Earnest Jackson is innocent and should be released from prison, say two family members of the man he’s convicted of murdering.
Their public support of Jackson is the latest twist in a nearly quarter-century-long saga about a North Omaha killing that gets its next chapter Monday, when the Nebraska Board of Pardons decides whether to release Jackson or keep him behind bars.
Elizabeth Smith gave birth to Larry Perry’s son just before Perry was shot and killed in 1999. Michael Hatcher is that son.
In an interview with the Flatwater Free Press, Smith argued that the evidence proves Jackson didn’t kill Perry or participate in the killing. She and Hatcher submitted written testimony supporting Jackson’s immediate release – testimony meant to be viewed by the Nebraska Board of Pardons before the board’s three members, Gov. Pete Ricketts, Nebraska Attorney General Doug Peterson and Secretary of State Bob Evnen, decide the prisoner’s fate during a hearing Monday.
During a phone interview Wednesday, Smith said that she was 18 – and she and Perry’s son Mike was just three months old – when Perry was shot 19 times and killed during a dispute near his North Omaha home.
In the 23 years since Perry died, Smith has married, moved to Council Bluffs and now raises three teenagers as a stay-at-home mom. As the years passed, she has also thought often about Sept. 1, 1999. She has talked about it with neighbors, friends and family members near the scene that night. And she said she’s plagued by the constant thought that she needs to do something to help Jackson, who remains imprisoned for the killing.
Because Earnest Jackson didn’t kill Larry Perry, she said. He wasn’t even there, she believes.
“It makes it a double tragedy that an innocent man is in prison, you know?” Smith said. “Larry wouldn’t have wanted him in prison for something he didn’t do.”
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The victim’s family members join a growing chorus – Jackson’s current and former lawyers, family members, friends and two volunteer groups advocating his release – who say Jackson has served 22 years for a crime he didn’t commit.
In the fall of 1999, after the 17-year-old Perry was killed at 46th Street and Redman Avenue during a dispute about stolen tire rims, Omaha police arrested three people for the crime – Jackson, Shalamar Cooperrider and Dante Chillous.
Jackson, also 17, went to trial first. Why? Because his case number happened to be the lowest, said Jeff Pickens, an Omaha attorney who represented Jackson for years, but didn’t represent him during the original trial.
“I think his conviction was the result of bad timing,” Pickens said. And because of that quirk of fate – Jackson simply going to trial first – “I think an innocent person is in prison.”
The order of trials proved to matter greatly, Pickens said, because the two other men arrested for Perry’s murder, still awaiting their own trials, declined to testify at Jackson’s.
During his trial, Jackson maintained his innocence, said that he wasn’t at the scene of the crime and denied any involvement.
But prosecutors in the case had an eyewitness who placed Jackson at the scene, pistol-whipping Perry during the argument, though defense lawyers questioned that testimony’s accuracy.
Jackson was convicted of first-degree murder, but acquitted of using a deadly weapon, meaning the jury didn’t believe he pulled the trigger himself. He was sentenced to life in prison.
Then things got stranger.
Cooperrider stood trial next. At that trial, he outed himself as Perry’s shooter, said he killed Perry in self defense – and told the courtroom that the already-convicted Jackson had nothing to do with the shooting.
He was acquitted. Then he took the stand at Chillous’ trial and repeated the same information. Chillous was acquitted, too.
That left Jackson in the Nebraska State Penitentiary for being an accomplice to a murder that two subsequent juries said wasn’t a murder – and that the self-admitted shooter said Jackson had nothing to do with.
“It makes no sense,” said Daniel Gutman, an Omaha attorney now representing Jackson. “It’s legally impossible.”
“We need to… recognize that there is no valid justification for why Earnest Jackson is sitting in a prison cell,” he said. “You can search and search for it, but at the end of the day, this is an injustice in our state and a guy is sitting in prison on a legally impossible sentence.”
Prosecutors defended the guilty verdict, both at the time and during a 2016 resentencing that happened after the U.S. Supreme Court ruled that a minor couldn’t be sentenced to life in prison for murder. Jackson was re-sentenced to 60 to 80 years.
Prosecutors have said during trials and in interviews that Jackson received a fair trial and that his jury believed the eyewitness. The Nebraska Supreme Court also upheld the conviction, ruling that Jackson wasn’t eligible for a new trial because Cooperrider’s testimony “was not newly discovered, but only newly available.”
Sen. Justin Wayne of Omaha has twice introduced a bill that would expand the state’s definition of newly discovered evidence to include testimony from witnesses, like Cooperrider, who previously asserted their Constitutional right to avoid testifying.
Essentially, it would have allowed Jackson a chance at a new trial.
In 2021, the bill – tacked on as an amendment to another bill – failed by a single vote. Wayne plans to file it again next session.
Even if the Board of Pardons commutes Jackson’s sentence on Monday, there’s still more work to be done, Wayne said.
“A pardon is about forgiveness. My bill is about making sure our judicial system is just,” Wayne said to the Legislature’s Judiciary Committee in 2021. “A just judicial system is about allowing someone the ability to prove their innocence rather than ask for forgiveness.”
It’s powerful that the shooting victim’s son and the son’s mother have submitted written testimony advocating for Jackson’s release, said the state senator who represents parts of North Omaha.
“I think it goes to the point that our judicial system worked for everybody else involved in this matter, except for [Jackson.],” Wayne said during a phone interview Wednesday. “That even the alleged victims are saying it wasn’t him…It shows that we still have a long way to go for justice for everybody.”
Jackson is eligible for a parole hearing in 2029. By that time he will be 47 years old and would have served 30 years in prison.
But friends, family members, lawyers and supporters who have organized into two volunteer groups, Send Earnest Home and Free Earnest Jackson, now hope that the Board of Pardons commutes Jackson’s sentence and releases him after Monday’s hearing.
That crew of supporters now publicly includes Mike Hatcher – Larry Perry’s son.
As an adult, Hatcher requested a phone call with Jackson. He was nervous to talk to the prisoner, he wrote in a statement sent to the Board of Pardons, because he knew nothing of him beyond his conviction. Since then he’s gotten to know Jackson, who graduated from college while in prison and has started an inmate mentoring program.
“My impression of Earnest that I’ve gathered over time is that he is a remarkable man,” he wrote in a two-page letter supporting Jackson’s release.
In an email Wednesday, spokesperson Alex Reuss declined to say whether Ricketts, one of the pardons board’s three members, had read the letter, saying the governor doesn’t comment on individual cases prior to pardons board hearings.
In Hatcher’s statement, he implores the pardons board – Nebraska’s governor, secretary of state and attorney general – to release the man convicted of murdering his father after Monday’s hearing.
“I won’t be able to come to peace with everything that has happened until he is granted freedom and mercy by the State of Nebraska,” Hatcher wrote. “I am speaking up and asking for a commutation of Earnest’s sentence because it is the right thing to do.”
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