The Texas Court of Criminal Appeals has reinstated the death sentence of Paul Storey (pictured), after a Tarrant County judge had reduced his sentence to life because a prosecutor had lied at trial about the victim’s family’s views on the death penalty. In a divided opinion issued October 2, 2019, the court did not address the merits of Storey’s claim that his death sentence should be overturned because the prosecution had presented false evidence and argument to the jury, instead ruling that the claim was procedurally defaulted.

In two separate dissenting opinions, three judges of the court argued that the trial court’s decision should stand. Judge Scott Walker, joined by Judge Michelle Slaughter, wrote in dissent that the victim’s parents “had long been opposed to the death penalty, and the State’s prosecutors … knew prior to trial that [they] were opposed to the death penalty.” A second dissent by Judge Kevin Patrick Yeary, also joined by Judge Slaughter, called the prosecution’s argument to the contrary “patently false.”

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Storey was sentenced to death in 2008 for the murder of Jonas Cherry. Prior to Storey’s trial, Cherry’s mother and father, Judy and Glenn Cherry (pictured, below) told the prosecutor that they opposed the death penalty for those charged with murdering their son. Yet at Storey’s trial, Assistant Tarrant County District Attorney Christy Jack told the jury during closing arguments, “[i]t should go without saying that all of Jonas [Cherry’s] family and everyone who loved him believe the death penalty [is] appropriate.”

Storey’s defense attorneys said they did not know about the Cherry family’s stance until December 2016, after his appeals had been denied. Prior to a 2017 execution date for Storey, Cherry’s parents released a video statement pleading for clemency for Storey. The Texas Court of Criminal Appeals (CCA) stayed the execution and sent the case back to the trial court to consider whether the prosecution knowingly presented false evidence about the victim’s family’s views on the death penalty. In 2018, the trial court recommended overturning Storey’s death sentence and sentencing him to life without parole. The latest ruling from the CCA reverses that decision, saying that the trial court hearing did not provide a factual basis to show that Storey’s appellate attorney did not know about the Cherry family’s views before filing Storey’s original appeal.

A concurring opinion, written by Judge Barbara Hervey and joined by the three other judges who voted to reverse the trial court’s decision, argued that the prosecutor did not introduce false evidence, as the defense had claimed, because a closing argument “is not evidence.” The decision also asserted that the Cherrys’ opposition to the death penalty was not grounds for reversal because truthful argument about their views would not have “cast ‘the whole case in a different light.’” The four judges wrote that a prosecutor’s only legal responsibility to victims is to keep them informed of the case. “A victim’s desires, wishes, thoughts, and suggestions should be, and often are, sought out by prosecutors, but the victim’s wishes do not override prosecutorial discretion, including regarding whether to seek the death penalty.”

The dissenting judges argue that there was no reason to believe that Storey’s habeas attorney had any knowledge of the Cherrys’ opposition to the death penalty for their son’s murder. The lawyer, who has since died and could not testify about his knowledge of the Cherrys’ views, was known to be competent and diligent, they wrote, suggesting that he would have raised the issue if he had known. They also wrote that it would have been “unreasonable” for counsel to contact the Cherrys about their feelings on capital punishment. “’Reasonable’ diligence would not go prying into the private feelings of a murder victim’s family without a very good reason for doing so,” Judge Scott Walker wrote.

Mike Ware, one of Storey’s current attorneys, said, “The opinion says two things. It’s OK for a lawyer to lie and say untrue things to the jury and to the judge, and it’s OK for the prosecutor to cover up that lie and the courts will allow that lie to go forward. I refuse to accept that is the law.” Keith Hampton, another of Storey’s attorneys, said the decision would force lawyers to assume prosecutors are lying, and require that they contact victims’ families to determine their positions on the death penalty. “The last thing that people want is to hear from the lawyers of the person who has been convicted of murdering their family members,” he said. Storey’s attorneys say they plan to ask the CCA to reconsider the ruling.

Sources

Jolie McCullough, A tri­al judge rec­om­mend­ed tak­ing Paul Storey off death row. The Texas Court of Criminal Appeals said no., Texas Tribune, October 2, 2019; Mitch Mitchell, Murderer must die, Texas appeals court rules, despite victim’s family’s oppo­si­tion, Fort Worth Star-Telegram, October 72019.

Read the Texas Court of Criminal Appeals October 2, 2019 rul­ing and opin­ions in Ex parte Paul David Storey: Order; Concurring opin­ion of Judge Hervey, joined by Judges Keasler, Richardson, and Newell, Dissenting opin­ion of Judge Yeary, joined by Judge Slaughter; Dissenting opin­ion of Judge Walker, joined by Judge Slaughter.