as to the guilt of Poindexter:

1.

Trial counselfailed to inquire into the significance of Robert Cecil testing positive for dynamite on his clothing or in his possession.,

Ihe OPD had mrested Cecil, chmged him with conspiracy to commit first-degree mUlder, then released him. PPCEx 151 at 723:8-13; 727:2-7, 16-17; 817:8-181:2.. Yet his clothing showed the presence of dynamite. Irial counsel failed to develop any line of questioning in an effmt to show that someone other than Poindexter was responsible for the bombing.

2"

The significance of the seizure of dynamite and arrest of three men by the same police officers who were involved in the RicePoindexter matter.,

Similar to the point discussed above regarding Robert Cecil, the facts relating to the police stop by Jack Swanson on July 28, 1970, when Swanson seized several sticks of dynamite after being "tipped" that Luther Payne, Lamont Mitchell, and Conroy Gray possessed explosives, should have been pUlsued by defense counsel These cases were dismissed after David Rice and Ed Poindexter weJe convicted PPCExs. 84-88,90-100. Investigation of this matter by trial counsel could have led to discoverable evidence regarding the source of the dynamite allegedly "found" in Rice's basement More impOltantly, defense counsel's failure to present evidence that someone other than Poindexter was responsible for the bombing left the jUly with little alternative than to convict Poindexter 37

G

I rial counsel failed properly to investigate and present evidence to the Wry that Duane Peak knew nothing about who made the bomb.

he was Although Duane Peak testified that he had been with Poindexter when had opened the making the bomb and putting the dynamite in the suitcase, and that he ication technician suitcase and replaced the caps inside the sticks of dynamite, the identif s and hands to for the OPD testified at trial that he never took swabs hom Peak's clothe t testimony as test fOl dynamite . Defen dant's trial counsel failed to investigate or presen testimony that he to why such swabs were not taken. PPCEx. at 724:4-6 Thus, Peak's handled dynamite was uncorroborated Donald Even though Duane allegedly had a suitcase on the day of the bombing, at 142·53; PPCEx Peak told police that that suitcase was filled with clothes. PPCEx. 151 already 37 Trial counsel failed to pose any questions as to whether Duane Peak possessed the suitcase he was canyin g on the day of the bombi ng III

ERVE IRIAL COUNSEL AND APPELLA IE COUNSEL FAILE D IO PRES THE ERRO R OF A UNIFIED IRIAL WHIC H VIOLATED ED POIN DEXI ER'S RIGH I TO A FAIR AND IMPARTIAL WRY was to At the time oftrial in 1971 the Nebraska statute provid ed that the jury

1 Nothing in the decide both the questions of guilt and punishment. Neb. Stat §28-40 guilt and statute, however, required that the jmy in one session determine both conviction by a punishment Indeed, the plain language of the statute suggests that after ment". jmy ("upon conviction"), the jury would then meet again to "fix the punish ding Nevertheless, common practice in Nebraska was to have a lmitary procee

38

to preserve Trial counsel was ineffective in failing to object to jrny instructions on sentencing, and the errOl ofthe unitruy system, failing to move for a separate hearing failing timely to object to evidence relevant only to sentencing issues has denied Although, via a previous Older issued by Judge Spethman, this court n, Poinde xter's Poinde xter's petition for an evidentiary hearing on Count IV of his petitio th right to appeal this counsel made an offer of proof at the May 30 hearing to preserve his

unitary trial was issue. Poinde xter's demm rer challenging the constitutionality of the that required the received into evidence (PPCEx. 149), as well as the jrny instructions x. 157) Poindexter jrny to decide both guilt 01 innocence and the penalty (PPCE into the fact Obviously, irrelevant considerations about sentencing were injected State had proven finding process diverting the jmy fiom the central issue of whether the NCCF newsletters, guilt beyon d a reasonable doubt. For example, the highly prejudicial improperly some of which were held by the Nebraska Supreme Comt to have been and could have admitt ed, were available to thejm y dming all of their deliberations, ment easily cOnlllsed the jmy about the separate concepts of guilt and plmish l to lose Furtherm01e, the unitary trial procedure caused Poinde xter's counse guilt in exchange f01 credibility with the jury and allowedjur01s to be willin g to vote f01 a life rather than a death sentence" David Helzog testHied that: that "[ilt was almos t like defense schizophrenia. I'm asking the jury to place then And doubt. very, very high burden on the State of guilt beyon d a reasonable The I say, oh, by the way, if you do convict my client, will you kill him? jrnis our which , burden selection of a jury and asking jurors to impos e this high me pmden ce imposes on the State and our government, really places - placed " mercy for asking I'm e almost with two strikes against my client, becaus PPCT at 402:2-16

