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 at least 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.
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.
He’s not the only one upset. Democrats Sen. Eddie Lucio, Jr., of Brownsville, and Rep. Abel Herrero, of Robstown, filed bills in the Texas Legislature to strike the language that says ten or more jurors must agree to answer against the death penalty, and also remove a sentence that bars judges or lawyers from telling jurors what their votes mean. And Republican Rep. John Smithee, of Amarillo, has since signed on to Herrero's bill as a co-author. Senate Bill 1616 and House Bill 3054 have both been referred to committee.
“I was shocked to learn that the instructions in place actually lie to jurors who are tasked with quite literally making a life or death decision,” Lucio told the Tribune, saying religious advocates first informed him of the current jury instructions.
The bills might not make much headway in a Republican-dominated legislature that tends to avoid anything that could affect the death penalty. Though no opposition has come forward yet (neither bill has even been granted a hearing), prosecutors would likely fight it if it gained traction.
“In a death penalty case, the jury's job in sentencing is to answer the special questions required by the law, not decide the ultimate sentence. This bill informs them of the effect of their vote and basically encourages any hold-out jurors to try to hang the jury on sentencing,” said Shannon Edmonds, Director of Governmental Relations for the Texas District and County Attorneys Association.
District attorneys from the state's five biggest counties — Harris, Dallas, Tarrant, Bexar and Travis — all either declined to comment or did not respond to requests for comment on the bills.
The issue has been introduced at the Texas Capitol before. In 2011, state Rep. Armando Walle filed a bill almost identical to the current ones. It never made it out of the House Criminal Jurisprudence Committee after a lackluster hearing, with only one person testifying for the bill.
Regardless, Herrero said the change is necessary and he is optimistic about the current bills’ chances.
“We’re talking about life and death decisions being made by jurors, and it shouldn’t be determined by a guessing game,” he said.
Advocates hope the increased awareness with cases like Storey’s will give the issue more of a boost this year. Amanda Marzullo, interim executive director for Texas Defender Services, said she hopes to have Berger and another juror who has changed her mind testify if either bill is granted a committee hearing.
“It wasn’t really pushed [in 2011],” Marzullo said. “This is the first time the legislature’s really had a conversation about fairness to jurors in capital sentencing.”
Berger said he has been haunted by the death sentence he helped impose since an appellate attorney came to him months later and showed him evidence of Storey’s mental impairments. According to one psychologist, Storey had an IQ of 81. This cemented what he already thought but was unwilling to fight for at trial — that Storey wasn't likely to be a future danger.
Berger wrote an affidavit in 2010 stating that had he known about Storey's mental status, he would have fought against the death penalty at trial, specifically on the future dangerousness question. Despite his statement, Storey's sentence was upheld by the appeals court.
Berger said the experience has turned him from a supporter of capital punishment to an opponent.
“I’ve certainly been educated about what goes into death penalty cases and the results….it’s just astonishing to me how often trials are wrong. So that by itself would change my mind. I still believe there are bad people in the world, but no, I’m against the death penalty,” Berger said.
Now, Storey’s court appeals have all been exhausted. Last week, the parents of Storey’s victim, Jonas Cherry, wrote a letter asking the state and local authorities to commute his sentence, and his lawyer said he would file a petition to the governor asking for clemency, according to the Fort Worth Star-Telegram, but these are long shots.
More likely, Storey will be led to the execution chamber on April 12 and become the fifth person executed by Texas this year.
“I feel terrible. I think about it a lot, actually … especially with the execution looming,” Berger said. “It’s something that you know is going to happen, but it’s so far away you can kind of push it to the back of your head ... And then all of a sudden, there’s this date attached to Paul.”
More on the death penalty in the Texas legislature:
- At least two Texas Democrats and one Republican are pushing to reform the death penalty under the law of parties, which holds those involved in a murder equally responsible, even if they weren't directly involved in the actual killing.
- State Rep. Toni Rose, D-Dallas, has filed long-shot House Bill 3080, which would prevent offenders proven to have had a severe mental illness at the time of their crime from being sentenced to death in a capital murder case.