1 1 REPORTER'S RECORD 2 VOLUME 1 OF 2 VOLUMES 3 TRIAL COURT CAUSE NO. 1042204D COURT OF CRIMINAL APPEALS CAUSE NUMBER WR-75828-02 TARRANT COUNTY WRIT NUMBER C-3-011020-1042204D 4 5 6 THE STATE OF TEXAS ) IN THE CRIMINAL DISTRICT 7 vs. ) COURT NUMBER THREE 8 PAUL DAVID STOREY ) TARRANT COUNTY, TEXAS 9 10 11 12 13 HEARING 14 15 16 17 On the 11th day of September, 2017 the following 18 proceedings came on to be heard in the above-titled and 19 numbered cause before the Honorable Everett Young, Judge 20 Presiding, held in Fort Worth, Texas, reported by machine 21 shorthand utilizing computer-aided transcription. 22 23 24 25 Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three Tarrant County, Texas 2 1 APPEARANCES 2 HONORABLE TRAVIS G. BRAGG - SBOT NO. 24076286 HONORABLE MATTHEW D. OTTOWAY- SBOT NO. 24047707 HONORABLE RACHEL L. PATTON - SBOT NO. 24039030 Attorneys Pro-Tem ATTORNEY GENERAL KEN PAXTON Criminal Appeals Division PO Box 12548 Austin, Texas 78711-2548 Telephone: 512-936-1400 3 4 5 6 7 Attorney(s)for The State of Texas (Respondent) 8 9 10 11 12 13 HONORABLE MICHAEL L. WARE - SBOT NO. 20864200 Attorney at Law 300 Burnett, No. 160 Fort Worth, Texas 76102 Telephone: 817-338-4100 -andHONORABLE KEITH S. HAMPTON - SBOT NO. 08873230 Attorney at Law 1103 Nueces Austin,Texas 78701 Telephone: 512-476-8484 14 Attorney(s) for The Defendant (Applicant) 15 16 17 18 19 20 21 22 23 24 25 Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 3 1 VOLUME 1 2 HEARING 3 September 11, 2017 PAGE 4 VOL. 5 Proceedings Begin ...........................6 1 6 Witness Rule Invoked .......................17 1 7 Opening Statement by Mr. Ware ..............21 1 8 Opening Statement by Mr. Bragg .............24 1 9 Defense Witnesses Elizabeth C. Jack Direct Cross 26,175 135 State's Witnesses Robert Gill Direct Cross Voir Dire 197,205 200,206 Vol. 1 Defense Witnesses Robert Foran Direct Cross 209,259 249 Vol. 1 Voir Dire Vol. 1 10 11 12 13 Voir Dire 14 15 Proceedings Adjourned .....................263 1 16 Reporter's Certificate ....................264 1 17 18 19 20 21 22 23 24 25 Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 4 1 ALPHABETICAL INDEX OF WITNESSES 2 3 Foran, Robert Gill, Robert Jack, Elizabeth C. Direct Cross Voir Dire 209,259 249 197,205 200,206 26,175 135 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three Vol. 1 1 1 5 STATE'S EXHIBITS (RESPONDENT) 1 2 EXHIBIT DESCRIPTION 3 1 Copy of Thank-You Card OFFERED ADMITTED VOL. 165 166 1 4 5 6 DEFENDANT'S EXHIBITS (APPLICANT) 7 8 EXHIBIT DESCRIPTION 9 1 Defendant's Motion to Produce Inconsistent or Mitigating Evidence 80 81 1 2 Excerpt of Reporter's Record 80 81 1 3 State's First Amended Notice of Brady Material 80 81 1 10 OFFERED ADMITTED VOL. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 6 P R O C E E D I N G S 1 2 (Open court, defendant present) 3 THE COURT: At this time we'll be on the 4 record in Cause Number WR-75828-02, which is the number in 5 the Court of Criminal Appeals. 6 Writ Number is C-3-011020-1042204D, Ex Parte Paul David 7 Storey. 8 pursuant to the order of the Texas Court of Criminal 9 Appeals from April 7th of 2017. time? MR. WARE: 12 13 This will be a hearing conducted by the Court Are both sides ready to proceed at this 10 11 The local cause number -- The Applicant is ready, Your Honor. 14 MR. BRAGG: The State is ready, Your Honor. 15 THE COURT: All right. And just for the 16 record, the Applicant Paul David Storey appears to be 17 present in the courtroom. 18 You are Mr. Storey; is that correct? 19 THE DEFENDANT: 20 THE COURT: 21 I think before we start, both sides maybe 22 23 24 25 Yes, sir. Thank you. had some things for the record; is that correct? MR. HAMPTON: Yes, Judge. After our conference call last Wednesday I think it was -THE COURT: I think it was actually Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 7 1 2 3 4 Thursday. MR. HAMPTON: Thursday, all right. Well, that would explain what else I'm going to say to you. After that hearing, you denied the motion 5 to stay proceedings. I filed such a motion in the Court 6 of Criminal Appeals pretty much within the hour. 7 don't quite know what happened, but as 4:45 on Friday 8 approached and I didn't hear anything, I called the court 9 and essentially there was no ruling. And I I just asked should 10 I book a room to be in Fort Worth on Monday morning and 11 the answer was yes. 12 there's still no ruling on the motion to stay. 13 So here I am. THE COURT: And as we stand here, I believe that's correct. I 14 believe the clerk has actually checked this morning, and 15 counsel may be aware, also may have checked, and there's 16 no ruling from the Court of Criminal Appeals. 17 MR. HAMPTON: I don't expect it until this 18 afternoon because they conference in the morning on 19 Mondays and that's where they're at. 20 debating other things. 21 THE COURT: 22 MR. HAMPTON: They're in the room All right. The other is the matter that 23 is pending at the Court of Criminal Appeals, it's occurred 24 to us, is -- actually can be solved by this court. 25 essence of the argument for the Court of Criminal Appeals Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three The 8 1 is that the present attorney pro tem, Mr. Bragg, who is an 2 assistant attorney general, is conflicted in only one very 3 narrow way, which is the interaction with clemency. Our -- well, my entry into this case was in 4 5 clemency. The federal court appointed us to pursue 6 clemency. So we did, we had hearings, we had meetings, 7 and so forth. That is still ongoing. There is a solution that you could provide 8 9 that would moot out that writ of prohibition altogether. 10 And you don't have to do it now, but it's something worth 11 considering, which is to appoint a different attorney 12 pro tem to handle clemency. 13 problem. 14 That solves the whole So if you do that, if you pick -- and if 15 you read the writ of prohibition, it's short, but it's to 16 the point, which is this is -- this is about the 17 expression of the elected district attorney of Tarrant 18 County who represents Tarrant County before the Board of 19 Pardons and Paroles. 20 urge to be a local attorney who is qualified to be an 21 attorney pro tem in terms -- in matters of our interfacing 22 with the executive branch of government where the Board of 23 Pardons and Paroles is, you remove my entire argument. 24 it's just worth considering. 25 today, which is my first opportunity. So if you appointed what I would Thought I'd throw it out Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three So 9 The other thing that is about to be filed 1 2 -- okay, it has been filed. We have a motion to prevent 3 the State from arguing lack of due diligence when it is 4 our contention that it was the State that kept the 5 evidence of the Cherrys' viewpoint from the Defense. 6 it makes various arguments. Now, you don't have to rule on that. 7 So We 8 will ask for a running objection to any questions that -- 9 at the first opportunity one of us will object. But it 10 will be at the end of the proceedings that you will want 11 to make a decision on that because you will have heard the 12 evidence. 13 finding not on credibility but on whether or not you 14 believe that Tim Moore, Bob Ford, and Bill Ray acted with 15 due diligence, and Larry Moore acted with due diligence, 16 and if so, you can make that finding. And we will ask for an order of an affirmative Otherwise, we are ready -- oh, yeah. 17 Well, 18 because the writ is pending, we want to preserve our writ 19 even -- unless you want to decide that right now, we're 20 going to object on the basis that we've got a pending 21 motion in the Court of Criminal Appeals and these 22 proceedings should not occur until after that decision is 23 made. 24 25 THE COURT: Well, the Court's going to overrule that last objection that you have. I know you Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 10 1 wish to preserve any error or document your record. 2 I'll overrule that objection. So With respect to your first suggestion that 3 4 the Court appoint an additional district attorney pro tem, 5 that would just be -- that would be in addition to counsel 6 that's already been appointed? MR. HAMPTON: 7 No, it would replace him in 8 terms of being the decision maker about any matters before 9 the Board of Pardons and Paroles and the governor. 10 any executive branch of government. 11 THE COURT: Okay. 12 MR. BRAGG: If I may, Your Honor. 13 THE COURT: That would be a limited 14 Any -- purpose? 15 MR. HAMPTON: 16 THE COURT: Does the State have any MR. BRAGG: Oh, I was just going to quickly 17 18 Exactly. response? 19 say, Your Honor, the Court has actually decided this issue 20 already before there was even a hearing present -- back 21 when we were doing clemency the first time for the first 22 execution date. 23 the CCA based on that decision. 24 But the Court's already decided this issue. 