Prosecutorial misconduct accusations in Tarrant County spotlight high stakes in death penalty cases
Data shows prosecutorial misconduct was found in many death penalty cases. Two former Tarrant County prosecutors accused by District Attorney Sharen Wilson of lying in the case of Paul Storey have denied any wrongdoing.
Cory Session met Glenn and Judy Cherry by coincidence, he said. He’s a car salesman, and he sold them a few cars over the years.
“We just remained friends,” Session said. “But we never talked about the case, ever.”
Two men were convicted in Jonas Cherry’s death: Mark Porter and Paul Storey. Porter took a plea deal and got life in prison, but Storey was sentenced to death.
Since then, the prosecutors in Storey’s case have been accused of lying to put him on death row. Even the Tarrant County district attorney, who runs the prosecutor’s office, says Storey deserves a chance at a new sentence. If the state’s highest criminal court agrees, Storey's death sentence could join hundreds of others thrown out due to prosecutorial misconduct.
The victims’ call for life
Storey’s execution date was set for April 2017.
As that date neared, Glenn Cherry asked Cory Session for help, Session remembered. Besides being a car salesman, Session has long worked with the Innocence Project of Texas, pushing for criminal justice reform legislation in Austin. Much of his work has been in honor of his brother, Tim Cole, who was wrongfully convicted for rape in 1986 and posthumously exonerated with DNA evidence in 2009.
Glenn Cherry didn’t want to see Paul Storey die. And that wasn’t a recent decision. They had never wanted the death penalty for Storey, Session said.
“My first thing I said was, well, did you tell this to the prosecution back then?” Session said. “He said, ‘Yeah, we did.’”
That revelation became the crux of a new argument for Storey’s life.
While asking the jury to pass down a death sentence, prosecutor Christy Jack said, “It should go without saying that all of Jonas’s family and everyone who loved him believe the death penalty is appropriate."
Storey’s defense team argued that Jack lied in court, because she and her co-prosecutor, Robert Foran, knew the Cherrys were anti-death penalty. One juror came forward and said he would not have approved the death penalty had he known the Cherrys’ feelings.
The state stayed Storey’s execution just days before he was supposed to die. A trial court then recommended that Storey be re-sentenced to life in prison because the prosecution withheld evidence, according to the Texas Tribune.
But that didn’t last long.
A year later, the state’s highest criminal court, the Texas Court of Criminal Appeals, threw out that recommendation. In June, the U.S. Supreme Court declined to hear Storey’s case, although Justice Sonia Sotomayor wrote a strong statement in Storey’s support.
Taking Storey off death row would come at no cost, Session said.
"Mr. Storey is guilty. This is not an innocence case. This is a justice case,” Session said. “What is right for the family, the victim's family? If they have said, and have always said, we do not want [him] executed, who are we to execute someone against their wishes?"
More than five years after his scheduled execution date, Storey remains on death row.
In August, Tarrant County Criminal District Attorney Sharen Wilson — the head of the local prosecutor’s office — took an unusual step. She asked the Court of Criminal Appeals to reconsider Storey’s case.
Wilson joined the accusations against Jack and Foran, saying over the years they lied, perjured themselves and hid evidence that could have helped Storey’s case.
“Under these most extraordinary circumstances, Storey should, at the very least, be granted a new punishment trial,” Wilson wrote. “Justice demands it.”
KERA reached out to both Christy Jack and Robert Foran for this story. Jack, now a partner at the Varghese Summersett law firm in Fort Worth, responded with a statement standing by what she said in court.
“The Texas Court of Criminal Appeals, the Fifth Circuit Court of Appeals, and the U.S. Supreme Court have all upheld the jury's death sentence. Even after the highest court in the country put this matter to rest, the Tarrant County District Attorney reinserted herself,” she wrote.
Jack’s statement included a photo of a handwritten card apparently from Judy Cherry, thanking Jack and Foran for their work on the case.
The Cherrys have not denied liking Jack.
“I feel funny about this because we like Christy Jack. She was a hell of a prosecutor,” Glenn Cherry told The Marshall Project in 2018.
