What If Nebraska Freed Innocent Prisoners Once Others Confessed?
There are a lot of disturbing things about our criminal justice system, but one of the worst is the innocent people who remain incarcerated for years or even decades after someone else confesses to (or is even convicted of!) the crime for which they were convicted. As horrifying as it is to imagine being sent to prison for a crime you did not commit, the idea that clear evidence that you did not do the thing you were convicted of doing may not even help you get out is even worse.
At the age of 17, in Omaha, Nebraska, Earnest Jackson was convicted of a murder that not only did someone else confess to, but for which they were acquitted on the grounds of self-defense. Despite having an alibi at the time the murder was committed, Jackson was convicted based entirely on the eyewitness testimony of someone who had never met him but who said he saw a man who was “dark-skinned with braided hair and a blue 'FUBU' brand shirt” and then later pointed Jackson out after seeing him with his co-defendants (although Jackson did not in fact have braids at the time of the shooting). He was convicted of first degree murder but not of actually firing a gun. He has now spent the last 22 years in prison, essentially, for being wrongly accused of standing somewhere while another person shot someone else in self-defense.
On September 19, Jackson will have a parole and pardons review that, if there is any freaking justice in the world, will allow him to finally have a chance at life outside prison. He is hoping for a commutation and a pardon so that he can finally go home.
Initially, Jackson was sentenced to life without parole, but in 2012, the Supreme Court ruled in Miller v. Alabama that sentencing juvenile offenders to life without parole was a violation of the Eighth Amendment (surely that's one we can expect to be overturned in the next few years), which allowed him to appeal for re-sentencing. This occurred after someone else, Shalamar Cooperrider, confessed to the crime, was acquitted on the basis of self-defense, and stated that Earnest was not even there at the time of the shooting. Taking all of this into consideration, the court stated, "But we still have a person here who is dead, and your client, the defendant, was convicted of his murder, and so I think anything but a substantial period of incarceration would be inappropriate" and switched his life sentence to a sentence of 60 to 80 years that would allow him to apply for parole ... in 13 years. How generous!
Unfortunately, the Nebraska Board of Pardons is made up of the state's very Republican governor (Pete Ricketts), secretary of state (Bob Evnen) and attorney general (Doug Peterson) and it will not be allowing any testimony at the hearing, so supporters are asking people to send letters to the board in support of Jackson's release. There is also a petition to sign that is being submitted to the board as well.
But There Is A Bill That Could Change Everything
Right now, there is a bill stalled in the Nebraska legislature that would allow Jackson and others in his position to move for new trials when there is new evidence that could exonerate them.
The bill, LB 28, which was introduced by state Sen. Justin Wayne in 2021, would amend the rather draconian Nebraska Post Conviction Act to allow defendants to appeal for a new trial due to any of the following reasons:
(1) Irregularity in the proceedings of the court, of the prosecuting attorney, or of the witnesses for the state or in any order of the court or abuse of discretion by which the defendant was prevented from having a fair trial
(2) Misconduct of the jury, of the prosecuting attorney, or of the witnesses for the state;
(3) Accident or surprise which ordinary prudence could not have guarded against;
(4) The the verdict is not sustained by sufficient evidence or is contrary to law;
(5) Newly discovered evidence material for the defendant which he or she could not with reasonable diligence have discovered and produced at the trial. For purposes of this subdivision, newly discovered evidence includes testimony or evidence from a witness who previously asserted a testimonial or constitutional privilege and refused to testify or produce evidence in a prior proceeding;
(6) Newly discovered exculpatory DNA or similar forensic testing evidence obtained under the DNA Testing Act; or
(7) Error of law occurring at the trial.
The fifth reason cited is the one that would help Jackson, and means that if someone is on trial for something someone else did, and they don't testify on the defendant's behalf because they have a Fifth Amendment right to not incriminate themselves before their own trial, but they do confess later ... the defendant can have a new trial in which that confession can be admitted into evidence. It seems very much like a no-brainer.
Sadly, while LB 28 made it through committee last year, it ended up failing by one vote — though that is actually pretty impressive given how deeply Republican the state is. As of 2022, the bill is stalled and has not yet received a hearing.
Part of the reason police and prosecutors and parole boards and courts and conservative legislators always end up fighting so fiercely to keep obviously innocent people in prison is because they don't want people to lose faith in the system. They want people to believe that everyone in prison deserves to be there and that innocent people are not found guilty (nor do they ever plead guilty to crimes they didn't commit when faced with the death penalty or life in prison), because they are scared of a world in which people do not trust the system, as that might not turn out so well for them.
But they're shooting themselves in the foot by making it so hard for obviously innocent people to get justice and go free. They're not making it look like the system works, they aredoing the opposite of that.
Most people are more than happy to play The Emperor's New Clothes with the criminal justice system, just so they can go on about their daily lives and not feel horrified all of the time the way some of us do. They at least want the ability to say "The system is good, it's human error that is the problem! A few bad apples!" like they do with policing and capitalism and other institutions that are clearly not working out all that well. But it is going to be a lot harder to do that every time they see something like this that is so blatantly and ridiculously unjust while still being entirely in line with what the system prescribes.
So instead of trying to convince the world that everything is fine, that their outfit is fabulous and no one makes mistakes by never admitting to obvious mistakes, perhaps they should just get dressed and make it easier to fix those mistakes when they do happen, by passing bills like LB 28.
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Robyn Pennacchia is a brilliant, fabulously talented and visually stunning angel of a human being, who shrugged off what she is pretty sure would have been a Tony Award-winning career in musical theater in order to write about stuff on the internet. Follow her on Twitter at @RobynElyse