The U.S. Supreme Court has turned down a death penalty appeal filed by Paul Storey, 36, over a 2006 robbery and murder.
In separate trials, Storey and Mark Porter were each convicted of the capital murder of Hurst Putt-Putt miniature golf course manager Jonas Cherry. Cherry was on his knees begging for his life when he was shot twice in the head and twice in the legs. Storey was sentenced to death, Porter to life without parole.
Storey was two months from execution in 2017 when the process was halted after defense lawyers learned prosecutors had withheld a crucial piece of evidence. During closing arguments, prosecutor Christy Jack told the jury that Cherry's family favored the death penalty. That turned out to be the opposite of what the family wanted. They oppose the death penalty and wanted a sentence of life without parole.
The decision by the Supreme Court to reject the case angered Cory Session, an activist who is a friend of the Cherry family.
"One of the jurors said if he had known that was not the truth he would have voted not to have him executed. He would have held out for life in prison."
In a statement released by the Supreme Court, Justice Sonia Sotomayor took issue with a ruling by the 5th Circuit U.S. Court of Appeals, which rejected Storey's petition.
"The posture of Storey's case renders it a poor fit for this Court's review. His case, however, illustrates the injustice that can flow from an overbroad view, unsupported by precedent, of what constitutes a "second or successive" habeas petition," the justice wrote.
"Prosecutors not only failed to disclose Cherry's parents' unwavering desire that Storey not be sentenced to death but also misled the jury in summation to successfully secure a death sentence. The State then ran out the clock by failing to disclose its malfeasance throughout Storey's initial post-conviction proceedings. When Storey later sought postconviction relief based on the facts the State had misrepresented, the sole court to decide the merits of his misconduct claims found him entitled to receive a new punishment trial. But under the Fifth Circuit's irrational rule, it was too late: Storey should have raised these claims in his first federal habeas petition, regardless of the extent of the State's malfeasance or whether he could have known of it at that time. As a result, Storey now faces the possibility of execution without resolution of his claims."
Supporters of Storey vow to continue their fight. "We now go back to the Texas Department of Pardons and Paroles, who temporarily put on hold, a recommendation as to whether or not they would recommend clemency for Mr. Storey at the request of the victim's family." Session said.
The case will now go back to a trial judge for a death penalty setting.
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