The Texas Court of Criminal Appeals has halted the execution of Paul Storey, which was set for Wednesday.
In a three-page order Friday afternoon, the court sent the case back to the Tarrant County trial court to review claims regarding the prosecution presenting false evidence at Storey’s trial.
In 2008, Storey, 32, was sentenced to death for the 2006 murder of Jonas Cherry during a robbery of a miniature golf course where Cherry worked in Hurst, near Fort Worth. At the trial, the prosecution said that Cherry’s parents wanted the death penalty.
“It should go without saying that all of Jonas [Cherry’s] family and everyone who loved him believe the death penalty was appropriate,” the prosecution said during the penalty phase of the trial, according to Storey’s appeal.
Storey and Cherry’s parents, Glenn and Judith, say that’s not true. The Cherrys wrote to Gov. Greg Abbott and the Board of Pardons and Paroles in February, asking for a life sentence for Storey. The Cherrys said they never wanted the death penalty and made that clear to the prosecution, according to Storey’s appeal.
“As a result of Jonas’ death, we do not want to see another family having to suffer through losing a child and family member ... due to our ethical and spiritual values we are opposed to the death penalty,” the Cherrys said in their statement.
Sven Berger, a juror in Storey’s trial who recently asked Texas legislators to change jury instructions in capital cases, also wrote an affidavit for Storey’s recent appeal. In his affidavit, Berger said had he known the Cherrys didn’t want death, he would have “held out for a [sentence of] life without the possibility of parole for as long as it took.”
Now, the trial court has been ordered to determine whether the fact that the Cherrys opposed the death penalty could have been discovered by appellate attorneys earlier. Generally in death penalty cases, if evidence could have been raised at an earlier appeal and wasn’t, it is not allowed to be used in future appeals. This evidence was brought forth to the courts less than two weeks before his execution.
The appeal claims the evidence of the Cherrys’ disapproval of the sentence was learned only in the past 90 days. But the Court of Criminal Appeals said it’s not yet clear whether his previous state appellate attorney could have learned about the Cherrys’ beliefs.
“The trial court is ordered to make findings of fact and conclusions of law regarding whether the factual basis of these claims was ascertainable through the exercise of reasonable diligence on or before the date the initial application was filed,” the order states. “If the court determines that the factual basis of the claims was not ascertainable through the exercise of reasonable diligence on or before the date the initial application was filed, then it will proceed to review the merits of the claims.”
Storey’s appeal said the evidence of false claims warrants him a new punishment hearing, where he either could be sentenced to death again or receive a life sentence without the possibility of parole.
Source: Texas Tribune, April 7, 2017
Execution called off after murder victim's parents object to death sentence
The parents of murder victim Jonas Cherry are seeking a change in sentencing to life imprisonment for Paul Storey.
April 12 (UPI) -- A Texas death row inmate's execution, scheduled for Wednesday, was halted after the murder victim's family announced their opposition to the death penalty.
Glenn and Judith Cherry, parents of Jonas Cherry, 28, who was shot to death in 2006 at a Hurst, Texas, miniature golf course, said in a March Facebook posting that they prefer that convicted killer Paul Storey, 32, receive a life sentence instead of the death penalty.
An accomplice to the shooting, Dewayne Porter, pleaded guilty to assisting in the murder and was given a life sentence without parole. Storey was offered the same arrangement, but chose instead to go to trial, where he was convicted in 2008. The Cherry parents now say they were not aware that prosecutors gave Storey the option of pleading guilty and accepting a life sentence. They added that they have long opposed capital punishment, including the time during the trial of their son's killer.
"Paul Storey's execution will not bring our son back, will not atone the loss of our son, and will not bring comfort or closure. We are satisfied that Paul Storey remaining in prison until his death will assure that he cannot murder another innocent person in the community, and with this outcome we are satisfied and convinced that lawful retribution is exercised concerning the death of our son," the parents stated in the Facebook posting.
A juror at Storey's trial, Sven Berger, further complicated the case when he said he did not fully understand jury instructions, and would have voted differently if he received adequate information. He added that he was unaware his vote alone could have blocked a death penalty sentence.
With the Cherry parents' request for mercy and Berger's comments, Storey's execution was called off, and the Texas Court of Criminal Appeals returned his case to a lower court, to make recommendations regarding a new trial and a possible new sentence.
Source: UPI, April 12, 2017
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