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Nebraska Pardons Board denies request to commute man's prison sentence

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Family of Earnest Jackson speaks to the media after his commutation was denied, Monday, Sept. 19, 2022, at Nebraska State Capitol.

The Nebraska Board of Pardons took less than two minutes Monday to dash the hopes of Earnest Jackson and his family and friends.

The three board members — Gov. Pete Ricketts, Attorney General Doug Peterson and Secretary of State Bob Evnen — voted unanimously to deny Jackson's request for a sentence commutation. The vote was taken without discussion or testimony.

Earnest Jackson

Earnest Jackson

Before the vote, Ricketts offered only general comments about the process. He said the board does not take testimony on applications that do not meet the board's guidelines, either because not enough time has passed since completion of the sentence or because of the "gravity of the facts of the conviction."

He did not say which situation applied to Jackson. The Omaha man, then 17, was convicted in the September 1999 shooting death of Larry Perry, also 17, near 46th Street and Redman Avenue.

Jackson, now 40, and his supporters maintain that he is innocent and is being wrongly imprisoned. They point to the confession of a co-defendant, Shalomar Cooperrider, who testified at his own trial that he was the person who shot Perry. He also said that Jackson did not participate in the shooting.

Neither Cooperrider nor the other co-defendant, Danti Chillous, testified at Jackson's trial. Both were tried after Jackson and were acquitted based on self-defense.

The Pardons Board decision left Jackson's supporters stunned and frustrated. Many had filled the Capitol hearing room, wearing T-shirts and buttons of support, only to file out as the board took up the rest of the day's cases.

"I was hoping they would do something right," said Jason Witmer, a friend of Jackson's and a board member for ACLU of Nebraska. "I've never seen such disrespect."

Elizabeth Smith, the mother of Perry's son, said the decision leaves her family without closure. Having Jackson spending years behind bars for a crime she does not believe he committed piles tragedy upon tragedy, she said.

Without a pardon and commutation, Jackson is eligible for parole in 2029 and must be released in 2039, at which point he will be 57 years old.

"It makes me kind of lose a little faith in the justice system," Smith said.

Smith and Michael Hatcher, the son she shares with Perry, wrote letters to the Pardons Board in support of Jackson's request for commutation. She said she had always thought Jackson was innocent but became strongly convinced of that position about 10 years ago after spending time talking with neighbors, friends and family members near the shooting scene.

At Jackson's trial, a witness identified him as one of the men who pistol-whipped and shot Perry.

The jury convicted Jackson of felony murder but did not find him guilty of an accompanying gun charge. Jackson's former attorney, Jeff Pickens, said that led him to believe the jury had convicted Jackson as an accomplice, rather than as the shooter. But the man who confessed to being the shooter ended up being acquitted.

"We have a man in the prison system for a crime that is legally impossible," said Daniel Gutman, Jackson's current attorney. "You cannot be an accomplice to something that is not a crime."

Gutman said he's not sure where Jackson and his supporters will go from here but believes something should be done sooner than 2029, when Jackson can seek parole for the first time.

Jackson already struck out before the Nebraska Supreme Court, which reviewed the case and upheld the verdict. The court ruled that Cooperrider's testimony "was not newly discovered, but only newly available" and therefore not sufficient to warrant a new trial.

State law allows a person to be granted a new trial if there is "newly discovered" evidence that could not have been produced at the original trial.

Sen. Justin Wayne of Omaha introduced a bill last year that would have allowed Jackson to win a new trial. LB28 would have expanded the definition of "newly discovered" to include testimony or evidence from a witness who had previously asserted their right not to incriminate themselves.

Wayne tried and failed to get his measure amended onto another bill. Sen. Robert Hilkeman of Omaha, the sponsor of the other bill, objected, saying the amendment would draw a gubernatorial veto. LB28 was opposed by the Nebraska County Attorneys Association and the Attorney General's office.

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