Texas Court Stays Execution of Paul Storey Based on False Argument About Wishes of Victim’s Family

The Texas Court of Criminal Appeals has issued an order stay­ing the sched­uled April 12 exe­cu­tion of Paul Storey. The unpub­lished April 7 order sends Storey’s 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. 

Storey had been sched­uled to be exe­cut­ed on April 12. His lawyers argued that ​“the State denied him his right to due process because it argued ​“evi­dence it knew to be false” when pros­e­cu­tors told jurors that the fam­i­ly of vic­tim Jonas Cherry sup­port­ed a death sen­tence for Storey. 

During the penal­ty phase of Storey’s tri­al, the pros­e­cu­tion argued that “[i]t should go with­out say­ing that all of Jonas [Cherry’s] fam­i­ly and every­one who loved him believe the death penal­ty was appro­pri­ate.” However, Cherry’s par­ents (pic­tured) say they always opposed the death penal­ty and had made their beliefs known to the pros­e­cu­tion at the time of Storey’s tri­al. They recent­ly released a video and state­ment in sup­port of clemen­cy, say­ing ​“Paul Storey’s exe­cu­tion will not bring our son back, will not atone for the loss of our son and will not bring com­fort or closure.” 

Storey pre­sent­ed his claim as part of a sec­ond state post-con­vic­tion chal­lenge to his death penal­ty. He faces the pro­ce­dur­al hur­dle of estab­lish­ing that the evi­dence sup­port­ing this claim could not have been dis­cov­ered ​“with the exer­cise of rea­son­able dili­gence” at the time he filed his ini­tial post-conviction petition. 

The stay con­tin­ues a recent pat­tern of deci­sions by the Texas court per­mit­ting judi­cial review of claims that death sen­tences had been pro­cured as a result of false or unre­li­able pros­e­cu­to­r­i­al evi­dence or argu­ment. In August 2015, the Court stayed Nicaraguan nation­al Bernardo Tercero​’s exe­cu­tion based on alle­ga­tions that he had been ​“denied due process because the State pre­sent­ed false tes­ti­mo­ny at his tri­al.” In May 2016, the court stayed the exe­cu­tion of Charles Flores to per­mit him to chal­lenge the use of sci­en­tif­i­cal­ly unre­li­able hyp­not­i­cal­ly refreshed tes­ti­mo­ny. One month lat­er, it stayed the exe­cu­tion of Robert Roberson to per­mit him to chal­lenge the State’s use of ​“false, mis­lead­ing, and sci­en­tif­i­cal­ly invalid tes­ti­mo­ny” about Shaken Baby Syndrome. And in August 2016, the Court stayed the exe­cu­tion of Jeffery Wood to per­mit him to lit­i­gate a claim that pros­e­cu­tors had pre­sent­ed false sci­en­tif­ic evi­dence and false tes­ti­mo­ny from a dis­cred­it­ed psy­chi­a­trist to per­suade the jury that Wood would pose a future dan­ger to society.