An appeals court has rejected a lower court’s recommendation that urged judges to spare the life of a death row inmate or give him another sentencing hearing because prosecutors lied during his trial.
The Texas Court of Criminal Appeals issued a ruling Wednesday saying that Paul David Storey has to die, despite an impassioned plea from the parents of the man he murdered that asked the court to let him live.
Storey’s attorneys, Mike Ware and Keith Hampton, said they are considering options, and are now planing to ask the appeals court to reconsider its ruling. Three of the nine judges on the appeals court dissented from the court’s majority opinion.
“The opinion says two things,” Ware said. “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.”
The court postponed Storey’s execution days before he was scheduled to die. Glenn and Judy Cherry, the parents of Jonas Cherry, the murder victim, said they never wanted to see their son’s killer put to death and that they told prosecutors early on about their feelings concerning the death penalty.
Attorneys for Storey argued that the Cherrys told prosecutors about their opposition to the death penalty, yet during the sentencing phase of the trial, the state argued that everyone in the family was in agreement with the use of the death penalty.
Christy Jack, then a Tarrant County prosecutor who is now a partner at Varghese Summersett, told the jury: “And it should go without saying that all of the Jonas’ [the victim’s] family and everyone who loved him believe the death penalty is appropriate.”
Appellate judges sent the case back to a lower court to figure out the truth.
Visiting State District Judge Everett Young ruled that Storey’s sentence is entitled to further review on multiple constitutional grounds, which include a violation of his right to due process, the suppression of mitigating evidence by prosecutors, the introduction of false evidence to a jury, and his right to a fair punishment hearing.
Jack and another prosecutor, Robert Foran, have always maintained that Storey’s defense attorneys were told how the Cherrys felt about the death penalty prior to the trial. The appeals attorneys representing Storey now say the defense attorneys were never told about the Cherrys’ opposition to the death penalty.
The appellate court said in its opinion that it does not often go against trial judges.
But in this case, it did.
“In an unprecedented move, the highest criminal court in Texas reversed Judge Young’s decision and reinstated the death sentence,’ Jack said. “The Attorney General’s Office will be seeking a new execution date. There really is nothing more to say at this point.”
Opinion cites an absence of evidence
The appeal judges ruled that there is no evidence that shows that one of Storey’s appellate lawyers, Robert Ford, did not know about the Cherrys’ death penalty stance and argues that Ford could have discovered how the father felt through the exercise of reasonable diligence.
Young found that Ford, who is dead, did not know that the victim’s family members opposed the death sentence for Storey. But the appeals court said that finding is not supported by the record. The appeals court also said that while Ford had a good reputation as a diligent attorney, there was no evidence in the record that he was diligent in this case.
If this ruling is allowed to stand, attorneys will be placed in the difficult position of assuming that all statements from prosecutors are lies, Hampton said. Those attorneys will also be forced to contact the family members of victims to determine their positions on laws like 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,” Hampton said.
Storey’s legal team is exploring all possibilities including asking for intervention from elected officials, Hampton said. With a recommendation from the Texas Board of Pardons and Paroles, the governor has the power to commute Storey’s death penalty sentence.
“We just had the Amber Guyger trial,” where the victim’s brother forgave a convicted killer, “and that’s what the Cherrys want to do,” Hampton said. “And instead of letting something beautiful happen, we are getting interference from the state’s highest court.”
An appellate judge who wrote in support of the majority opinion pointed out that what a prosecutor says during closing arguments is not evidence. That judge also says in his opinion that the evidence presented at trial was sufficient enough to withstand any objections about the death penalty from the victim’s relatives.
The family’s wishes
The wishes of the family do not overcome the will of the state in seeking and applying the death penalty sentence and the decision to carry out the death penalty should not be overturned, the opinion concludes.
“But even legislative consideration of victims’ rights only directs prosecutors to keep victims informed,” the opinion states. “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.”
“What the decision really says is that it does not matter that the prosecution lied,” Hampton said.
Storey, now 34, was convicted of capital murder in 2008 in the robbery-slaying of Jonas Cherry, who was an assistant manager of Putt-Putt Golf and Games at Texas 121/Loop 820 across from North East Mall in Hurst.
Law enforcement personnel argued that on the morning of Oct. 16, 2006, Storey and his co-defendant Mark Porter stood over a kneeling Cherry, who pleaded: “Please! I gave you what you want. Don’t hurt me.”
They refused and shot him twice in the head and twice in his legs. Cherry, who was approaching his first wedding anniversary, was pronounced dead at the scene.
Storey and Porter were convicted of capital murder, but only Storey got the death penalty. Porter got life without parole after making a deal with the Tarrant County district attorney’s office.
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This story was originally published October 7, 2019 5:00 AM.