Today, a majority of judges on the Texas Court of Criminal Appeals (CCA) rejected a trial judge’s recommendation that Paul Storey’s death sentence be commuted to life in prison after he found prosecutors had presented false evidence and withheld evidence from the defense. Storey was sentenced to death for the robbery and murder of Jonas Cherry in Tarrant County in 2008.
A prosecutor claimed during her closing argument in the punishment phase of the trial that “… it should go without saying that all of Jonas’s family and everyone who loved him believe the death penalty is appropriate.”
In fact, Judy and Glenn Cherry, the parents of Jonas, opposed the death penalty. In 2017, when Paul Storey faced execution, they campaigned publicly to stop it, releasing this powerful video statement. (TCADP presented them with a Courage Award in 2018.)
In April 2017, the CCA stayed Storey’s execution and ordered the trial court to determine whether prosecutors had committed misconduct in withholding information about the Cherry’s views, and if so, whether that misconduct could have been discovered previously.
State District Judge Everett Young presided over a three-day hearing. In 2018, he found the prosecutorial misconduct could not have been discovered by previous attorneys through due diligence and that the testimony of the two original prosecutors during the hearing was not credible.
The majority of CCA judges disagreed with Judge Young’s recommendation that Storey receive a new sentencing hearing or a reduced sentence. They did not consider the merits of Storey’s claim but rather ruled that Storey’s habeas counsel, who is now deceased, could have uncovered the false evidence introduced by prosecutors through “reasonable diligence” and could/should have made the claim earlier.
Two judges – Yeary and Walker – filed separate dissenting opinions; Judge Slaughter joined both dissents. Their dissents take issue with the majority’s application of the “reasonable diligence” requirement.
Judge Walker writes in his 26-page dissent that “Reasonable diligence should not require habeas counsel to pry and probe a murder victim’s family to determine whether the prosecutor was untruthful during closing argument where there was no reason at the time to question the truthfulness of the prosecutor’s statement in closing argument, even though it may have been improper.”
Judge Yeary writes that: … “we should at least explore the possibility that ‘reasonable diligence’ should not be read to embrace a requirement that original state habeas counsel must second-guess the truthfulness of a prosecutor’s factual assertions during final argument in the punishment phase of a capital murder trial.”
Read coverage of today’s decision from the Texas Tribune.
Additional background on Storey and the Cherrys is available here.