In 2008, a Texas jury found that Paul Storey (left) had murdered Jonas Cherry (right), and the prosecutor, Christy Jack, told the same jury deliberating on the proper punishment, “It should go without saying, that all of Jonas’s family and everyone who loved him believe the death penalty is appropriate.”
Storey was indeed sentenced to death by the jury’s vote. Cherry’s family, however, opposed the death penalty, and said they always had. In 2016, they issued a video reaffirming their principled objection to executions,
Responding to the video, one of the jurors, Sven Berge, made a sworn statement in 2017 stating, “Had I known that Jonas Cherry’s parents were opposed to Paul Storey receiving the death penalty, I would have never have voted for death.” The Texas Court of Criminal Appeals, upon a writ of habeas corpus filed by Storey’s lawyers, stayed Storey’s impending execution and ordered Judge Everett Young to investigate whether Jack’s statement had affected the jury’s decision. After a three-day hearing, he ruled last year that ProsecutorJack’s statement was improper and prejudicial, because it constituted prosecutorial misconduct “to interject the wishes of the victim’s family for the jury to return a verdict of death.”
Not only that, Judge Young also found that the Jack’s statement to the jury was false. This meant that the judge rejected testimony from Jack defending her claim that the family wanted Storey to die. She had testified under oath that Jonas Cherry’s father approached her during the trial to say he had changed his mind about opposing the death penalty. The judge recommended that Storey’s death sentence be reduced to life without parole.
As if that wasn’t enough to confuse things, a Texas appeals court, in a 6 to 3 ruling, has held that new evidence about the prosecutor’s apparent falsehood did not justify reducing Storey’s sentence, not because a lie sent him to Death Row, but because defense lawyers waited too long to raise the issue and should have been more diligent in seeking Cherrys’ views on capital punishment. One of the dissenting judges, In Judge Scott Walker objected to the opinion’s assertion that lawyers should to “go prying into the private feelings of a murder victim’s family without a very good reason for doing so,” other than beginning with the presumption that “prosecutors misrepresented the truth or even lied.”
As it stands now, however, Storey’s execution will proceed.
What’s going on here?
What’s going on here is a perfect storm of confusion based on the popualr perception, encouraged by victim’ groups and popular culture, that the purpose of the criminal justice system is to satisfy victims and their families. It isn’t. Every time I read statements from prosecutors that suggest that they “represent the victims,” I am now reminded of the atrocious statements of Angela Corey, the special prosecutor in the Trayvon Martin case. Before the trial, Corey told the press and the public, “We know only one category as prosecutors, and that is a ‘V’….‘V,’ for victim. That’s who we work tirelessly for. And that’s all we know, is justice for our victims…our precious victims.” Later she added that “Remember, it is Trayvon’s family that are our constitutional victims….”
None of which was proper or true:
ABA Prosecution Standard 3-2.1, comment: “The idea that the criminal law … is designed to vindicate public rather than private interests is now firmly established.”
ABA Prosecution Standard . 3-3.2, comment: “The prosecutor’s client is not the victim.”
The prosecution represents the vital interests of society and the state in lawful conduct and societal order. If the victims of crime were the prosecution’s clients, then they could decide not to prosecute any crime, including murder.
This is the misconception created by all of the rhetoric about “closure,” and the unethical appeals to emotion that prosecutors try to slip into their presentations to the jury. It is bolstered by the deplorable practice of allowing a criminal’s victims or the victims’ family to excoriate the convicted defendant before sentencing.
Whether or not Jonas Cherry’s family wanted his killer executed was irrelevant to the sentencing and the jury’s deliberations. The statement by Jack should have been halted and admonished by the judge, and the jury instructed to disregard it. Maybe it even justified a mistrial. Christy Jack should have been sanctioned even if her representation were true. If it was not true, as the family claims, then she should be fired and face bar discipline.
The decision of the Texas Appeals Court to refuse relief because, it its view, Storey’s lawyers were not diligent in pursuing the question of whether Jack prejudiced the jury with her apparently false statement, is hard to defend. To complicate all of this further, the lawyer, Robert Ford, whose lack of diligence the court deems as sufficient reason to uphold his client’s death sentence is dead, and could not be questioned. In his dissent, Judge Walker writes,
…it should be taken as a given that if a reasonably competent habeas attorney knew that Jack’s argument to the jury indicating that the victim’s parents favored the death penalty was untrue, then the attorney would certainly raise that issue. An issue like this for a habeas attorney is like hitting the jackpot on the Texas Lottery, and I cannot imagine how a reasonably competent habeas attorney who knows about the issue would nevertheless choose not to raise it.
