After Failure of LB 28, How Can the Wrongful Conviction of Earnest Jackson Be Reversed?
By Megan Rollag
Megan Rollag of omaha is a founding member and board director of the Racial Justice Coalition. she earned a bachelor’s degree at Baylor University in Waco, Texas and a law degree from the University of Houston Law Center. She was a Bob Bullock Policy Fellow in the Texas Senate and has been an advocate for several nonprofits in Nebr. and Texas. She also consults on energy, environmental, and commodities regulation at a Big 4 consulting firm.
Over two decades ago, a jury found Earnest Jackson guilty for the death of Larry Perry — a crime that someone else later confessed to and was acquitted for, based on self-defense. Jackson initially received a life sentence and remains in prison 22 years later, in spite of his acknowledged actual innocence.
A bill introduced in 2021 by Sen. Justin Wayne, LB28, could have granted Jackson a new trial, but the Nebraska Legislature failed to pass it two years in a row. The events that have contributed to his continued incarceration are summarized below.
Facts of the case
On August 31, 1999, Robert Sommerville, Shawon McBride, Dante Chillous, and Earnest Jackson were riding around and ended up near the Redman Apartments (Sorenson Parkway and 46th St.) where they conversed in the parking lot with a group of people, one of whom was Shalamar Cooperrider. Jackson left the group to play video games at his aunt’s house, a typical Tuesday night for him. Shortly before midnight, an argument in front of the Redman Apartments led to the tragic shooting and killing of Larry Perry. Officers from the Omaha Police Department took suspected individuals fleeing the scene (Chillous and Cooperrider) into custody. Nearly a month after the shooting Jackson was arrested and charged for Perry’s murder
Perry and Jackson were only 17 years old at the time.
Someone else confessed to killing Larry Perry
In the following year, trial was set to prosecute Jackson and the suspects originally arrested the night of the shooting: Shalamar Cooperrider and Dante Chillous. However, the three individuals were not prosecuted in the same proceeding, each was tried separately. Jackson was the first to go to trial. The key deficiencies with the state’s case against him are as follows:
Jackson was convicted solely based on eyewitness testimony from Elexsis Fulton. The identifying facts stated by Fulton were slim: a man who was dark-skinned with braided hair and a blue “FUBU” brand shirt.
The eyewitness testimony was directly contradicted by the physical evidence presented by the autopsy. Fulton testified that Jackson pulled out a gun and struck Larry three times in the head. This is blatantly inconsistent with the autopsy report from Dr. Jerry Jones who found no abrasions on Larry’s head consistent with being struck even once with an object.
There was no smoking gun - literally. The jury acquitted Jackson of a deadly weapons charge because the evidence could not establish that he had a gun.
The co-defendants, Cooperrider and Chillous, declined to testify at Jackson’s trial under the Fifth Amendment right against self-incrimination. However, Cooperrider took the stand and provided testimony in his own trial.
Jackson was convicted by a jury of eleven white people and one Black person. Cross-racial identification and implicit racial bias can affect jury outcomes. Jackson’s jury did not reflect the community he was raised in.
Cooperrider admitted to killing Larry Perry. At his trial, he was acquitted based on self-defense. Cooperrider testified that he was present at the scene, fired his handgun several times in defense of his own life, and that neither Jackson nor co-defendant Chillous were at the scene.
Both juries in Cooperrider and Chillous’ trials relied on Cooperrider’s testimony and acquitted both men.
For Jackson, Cooperrider’s confession was too late. He had already been convicted and sentenced to life in prison.
Why would his conviction stand?
A 2012 U.S. Supreme Court ruling, Miller v. Alabama, barred life terms for minors convicted of homicide so Jackson was scheduled to have his sentence reduced. In a devastating blow, he was resentenced to 60 to 80 years. The resentencing court took the position that it was not their role to assess the facts of the case - including the confession from Cooperrider that was never considered by the original trial court.
In 2017, Jackson exhausted his last appeal due to a narrow reading of how Cooperrider’s testimony and confession does not qualify as “newly discovered evidence,” in order to grant Jackson a new trial. Nebraska law does not explicitly name subsequent confessions as evidence to grant a new trial.
The law would have to be changed in order to correct that omission.
Two Routes for Jackson to Obtain a New Trial or Release
Nebraska Board of Pardons
Jackson has exhausted his appeals, but he is eligible to apply to the Nebraska Board of Pardons for a commutation of sentence. The board consists of the governor, attorney general and secretary of state. The board is not required to meet nor is Jackson entitled to a hearing.
Before his sentence was reduced as a result of Miller v. Alabama, Jackson applied to the Board of Pardons for a sentence commutation and pardon. He was told to apply again after his resentencing. He reapplied in 2020 but does not know when his application will be considered.
A commutation could reduce Jackson’s sentence to time served. A pardon would make him eligible to have his voting rights restored or to receive other civil rights but would not expunge his guilt.
Commutation hearings for current prisoners have not been granted for several years. Their applications are simply denied without a hearing. The Send Earnest Home campaign knows of at least 800 letters that have been submitted to the Board of Pardons in support of Jackson’s commutation application.
LB 28: Motion for a New Trial
In 2021 and 2022, Nebraska State Sen. Justin Wayne (D-13) filed LB 28 which would amend the Nebraska Post Conviction Act to allow for subsequent confessions to be treated as newly discovered evidence for appeals purposes where defendants invoked a constitutionally protected privilege in order to avoid testifying, for example, the 5th Amendment.
LB28 was advanced out of committee to the General File in 2021. Sen. Wayne introduced the text of LB 28 as an amendment to LB 496, a bill governing collection of DNA. The amendment, AM1083, failed to pass by one vote, so LB28 died in the 2021 legislative session.
Sen. Justin WAyne
“It [LB28] will be reintroduced next year. It will be a part of a priority bill.”
Wayne reintroduced LB 28 in 2022 as a carryover bill, but it was not discussed by the legislature at all during this year’s short 60-day session. A similar bill would have to be introduced again during 2023’s 90-day session to give Jackson a chance at a new trial.
On Apr. 28, Wayne told a reporter from NOISE, “It will be reintroduced next year. It will be a part of a priority bill.” Wayne explained that he plans on introducing a criminal justice bill that will include the elements of LB28, so it will not be a standalone bill that would have to be attached to another bill as an amendment. “We’ll get that done next year,” he stated.
Priority bills are placed at the top of the legislative debate schedule. A priority designation, therefore, increases a bill's likelihood of being debated by the full legislature.
Jackson’s achievements behind bars
Jackson earned both his GED and a college degree from the University of Nebraska at Omaha while incarcerated.
Recently, Jackson received a certification of completion from Hustle 2.0 which is a mail-based correspondence program that explores entrepreneurship, health relationships, employment, character development, re-entry, and more.
The Effort to Free Jackson Continues
Jackson and his supporters have spoken out and advocated through television coverage, newspaper articles, podcasts, newsletters, oral and written testimony, audio recordings, videos and community events.
The campaign maintains a #SendEarnestHome website and a Linktree with links to a change.org petition that has over 60,000 signatures asking the Board of Pardons to commute Jackson’s sentence, as well as advice on how to write a personal letter to the board.
The campaign regularly updates its Facebook, Instagram, Twitter, and TikTok pages.
is a nonpartisan group of individuals and organizations unified to fight racial bias in sentencing and convictions. The Coalition is the national organizer for the #SendEarnestHome campaign on behalf of Earnest Jackson.
Image credit: Logan Anderson @wolvy_22