Texas Judge Finds Prosecutors Lied That Victim’s Family Supported Death Penalty, Recommends Resentencing to Life

Finding that pros­e­cu­tors with­held evi­dence that the fam­i­ly of mur­der vic­tim Jonas Cherry opposed the death penal­ty for his accused killer and then lied to jurors that Cherry’s fam­i­ly sup­port­ed the death penal­ty, a tri­al judge in Tarrant County, Texas has rec­om­mend­ed over­turn­ing the death sen­tence imposed on Paul David Storey (pic­tured) and replac­ing it with a sen­tence of life without parole. 

Storey was con­vict­ed and sen­tenced to death in 2008 for mur­der­ing Cherry dur­ing a 2006 rob­bery of a Fort Worth putt-putt golf course. The victim’s par­ents, Glenn and Judith Cherry, told pros­e­cu­tors before the tri­al that they did not want any of the peo­ple charged with the mur­der sen­tenced to death. But in the penal­ty-phase clos­ing argu­ment in Storey’s tri­al, Assistant Tarrant County District Attorney Christy Jack told the jury “[i]t should go with­out say­ing that all of Jonas [Cherry’s] fam­i­ly and every­one who loved him believe the death penal­ty [is] appropriate.” 

In March 2017, Cherry’s par­ents sought clemen­cy for their son’s killer. In a let­ter to Governor Greg Abbott, 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.” 

On April 7, 2017, less than a week before Storey was sched­uled for exe­cu­tion, the Texas Court of Criminal Appeals issued a stay and ordered the tri­al court to deter­mine whether the pros­e­cu­tion had know­ing­ly mis­led the jury about the family’s views. After hear­ing tes­ti­mo­ny from nine­teen wit­ness­es, Judge Everett Young found 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. Concluding that ​“the false argu­ment was rea­son­ably like­ly to affect the jury’s ver­dict,” Judge Young held that the argu­ment vio­lat­ed Storey’s right to due process and that the pros­e­cu­tors’ sup­pres­sion of evi­dence relat­ing to the Cherry family’s views vio­lat­ed their duty to dis­close evi­dence favor­able to the defense. The court also ruled that “[t]he false argu­ment … had the effect of reduc­ing the respon­si­bil­i­ty of jurors by invit­ing them to acqui­esce to the false­ly-assert­ed desire of the vic­tim’s fam­i­ly for death,” in vio­la­tion of the Eighth Amendment.

The Tarrant County District Attorney’s office had argued that even if the argu­ment had been improp­er, Storey had not time­ly raised the claim in the Texas courts. The court ruled, how­ev­er, that the state had ​“unclean hands due to its sup­pres­sion … and false use of the evi­dence and had for­feit­ed that argu­ment. It wrote: ​“Because the State secret­ed evi­dence it was legal­ly required to dis­close, it can­not ben­e­fit from its wrong-doing by fault­ing [defense] coun­sel for fail­ing to dis­cov­er its own misconduct.” 

The case now returns to the Texas Court of Criminal Appeals, which may accept or reject the judge’s find­ings and sen­tenc­ing rec­om­men­da­tion. ​“Basically, it is now up to the Court of Criminal Appeals,” said Keith Hampton, a mem­ber of Storey’s legal team.