Second, the trial court found that Ford “had a strong reputation for his diligence” and was “invariably regarded as an exceptional and diligent attorney.” This is supported by the record because there was substantial testimony at the habeas hearing from a number of attorneys and judges praising Ford. From the evidence, we can accept that Ford was a reasonably competent attorney.
Third, it follows that if Ford, a reasonably competent attorney, knew that the Cherrys were opposed to the death penalty, he would have raised the issue. Fourth, if this proposition is true, then, logically, the contrapositive must also be true: if Ford did not raise the issue, then Ford did not know the Cherrys were opposed to the death penalty. Fifth, Ford did not raise the issue when he prepared and filed Applicant’s previous application for habeas relief. Accordingly, we can conclude circumstantially from the evidence that Ford, a reasonably competent attorney, did not raise the issue, that Ford did not know that the Cherrys were opposed to the death penalty.
Thus the court’s conclusion that Ford was not sufficiently diligent in investigating the truth of Jack’s statement seems harsh and unjust, particularly when it is now the basis on which a man’s death sentence is being upheld.
Judge Young’s conclusion was right and ethical, as is Walker’s dissent: the family’s views on the death penalty should not have been presented to the jury, there was evidence of prosecutor misconduct, and the appeals court argument that the defense had lost its chance to raise the issue by not investigating the family’s position on the death penalty earlier is unreasonable, especially since the lawyer it is declaring neglectful is now deceased.
Storey’s life should be spared, not because his victim’s family wants it to be, but because his sentencing was thoroughly botched.
The U.S. Supreme Court will eventually have to unravel this mess, I think. Maybe they will also settle for all time the principle that victims or their families don’t get to weigh in on how or whether the law is enforced.
__________________________
Source: New York Times
Ethics Alarms 
Jack, I’m going to have to disagree with this one, admittedly from the perspective of a layman. Here is how I see it:
1. I can’t see that Jack had a responsibility to disclose the family’s opposition, even in view of the broad discovery order. The Cherry’s position on the death penalty is simply not evidence, should not be admissible as evidence, and as such should not be covered by the order. It could not ethically be used by either the prosecution or the defense.
2. Jack clearly dissembled at trial, for which she should be sanctioned. However, the error was harmless. The jury had no right to know the feelings of the family, as it was immaterial to the charges. As you so rightly explained:
3. Basically, this case boiled down to whether or not Ford was told about the views of the Cherry’s. The majority concluded that the evidence at hand did not support that conclusion. The dissenters looked at the same evidence and reached the opposite conclusion, based on:
a. The fact that Jack clearly presented a false argument;
b. An analysis that Ford was known to be diligent, and was therefore unlikely to have missed such an important point.
I am more persuaded by the opinion rather than the dissent. There was no evidence shown as to what Ford knew or did not know. The fact that he is deceased no doubt contributed mightily to this reality, but reality it is.
Ford had the opportunity to object to the argument by the prosecution during trial as introducing facts not in evidence. That was a failure of diligence that the dissent failed to note. Ford could’ve requested the court to order the jury not to consider that statement, or even moved for a mistrial based on it’s introduction. He did not do so.
Now, that could suggest the prosecution lied to him about the Cherry’s position, but I don’t think the record establishes that as likely. Therefore, I think this is evidence that Ford’s diligence was as subject to human foibles as the rest of us, and that the dissenter’s argument based on that is unconvincing.
To me, it’s simple: the prosecutor’s lie tainted the jury’s decision, and even if the lawyer was dilatory, the defendant was denied his 8th Amendment rights to a fair trial. When in doubt, choose life.
Fair comment, but I can’t endorse that position, even if I totally agree with the sentiment behind it. As a nation of laws, process matters, and we can’t “choose life” as the default escape when irregularities arise.
I think what you mean is the Sixth Amendment, not the Eighth. Either that, or you think the punishment should be declared cruel or unusual under the circumstances. In either case, I disagree. The defendant was not entitled to the fact of the victim’s position on the death penalty, and the defense council had a chance to challenge the introduction of it at trial. He did not.
I consider the error harmless, the original judgment fair to the people of Texas, and that the defendant received the process he was due. I also consider Christy Jack a walking example of an unethical district attorney who should be sanctioned by the Texas bar for her actions. I’m not familiar enough with bar discipline to opine on the severity, but given the stakes at issue, disbarment doesn’t seem out of the question.
As an irrelevant aside, I think that the death penalty should be reserved for only the most violent and evil of persons, like multiple murders, murderers that torture or rape during the act, or equally evil killings that shock the conscience. Storey’s acts do not rise to a reasonable interpretation of that standard, so from a personal standpoint, I’d love to see his sentence commuted.
But by my understanding of the facts and law, Texas got it right.
Sixth. My mistake.