Omaha Two alibi witness tells of failure by lawyer to cross-examine bomber

Omaha Two alibi witness tells of failure by lawyer to cross-examine bomber

Mondo we Langa's alibi witness gives interview to independent filmmaker

Mondo we Langa’s alibi witness gives interview to independent filmmaker
Kietryn Zychal

Rae Ann Schmitz was a key witness in a 1971 murder trial, but nobody, including defense attorney David Herzog, was aware she contradicted the testimony of the prosecution’s chief witness. Schmitz was unaware she was an alibi witness for Mondo we Langa, then David Rice, before he was imprisoned for life at the Nebraska State Penitentiary for the 1970 bomb death of an Omaha policeman.

Defense lawyer David Herzog did not realize Rae Ann Schmitz was a double alibi witness
Rae Ann Schmitz/Kietryn Zychal

Mondo was convicted with Edward Poindexter after a controversial trial and the two men became known as the Omaha Two. Poindexter is also serving a life sentence at the state maximum-security prison in Lincoln. The two Omaha men were leaders of a Black Panther affiliate chapter and targets of an illegal, clandestine counterintelligence operation of the Federal Bureau of Investigation. Operation COINTELPRO was bent on destruction of the Black Panther Party under orders from J. Edgar Hoover.

Schmitz was Mondo we Langa’s alibi witness for the time of the bombing. However, Schmitz was also an alibi witness for Mondo when he was supposed to have met with fifteen year-old Duane Peak to give him the bomb. Herzog, who failed to adequately prepare Schmitz for trial, did not realize that Mondo was still with Schmitz when Mondo allegedly talked to Peak. Herzog failed to develop the timeline of the afternoon before the bombing when he questioned Schmitz and did not ask Peak any questions during cross-examination over the timing of the supposed rendezvous.

“I don’t remember having any contact with anyone on the defense team between the date of the event in August ’70 until the trial. I did not know what the evidence revealed. At trial I believe the witnesses were sequestered. I do not remember hearing the testimony of any other witnesses. I do not know what other people said. I had no idea of the defense’s theory of the case. I remember meeting with the lawyers briefly in the hallway outside the courtroom a few minutes before I took the witness stand. I not remember what they said to me,” said Schmitz.

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

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

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

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

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

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

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

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

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