25 In fact, they filed a writ of mandamus in THE COURT: That writ was mooted out. I was personally unaware of Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 11 1 that, but the suggestion has been made. 2 consider it but without any promises. MR. WARE: 3 I'm willing to Your Honor, if I could, because 4 I do have some history with that issue in the case. 5 The -- back in -- well, earlier this year before we 6 filed -- I believe before we filed clemency, before we 7 filed this writ, there was an ex parte hearing that we 8 were not a part of in which the former judge in this case, 9 who's now recused himself, heard the district attorney's 10 ex parte motion that the office be recused, and as part of 11 that, I guess, attendant to that ex parte hearing, which 12 we were not a part of, appointed the Attorney General's 13 Office, Mr. Bragg as the attorney pro tem prosecutor. That had all happened before we got any 14 15 word of it. 16 opportunity to object. 17 We were not participants. We did not have an So then, since we were in the clemency 18 stage of this, it came up, well, okay, they're appointed, 19 and I think even Mr. Bragg had some confusion. 20 sent me an email that he was only appointed pro tem for 21 the judicial matters and the writ hearing. 22 trying to figure out, well, who stood in the statutory 23 shoes of the district attorney for purposes of the 24 clemency proceedings because the district attorney's 25 office is one of the court officers in the clemency He had And so we were Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 12 1 proceedings, namely clemency proceedings by statute, so we 2 had a motion to clarify at which point we objected. We said, you know, that the former judge, 3 4 Catalano, who's now recused himself, did not have 5 jurisdiction to recuse the district attorney's office from 6 an executive proceeding which was not even pending in his 7 court. 8 pending in his court, but the executive proceeding is not 9 even a judicial proceeding and he did not have the 10 I mean, he could recuse them from the matter authority. So we asked for a motion for clarification, 11 12 at which case at this point the Attorney General's Office 13 decided they were a part of the order for executive 14 purposes as well, and Judge Catalano agreed with them and 15 said, okay, I'm not going to -- I'm appointing y'all for 16 the executive and clemency proceedings as well. 17 district attorney's office is recused from the executive 18 clemency proceeding as well. 19 objection. So that was over our We still disagree with that. 20 The I don't think 21 he's got the authority or power to recuse the sheriff or 22 the district attorney or the trial judge from the clemency 23 proceedings. 24 the trial judge, but he's recused himself. 25 would make this court the trial judge at this point. Of course, he's, at this point, I guess he's I guess that Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 13 1 So we're re-urging that and asking this 2 court to consider, as Mr. Hampton said, appointing an 3 attorney pro tem for purposes of the clemency proceeding. 4 MR. HAMPTON: It's a more limited motion. 5 Mine was far more global, which is to completely remove 6 the Attorney General's Office for all purposes. 7 reflection, it occurred to me that you've got the 8 authority as well. 9 really very limited to our interactions with the executive 10 branch of government and the Board of Pardons and Paroles 11 that can then make a recommendation to the governor. So 12 it's really two pieces of that branch of government. So I 13 thought I'd suggest it at the outset. 14 And it is actually far more -- it is THE COURT: Well, and I appreciate and 15 understand the distinction that's being made. 16 you, Mr. Ware, for the history on that. 17 before I came in the case. 18 wants to add to that? 19 But upon MR. BRAGG: And thank That all occurred Is there anything the State Just, Your Honor, that I have 20 never seen the division of labor amongst the district 21 attorney's office like that in a capital case such as 22 what's being suggested. 23 time ever that that had occurred. 24 would, for the reasons that we stated before, we would 25 just say that that's not what the statute contemplates. I think it would be the first And, of course, we Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 14 The statute contemplates and actually 1 2 provides that we step in the shoes of the district 3 attorney's office and that in the capital case, that would 4 be there's no -- there's no carve-out in the statute, 5 there's no exceptions written into the statute, so the 6 statute by its plain language seems to contemplate when we 7 stepped into the shoes of the district attorney as 8 district attorney pro tem, it is then for all matters that 9 that office would handle in that particular case. THE COURT: 10 All right. I think I 11 understand the position that both sides have at this 12 point. 13 develop whatever needs to be developed with respect to the 14 issues that the Court of Criminal Appeals has directed 15 that need to be resolved. 16 I think the purpose of the hearing today is to And -- and the last thing, Mr. Hampton, you 17 brought up and you made reference to is actually a motion 18 to preclude the State from contending that counsel failed 19 to exercise due diligence in ascertaining the Cherrys' 20 opposition to Paul David Storey's execution. 21 document and the motion that you -- 22 MR. HAMPTON: Exactly, Judge. That's the And I argued 23 a variety of the equitable arguments to be made, and 24 that's for your -- to be taken under your consideration. 25 THE COURT: I'm now aware of the motion Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 15 1 that was just filed at 8:53 this morning. 2 received a copy of this as well? MR. BRAGG: 3 4 The State We just received a copy of this as they were proceeding to the court, Your Honor. 5 THE COURT: 6 Mr. Ware, you had mentioned a few minutes 7 ago off the record that there was a witness that you had 8 subpoenaed that you had agreed to release from the 9 subpoena; is that correct? MR. WARE: 10 11 THE COURT: 13 MR. WARE: That's Mitch Mitchell All right. I don't know if he's present or not. THE COURT: 15 16 Yes, sir. Very well. with the Star-Telegram, Your Honor. 12 14 All right. I don't see him. But at any rate, you're not going to call him as a witness? 17 MR. WARE: 18 THE COURT: Very well. 19 All right. Is there anything else for the 20 That's correct. record before we proceed further? MR. WARE: 21 Your Honor, the only thing is 22 there are several witnesses here in the courtroom, and I 23 think some of them can be excused until this afternoon. 24 The Court can put them under the Rule or whatever the 25 Court prefers. If they could all, you know, maybe be on Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 16 1 one-hour standby. THE COURT: 2 3 And I know we've already excused three or four witnesses -- 4 MR. WARE: 5 THE COURT: 6 All right. Yes, sir. -- as well. Do you have a batting lineup of witnesses? MR. WARE: 7 Well, Your Honor, Dr. Cherry and 8 Mr. Cherry are here in the courtroom, and we would not be 9 putting them on until this afternoon. So -- but I know 10 that the State subpoenaed them as well. 11 if the State was willing to let them go until then. MR. BRAGG: 12 So I didn't know Yeah, that's perfectly fine, 13 Your Honor. There were certain witnesses that were 14 subpoenaed by both sides. 15 at the discretion of the Applicant as to when they want to 16 call them for purposes of their case. THE COURT: 17 We agree that they are -- it's And that's fine. I'm agreeable 18 to whatever y'all are agreeable to. 19 people here in the courtroom, including several attorneys. 20 If you want to release some of them until later, that 21 would be fine. But you would know the order that you -MR. WARE: 22 There are a lot of Yes. And Cory Session is here 23 as well, Your Honor, and he can be released until this 24 afternoon. 25 until this afternoon. And Bill Ray and Tim Moore can be released Mark Daniel we may call this Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 17 1 morning. We may not get to him this morning, but as long 2 as he can be here within an hour, then we're good with 3 that. 4 THE COURT: All right. 5 MR. BRAGG: If we could, Your Honor, before 6 we release anybody, we would ask that all witnesses be 7 placed under the Rule. 8 THE COURT: Well, the Court will go ahead 9 and impose the Witness Rule at this time. So will all witnesses who are here at this 10 11 time who anticipate being called as witnesses, if y'all 12 will please stand at this time and be sworn. If each of you would raise your right 13 14 hands. 15 (Ten witnesses sworn) 16 THE COURT: All right. And just for the 17 record, I'll just have everyone state their name for the 18 court reporter so we have a record who's been sworn. 19 Mr. Daniel. 20 THE WITNESS: Mark Daniel. 21 THE WITNESS: Tim Moore. 22 THE WITNESS: Larry Moore. 23 THE WITNESS: Bill Ray. 24 THE WITNESS: Jena Parker. 25 THE WITNESS: Christy Jack. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 18 1 THE WITNESS: Robert Foran. 2 THE WITNESS: Cory Session. 3 THE WITNESS: Judith Cherry. 4 THE WITNESS: Glenn Cherry. 5 THE COURT: All right. I believe those are 6 the witnesses who have been sworn. 