The Truth, Mainly - 09/15/2003

Rice-Poindexter, one more time
by Leon Satterfield

Joseph Heller's wonderful WWII novel, "Catch-22," about the psychic costs of flying too many bombing missions, explains its title in this passage:

"Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn't, but if he was sane, he had to fly them. If he flew them he was crazy and didn't have to; but if he didn't want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle. 'That's some catch, that Catch-22,' he observed."

For some reason I was reminded of that passage when I was reading about the Rice-Poindexter case.

You remember the Rice-Poindexter case. It's the one that just won't go away.

That's David Rice (who's since changed his name to Mondo we Langa) and Ed Poindexter, both sentenced to life in prison for the 1970 suitcase bombing that killed Omaha police officer Larry Minard. They were convicted largely on the testimony of a 15-year-old boy named Duane Peak.

At a morning preliminary hearing Peak provided evidence that seemed to exonerate Rice and Poindexter, but after the noon break, he changed his story to one that suggested their guilt. Prior to that testimony Peak had been the primary suspect, having been the one thought to have called police to report a woman screaming at the address where the booby-trap suitcase would later explode, killing Officer Minard.

Rice and Poindexter had been Black Panther activists; former Gov. Frank Morrison, who was the Douglas County Public Defender in 1970, later said that the two "were convicted for their rhetoric, not for any crime they committed."

Both claimed innocence in 1970 and still claim innocence today. And a growing band of soft-hearts (among whom I sometimes count myself) believe them. They include do-good groups like the ACLU, Amnesty International, the NAACP, Nebraskans for Peace, and Nebraskans for Justice.

(In an statement of self-disclosure, I admit that I am now, or have been in the past, a member of more than one of those organizations.)

Earlier this summer, Poindexter's lawyer, Robert Bartle, filed a petition to the Douglas County District Court asking that Poindexter be given a new trial.

(In another statement of self-disclosure, I admit that one Bob Bartle was once a student in an English class I was trying to teach.)

The petition makes several claims, among them:

•that in the 1970 trial Poindexter did not receive "effective assistance of trial counsel" as guaranteed by the Constitution;

•that "investigating officers and/or prosecutors" were guilty of "prosecutorial misconduct";

•that Poindexter's right to a "fair and impartial jury" was violated when the jury was instructed to decide "guilt or innocence while simultaneously deciding whether to sentence the defendant to the death penalty."

It's that last claim that really jumps off the page. As the petition puts it, "Poindexter had to defend his innocence, while he simultaneously argued for a life sentence. He had to forego the benefits of presumption of innocence by arguing for life imprisonment.

This gave the jury the wrong impression that because Poindexter argued for a life sentence, he was admitting some level of guilt."

If that claim is true, it means that he was forced into a Catch-22 world where in effect, he had to make contradictory pleas: "I'm not guilty of murdering anyone. Please give me a life sentence."

If he hadn't asked for the life sentence, he might have been given the death sentence for a murder he says he didn't commit, but asking for a life sentence seems to imply an admission that he did murder someone. In either case, like Orr, he's caught in a Catch-22 logical maze.

One that comes dangerously close to the Queen of Hearts' idea of jurisprudence in "Alice in Wonderland": "Sentence first—verdict afterwards."

And if the Omaha jury wasn't confused at that point, it should have been.

I don't pretend to know whether Rice and Poindexter did in fact kill Officer Minard, but I'm convinced there's something wrong with putting a defendant in the position of arguing for a life sentence at the same time he's arguing that he's innocent of the crime the life sentence would be punishment for.

After 33 years, it's time for a new trial. And this time, let's do it right: verdict first, sentence afterwards.


Retired English Professor Leon Satterfield writes to salvage clarity from his confusion. His column appears on alternate Mondays. His e-mail address is:

©Copyright Lincoln Journal Star