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.

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