7 Witness Rule has been invoked, so only the witnesses 8 testifying will remain in the courtroom during the 9 hearing. MR. WARE: 10 Yes, sir. And I guess the We would ask for one 11 exception, and that is our paralegal Jena Parker. She's 12 going to be helping with papers and such during the 13 hearing, and her sole -- she may not testify as a witness. 14 Her sole role as a witness, she was present when I 15 interviewed Mr. Foran several months ago. 16 -- in case there is a discrepancy, she may be called as a 17 witness as to what was said in that interview. And if there's 18 THE COURT: Is there any issue with -- 19 MR. BRAGG: As long as that's -- as long as 20 that is a proffer as to what she will testify to and the 21 only thing that she will testify to, we don't have any 22 objection, Your Honor. THE COURT: 23 24 25 Very well. I'll permit that then. MR. WARE: Thank you, Your Honor. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 19 THE COURT: 1 Obviously, I think everybody 2 here knows the meaning of the Witness Rule. 3 the case and wait to be called. 4 in the hallway. 5 just stay in contact. So I'll recess y'all out Those that have been excused until later, MR. BILL RAY: 6 Don't discuss Judge, could I get a 7 two-hour notice if it's possible? 8 hearing on a juvenile charge of murder in Wise County and 9 I've moved it until this afternoon. 10 can move it to some other time. 11 time I was going to testify. THE COURT: 12 13 I've got a detention I'm going to see if I If I knew kind of what Mr. Ware, are you aware of the schedule? MR. WARE: 14 It would -- once again, I'm 15 sorry, I wasn't listening. 16 What are you saying? It would be mid-afternoon. You've got -- MR. BILL RAY: 17 I've got a juvenile who's 18 got a detention hearing. He's charged with murder in Wise 19 County. 20 subpenaed to be here at 9:00. I'm going to see if they 21 can move it to another time. If they can't, they can't. They moved it to 3:00 o'clock because I was 22 MR. WARE: 23 MR. BILL RAY: 24 25 Okay. Well -- If I could just have a couple of hours' notice. THE COURT: He wants a two-hour notice. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 20 MR. WARE: 1 2 MR. BILL RAY: Do I need to be here at 1:00 o'clock? 5 MR. WARE: 6 MR. BILL RAY: 7 THE COURT: 8 MR. DANIEL: 9 And I think we're anticipating this may go over until tomorrow. 3 4 Sure, that's fine. Just be within two hours. Okay. All right. Judge, can I ask this. I know we're under the Rule, but I'm going to take care of some 10 other things. Can I at least walk in and maybe tap 11 Mr. Hampton on the shoulder and say when do y'all need me 12 and then go right back out? Would that be okay? 13 THE COURT: Is there any problem with that? 14 MR. BRAGG: No objection. 15 THE COURT: It appears that would be fine, 16 Mr. Daniel. MR. LARRY MOORE: 17 18 I can be down in two minutes. 19 THE COURT: 20 MS. JACK: 21 22 Judge, may I go upstairs? Thank you, Mr. Moore. Would you like us just out in the hallway? THE COURT: That will be fine. 23 sure who the first witness will be. 24 been mentioned yet, I guess stay real close. 25 I'm not But if you haven't (Witnesses leave courtroom) Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 21 1 (Discussion off the record) 2 THE COURT: All right. 3 this morning. 4 excused themselves from the courtroom. at this time? MR. WARE: 7 8 I believe most of the witnesses have So, Mr. Ware, do you have a witness to call 5 6 Back on the record If I can just make a brief opening statement, Your Honor. THE COURT: 9 Very well. 10 APPLICANT'S OPENING STATEMENT 11 MR. WARE: As the Court knows, the Court of 12 Criminal Appeals stayed the scheduled execution, which was 13 scheduled for April the 12th, and remanded to the trial 14 court to decide initially whether the grounds that we've 15 raised really could have been, the factual basis of the 16 grounds that we've raised, could have been discovered 17 through due diligence of the attorneys, all the previous 18 attorneys up to this point. And if so, if the attorneys up to this 19 20 point were not duly diligent -- and that would be Larry 21 Moore, Bill Ray, Bob Ford, and really John Stickels who 22 had the case on direct appeal -- if through due diligence 23 they could have found the factual basis of this claim, of 24 the claims that we've made, then they're saying it's 25 waived. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 22 1 And we anticipate that, number one, all of 2 those attorneys will say they did not know of the factual 3 basis. 4 Jonas Cherry, the victim in this capital murder case, his 5 parents, Dr. Cherry -- Judith Cherry and Glenn Cherry were 6 at all times now, at all times prior to this horrible 7 murder, and at all times in between were opposed to the 8 death penalty. 9 opposed to Paul Storey getting the death penalty. 10 Really, the factual basis of the claim is that In general and in this case, they were These attorneys will testify, I anticipate, 11 that that was -- and the State knew it. 12 aware that Judith Cherry and Glenn Cherry were opposed to 13 the death penalty before this case went to trial, and that 14 they never disclosed that to either Bill Ray or Larry 15 Moore or John Stickels or Bob Ford, and that the fact that 16 they did not know it and did not discover it was not a 17 lack of due diligence on their part. 18 anticipate the testimony is going to show, it was not a 19 lack of due diligence on their part. 20 The State was That's what we So, in essence, the State is charged with 21 convincing this court if these individuals get on the 22 stand and testify they weren't told, which I anticipate 23 they will, either that they're lying and they were told or 24 that they're incompetent. 25 diligence -- it's not even effective assistance of And if they had just used due Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 23 1 counsel, it's a due diligence -- if they'd just used due 2 diligence, they would have discovered that the victim's 3 parents were against the death penalty. And we anticipate, you know, proving 4 5 evidence -- putting on evidence otherwise, both directly 6 and through lawyers who know these lawyers, who knew Bob 7 Ford, about how diligent they were. 8 And then we've got, really, four claims 9 that the Court -- we anticipate the Court will get to, 10 substantive claims. And they're all oriented around, 11 well, two things: 12 disclosed to the Defense; and, two, that the prosecutor in 13 this case exploited the fact that this information had not 14 been disclosed and, in fact, argued the opposite to the 15 jury during final argument that Jonas Cherry's family, 16 which of course would include Judith Cherry and Glenn 17 Cherry, his parents, and everyone who loved him believed 18 the death penalty in this case was appropriate. 19 the argument she made. One, that this information was never That was It's just not true. And that -- those two facts together, the 20 21 nondisclosure and the argument as we've laid out in our 22 writ, violated the Eighth Amendment and the Fourteenth 23 Amendment. 24 circumstances, we're asking that this court make a 25 recommendation that the death sentence be vacated. And based on -- based on the totality of the Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 24 With that, we're ready to call our first 1 2 witness. THE COURT: 3 All right. Will the district 4 attorney pro tem have any opening statement in response at 5 all? 6 7 8 9 10 MR. BRAGG: Just a brief one, Your Honor, THE COURT: Very well. if I may. You may proceed. RESPONDENT'S OPENING STATEMENT MR. BRAGG: First of all, to clarify for 11 the Court, the due diligence that's going to be most at 12 issue with regard to the procedural bar -- because as the 13 Court's aware, the CCA has remanded this case not only for 14 factual determinations on the merits of the four claims 15 but also on the procedural issue as well. 16 diligence that's considered or contemplated in that 17 statute is really the due diligence of initial state 18 habeas counsel, that being the late Bob Ford. The due 19 Regarding the two precepts that opposing 20 counsel laid out, we anticipate there will be testimony 21 that discusses what exactly the Cherrys' family's feelings 22 were at the time of the punishment phase of the hearing. 23 We also believe that there will be testimony regarding 24 what exactly the conversations were between the State and 25 between defense counsel, trial counsel that is. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 25 And finally, I'd like to just clarify for 1 2 the Court that the nature of the proceedings in this case, 3 the State does not have the burden now. 4 on the Applicant to convince you, one, that it was not a 5 lack of due diligence on Mr. Ford's part to be able to 6 raise this claim in his initial state habeas writ; and, 7 two, of the underlying merits of the case should this 8 court reach or go beyond the procedural bar to the merits. 9 It's their burden to convince you otherwise. Now the burden is 10 So with that said, Your Honor. 11 THE COURT: 12 MR. WARE: All right. Thank you. Your Honor, with one 13 clarification. What the statute clearly says is 14 discovered on or before the time the first State writ was 15 filed. 