39

In addition, David Herzog testified that the unitary trial system "inhibited the use of the Fifth Amendment immunity from being compelled to testify, but almost forced the defendant to testify Because while you're focusing on the transaction and the issues [you] were also attempting to show that David Rice was a real life human being." PCCT at 403: 23-404:4 Thus, even though this comt has not granted relief on Poindexter's fomth claim, the evidence shows constitutional errOl by defense counsel's failme properly to preserve this issue for appeal Mor e significantly for the present issues under consideration, the testimony discussed above casts ftnther doubt on the notion that Poindexter had anything to do with the Minar d death IV

APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE ON APPEAL THE FOREGOING ARGUMENTS. Exhibit 139 in this proceeding lists the arguments raised by counsel on appeal, not

including prosecutorial misconduct 01 ineffective assistance of trial counsel Counsel on appeal was ineffective in failing to raise those argmnents V

THE DEFICIENCES CITED BY THE NEBRASKA SUPREME COURT IN THE APPEAL OF THE RICE POST CONVICTION PROCEEDINGS HAVE BEEN RECTIFIED IN THE INSTANT PROCEEDINGS. In 1982, David Rice appealed to the Nebraska Supreme Comt from Judge

Hic!Gnan's decision denying him relief in his post conviction action In State v Rice, 214 Neb 518 (1983), the comt held, inter alia, that Rice had failed to prove his allegations In this proceeding, however, Poindexter has presented a very different case First,

Poindexter has located Duane Peak and secmed a voice exemplar from him; second, that voice exemplar has been analyzed by one ofthe most eminent experts in the field, and the voice determined not to be that oj Duane Peak; third, the tape recOiding ofthe 911 call 40

has been played in open court where any reasonable person can discem that the voice on the tape is not that of a 16-year old boy; and fomth, Poindexter has produced copies of F BJ correspondence proving theiI involvement with analysis of the 911 tape (notwithstanding OPD's denial of that involvement), and the OPD's statement that any use of the tape might be "prejudicial to the police murder trial against two accomplices of Peak" And finally, the testimony of OPD officer Pfeffer and Ex. 107 (the withheld police report) illustrate critical exculpatory evidence withheld from the defense These factors account for a very different case than the proceedings before Judge Hickman and the Nebraska Supreme Comt in the early 1980s CONCLUSION

Prosecutorial misconduct is an offense which undermines the integrity of om justice system. When those who have been entrusted with the enforcement of our laws ignore the prohibitions imposed on them by the legislatUle through statutes, and by the judiciary tluough case law, they insult the entire legal system, and upset the scales of justice When prosecutorial misconduct is coupled with ineffective assistance of cOlIDsel, presented in this case, a defendant has two strikes against him from the start Edward Poindexter has met his burden of proving both prosecutorial misconduct and ineffectiveness of trial and appellate cOlIDseL He did not receive fair jury trial in 1971 because of these fimdamental constitutional violations Accordingly, he must be given a new trial to prevent a flnther miscarriage of justice DATED:

June 42007

41

EDWARD POIN DEXT ER Defendant, BY:

Robert F Bartle, #15010 BARI LE & GEIER 1141 H Street, Box 83104 Lincoln, Nebraska 68501-3104 (402) 476-2847 JOHN C. VANDERSLICE, #18722 Federal Public Defen der's Office 112 Federal Building 100 Centennial Mall N Olth Lincoln, NE 68508 (402) 437-5871 BETH LITTLE HAMILTON, #23017 3535 CalveIt Street Lincoln, NE 68506 (402) 327-0368

(~d~_.

--~~~~~~~~7~------~~

Robert F. Bartle, #I501 0 Attorney for Defendant

& a ;t;~dli;;~

Beth Little Hrul1ilton, #23017 Attolney fOl Defendant

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