Nebraska Murderer Pardoned After 44 Years, in Rare Commutation

Nov. 13, 2009— -- A 68-year-old convicted murderer who was kept in a Nebraska prison for 44 years even after his two accomplices were set free will be home in time for Thanksgiving courtesy of the state's first such pardon in nearly two decades.

Jerry Erving Jr., whose role in the 1964 shooting death of an Omaha bartender consisted of stealing several bottles of booze while fleeing with the gunman and another friend, won favor with the state's Pardon Board after former Nebraska Gov. Charlie Thone took his case pro bono.

"After 44 years of incarceration and an exemplary record, and lauditory statements from the prison officials, I think it's the function of the pardon board to say, 'OK, he's not a threat to society," Thone told ABCNews.com today. "Fairness cried out for equity here."

Thone, a former congressman who served as governor from 1979 to 1983, issued five life sentence commutations while in office. The next two governors gave a total of 14 pardons for capital crimes.

But in the early 1990s, a convicted murderer who was set free after his life sentence was commuted killed again shortly after his release, and subsequent governors "took the attitude that a life sentence is a life sentence. End of story," Thone said.

Nebraska Attorney General Jon Bruning told ABCNews.com that a driving force in Erving's commutation was the fact that Larry Hall, the man who shot and killed the bartender that night in Omaha, had his sentence commuted in 1983 and was pardoned two years later. Erving sat behind bars for another 16 years.

"It wasn't an easy decision," said Bruning, who sits on the pardon board with Nebraska's current governor and secretary of state. "He took part in a crime that took a man's life."

Erving's most recent request for a commutation was his seventh put before the current pardon board and his 12th overall.

"I think society's attitude toward crime has become harsher," Bruning said. "There isn't a willingness to let this go on in their neighborhood."

Bruning admitted that getting a former governor to represent him helped Erving's case, and that Thone was better able to articulate Erving's argument for release than the others before him. The pardon board also considered, in the midst of a special session to cut the state's budget, that Erving was costing taxpayers $25,000 to $30,000 a year.

But the most compelling piece of evidence, Bruning said, was knowing that Hall and the third participant, Donald Davis Jr., had already been released back into society.

"It has to be a very rare case indeed for us to consider it," Bruning said, adding that the support of Erving's wife was also a factor in their decision. "This case is particularly unique."

'I'm Just Glad to Go Home'

Erving was drunk the night he and two others walked into a Omaha bar in 1965 intending to commit robbery. But things got out of hand, and Hall shot the bartender. As the three fled the bar, Erving snatched several bottles of booze and then hopped behind the wheel of the getaway car. He was 24 years old.

His wife, Evelyn Erving -- 18 years old at the time -- remembered how her husband pleaded not guilty.

"He was convinced he didn't kill anybody," she said, adding that he once had served three years in prison for an earlier robbery.

Sentenced to serve out of his life sentence under a state felony murder doctrine that punishes murderers and their accomplices equally, Erving was sent to the Nebraska State Penitentiary in Lincoln, where his attitude about the crime softened.

"To me, he's never talked about the specifics of [the murder,]" Evelyn Erving told ABCNews.com. "He's just regretful."

Her husband, she said, feels guilty and has accepted responsibility for the crime.

"He's said, 'Evelyn, I think about it every day,'" she said.

"Back at that time, it was way rough," she said. "Young people and alcohol don't go well and Jerry and alcohol really don't go well."

The two, who married the same year as the murder, separated after he was sent to prison. Evelyn Erving bore three children by another man and in 1975 -- the year after her children were killed in a house fire -- she divorced Erving.

But the two stayed in contact through the years and in 2005 were remarried. She's been his biggest advocate ever since. It was her persistence that got Thone on board.

"She wouldn't take no for an answer," Thone said, likening her to the Energizer Bunny. "I told her I was kind of out of the pardon business."

Now she's preparing for his first home-cooked holiday meal in more than four decades. The menu's not set yet, but he's already requested pecan pie, lemon meringue pie and peach cobbler.

"He said to me, 'I'm just glad to go home,'" she said.

Murder, Wife Said, is a 'Debt That Can't Be Paid'

Evelyn Erving said neither she nor her husband, however, are flippant about the difficulties that lie ahead. In good health, Erving plans to get a job, though they aren't sure yet where he'll apply.

Allowed out on furloughs in the 1980s to attend community college classes before the program was shut down, Erving does not have a degree. He worked in the prison's upholstery factory for years.

And Evelyn Erving said she's also expecting him to have difficulties adjusting to modern life. When he went to prison there were no computers, Internet, cell phones or even VCRs.

Erving, she said, has seen cell phones on television, but never used one. He's used word processors to type, but never logged onto the Internet. He's never seen a five-lane interstate, yet he's so excited about relearning to drive "his chest is about to burst," she said.

When Erving was sent to prison, the country was still mired in civil rights conflict. He'll be released with a black man in the White House.

"He's just really excited about that," she said, adding that he reminded her constantly to vote for President Obama in last year's election, since he couldn't himself.

Evelyn Erving said she hasn't forgotten that her husband was convicted of murder or that a man is dead because of his and the other men's actions.

"I just think he deserves a second chance," she said. "I believe in forgiveness."

She said she's been friendly with Hall over the years, and though she's tried to find relatives of their victim, Hall told her be believed the last one died in the 1980s.

"It's a debt," she said," that can't be paid."