16 not limited just to the State writ counsel. It's all 17 counsel prior to that -- that cutoff date. That's the 18 clear language of the statute. 19 calling trial -- among other things, why we'd be calling 20 trial counsel, etcetera. That date is, I think, May 26th, 2010. THE COURT: 21 But it's So that's why we're All right. Both sides, I'm 22 sure, will want to fully develop any record that needs to 23 be developed. 24 calling your first witness. 25 With that, Mr. Ware, you may proceed in MR. WARE: Your Honor, we call Christy Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 26 1 Jack. 2 THE COURT: 3 (Witness enters courtroom) 4 THE COURT: 5 Step up. Christy Jack. You may be seated. Of course, you've already been sworn as a witness. I'm not sure if that microphone is on. 6 7 All right. doesn't appear to be. It My switch up here isn't working. 8 THE WITNESS: 9 THE COURT: I'll try to speak up. All right. At this time I 10 don't have a way to turn this microphone on, so speak up 11 if you will. 12 THE WITNESS: 13 THE COURT: 14 Yes, Your Honor. Most of the attorneys I don't think will have a problem speaking up. 15 Mr. Ware, you may proceed. 16 MR. WARE: ELIZABETH CHRISTINA JACK, 17 18 having been previously duly sworn, testified as follows: DIRECT EXAMINATION 19 20 Thank you, Your Honor. BY MR. WARE: 21 Q. Ms. Jack, state your name for the record. 22 A. My name is Elizabeth Christina Jack. 23 Q. And, Ms. Jack, you're an attorney in private 24 25 practice here in Fort Worth, Texas; is that correct? A. I am. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 27 1 Q. I'm sorry? 2 A. I am. 3 Q. Okay. And you in the not too distant past were 4 also, well, were actually an assistant district attorney 5 in the Tarrant County District Attorney's office; is that 6 correct? 7 A. I was an assistant district attorney with the 8 Tarrant County District Attorney's office from roughly 9 November of 1991 through February of 2015. 10 Q. Okay. 11 A. Almost 24 years. 12 Q. Okay. 13 14 That's how many years? So -- and you've been -- so you've been in private practice since that time? A. I've been in private practice. I took off a 15 couple of months after leaving the DA's office, and I 16 believe I began my practice in April of 2015. 17 been in private practice for roughly two-and-a-half years. 18 19 Q. And so I've And you received a subpoena to be here in court today; is that correct? 20 A. I did. I did. 21 Q. A subpoena deuces tecum to bring any documents 22 you had in your possession related to the case; is that 23 correct? 24 A. Yes. 25 Q. Did you have any documents in your possession Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 28 1 related to the case? 2 A. Related to the trial -- 3 Q. To the case we're here about today, the trial of 4 Paul Storey. 5 A. No. 6 Q. Okay. So any documents that you may have had or 7 generated or seen, were they all left at the district 8 attorney's office when you left? 9 A. Well, one of the things that you asked me before 10 we began this morning was whether or not I had any 11 documents, and I explained to you that I had crafted 12 somewhat of a timeline as best as I could in anticipation 13 of that -- of this hearing. 14 15 Q. But that's something you created after you left the district attorney's office? 16 A. Yes. 17 Q. Okay. 18 A. Yes. 19 Q. Okay. Here fairly recently, I guess? So when you left the district attorney's 20 office, or even while you were there, did you take -- did 21 you ever take any documents related to the Paul Storey 22 case out of the district attorney's office? 23 A. No. 24 Q. Did you ever destroy any of the documents 25 related to the Paul Storey case? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 29 1 A. No. 2 Q. Okay. 3 example? 4 A. Yes. 5 Q. Okay. 6 7 I mean, do you take trial notes, for What would have happened to those, for example? A. Well, it depends upon whether or not they were 8 included within the -- if I took trial notes, it would 9 have been when a witness was testifying as to thoughts as 10 to what I wanted to ask them on cross. 11 those notes were kept. 12 Q. I don't know that What would you have done with them? Would you 13 have left them with the district attorney's office or 14 destroyed them or taken them home with you? 15 A. I would not have taken them home with me. They 16 may not have been included in the capital file with the 17 district attorney's office. 18 Q. So where would they be? 19 A. I would not know. 20 They may or may not have been included in the file. 21 Q. And if they're not, what would you have done 22 with them? 23 A. 24 with them. 25 Q. I don't know that I would have done anything Okay. Well, I mean, they're your notes. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three Did 30 1 2 3 4 5 6 7 8 9 you destroy them or -A. I don't know what would have happened to them if they're not with the file. Q. Okay. You've looked through the file, have you not? A. I have roughly gone through the file for a couple of hours. Q. Okay. You didn't see your trial notes in there, did you? 10 A. I did not. 11 Q. Okay. 12 Or even your voir dire notes, you take notes during jury selection, voir dire? 13 A. We do. 14 Q. Those were not in there either, were they? 15 A. They were not. 16 Q. And you don't know what happened to those? 17 A. Generally voir dire notes, it depends. Some of 18 the notes are returned to the court as a matter of 19 security for purposes of the veniremen. 20 Q. Do you think that's what happened in this case? 21 A. I do not know. 22 Q. Okay. 23 24 25 But then that should have been part of the official file, should they not? A. I can't speak to that. I don't know what happened to my notes. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 31 1 Q. Is it possible you destroyed them? 2 A. No, I would not have destroyed them. 3 Q. You just don't know where they are -- 4 A. I don't know where they are. 5 Q. -- or what you did with them? 6 A. Sometimes they're taken on the back of Sometimes -- 7 questionnaires. 8 at the conclusion of voir dire, for security purposes, 9 then my notes would have been shredded. 10 MR. WARE: 11 THE COURT: 12 13 Q. And if those questionnaires are shredded (BY MR. WARE) May I approach, Your Honor? You may. Do you have more than one copy of the timeline? 14 A. No, I do not. 15 Q. May I just look at it? 16 A. Certainly. 17 Q. Let me ask you -- let's go ahead and go through 18 a timeline, some of which may be included in what you put 19 down, some of which may not be, some of which you may not 20 know. The murder itself, I guess, took place in 21 22 October of 2006; is that correct? 23 A. That is correct. 24 Q. Okay. 25 And there were actually two defendants charged -- arrested and charged with this offense, is that Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 32 1 correct, this capital murder? 2 A. That is correct. 3 Q. And that was also in October of 2006? 4 A. I know that the offenses occurred in October of 5 2006. 6 charged that same month. 7 Q. It's my understanding that both were arrested and Okay. And you know that, I mean, whether you 8 knew then, you know now, that Bill Ray was appointed as 9 Mr. Storey's first chair; is that correct? 10 A. I do. 11 Q. Also in October of 2006? 12 A. I believe that's correct. 13 Q. Okay. 14 point? 15 A. I was not. 16 Q. Okay. 17 18 19 You were not involved in the case at that But you'd had considerable capital trial experience, had you not? A. Well, I had tried at that point four capital cases I believe at that point. 20 Q. Okay. Four death penalty cases? 21 A. Let me back up for just a minute. At the time 22 that I tried this case, I had tried to their conclusion 23 four death penalty capital cases. 24 and look specifically at the timeline in 2006 to say 25 whether or not I had tried Juan Segundo yet. I would have to go back Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 33 1 2 3 Q. And so how did you become involved in this case? When and how did all that come about? A. I believe it was the end of 2007 or the 4 beginning of 2008. 5 likely the beginning of 2008 Robert Foran approached me 6 and asked me if I would be willing to be co-counsel on 7 this case. 8 Q. 9 And as near as I can recall, it's more Now, you actually knew the Cherrys before any of this ever happened; is that correct? 10 A. I did. 11 Q. Y'all were neighbors for a while? 12 A. I was actually neighbors with Mr. Cherry's -- I 13 don't know if it was his mother or his sister. 14 it was his mother, and so that's actually who was my 15 neighbor. 16 Q. Okay. I believe So you were acquainted with them before 17 the -- before this terrible tragedy even happened; is that 18 correct? 19 A. That's correct. 20 Q. Okay. 21 A. Oh, I don't know that I would consider knowing 22 them. How long had you known them? I do -- 23 Q. Acquainted with? 24 A. Acquaintances. 25 My husband and I lived in a house over on Stadium Drive, and that would have been when Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 34 1 we were first married. So that would have been in 19-- we 2 married New Year's Eve of 1993. 