Texas Court Reimposes Death Sentence in Case Where Prosecutor Lied to Jury that the Victim’s Family Wanted the Death Penalty

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.”

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.