KERA left a message at Foran’s office but did not hear back by publication time. He has defended his work in Storey’s case in the past, claiming Storey’s original defense attorney knew about the Cherrys’ position.
How prosecutors’ questionable behavior can affect death penalty cases
There's precedent for death penalty reversals due to prosecutorial misconduct.
That’s more than one in 20 death sentences passed down since 1972, said Robert Dunham, the Center’s executive director.
"Prosecutorial misconduct is a huge problem,” Dunham said. “It's a huge problem in regular cases. It's even worse when we're dealing with these high-profile death penalty cases.”
Dunham defines misconduct as "prosecutors doing things that they shouldn't do in order to obtain a conviction or to obtain a death sentence.”
That can range from dismissing jurors based on race to hiding evidence that could benefit the defense.
"When a crime creates such a strong emotional response, then the tendency is to want to get somebody,” he said. “The normal precautions that you take during the course of the investigation, just sort of wash away.”
Saying Cherry’s family wanted the death penalty would be misconduct even if the statement was true, Dunham said. Prosecutors are allowed to demonstrate the impact of a crime on the victim’s loved ones, but there’s a limit.
"The rule is: Whatever views a victim's family has towards punishment should be kept out of the case,” he said.
Whether the defense can make a similar argument – that putting a defendant to death would hurt the victim’s family, as the Cherrys say it would – is unclear, Dunham said.
The court battle continues
Texas Attorney General Ken Paxton sided with Jack and Foran in a brief filed Sept. 30, asking the Court of Criminal Appeals to disregard Wilson’s push for a new trial, in part because Wilson is about to leave office.
"Consider this hypothetical,” Paxton’s motion states. “The Court reopens proceedings based on the new position taken by [Wilson]; but before it can rule, a new district attorney takes office and asserts the original position of [Wilson].”
In her statement to KERA, Jack said she appreciated Paxton for stepping in the case.
“He specifically criticized [Wilson’s] position, her legal arguments, and the timing of her involvement in this matter. He asserted that her actions ‘eroded the public's trust’ and accused her of ‘playing fast and loose with the courts.’ He asked, ‘Why now?’ -- a question to which there is a very simple answer: This is not about the law, this is personal,” Jack wrote.
The Court of Criminal Appeals has yet to rule on Wilson’s request for a new punishment trial. Carmen Roe, a Houston defense attorney and adjunct professor at the University of Houston Law Center, said Wilson’s request could work because of how extraordinary it is.
"It’s extremely unusual to have the Tarrant County district attorney make accusations against prosecutors — and to go further and say that it affected this case enough to warrant a new sentencing hearing,” she said.
Avoiding ‘lingering doubt’ in death penalty cases
The State Bar can reprimand attorneys accused of misconduct, but not all reprimands are public, according to the State Bar’s website.
“To get into the committee and understand why they give private reprimands or public reprimands is something that everybody in the State Bar of Texas would love to know," Roe said.
Few prosecutors ever face punishment for misconduct, according to Robert Dunham with the Death Penalty Information Center.
"Because it takes so long before a case is overturned for misconduct, the prosecutor tends to have already gotten the advantages of the misconduct and is usually well insulated from the effects down the road," he said.
As of 2020, only one prosecutor has ever been jailed for misconduct leading to a wrongful conviction, according to the Innocence Project. That was Texas prosecutor Ken Anderson, who got a 10-day sentence for the wrongful conviction of Michael Morton. Morton spent 24 years in prison for a crime he didn’t commit.
Morton’s exoneration led to the Michael Morton Act, a Texas state law that aims to prevent prosecutors from suppressing evidence and wrongfully convicting people.
That makes Texas better than most states when it comes to letting defendants return to court if there’s a new indication of false testimony or evidence, Dunham said. The criminal justice system needs that flexibility in matters of life and death.
"Doing justice doesn't mean upholding a conviction death sentence at any cost,” Dunham said. “Doing justice means not trying to execute people when there is a lingering doubt that something is wrong.”
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