3 the -- so are you asking me how long had I known the 4 Cherrys at the time -- So that would have -- at 5 Q. Yes, how long had you been acquainted? 6 A. Let's see, '93 to '03 (sic), so some 15 years. 7 Q. Okay. 8 A. Oh, no, I'm sorry, 13 years at the time of the 9 10 11 murder. At the time that the murder occurred? I thought you were asking at the time I became involved in the case. Q. So that's the first time anybody had approached 12 you about even being involved in the trial itself or the 13 prosecution itself was late in 2007 or early 2008? 14 A. I really think it was the beginning of 2008. 15 Q. How did all that come about? How did that come 16 about that you were approached to become involved in the 17 case? 18 A. Well, as I understand it, Robert was going to 19 try the case with Greg Miller. And I'm not sure what 20 happened, but there was a point in time that Greg was no 21 longer going to try the case. 22 Robert approached me. I don't know why. And 23 Q. What did he say? 24 A. He said -- let me think how -- the conversation. 25 I think it was along the lines that he was going to try Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 35 1 the case with Greg and that Greg for whatever reason was 2 not going to be able to try it, and he asked me if I was 3 interested in trying it. 4 Q. And you said you would? 5 A. And I said I would. 6 Q. And so what was the -- what was the first thing 7 8 9 you did once you got on the case? A. I have no idea what the first thing was I did. I probably read the case to begin with because it wasn't a 10 case -- when he said Paul Storey or Mark Porter, those 11 were not names that stood out to me. 12 Q. And had -- you're familiar with a policy or an 13 entity, a practice that the district attorney's office had 14 -- who was the district attorney back then? 15 Tim Curry, was it not? 16 A. It was still In 2008 -- I believe Joe Shannon was appointed 17 by the governor, I believe, around 2009, I believe. 18 yes, Tim Curry would still have been the district 19 attorney. 20 Q. So And there was a practice in the office at the 21 time, in and around that time, for deciding which cases 22 would be tried for the death -- which capital cases would 23 be tried for the death penalty and which would be waivers. 24 And by waiver I mean what would be tried as what we call a 25 mini cap, right? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 36 1 A. Right. 2 Q. A mini cap meaning that if they're convicted, 3 4 it's automatic life without parole? A. Well, for part of the time when the law changed 5 because before we had life without parole, there was a 6 regular capital life sentence. 7 policy was in effect during both those time periods. 8 Q. Okay. And that longstanding But in any event, if the death penalty 9 was waived, the outcome if there was a conviction would be 10 life in prison, however that was defined at the particular 11 time? 12 A. That's right. 13 Q. I'm sorry, you may have said -- 14 A. That's right. 15 Q. So there was a practice in the office at the 16 time you were there, maybe still, I don't know, but at 17 least at all relevant times where there was, what, a death 18 penalty panel or committee would meet and, however often, 19 and talk about the various capital cases and decide which 20 ones -- or at least make a preliminary determination which 21 ones should go forward as a death penalty case and which 22 ones should be tried as a mini cap, as I say, as a life -- 23 as a waiving the death penalty; is that correct? 24 A. That is correct. 25 Q. Okay. And do you know who was on that Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 37 1 committee? 2 A. 3 times. 4 comprised the death committee. It depended on -- it was different at different I can tell you generally the positions that 5 Q. Please. 6 A. Okay. From the years that I was involved with 7 capital litigation, and there were times that I served on 8 the death committee, there were times that I did not serve 9 on the death committee, there were times that I had voted 10 on the death committee. The death committee in general was 11 12 comprised of the first assistant of the office, and for 13 most of that time that would have been Alan Levy; all of 14 the deputy chiefs, and there were generally four to five 15 deputy chiefs, and the individuals that were the deputy 16 chiefs differed depending on what time it was; the head of 17 the appellate section. 18 be -- And then I believe what would 19 Q. Who would that have been? 20 A. The head of the appellate section at the time? 21 Q. Yes. 22 A. Well, it would have been Chris Marshall at one 23 point. 24 Q. But during this time. 25 A. During this time that -- Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 38 1 Q. Well, whenever Paul Storey and Mark Porter's 2 case went in front of the death committee. 3 who was head of appellate at that time? 4 A. Do you know I can tell you who was head of the appellate 5 section at the time, and that would have been Chuck 6 Mallin. 7 Q. Okay. 8 A. And I believe that the parallel to the first 9 assistant probably would have been Chip Wilkinson, so he 10 might have been the assistant chief. 11 know back then what his title was. 12 13 Q. Okay. But I don't really Were you on Paul Storey and Mark Porter's death -- death penalty panel? 14 A. I do not believe I was. 15 Q. But you do not recall? 16 A. I don't think I was because when Robert 17 18 approached me the names did not stand out to me. Q. So had the death penalty committee already met 19 on Paul Storey and Mark Porter when he approached you 20 whenever that was? 21 A. It was my understanding that they had. 22 Q. That's not on your timeline. 23 A. Well, I wasn't -- I was not a part of the You don't know? 24 presentation of the case. I was not -- I don't believe 25 that I was a member of the committee at the time. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three And so 39 1 when the death committee meets, there's not really a 2 formal notification of the court when they convene or when 3 they vote. 4 And so my timeline is comprised really of 5 events from the transaction section of the mainframe; in 6 other words, events that I could cobble together from the 7 clerk's office and then events that I knew of personally. 8 And so because -- because the death committee's convening 9 would not have been reflected in the clerk's office, 10 there's really not a way for me to go and assign a date to 11 it. 12 district attorney's office, I do not have access to those 13 records. 14 15 16 On top of the fact that I'm no longer a member of the Q. Okay. Do those records exist as far as you know? A. Well, I've been out of the office for 17 two-and-a-half years. 18 now. 19 20 21 Q. Well, actually longer than that You looked through the district attorney's file, did you not? A. I looked through the district attorney's file, 22 but I don't know that records of the death committee's 23 meeting are typically included in the district attorney's 24 file. 25 Q. Why would they have segregated out? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 40 1 A. I have no idea. 2 Q. I mean, if one would file an open-records 3 request asking for the entire file, that would include -- 4 it seems -- stands to reason that would include any notes 5 concerning the death panel committee. 6 district attorney's records, are they not? MR. BRAGG: 7 They're part of the At this point, objection, Your 8 Honor. 9 procedures were regarding the keeping of these notes from 10 She's already testified she doesn't know what the the death committee, if were there any notes. THE COURT: 11 12 this time. 13 Q. (BY MR. WARE) I'll sustain the objection at Well, let me see if I can get you 14 to answer my question. 15 notes in the district attorney's file that you went 16 through? 17 A. I did not. 18 Q. Okay. 19 20 21 22 23 You didn't see any death committee And you don't know whether you were on the committee or not in Paul Storey's case? A. I do not believe I was. And I do not believe I was present when the case was presented to that committee. Q. But you believe it was presented prior to the time that Robert Foran approached you? 24 A. Yes. 25 Q. Had a decision already been made to seek death? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 41 1 A. Yes. 2 Q. Well, that would imply that the committee had 3 already met? 4 A. Right. 5 Q. So what was your understanding of what the 6 committee actually decided in talking to, you know -- you 7 don't remember if you were there or not, you think you 8 weren't, but certainly you talked to Robert about things. 9 Did he ever tell you what had happened at the committee 10 and why they decided to proceed with death -- 11 A. He did not. 12 Q. -- in Paul Storey's case? 13 A. He did not. 14 Q. He never did. Was Mark Porter's case presented at the 15 16 17 I'm sorry? same time as far as you know to the death committee? A. Well, it would stand to reason that they would 18 both be presented at the same time. 19 speak to whether or not they in fact were. 20 Q. But again, I cannot You don't know for sure that you weren't on the 21 committee, you just don't have any memory of it, so assume 22 that you weren't on the committee; is that correct? 