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Tuesday, 24 November 2015

Another sad story about the Omaha Two case

Omaha woman reveals Omaha Two defense lawyer was impaired by alcohol

November 24, 2015 2:44 PM MST

Ed Poindexter has been in prison 45 years for a crime he says he did not commit.
Ed Poindexter has been in prison 45 years for a crime he says he did not commit.
Ed Poindexter/Michael Richardson
An Omaha woman, Bonnie Cosentino-Welsch, has broken years of silence to speak out on excessive drinking by Edward Poindexter's defense lawyer, Thomas Kenney, now deceased. Poindexter and Mondo we Langa, then David Rice, were targets of the illegal COINTELPRO operation of the Federal Bureau of Investigation in 1970 when they were charged with the bombing murder of Omaha Patrolman Larry Minard, Sr. Kenney had been assigned to defend Poindexter.
The clandestine COINTELPRO counterintelligence operation of the FBI under Director J. Edgar Hoover made Poindexter and Mondo, now known as the Omaha Two, targets to be neutralized. The pair were leaders of the National Committee to Combat Fascism, a Black Panther affiliate group. A FBI Laboratory report on the identity of an anonymous 911 caller that lured Minard to his ambush death in a vacant house was ordered withheld by Hoover to make a case against the two men.
Bonnie had dated Kenney for several months in 1970, and soon learned of excessive drinking by the young Assistant Public Defender. Bonnie was recently shown deposition testimony by Kenney, given in 2004, which revealed his inexperience in defending a capital murder case. Douglas County Attorney Donald Knowles sought the death penalty for Poindexter and Mondo.
In a written statement Bonnie said, “Around the second month of dating Tom, I received some rambling late night phone calls from him, and it was very obvious to me that he had a drinking problem.”
“Tom Kenney told me in one of these late night, inebriated conversations that he either "didn't believe Ed", or "didn't know if he believed Ed." I don't remember his exact wording, but I remember the emotion I had about his statement at the time. I felt like Ed didn't have good or even adequate counsel in Tom Kenney, and there was too much at stake for Ed to have a public defender who was an alcoholic, by my estimation, coupled with being a person who doubted him.”
“It's impossible to say how much Tom's drinking affected his work during that time, or how severe his drinking problem was, but I thought, how could this man be up late at night, be this drunk, and not be hung over the next day when he was working on this important case?” Bonnie continued, “I have always felt that Ed was very crippled by the quality of his legal representation. Tom Kenney was obviously drunk consistently on week nights, rambling, slurring words at 1 and 2 a.m. I wouldn't want an attorney handling my case, especially one this serious, who was up drinking to this degree the night before.”
“Even though I was very concerned about Tom Kenney and his ability to represent Ed, I didn't know what to do about it at the time, or who to talk to about it. I did not go to any of Tom Kenney's superiors with my concerns. I was in my early twenties then and didn't ever get to know Tom Kenney long enough, or well enough to make any claims about his ability to do his job. I had no idea about his effectiveness in the courtroom, or the ability to assess that, even if I had seen him at work,” explained Bonnie.
Kenney had two supervisors during the time he worked on Ed Poindexter's case. Public Defender A.Q. Wolf assigned Kenney to Poindexter's case, along with his regular “heavy” caseload. Kenney was out of the office at court or visiting prisoners at the jail most of the time. With no office investigator and limited clerical staff, Kenney was forced to work on the case in his off hours. Besides law school, the only training Kenney had was a one-week course at Northwestern Law School. This was Kenney's first murder case.
Three months before Poindexter's trial, Wolf resigned to become a judge and former Governor Frank Morrison was appointed Public Defender. Although Morrison was well liked and an excellent orator, he had no criminal defense experience. Morrison handled civil matters when he wasn't holding political office. Morrison told Kenney he would co-counsel the case.
To the public it seemed like Poindexter had a strong defense team led by a former governor, in reality, Poindexter was stuck with two inexperienced novices. The two lawyers failed to raise an objection to a “unified” trial, where the jury was tasked with determining guilt or innocence and determining a penalty if guilty based on the same testimony. Unified trials were later detemined unconsitutional and other defendants obtained new trials. Poindexter did not get a new trial because of the lack of objection by his lawyers. Kenney commented on his failure to object.
“No, we didn't object to it. It was a thing—it was how things were done, and it never occurred to us to enter an objection. There's—there's so many issues in this case, and that's one that we missed,” said Kenney.
Morrison did realize that Kenney needed more time to work on the rapidly approaching trial and reduced his caseload. Kenney was tasked with finding expert witnesses, an assignment he failed. Unable to locate a laboratory or forensic expert, Kenney unwisely decided to become his own expert. Kenney told of his efforts in the 2004 deposition. Kenney said gave himself a crash-course on forensic technology by “reading books, and manuals, and things” to make up for no scientific expert.
“I did all the footwork and stuff, that investigators would have done.” Kenney said, “I went back to DC and went in their laboratory, and they showed me how they conducted the experiments, and I looked through the microscope of the tool mark comparisons....and it was a perfect match.”
“What I saw matched, but I had no way of knowing what the sources of the two surfaces of what they were comparing, what they were,” said Kenney, unaware that the “perfect match” had twenty-five points of dissimilarity. As a result of Kenney's trip to the ATF Laboratory, he did not conduct a rigorous cross-examination of Alcohol, Tobacco and Firearms Division witnesses at the trial. The dissimilarities were only brought to light because Mondo we Langa insisted his attorney ask about the test that Kenney had witnessed.
Frank Morrison issued a public apology to Ed Poindexter in 1997 and urged his release from prison.
“In my opinion, it is just as important for the state to protect the innocent as to prosecute the guilty. As Public Defender of Douglas County, it was my official duty to represent Ed Poindexter. He told me then that he was innocent of this crime, and I still believe him. We did not have the resources in the Public Defender’s office to get all of the facts in this case.”
Morrison wrote, “I feel both I and the system failed Ed Poindexter.”
Bonnie Cosentino-Welsch remains haunted by the case. “Like many people, I will always wonder if I could have done anything to help this situation of horrible injustice.”

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