Nebraska lawmaker revives legislation to help Earnest Jackson, others get a retrial

Measure would allow motions for retrial on ‘newly discovered’ evidence

By: - February 2, 2023 8:21 pm
Tracy Jackson testifies before the Judiciary Committee in a cardigan and black shirt that bears the face of Earnest Jackson, her husband

Tracy Jackson, the wife of Earnest Jackson, testifies before the Judiciary Committee in support of legislation on Thursday, Feb. 2, 2023, in Lincoln, Neb. The legislation could provide a new attempt for her husband to get out of prison. (Zach Wendling/Nebraska Examiner)

LINCOLN — A revived legislative proposal would allow convicted defendants — including an Omaha man convicted for a 1999 killing — to file a motion for a retrial based on newly discovered evidence.

Legislative Bill 18, proposed by State Sen. Justin Wayne of Omaha — a measure similar to one Wayne introduced two years ago — is the latest effort seeking the release of Earnest Jackson, who has been in prison for more than 22 years — for a killing someone else confessed to.

“This is not a sprint, it’s a marathon,” Tracy Jackson, Earnest Jackson’s wife, said after the Judiciary Committee hearing Thursday. “Either way, my husband’s coming home eventually.”

22 years in prison

Earnest Jackson and co-defendants Shalamar Cooperrider and Dante Chillous were charged in connection with the 1999 killing, but only Jackson, who was 17 at the time of the killing, was convicted of first-degree murder and was sentenced to life in prison. 

Earnest Jackson and family
From left, Brenda Jackson-Williams, Tracy Jackson, Earnest Jackson and Remee Greer. (Courtesy of the Jackson family)

After Jackson’s trial, Cooperrider confessed to the killing but argued he acted in self-defense and was found not guilty. Cooperrider’s confession then led to Chillous’ acquittal. But Jackson has remained in prison, despite multiple appeals to the Nebraska Supreme Court and Board of Pardons — who voted 3-0 in September against a pardon.

A 2012 U.S. Supreme Court allowed resentencing for all minors who had received a life sentence. Jackson’s conviction was upheld in 2015, and he was resentenced to 60-80 years in prison. Jackson is not eligible for parole until 2029.

‘Can’t even get in the door’

More than a dozen supporters told the Judiciary Committee that Wayne’s bill would help Jackson specifically but also any other inmates who may be in a similar situation.

Tessa Domingus told the committee that one person’s 2021 warning that Wayne’s legislation then would open the “floodgate” to mass prison releases was untrue, though it may be hard to tell, she said, how many people were improperly sentenced.

Justin Wayne testifies
State Sen. Justin Wayne of Omaha introduces a bill before the Judiciary Committee, which he chairs, on Thursday, Feb. 2, 2023, in Lincoln. (Zach Wendling/Nebraska Examiner)

Wayne said all defendants have a Fifth Amendment right against self-incrimination, which Cooperrider used so he would not have to testify in Jackson’s initial trial.

The State Supreme Court ruled Cooperrider’s later confession was “newly available,” not “newly discovered,” so a new trial for Jackson was not warranted.

Wayne said his bill would not release anyone “tomorrow” or provide automatic “get out of jail free” cards or new trials. Instead, he said, it would give a judge discretion.

“But right now based on the Supreme Court ruling, we can’t even get in the door to make that motion for a new trial based off of this evidence,” Wayne said.

A few testifiers said the bill could also help Avery Tyler. His sister, Amber Strozier, with Inclusive Communities of Omaha, said Tyler was wrongly convicted of murder allegedly in part due to ineffective counsel.

Strozier added Jackson was sentenced due to a “loophole” in semantics and urged Wayne to add an amendment to help her brother, too.

‘Justice for Earnest Jackson’

Jasmine Harris, public policy and advocacy director for RISE in Omaha, said she’s worked with Jackson and knows him as someone who helps other inmates with things like character development, employment readiness and entrepreneurship skills.

Lorene Ludy, a volunteer for the Alternatives to Violence Project, said she’s seen Jackson’s kindness and compassion firsthand and would be honored to have him as a teammate, neighbor or son.

“This ‘Justice for Earnest Jackson’ bill — that’s not what it’s called, but we all know that’s what it is — you’re in the position to take a step to improve the life of a concrete person who deserves to have his life improved,” Ludy told the committee.

State Sen. Terrell McKinney of Omaha said he has sat with Jackson in prison, most recently during Kwanzaa, and seen him working to improve himself and others while trying “to be a leader as best as possible.”

“They might go in young,” McKinney said of inmates such as Jackson. “But as time progresses, they mature into men and women that deserve a second chance, and in Earnest’s case, he deserves a chance. He deserves justice.”

Legislation meets opposition

Mike Guinan testifies
Mike Guinan testifies before the Judiciary Committee on behalf of the Attorney General’s Office Thursday, Feb. 2, 2023, in Lincoln, Neb. (Zach Wendling/Nebraska Examiner)

Mike Guinan, criminal bureau chief in the Nebraska Attorney General’s Office, representing Attorney General Mike Hilgers, and Douglas County Attorney Don Kleine testified against Wayne’s bill.

Guinan said the legislation would provide a post-conviction remedy for one person, “which is not warranted given the facts and circumstances of that case.”

McKinney asked Guinan if he thought there was an “injustice” in the case. “I don’t, and I’d like to finish that thought,” Guinan said. “No, thank you,” McKinney responded.

Don Kleine testifies
Douglas County Attorney Don Kleine testifies before the Judiciary Committee on Thursday, Feb. 2, 2023, in Lincoln, Neb. (Zach Wendling/Nebraska Examiner)

Kleine, representing the Nebraska County Attorneys Association, testified he has a “hard time” hearing people say Jackson is “totally innocent.” 

McKinney asked if every case Kleine tried was “fair and justified in outcomes.”

“Sure,” Kleine responded, adding that no one is perfect and that he sometimes wishes he had more evidence or that opposing counsel had tried a different strategy.

“So it’s your belief you’ve never sent an innocent person to prison?” McKinney said.

“Absolutely, never,” Kleine said.

‘There’s concern’

Multiple senators questioned Guinan, Kleine and some of the bill’s supporters on hypotheticals, asking how key details — including trial order — may have changed the outcome of the Jackson case.

Nature Villegas testifies
Nature Villegas testifies before the Judiciary Committee on Thursday, Feb. 2, 2023, in Lincoln, Neb. (Zach Wendling/Nebraska Examiner)

But some exchanges treated the situation like “storytime,” Nature Villegas, a friend of the Jackson family, said. They also ignored the facts, Tracy Jackson said, of a “who goes first” situation that hurt her husband.

“We have an opportunity to make this right, and it’s just that simple,” Villegas said. “… And a mistake was made by the State of Nebraska.”

Villegas and Tracy Jackson said questions from McKinney, Vice Chair Wendy DeBoer and State Sen. Carol Blood show senators are “asking the right questions.”

“You can tell there’s concern,” Villegas said. “They can tell something isn’t right. And a decision needs to be made.”

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Zach Wendling
Zach Wendling

Zach Wendling recently graduated from the University of Nebraska-Lincoln with a double major in journalism and political science. He has interned for The Hill and The News Station in Washington, D.C. He reported for the Nebraska News Service and The Daily Nebraskan before joining the Nebraska Examiner staff as an intern.