23 A. That's correct. 24 Q. So if you were on the committee, there's 25 absolutely nothing that stands out in your mind about this Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 42 1 case or about what was discussed in front of the 2 committee? 3 A. 4 Well, no, I would not say that. There are a number of things that stand out in my mind. 5 Q. I mean, that was discussed at the committee. 6 A. That's correct. 7 Q. Okay. Did -- did Robert tell you at that time 8 that -- that the committee had authorized him or y'all to 9 offer Paul Storey a life sentence? 10 11 12 A. Did Robert -- would you repeat your question, please? Q. When did you find out, if you did, that the 13 committee had authorized Robert, or whoever is prosecuting 14 the case, to offer Paul Storey a life sentence? 15 16 A. I don't know that the committee authorized Robert to offer a life sentence. 17 Q. Okay. 18 A. They may have. 19 they did. 20 Q. 21 Okay. But they may have, you just don't know? I don't know. I don't think When did you find out that -- or, I mean, he was offered a life sentence at some point, was he not? 22 A. He was. 23 Q. What -- did you have to go through a process 24 before you were authorized to offer a life sentence once 25 it had been decided evidently by the committee to go for Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 43 1 death? 2 A. Generally speaking, when the district attorney's 3 office makes the decision to seek the death penalty, as a 4 chief we would have, generally speaking, have had to 5 approach a deputy chief or the district attorney or the 6 first assistant to discuss our thoughts about the possible 7 disposition of the case. 8 9 10 11 12 Q. Okay. And so do you remember when you offered life? A. I know that a life sentence was offered, as I recall, in the spring of 2008. Q. Do you remember the process you went through or 13 Robert went through or who you talked to before that was 14 authorized? 15 A. 16 I believe that either Robert or Robert and I talked to Bob Gill. But it might have been that Robert talked 17 18 19 20 21 I believe that. to Alan. Q. Well, would you have been part of that conversation whoever it was y'all talked to? A. I may or may not have been a part of that 22 conversation. Robert and I were chiefs in different 23 courts. 24 responsibilities and trial responsibilities in each of our 25 respective courts. And as a result, we had supervisory Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 44 1 Q. All right. So you're not exactly sure -- 2 somebody had to talk to somebody, correct, before you or 3 Robert offered a life sentence? 4 A. That would have been -- that's how I would have 5 handled a capital case, if the death committee had 6 authorized or had voted to seek death, yes. 7 Q. Well, I guess what I'm asking is, how did you 8 handle it in this case? 9 permission to do it? Did Robert get someone's Did you get someone's permission to 10 do it? 11 And who was that person and when was it? 12 A. Did you both get someone's permission to do it? It's my belief that Robert got authorization. 13 I'm not entirely sure as to whether that came from Bob 14 Gill or from Alan or who it came from. 15 belief. 16 Q. Okay. But that's my Did you know at that time that you 17 sought -- or you or Robert sought authorization to offer a 18 life sentence -- and, once again, you said the offer you 19 believe was actually made in the spring of 2008, correct, 20 to the best of your recollection? 21 A. I believe it was made in April. 22 Q. Of 2008, that you actually made the offer? 23 A. I think Robert actually conveyed the offer. 24 Q. Conveyed it to either Larry Moore or Bill Ray? 25 A. Yes. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 45 1 Q. And was a life offer made to Mark Porter? 2 A. Yes. 3 Q. At about the same time, was this all kind of 4 5 6 7 8 one -- one deal? A. I want to say yes, that life sentences were offered to both of them at the same time. Q. Okay. And Mark Porter's attorneys were Mark Daniel and Tim Moore; is that correct? 9 A. That's correct. 10 Q. So we've got Larry Moore representing Paul 11 Storey, Tim Moore representing his co-defendant Mark 12 Porter? 13 A. 14 Storey. 15 Porter. 16 17 18 19 20 Q. Larry Moore and Bill Ray represented Paul Tim Moore and Mark Daniels (sic) represented Mark It's your recollection that they were both offered a life sentence at or about the same time? A. That's my recollection, but I would defer to Robert's recollection of that. Q. Okay. How much before that time that you 21 actually made the offer was you or Robert, or both of you, 22 were y'all authorized to offer the life sentence? 23 A. I don't know. 24 Q. Could it have been months? 25 A. It may have been, but I don't think it was that Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 46 1 long. 2 Q. 3 A. Could it have been a year before that, maybe? I don't know. MR. BRAGG: 4 5 Objection, Your Honor, she's already said she doesn't know. 6 MR. WARE: I'm just exploring a little bit. 7 THE COURT: I'll permit exploration of an 8 9 10 11 answer. Q. (BY MR. WARE) Could it have been a year before that? A. I don't think so. I don't even think it was a 12 matter of months. 13 life sentences were conveyed. 14 15 Q. Okay. I think it was a short time before the Now, I mean, could it have been as early as when the death panel met? 16 A. Could the life sentences have been offered? 17 Q. The authorization for a life sentence. 18 A. I don't believe so. 19 Q. But could have been? 20 A. I don't believe so. 21 Q. Okay. At some point you became aware that 22 Judith and Glenn Cherry were opposed to the death penalty; 23 is that correct? 24 25 A. That they had a general opposition to the death penalty, yes. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 47 1 Q. Okay. 2 A. I believe that either Robert or Suman told us. 3 Q. Well, that's how you found out. 4 But when did you find out? By the way, Suman is -- was Jonas Cherry's 5 6 When did you become aware of that? wife that became his widow; is that correct? 7 A. Yes, Suman was Jonas Cherry's widow. 8 Q. Yes. Okay. 9 10 you that? 11 A. 12 Okay. Just for the record. So when was that that Robert told Or that Suman told you that? I believe it was also in the spring, but I'm not positive about that timeframe. 13 Q. Spring of 2008? 14 A. Yes. 15 Q. Do you remember the Cherrys themselves ever 16 17 telling you that? A. I have a recollection of a meeting with Suman 18 and the Cherrys, and I remember Robert explaining the 19 process and the decision that the office had made and that 20 a life sentence would be conveyed. 21 recall being in that meeting the entire time. 22 words, I don't remember if I was there for the entire 23 time; in other words, did the Cherrys talk to Robert 24 before I walked into the room. 25 actually verbalized to me at that meeting that they were And -- and I don't In other So I don't know that they Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 48 1 opposed to the death penalty. 2 Q. 3 timeline? 4 A. I do not. 5 Q. It's not on your timeline? 6 A. It's not. 7 Q. Would it have been -- would that have been 8 Do you know when that meeting was on your before you offered the life sentence? 9 A. It's my recollection, yes. 10 Q. That meeting was before you offered the life 11 sentence? 12 A. (Moving head up and down). 13 Q. I'm sorry? 14 A. Yes, it's my recollection it would have been. 15 Q. Do you know how much before you offered the life 16 sentence? 17 A. No. 18 Q. Or spring, fall, year? 19 A. (Moving head side to side). 20 Q. Okay. But in any event, it would have been 21 prior to whenever it was in the spring of 2008 that you 22 offered the life sentences? 23 A. Yes. 24 Q. Okay. 25 And so Robert and/or Suman told you that the Cherrys were opposed to the life sentence, and that's Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 49 1 how you knew, correct? 2 A. Yes. 3 Q. Although you were at a meeting with the Cherrys 4 and Suman and Robert and they may have told you at that 5 meeting? 6 A. They may have, yes. 7 Q. But you don't know when that was? 8 A. I do not. 9 Q. It was just earlier in the timeline? 10 A. Yes. 11 Q. And did that enter into part of the reason or 12 part of the -- of your thinking in offering a life 13 sentence to Paul Storey and Mark Porter? 14 A. It entered into part of my thinking, yes. 15 Q. What about Robert's? 16 A. I can't speak for Robert. 17 Q. Well, y'all discussed it, didn't you? 18 A. Yes. 19 Q. Okay. 20 A. What did we discuss about why we would offer a 21 Well, what did y'all discuss? life sentence? 22 Q. 23 sentence. 24 A. 25 Of course, we would have discussed it. Right. And the Cherrys being opposed to a death I think that was a part of the discussion. I think part of the discussion was the fact that Paul Storey Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 50 1 also did not have any adjudicated criminal history. 