Mondo we Langa (formerly David Rice) filed an appeal with the Nebraska Appellate Court over his petition for post-conviction relief under a ruling by the U. S. Supreme Court, Martinez v. Ryan, permitting the procedure over four decades after trial. Mondo has been imprisoned since August 1970 when he was charged with the bombing murder of Patrolman Larry Minard, Sr. Officer Minard died August 17, 1970, responding to a 911 call about a woman screaming in a vacant house.
Mondo we Langa and Edward Poindexter were the leaders of Omaha’s Black Panther affiliate chapter and the targets of J. Edgar Hoover and the agents of the Omaha FBI office lead by Special Agent-in-Charge Paul Young. Young, under orders from Hoover, long-time director of the Federal Bureau of Investigation, manipulated the prosecution of the two Panther leaders and withheld a laboratory report from the FBI Crime Laboratory on the identity of the 911 caller. Mondo states that the recording of the 911 call should not have been withheld from him and the jury should have listened to the voice of the anonymous caller luring the police into a deadly trap. Mondo’s petition for a new trial is filled with a litany of errors and problems with the prosecution of the two men known as the Omaha Two.
Mondo’s petition, which the appeal concerns, cites a long-standing problem of ineffective counsel during the cross-examination of Duane Peak, the confessed teenaged bomber over inconsistent statements. Peak gave two conflicting accounts, both under oath, over the triggering of the bomb and the involvement of Mondo in the crime. Peak gave two different versions of removing fingerprint evidence, gloves or cleaning. Peak had two stories about the 911 call, one of which conflicts with the recording itself.
The petition states that trial counsel, David Herzog, failed to examine conflicting trial testimony, between detective Jack Swanson and detective Robert Pfeffer, over the location of the dynamite allegedly seized from Mondo’s basement. Swanson said the dynamite was in plain sight in a coal bin while Pfeffer claimed the explosive was hidden under a wooden door. Further, Swanson testified that he found the dynamite and that Robert Pfeffer was there with him. Pfeffer, however testified he was never in the basement.
Duane Peak’s contradictory testimony about the involvement of Mondo in the crime during the preliminary hearing is cited along with Peak’s inconsistent statements to police.
The petition complains of the failure of trial counsel to effectively challenge Alcohol, Tobacco and Firearms Division chemists Kenneth Snow and Roland Wilder, despite their speculative testimony not supported by reliable scientific basis. Concurrently, Snow was not rebutted over his findings about copper wire found on Mondo’s pliers which had a wide variety of sources. Nor was the ATF neutron activation testing method of the dynamite challenged despite the test being a poor testing method to compare samples.
Mondo cited five individuals named in police reports that the trial lawyer failed to call to testify at trial; George McCline, Patrick Jones, Anthony Sanders, Richard Gibson, and Tyrone Stearns. All five men are listed in police reports as having information about the dynamite used in the bombing.
A sleeping juror that defense attorney Herzog did not object to was raised by Mondo in the petition. Ed Poindexter says the sleeping juror is actually illustrated in a relaxed posture in an Omaha World-Herald sketch of the jury that was published in the newspaper.
Mondo complained that trial counsel did not identify Johnnie L. Bussby or raise the issue of Bussby’s social security card found at the crime scene.
Mondo points out that Robert Cecil tested positive for dynamite particles on his clothing yet was released, a matter never raised by Mondo’s lawyer. The ATF search July 20, 1970 search warrant for National Committee to Combat Fascism headquarters should have been explored by defense counsel for possible relevance to the crime.
Jack Swanson’s bust on July 28, 1970, of Luther Payne, Lamont Mitchell, and Conroy Gray for dynamite possession should have been raised before the jury. The petition notes, “Although arrested, and originally charged, the case against these individuals was ultimately dismissed following the conviction of Mondo and Poindexter in this case.”
Mondo stated that his trial lawyer should have explored Duane Peak’s testing for dynamite: “Peak’s clothes and hand swabs were never entered into evidence at trial; defendant’s trial counsel failed to investigate or even ask the chemist testifying at trial whether these articles tested positive for dynamite.”
The frequent harassment of NCCF members, including Mondo, by the Omaha Police Department should have been brought to the jury’s attention said Mondo’s petition.
A declaration by Marvin McClarty, an Omaha policeman who participated during the investigation and was guarding the outside of Mondo’s house, cited that the search was irregular. McClarty has said an effort was made to keep the public and other police officers at the scene from observing the search activity. To McClarty it seemed as though items were being carried into the house rather than out.
Mondo said his attorney should have explored Jack Swanson’s early focus on the NCCF despite no evidence linking the group to the bombing. Mondo also cites COINTELPRO targeting of Poindexter and himself.
“Dozens of FBI counter intelligence program (COINTELPRO) memos and reports targeting various NCCF members, including defendant, and several which illustrated Mondo and Poindexter was targeted by reason of their political beliefs.”
Mondo’s trial and appellate attorneys failed to preserve an objection to the “unified” trial which required the jury to simultaneously determine guilt or innocence and also make the determination as to execution. The prosecutors were seeking the execution of both Ed Poindexter and Mondo we Langa.
“In the guilt phase of the trial, Mondo had to defend his innocence, while he simultaneously argued for a life sentence. He had to forgo the benefits of presumption of innocence by arguing for life imprisonment. This gave the jury the wrong impression that because Mondo argued for a life sentence, he was admitting some level of guilt. Mondo was forced to present a defense to the jury that consisted of the conflicting objectives of proving his innocence and requesting a life sentence, all contrary to the requirements of a fair trial.”
Mondo appealed to the court over newly discovered technological evidence and the ability to scientifically analyze the 911 caller’s voice against that of Duane Peak equating the new forensic tools the equal of DNA analysis. Mondo cited the findings of internationally recognized forensic audiologist Tom Owen who said it was “highly probable” that Duane Peak did not make the 911 as Peak testified.
Mondo also asked for retesting of his clothing. Police claim dynamite particles were found in Mondo’s pants pockets yet an Omaha World-Herald photo of Mondo, hands deep in pockets, taken moments before Mondo’s hands tested negative for dynamite calls into question how, and when, did the alleged dynamite particles get into the pants.
The petition for a new trial closes with a detailed analysis of the flaws of the Board of Pardons and the conflicted role of the Attorney General who serves as both member of the Board of Pardons and attorney for the three member board.
In 1993, the Board of Parole voted 5-0 to commute Mondo’s sentence to a fixed number of years and thus obtain eligibility for parole. The unanimous Board of Parole was overruled by the Board of Pardons made up of the top three elected officials in the state. Attorney General Don Stenberg stated to the Board of Pardons that people who kill police officers should receive the death penalty or die in prison. Governor Ben Nelson acknowledged to the Board of Pardons that he was unlikely to grant Mondo a parole opportunity because of the nature of the crime.
“The practice of requiring a commutation by the board of pardons unconstitutionally usurps the power of the parole board,” concludes the petition.
Mondo’s appeal is in the briefing stage and so he must continue to wait for a day in court from his small cell at the Nebraska State Penitentiary where he continues to proclaim his innocence.
For further information read U.S. District Judge Warren Urbom
(Barbara Head contributed to this report)
Permission granted to reprint