Fort Worth D.A. Urges Reversal of Death Sentence, Saying Trial Prosecutor ​‘Blatantly Lied’ to Jury that Victim’s Family Wanted Death Penalty

The Tarrant County District Attorney’s office has asked the Texas Court of Criminal Appeals (TCCA) to vacate Paul Storey​’s death sen­tence, say­ing that his tri­al pros­e­cu­tor ​“bla­tant­ly lied” to his jury that the victim’s fam­i­ly want­ed the death penal­ty and sub­se­quent­ly com­mit­ted per­jury in state post-con­vic­tion pro­ceed­ings to cov­er up that lie. 

In an extra­or­di­nary fil­ing on August 17, 2022 short­ly after being grant­ed per­mis­sion to reen­ter the case to ​“set the record straight with respect to the verac­i­ty of [for­mer Assistant Tarrant County District Attorney Christy Jack​’s] state­ment” to the jury, coun­ty pros­e­cu­tors asked the TCCA to recon­sid­er its pri­or deci­sion in 2019 to uphold Storey’s death sen­tence. Quoting Justice Sonia Sotomayor’s dis­sent from the U.S. Supreme Court’s refusal to review Storey’s case, Tarrant County pros­e­cu­tors wrote: ​“Former Tarrant County Criminal District Attorneys Christy Jack and Robert Foran com­mit­ted ​‘seri­ous … pros­e­cu­to­r­i­al malfea­sance’ dur­ing Storey’s tri­al and then ​‘ran out the clock by fail­ing to dis­close [it] through­out Storey’s ini­tial post­con­vic­tion pro­ceed­ings.’” This, the recon­sid­er­a­tion motion argued, ​“is the very antithe­sis of due process.”

Storey was con­vict­ed and sen­tenced to death in 2008 for the mur­der of Jonas Cherry dur­ing a 2006 rob­bery of a Fort Worth putt-putt golf course. Prior to Storey’s tri­al, Cherry’s moth­er and father, Judy and Glenn Cherry (pic­tured), told Jack that they did not want the death penal­ty imposed for their son’s mur­der. Prosecutors offered Storey and co-defen­dant Mark Porter, whom one juror lat­er described as the leader, life sen­tences if they agreed to plead guilty. Porter took the deal, but Storey did not. Despite the Cherrys’ views, Jack told the jury “[i]t should go with­out say­ing that all of Jonas’s fam­i­ly and every­one who loved him believe the death penal­ty is appropriate.”

The motion filed in the TCCA blunt­ly asserts, ​“As we now know, this was a lie.”

In March 2017, Cherry’s par­ents sought clemen­cy for their son’s killer. In a let­ter to the Tarrant County District Attorney Sharen Wilson, Gov. Greg Abbott, state District Judge Robb Catalano, and the Texas Board of Pardons and Paroles, they wrote that, as a result of their ​“eth­i­cal and spir­i­tu­al val­ues,” they strong­ly oppose the death penal­ty, and said “[w]e do not want to see anoth­er fam­i­ly hav­ing to suf­fer through los­ing a child and fam­i­ly mem­ber.” Storey’s exe­cu­tion, they wrote, ​“will not bring our son back, will not atone for the loss of our son and will not bring com­fort or closure.”

Storey was orig­i­nal­ly sched­uled to be exe­cut­ed in April 2017, but the Texas Court of Criminal Appeals (TCCA) stayed his exe­cu­tion so the tri­al court could con­sid­er whether the pros­e­cu­tion knew its argu­ment that the Cherry fam­i­ly want­ed the death penal­ty was false and whether the family’s oppo­si­tion to the death penal­ty in the case con­sti­tut­ed new­ly discovered evidence. 

After hear­ing tes­ti­mo­ny from nine­teen wit­ness­es, Judge Everett Young over­turned Storey’s death sen­tence, hold­ing that the prosecutor’s argu­ment was false, that Jack had ​“made the argu­ment intend­ing it to affect the jury’s ver­dict,” and that she ​“was aware of [its] fal­si­ty” when she did so. However, on appeal in October 2019, the TCCA rein­stat­ed Storey’s death sen­tence with­out reach­ing the mer­its of the pros­e­cu­to­r­i­al mis­con­duct claim, hold­ing that the claim was pro­ce­du­ral­ly barred because Storey had not proven that his post-con­vic­tion lawyer, who was deceased, could not have dis­cov­ered the Cherry’s oppo­si­tion to the his death sen­tence in time to raise the issue earlier.

The U.S. Supreme Court declined to hear the case in July 2022.

When the TCCA returned the case to the tri­al court in 2017, District Attorney Sharen Wilson asked for her office to be recused, not­ing that Storey’s tri­al lawyer, Larry Moore, had become First Assistant District Attorney. This, she said, placed Tarrant pros­e­cu­tors ​“in the unten­able posi­tion of being both pros­e­cu­tor and wit­ness.” With the tes­ti­mo­ny com­plete and Moore walled off from involve­ment in the case, Wilson in July 2022 asked and received per­mis­sion for her office to reen­ter the case to address what it described as ​“Christy Jack’s bla­tant dis­re­gard for can­dor to the tribunal.”

Asking the TCCA to recon­sid­er its deter­mi­na­tion that Storey had failed to prove that his post-con­vic­tion coun­sel could not have dis­cov­ered that Jack’s argu­ment was false, Wilson argued, ​“There is sim­ply no way Storey’s ini­tial state habeas counsel­ — well-known for his dili­gence and his work eth­ic — could have dis­cov­ered that Ms. Jack had lied dur­ing her clos­ing argu­ment when no one had any rea­son to believe that was the case, when not a sin­gle note in the State’s tri­al file sug­gest­ed that was the case. … Whatever dili­gence requires of defense coun­sel …, it can­not pos­si­bly require them to search for, much less find, some­thing hid­den from them which they do not even know to search for.” 

Summarizing why Tarrant County pros­e­cu­tors now believe Storey’s death sen­tence should be over­turned, Wilson wrote: ​“In 2008, Ms. Jack and Mr. Foran failed to dis­close favor­able, mate­r­i­al evi­dence to defense coun­sel. Ms. Jack com­pound­ed this action when she bla­tant­ly lied dur­ing her clos­ing argu­ment at tri­al. Ten years lat­er, Ms. Jack and Mr. Foran com­pound­ed that lie even fur­ther when they gave per­jured tes­ti­mo­ny to cov­er up the fact that Ms. Jack had vio­lat­ed Storey’ s right to a fair tri­al …. Storey should, at the very least, be grant­ed a new pun­ish­ment tri­al. Justice demands it.” 

In a state­ment pro­vid­ed to Fort Worth tele­vi­sion sta­tion WFAA, Jack said: ​“I stand by my state­ments to the jury and my tes­ti­mo­ny dur­ing the hear­ing. I even went so far as to take — and pass — a poly­graph relat­ed to the truth­ful­ness and verac­i­ty of my testimony.” 

Jack assert­ed that she still has a note from the Cherry fam­i­ly ​“thank­ing me for speak­ing on their behalf after the jury returned their unan­i­mous deci­sion for cap­i­tal pun­ish­ment.” ​“I respect that, with the pas­sage of time, the fam­i­ly has for­giv­en Paul Storey,” Jack said. ​“Their com­pas­sion demon­strates the type of peo­ple they are.”