2 Q. Okay. 3 A. And as heinous as this capital murder was, it 4 was one of the most premeditated capital murder cases I've 5 ever been involved in, because of his lack of adjudicated 6 criminal history, because of his age, I mean -- 7 Q. Because of his what? 8 A. His age, he was relatively young. 9 Q. Okay. 10 A. I think all of those things went into our 11 12 consideration in offering a life sentence. Q. Okay. But within that calculus -- I mean, there 13 were other things as well. 14 fact that Glenn Cherry and Judith Cherry were against the 15 death penalty; is that correct? 16 A. Within that calculus was the It was for me, and I think that's part of the 17 reason why for me we left the life sentence on the table 18 as long as we did. 19 Q. Now, did you discuss the fact that the Cherrys 20 were against the death penalty with other people in the 21 office? 22 discussed it, I guess, with Suman. 23 people in the office you discussed that with? 24 25 A. You discussed it with Robert, obviously. You Were there other I don't have any specific recollection outside of Bob Gill. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 51 1 Q. Okay. 2 A. Yes. 3 Q. At what point did you discuss it with him on the 4 You discussed it with Bob Gill? timeline, do you know? 5 A. I don't know. 6 Q. Do you have any idea? 7 A. Well, I think it would have been all around that 8 same timeframe. 9 Q. Spring of 2008? 10 A. Spring -- 11 Q. Or prior? 12 A. Yes. 13 Q. Did you make any -- you didn't make a memorandum 14 to yourself or any note or anything regarding that, 15 regarding becoming aware that the Cherrys were against the 16 death penalty? 17 A. No. 18 Q. And how that would enter into your decision to 19 offer life or anything like that? 20 A. I did not. 21 Q. Okay. So the fact that I didn't see anything 22 like that in the DA's file is because it's not there; is 23 that correct? 24 A. It's not -- 25 Q. The fact that I didn't see any memorandum -- Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 52 1 THE COURT: 2 THE WITNESS: 3 Q. (BY MR. WARE) One at a time. I'm sorry. I -- The fact that I didn't see any 4 memorandum from you to yourself in the file or anything 5 about the Cherrys' feelings about the death penalty, the 6 fact that I didn't see that in the file is because it's 7 not there, as far as you know? 8 9 10 11 A. Well, it's because I don't recall ever making one. Q. Okay. Is Bob Gill you think the only person in the office you discussed this with? 12 A. No. 13 Q. Who's Ashlea Deener? 14 A. Ashlea Deener was, I believe, a second-year law 15 I think Ashlea Deener. student at the time. 16 Q. An extern? 17 A. An intern. 18 Q. Or intern. 19 A. She might have been an extern. She might have 20 been an extern, because she might have been interning for 21 credit for law school. 22 23 24 25 Q. Okay. So you discussed this -- the fact that the Cherrys were against the death penalty with her? A. Well, I think that there was a conversation or two about it. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 53 1 Q. Well, it seems extraordinary, doesn't it? I 2 mean, it's, you know, a little unusual for the victim's 3 parents to be against the death penalty in a capital 4 murder case, as you say, a premeditated capital murder 5 case such as this. 6 not? 7 8 9 A. That's pretty extraordinary, is it I think in my experience it is the only time that that has happened. Q. Okay. And so that's -- would naturally give 10 rise to conversation between you and Robert, you and your 11 extern, and perhaps others as well? 12 A. Yes. 13 Q. Okay. 14 A. I may have. 15 Q. But you don't know? 16 A. Specific conversations with specific people do 17 18 Did you talk to anybody else about it? not come to mind. Q. Okay. Did -- did you decide at some point -- 19 well, let me ask you, what did you tell Ashlea Deener 20 about? 21 Diener? 22 A. What was the conversation between you and Ashlea I think part of the conversation -- she was 23 there for, I think, one meeting, and it's hard to remember 24 how often she was there, how many witness meetings she was 25 present for, because she was in law school at the time so Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 54 1 she wasn't there every single day. I remember one of the conversations that I 2 3 had with her involved, you know, how would you handle 4 something like that and me explaining that perhaps one of 5 the options would be not to sponsor them as witnesses. 6 7 8 9 10 11 12 Q. And, in fact, as it turned out, y'all didn't sponsor them as witnesses; is that correct? A. We did not. however. Q. So did you ever disclose this information to any of the Defense or to anybody? A. Okay. Let me start first with Mark Porter. 13 did -- I'm sorry. 14 wanted me to start. 15 They were on our witness list, Q. I You look like that's not the way you Well, you know, I mean, if that's -- if that's 16 the way you're prepared to start, go ahead and start that 17 way. 18 A. Well, then I'll just simply answer your 19 question. And that is, yes, we did disclose it. 20 Q. I'm sorry? 21 A. I said, then I'll simply answer your question, 22 23 yes, it was disclosed. Q. Okay. So let's start with -- start with Paul 24 Storey and his attorneys. Who disclosed to Larry Moore, 25 let's say, that Paul -- excuse me, that Jonas Cherry's Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 55 1 parents were opposed to the death penalty? 2 was it Robert, was it both of you, or was it somebody 3 else? 4 A. 5 occasions. 6 Q. 7 Was that you, Robert disclosed it to Bill Ray on a number of So nobody disclosed it to Larry Moore, in answer to my question? 8 A. No, that's not what I was going to say. 9 Q. Okay. 10 11 Well, my question is, who disclosed it to Larry Moore? A. It was discussed during jury selection. It was 12 made reference to during jury selection. 13 official disclosure during jury selection nor apparently 14 was there one on the record. 15 Q. Okay. 16 simple question. 17 Moore? 18 A. 19 20 21 22 23 It's a pretty Who disclosed that information to Larry What I can tell you is that Robert disclosed it to Bill Ray. Q. Well, let me ask you. There is not an There was several conversations. Okay. Were you present -- were you present during those disclosures? A. No, I was not. But Robert would tell me about the conversations that he had with Bill Ray. 24 Q. Okay. 25 A. And -- Well -- Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 56 1 2 3 Q. Let me break this down a little bit. So you never disclosed it to Larry Moore, correct? A. When you say a disclosure, I consider it a 4 formal disclosure. I never made a formal disclosure, 5 though it was discussed in jury selection and it was made 6 reference to. 7 Q. Was it disclosed -- was Larry Moore there? 8 A. As I recall, all four of us were there in jury 9 selection. 10 Q. Okay. 11 A. But -- 12 Q. So these discussions where you're talking about 13 the Cherrys being against the death penalty, they should 14 be part of the trial record? 15 A. No. 16 Q. Okay. 17 A. They are not part of the trial record. 18 Q. Okay. So they're not part of the trial record? So let's go back and keep it simple. 19 told Larry Moore, if you know, that the Cherrys were 20 opposed to the death penalty? 21 A. Who told him? As I recall, in jury selection there were 22 discussions and there were conversations, there were 23 times -- 24 25 MR. WARE: I'm going to object as unresponsive, Your Honor. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three Who 57 1 2 Q. (BY MR. WARE) told him, then that's fine to say. I'm asking do you know -- do you know who 3 4 5 If you don't know if anybody ever told him, if anybody? A. There were discussions during jury selection in 6 between the veniremen coming in about the Cherrys' general 7 opposition to the death penalty. 8 made to that topic as well. 9 feelings about the death penalty. 10 There were references We discussed people's Larry and I both discussed our own feelings about the death penalty. Am I positive that all four of us were in 11 12 the room when those discussions were had? 13 positive. 14 No, I'm not positive. 15 that took place in between veniremen that are not on the 16 record. 17 Q. No, I'm not Am I positive that Bill Ray was in the room? There were a number of discussions I understand. But the ones I'm interested in, 18 the ones you've testified here under oath took place were 19 the ones that obviously are not on the record and 20 obviously there's no written account of. 21 you and Larry Moore and whoever else were discussing the 22 fact that the Cherrys were opposed to the death penalty, 23 when was that, who was there, do you know if those even 24 took place? 25 A. The ones where I know that they took place. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 58 1 Q. Were you there? 2 A. Was -- are you talking about the discussions 3 4 during jury selection? Q. You brought up jury selection. So yeah, 5 discussions during jury selection about the Cherrys being 6 opposed to the death penalty, were you there when those 7 discussions took place? 8 A. I was there. 9 Q. Who else was there? 