In this latest appeal, it states Jerome Ersland's attorneys have uncovered critical factual evidence about Ersland's state of mind and motivation that was not known during his first trial.
“He is very anxious that his story gets told,” said attorney Doug Friesen, who took over Ersland’s case after he was already convicted.
Friesen said for the longest time, Ersland had his guard up and felt that even his own legal team was working against him during his first trial and was in cahoots with the district attorney’s office.
The court filing states this contributed to Ersland’s belief that a conspiracy was in place to ensure his conviction.
That is until Friesen and his team uncovered evidence that got Ersland to trust them again, and it all had to do with what Ersland thought happened during the May 19, 2009, armed robbery at the Reliable Pharmacy.
“Jerome was absolutely convinced that a bullet flew at him,” Friesen said. "But both prosecutors and defense attorneys kept telling him the other teen robber’s gun never fired.”
Turns out a bullet did fly by Ersland, but Friesen said it was a bullet from Ersland's own gun that ricocheted off a nearby Plexiglas door.
The appeal paperwork also states one of Ersland’s female employees slipped and kicked a hard plastic trash can when she fell, attempting to get away from the robbers.
That kick of the trashcan resulted in a sound that Ersland perceived to be the first gunshot of others coming at him, and that Ersland perceived that the woman had been shot.
The appeal states bullet fragments were found in a wall behind where Ersland had been standing and a bullet hole was also found in a nearby stuffed animal that had been behind Ersland at the time of the shooting.
But Friesen states none of that was discussed or even discovered until after Ersland's trial, where he was found guilty of murder and sentenced to life.
Now, Friesen hopes this new revelation will help grant him a new trial.
“He knew that he had felt a bullet whiz by his hair,” Friesen said.
Friesen said Ersland also disputes what prosecutors claim happened during the surveillance video outtake used by prosecutors.
It is taken from inside the Reliable Pharmacy, and appears to have Jerome Ersland stepping over Antwon Parker's body to get another gun before he comes back to shoot him five more times.
“I mean the video shows what it shows, but there's also a lot that it doesn't show,” Friesen said.
Friesen claims instead Ersland switched his first gun, a Taurus Judge pistol, to his other hand, and had another gun, a .380 caliber pistol, in his front right pocket that you don't see.
Friesen said Ersland claims he actually went to go call 911 when he thought he heard and saw Parker move his arm towards his backpack.
Friesen said Ersland told him that he thought the teen had another gun in there. So he shot him in self-defense. Friesen said witnesses and workers stated Ersland always carried that .380 pistol with him in his pocket.
Prosecutors presented the video evidence in court, stating Ersland had stepped over Parker’s body, grabbed another gun from behind the counter and then came back and shot Parker five more times in cold blood.
Friesen said the drawer behind the counter is the one that held the first gun Ersland used and was the one he grabbed at the start of the robbery.
Friesen states had Ersland wanted to just shoot and kill Parker in cold blood, he would have done so when he ran back in the pharmacy after chasing the other teenage robber who had a gun out the pharmacy.
“Jerome has a right to have the jury judge him on whether given that set of circumstances his second string of shots was reasonable or not,” Friesen said.
The court filing also stated Ersland suffered from post-traumatic stress disorder related to an earlier robbery at the same pharmacy.
That it affected his memory of the details in the shooting incident in the May 19 shooting.
In conclusion, it states the failure of the state courts to correct this constitutional deficiency necessitates correction by the federal court.
The federal court received the writ of habeas corpus on August 20, but the federal court has still not handed down a decision.