Edward Poindexter`s Closing Argument Brief

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Edward Poindexter`s Closing Argument Brief
IN THE DISTRICT COURT OF DOUGLAS COUNTY, NEBRASKA
STATE OF NEBRASKA,
DOCKET 81 PAGE115
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Plaintiff,
Vs
EDWARD POINDEXTER,
Defendant
CERTIFICATE OF SERVICE
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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.
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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
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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
42