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It has been a lively week in Tarrant County. Two high-profile criminal cases are back in the news, and both demonstrate the influence that false claims and Brady can play when the State is intent on winning convictions. A trial court on Tuesday recommended to the Texas Court of Criminal Appeals that death row inmate Paul Storey’s death sentence be overturned due to State misconduct. The next day, the Texas Court of Criminal Appeals affirmed a lower court’s decision to overturn the murder conviction of John Nolley, Jr., who had been convicted on the word of an unreliable jailhouse informant. Interestingly, the DA’s Conviction Integrity Unit played a role in helping Mr. Nolley win back his freedom, while simultaneously failing to acknowledge wrongdoing in Mr. Storey’s capital case.

The news in Mr. Storey’s case is big; at one point not long ago, he was only a week away from his execution date. In a previous post, we discussed the posture of the Storey case:

The allegations that led the C[ourt of] C[riminal] A[ppeals] to postpone Paul Storey’s execution raise legal questions and undercut the moral authority of the Tarrant County District Attorney’s office. It turns out that murder victim Jonas Cherry’s parents, Judith and Glenn Cherry, did not and do not want the State to execute Mr. Storey for the crime. Yet, the trial lawyers who represented Mr. Storey never knew about the victim’s family’s opposition to the punishment. According to the defense team, former Tarrant County assistant district attorneys Robert Foran and Christy Jack kept this information hidden. More than that, they misrepresented the Cherrys’ views to the jury. One trial lawyer said, “had he known, he could have raised objections during Jack’s closing argument in Storey’s trial when she told jurors the Cherry family believed the death penalty was appropriate.”

Mr. and Mrs. Cherry not only signed affidavits but also wrote to the governor and the Board of Pardons and Paroles to ask that Mr. Storey be given a life sentence. They conveyed in a statement: “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 CCA remanded the case in April last year, requiring the lower court to conduct factual development to determine whether these claims must be decided on the merits or on procedural grounds.

The recommendation the trial court made earlier this week is the product of that remand, which included evidentiary submissions and hearings.

The district court’s factual findings are damning to the prosecution. The court effectively slammed the trial prosecutors, Christy Jack and Robert Foran, who were responsible for both concealing from the defense the fact that the Cherrys opposed Mr. Storey’s execution and misleading the jury to believe that the victim’s parents actually wanted the death penalty. (Jack is now a defense lawyer. Foran also appears to be practicing as a solo defense lawyer.) They should have disclosed what they knew about the Cherrys views on the appropriate punishment, and they should not have misled the jury. Here are some of the key findings the district court issued:

  • “Both Christy Jack and Robert Foran knew the Cherrys opposed Applicant receiving the death penalty.”
  • At no point did either prosecutor disclose this fact to the defense before trial.
  • Contrary to the trial prosecutors’ claims, Mr. Cherry did not suggest during trial that he changed his mind and wanted a death sentence. “It is not credible that prosecutors would have had no discussion about such a pivotal change in Glenn Cherry’s vies; and hence, this testimony creates an additional reasonable inference that the account is not true.”
  • “Christy Jack admitted that she, at the very least, intentionally and improperly argued outside the record in making her assertion . . . . Her admission of this prosecutorial misconduct further undermines her credibility.”
  • “Christy Jack and Robert Foran are not credible and their testimony is not believable.”

Ultimately, the court determined that Mr. Storey’s death sentence should be overturned on two separate grounds. One, Christy Jack made a false and misleading argument to the jury when she said that “it should go without saying that all of [Jonas Cherry’s] family and everyone who loved him believe the death penalty was appropriate.” Two, the State also violated Brady because it failed to disclose this critical mitigating evidence to the defense team.

Interestingly, Jack and Foran have not shied away from the media. According to a local report, “Jack said Tuesday she stands by what she has said about this case in the past. ‘I faithfully served the citizens of Tarrant County for nearly 24 years,’ Jack said.” Foran also evidently stated—contrary to the ultimate judicial findings—that he had disclosed the evidence to the defense: “That was a tactical decision on their part, but we told them and they damn well know it.”

Somewhere, someone at the State Bar of Texas should be reading the ruling and the news accounts, and consulting the ethical rulebook. Indeed, Christy Jack conceded at the hearing that she made an argument outside of the record. There is not even a question of whether the prosecutors’ conduct gives rise to a violation of the ethical rules; the evidence is clear-cut and in black-and-white. Now, a truly meaningful ethical inquiry might layer on some additional questions about the full scope of those violations—the answers to which may be more complicated. Did Jack and Foran also violate ethical rules in the post-conviction proceedings? Did the district court’s credibility findings suggest that they continued to lie even after the trial? And, do their statements to the media about the case violate the rules governing publicity, fairness, and integrity?

John Nolley Jr. was also recently vindicated after serving years in prison on a life sentence for a late 1990’s murder conviction that was improperly won by Tarrant County prosecutors. In June last year, the district court granted him relief, overturning his conviction. The Texas Court of Criminal Appeals just affirmed that decision.

The current Criminal District Attorney in Tarrant County, Sharen Wilson, who came into office in 2015, opened the office’s conviction integrity unit. Although these units have produced mixed results, it appears that the Tarrant unit here actively reviewed Mr. Nolley’s case and joined his defense team in petitioning for relief. The key issue was that the prosecution’s key informant, John O’Brien, was unreliable and gave false testimony at the trial. O’Brien testified that he had never reached out to prosecutors for assistance, which was patently false. (While the conviction integrity unit and the defense team also cooperated on reviewing evidence that had the potential to prove Mr. Nolley’s actual innocence, the parties agreed to move forward on the false testimony claim as the path to overturning the unjust conviction.) In 2017, the district court granted Mr. Nolley’s petition on the strength of the O’Brien claim as well as the State’s suppression of grand jury testimony that would have helped impeach a prosecution witness. The court’s legal conclusion cited a favorable Texas standard we have previously mentioned: “Under Texas law, the prosecution’s use of false testimony may undermine a conviction regardless of whether the prosecution knew the testimony was false at the time.”

According to media reports, Mr. Nolley’s case helped motivate the state legislature to reexamine its stance on informant testimony. Evidently, legislators are taking steps to prevent these kinds of injustices: “Texas also passed the toughest anti-snitch law in the nation. The law, which went into effect in September, requires prosecutors to track their use of informants and provide more information on these relationships to defense attorneys.” This stands in sharp contrast to how prosecutors have responded to the never-ending snitch scandal in Orange County, California. Somehow, that debacle has not (yet) prompted any meaningful reforms.

As one looks at Mr. Storey’s case and Mr. Nolley’s case side-by-side, it is easy to wonder why the integrity unit did not play a role in promoting the just outcome that the district court ultimately reached when it recommended that the CCA reduce Mr. Storey’s death sentence. The answer may be that conviction integrity units have too limited a mandate. Tarrant County should consider following the lead of Philadelphia District Attorney Larry Krasner and create a sentence review unit. Such a unit would look at whether the sentence imposed is unfair. (Most conviction integrity units only look to evidence that the conviction was wrongful.) While it looks like the judiciary produced good outcomes in Tarrant County this week, the public should press prosecutors to fulfill their ethical obligations in old cases as well as new.

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