Texas death penalty juror hopes to change law as execution looms

Paul Storey

As Paul Storey's execution looms, one juror is asking the Texas Legislature to clarify the jury instructions in death penalty cases, claiming he didn't know he alone could have stopped the sentence.

When Sven Berger looked around at the other jurors in the deliberation room during a 2008 capital murder trial, he knew that the majority wanted the death penalty. He also knew he didn’t.

But he voted for it anyway. It's a decision he still regrets, and one he says he wouldn't have made if the law had been clearly explained in that Tarrant County courtroom.

He'd sat in the courtroom and listened to how Paul Storey, the 22-year-old defendant in an ill-fitting suit, and another man had robbed a miniature golf park near Fort Worth and fatally shot the assistant manager, 28-year-old Jonas Cherry. Berger knew Storey was guilty, he said in a recent Texas Tribune interview, but in his gut, he didn't believe the man would be a future danger to society, a requirement in issuing the death penalty in Texas.

What Berger didn’t realize — in part because of the language in the jury instructions — was that his vote alone could have blocked the jury from handing down a death sentence and given Storey life in prison without the possibility of parole.

Thinking that he'd have to convince most of his fellow jurors to spare Storey from execution, he didn’t fight as the jury deliberated, Berger said. When the life-or-death questions went around the table, he answered like everyone else.

Now, with Storey’s execution set for April 12, Berger and two state lawmakers are hoping to change jury instructions in death penalty cases.

“The judge instructed us that any vote that would impose a life sentence would require a consensus of 10 or more jurors,” Berger wrote in a letter to the Senate Criminal Justice Committee last week. “With the vast majority of the other jurors in the room … voicing their vote for death, I seriously doubted I could persuade one, let alone nine other jurors, to vote to incarcerate Mr. Storey for the remainder of his life, and I switched my vote.”

To hand down a death sentence in Texas, the jury's decision must be unanimous. If even one juror disagrees, the trial automatically results in a sentence of life without parole. But the jury instructions don’t say that, and, under state law, no judge or lawyer can tell jurors that either.

Instead, deliberations in a trial's sentencing phase (after the jury has issued a conviction) focus not on death versus life, but on three specific questions the jury must answer: is the defendant likely to be a future danger to society? If the defendant wasn’t the actual killer, did he or she intend to kill someone or anticipate death? And, if the answer is yes to the previous questions, is there any mitigating evidence — like an intellectual disability — that the jury thinks warrants the lesser sentence of life without parole?

To issue a death sentence, the jury must unanimously answer “yes” to the first two questions and “no” to the last question. But, the instructions state, to answer “no” to the first two questions or “yes” to the last, ten or more jurors must agree.

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What those complicated instructions don't say is that a single juror can deadlock the jury on any of the three questions, eliminating death as an option and triggering an automatic life without parole sentence.

Berger didn’t get the distinction.

“I’m appalled that Texas’ capital jury instructions misled jurors about the implications of their vote, and find it unconscionable that men and women like me, with the power of life and death, are told that they must act only as a single group, and that their individual voice doesn’t matter,” Berger wrote in his letter.

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Source: Texas Tribune, Jollie McCullough, March 28, 2017

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