Cory Session met Glenn and Judy Cherry by coincidence, he said. He鈥檚 a car salesman, and he sold them a few cars over the years.
鈥淲e just remained friends,鈥� Session said. 鈥淏ut we never talked about the case, ever.鈥�
The case was the murder of the Cherrys鈥� son, , who was in 2006.
Two men were convicted in Jonas Cherry鈥檚 death: Mark Porter and Paul Storey. Porter took a plea deal and got life in prison, but Storey was .
Since then, the prosecutors in Storey鈥檚 case have been accused of lying to put him on death row. Even the Tarrant County district attorney, who runs the prosecutor鈥檚 office, says Storey deserves a chance at a new sentence. If the state鈥檚 highest criminal court agrees, Storey's death sentence could join hundreds of others thrown out due to prosecutorial misconduct.
The victims鈥� call for life
Storey鈥檚 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 pushing for criminal justice reform legislation in Austin. Much of his work has been in honor of his brother, , who was wrongfully convicted for rape in 1986 and posthumously exonerated with DNA evidence in 2009.
Glenn Cherry didn鈥檛 want to see Paul Storey die. And that wasn鈥檛 a recent decision. They had never wanted the death penalty for Storey, Session said.
鈥淢y first thing I said was, well, did you tell this to the prosecution back then?鈥� Session said. 鈥淗e said, 鈥榊eah, we did.鈥欌��
That revelation became the crux of a new argument for Storey鈥檚 life.
While asking the jury to pass down a death sentence, prosecutor Christy Jack said, 鈥淚t should go without saying that all of Jonas鈥檚 family and everyone who loved him believe the death penalty is appropriate."
Storey鈥檚 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 and said he would not have approved the death penalty had he known the Cherrys鈥� feelings.
The state stayed Storey鈥檚 execution . A trial court then recommended that Storey be re-sentenced to life in prison because the prosecution withheld evidence,
But that didn鈥檛 last long.
A year later, the state鈥檚 highest criminal court, the Texas Court of Criminal Appeals, recommendation. In June, the U.S. Supreme Court , although Justice Sonia Sotomayor wrote a strong statement in Storey鈥檚 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,鈥� Session said. 鈥淲hat 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?"
鈥楨xtraordinary circumstances鈥�
More than five years after his scheduled execution date, Storey remains on death row.
In August, Tarrant County Criminal District Attorney Sharen Wilson 鈥� the head of the local prosecutor鈥檚 office 鈥� took an unusual step. She asked the Court of Criminal Appeals to reconsider Storey鈥檚 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鈥檚 case.
鈥淯nder these most extraordinary circumstances, Storey should, at the very least, be granted a new punishment trial,鈥� Wilson wrote. 鈥淛ustice demands it.鈥�
四虎影院 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.
鈥淭he 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,鈥� she wrote.
Jack鈥檚 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.
鈥淚 feel funny about this because we like Christy Jack. She was a hell of a prosecutor,鈥� Glenn Cherry told in 2018.
四虎影院 left a message at Foran鈥檚 office but did not hear back by publication time. He has defended his work in Storey鈥檚 case in the past, claiming Storey鈥檚 original defense attorney knew about the Cherrys鈥� position.
鈥淭he defense decided not to call the parents to the stand,鈥� Foran . 鈥淭hat was a tactical decision on their part, but we told them, and they damn well know it.鈥�
How prosecutors鈥� questionable behavior can affect death penalty cases
There's precedent for death penalty reversals due to prosecutorial misconduct.
That鈥檚 according to the , a national nonprofit. The Center has identified 46 death sentences overturned in Texas due to prosecutorial misconduct 鈥� and
That鈥檚 more than one in 20 death sentences passed down since 1972, said Robert Dunham, the Center鈥檚 executive director.
"Prosecutorial misconduct is a huge problem,鈥� Dunham said. 鈥淚t's a huge problem in regular cases. It's even worse when we're dealing with these high-profile death penalty cases.鈥�
Dunham defines misconduct as "prosecutors doing things that they shouldn't do in order to obtain a conviction or to obtain a death sentence.鈥�
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,鈥� he said. 鈥淭he normal precautions that you take during the course of the investigation, just sort of wash away.鈥�
Saying Cherry鈥檚 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鈥檚 loved ones, but there鈥檚 a limit.
"The rule is: Whatever views a victim's family has towards punishment should be kept out of the case,鈥� he said.
Whether the defense can make a similar argument 鈥� that putting a defendant to death would hurt the victim鈥檚 family, as the Cherrys say it would 鈥� 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鈥檚 push for a new trial, in part because Wilson .
"Consider this hypothetical,鈥� Paxton鈥檚 motion states. 鈥淭he 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].鈥�
In her statement to 四虎影院, Jack said she appreciated Paxton for stepping in the case.
鈥淗e specifically criticized [Wilson鈥檚] position, her legal arguments, and the timing of her involvement in this matter. He asserted that her actions 鈥榚roded the public's trust鈥� and accused her of 鈥榩laying fast and loose with the courts.鈥� He asked, 鈥榃hy now?鈥� -- a question to which there is a very simple answer: This is not about the law, this is personal,鈥� Jack wrote.
The Court of Criminal Appeals has yet to rule on Wilson鈥檚 request for a new punishment trial. , a Houston defense attorney and adjunct professor at the University of Houston Law Center, said Wilson鈥檚 request could work because of how extraordinary it is.
"It鈥檚 extremely unusual to have the Tarrant County district attorney make accusations against prosecutors 鈥� and to go further and say that it affected this case enough to warrant a new sentencing hearing,鈥� she said.
Avoiding 鈥榣ingering doubt鈥� in death penalty cases
The State Bar can reprimand attorneys accused of misconduct, but according to the State Bar鈥檚 website.
鈥淭o 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, . That was Texas prosecutor Ken Anderson, who got a 10-day sentence for the wrongful conviction of . Morton spent 24 years in prison for a crime he didn鈥檛 commit.
Morton鈥檚 exoneration led to , 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鈥檚 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,鈥� Dunham said. 鈥淒oing justice means not trying to execute people when there is a lingering doubt that something is wrong.鈥�
Got a tip? Email Miranda Suarez at msuarez@kera.org. You can follow Miranda on Twitter @MirandaRSuarez.
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