10 A. I don't recall if it was all four of us, meaning 11 Robert, me, Larry, and Bill, or whether it was Larry and 12 me or whether it was Bill and me, or whether it was Robert 13 and me and Bill. 14 conversations taking place. 15 our feelings about the death penalty. 16 death penalty case that I had tried with Larry. I don't recall. I remember those I remember us talking about This is the second 17 Q. And what exactly did those discussions entail? 18 A. We talked about my feelings about the death 19 penalty. 20 penalty, that Larry is an opponent of the death penalty, 21 an ardent opponent of the death penalty. 22 the Cherrys being opposed to the death penalty. 23 24 25 Q. In fact, that I am a supporter of the death We talked about So is that the first time it came up or had it been disclosed to them prior to these discussions? A. Had Robert had these conversations with Bill Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 59 1 prior to this? Yes. 2 Q. Do you know when that took place? 3 A. When Robert first began having his discussions 4 with Bill, no, I do not. 5 Q. You and Robert hadn't talked about that? 6 A. About when he first told them? 7 Q. Right. 8 A. No, I don't recall asking him that, no. 9 Q. So would there have been anybody else present 10 during these discussions during, you know, I guess during 11 the break -- I guess this would have been during the 12 breaks of voir dire. 13 the juror, obviously. It wasn't discussions in front of 14 A. Right. 15 Q. And would they have taken place in the courtroom 16 17 18 19 20 21 or where would they have taken place? A. They could have taken place any -- any area around that courtroom. Q. There are times -- I'm sorry. And who else would have heard these discussions other than the four of y'all? A. Well, there could have been a court reporter. 22 As I recall, we had two different court reporters at 23 times. 24 don't think there was. 25 A court reporter might have been there, although I I mean, these were conversations that took Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 60 1 place when maybe we got there early in the morning, we 2 were waiting for everyone else to assemble, when we were 3 waiting for veniremen to come, you know, when jury 4 selection stops (sic) down and you're left with an hour or 5 two window. 6 talking. 7 Q. It could have been outside when we're It could have been as we returned after lunch. But there was never a time when you approached 8 Larry Moore or Bill Ray and said, there's something I need 9 to tell you, the -- 10 A. No. 11 Q. I'm sorry. 12 A. Oh, I'm sorry. 13 Q. And to finish my question, you correctly You have to answer out loud. No. 14 anticipated it, but finish my question for the record, 15 when you said, I need to disclose something to you, the -- 16 Judith Cherry and Glenn Cherry, who incidentally you had 17 known for many years, are against the death penalty. 18 19 A. If you're asking me if there was ever a formal declaration? 20 Q. Yes. 21 A. Or a formal pronouncement? 22 Q. Yes. 23 A. That I was a part of, no. 24 Q. Well, okay. 25 the word "disclose." Counsel says I'm making too much of Did you ever tell them, just, you Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 61 1 know, it doesn't have to be a formal disclosure, was there 2 ever a time when you just told them, when you broke the 3 news to them? 4 5 6 7 A. Well, it wasn't a matter of breaking the news to them. Q. Well, they didn't know it at first. They didn't go into it knowing it, did they? 8 A. Robert had already had discussions with Bill. 9 Q. Okay. 10 A. That is my understanding. 11 Q. You weren't there for them? 12 A. I was not. 13 Q. Did -- and you don't know when that took place? 14 A. I do not. 15 Q. Okay. 16 A. I know that my -- I'm sorry, I didn't mean to be 17 That's your understanding? nonresponsive. 18 Q. I'm sorry? 19 A. I didn't mean to be nonresponsive. 20 Q. Okay. 21 I'm sorry. Well -- and it was -- you believed it was important that the Defense know that, right? 22 A. I believed that they should know that, yes. 23 Q. Okay. 24 A. Well, our office had been one, and this is how I 25 Why did you think they should know it? grew up, that we give the Defense everything. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 62 1 Q. And this was -- this was not just part of 2 everything, this was pretty extraordinary, was it not? 3 That the parents of the victim in the case that y'all were 4 seeking the death penalty were actually against the death 5 penalty, that's pretty extraordinary, isn't it? 6 7 8 9 A. Well, it's the first time that it had happened in any case that I was involved in. Q. Okay. And the last time that it happened in any case you were involved in, correct? 10 A. Yes. 11 Q. One last question along those lines. Did you 12 convey in any way, whether disclosure, written, or 13 otherwise, to the defense lawyers that the Cherrys were 14 against the death penalty before jury selection? 15 A. I did not. 16 Q. Okay. 17 A. I do not believe he did. 18 Q. Did you and Robert discuss that it was important Did Robert? 19 to tell defense counsel about the Cherrys' opposition to 20 the death penalty? 21 22 A. We discussed it and we believed that the Defense should be told that information, yes. 23 Q. Did y'all discuss it with anyone else about the 24 disclosure? 25 A. I believe we discussed it with Bob Gill. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 63 1 Q. Okay. The -- 2 A. The reason I say I believe is because I believe 3 I was present for that discussion. 4 present for that discussion. Q. 5 6 And so you had enough question about it that you asked someone what you should do about it? A. 7 8 Okay. I believe I was I don't think it was considered Brady, and I don't think it's considered Brady, but we -Q. 9 Well, my question is, you had enough question 10 about disclosure that you consulted someone else as to 11 whether you should disclose it? A. 12 I don't know that it was a question of whether 13 or not we should disclose it. 14 matter of telling Bob these are our thoughts and we're 15 going to disclose it. Q. 16 17 I think it was just a Well, if you were going to disclose it, why did you need to get his input before you disclosed something? 18 A. Because he was the deputy chief. 19 Q. Okay. 20 A. And because lots of times we'll talk to, in the 21 course of trying cases, legal issues. 22 Q. And he said disclose it, did he not? 23 A. Well, it wasn't like we were asking him should 24 we or should we not, it was just kind of talking through 25 it. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 64 1 Q. And he recommended that you disclose it? 2 A. We were going to disclose it. 3 Q. I'm sorry? 4 A. We were going to disclose it. 5 Q. And he recommended that you disclose it. 6 on board with that? He agreed to that? 7 A. I think he agreed with us, yes. 8 Q. Okay. 9 He was And do you remember when that conversation was? I think I asked earlier. 10 A. I think you did. 11 Q. You don't know? 12 A. I don't. 13 Q. Do you have an approximation? 14 A. Probably the spring, but that's -- that really 15 is an approximation. 16 Q. What about -- what about Mark Porter's 17 attorneys? 18 or did you, Robert, or anyone else tell them? 19 were representing, obviously, the co-defendant Mark 20 Porter. 21 against the death penalty for Mark Porter as well? Mark Daniel and Tim Moore, did you likewise -And they Did you tell -- I mean, the Cherrys were likewise 22 A. They had general opposition in both cases, yes. 23 Q. So when did you dis-- when did y'all disclose 24 25 that to them? A. Well -- but your question, I think, was, did I Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 65 1 disclose that to Mark Daniels (sic) or Tim Moore. 2 Q. 3 there. 4 A. I'm sorry. 5 Q. We'll go with that question. 6 7 8 Well, that wasn't my question, but we'll go When did you disclose it to Mark Daniel? A. I did not disclose it to either attorney for Mark Porter. Robert told me that he disclosed it. 9 Q. When did Robert tell you that? 10 A. I don't recall the actual date. 11 Q. Well, was it before jury selection in the Paul 12 Storey case? 13 A. Yes. 14 Q. So according to Robert, those two attorneys knew 15 it before jury selection in the Paul Storey case? 16 A. That's my understanding. 17 Q. That the Cherrys were opposed? 18 A. That's my understanding. 19 The other thing I -- the reason why Robert 20 was present for some of these meetings -- well, obviously, 21 because he was the lead attorney and he was on the case 22 from the beginning, which was 2006. 23 assigned to Criminal District Court Number Three, and that 24 is where Robert was the chief. 25 appearance, Robert was there. Both cases were So anytime there was an I was the chief of the Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 66 1 213th District Court, so I was not present for court 2 appearances nor did I interact with the attorneys when the 3 case was set. 4 5 Q. But you never disclosed it? told -- 6 A. I did not. 7 Q. -- by Robert that he did? 8 A. That's correct. 9 Q. Okay. 10 Why do you think Robert told you that he disclosed it to Mark Daniel and Tim Moore? 11 A. So that I would know. 12 Q. Okay. 13 You were just I mean, it was important, wasn't it? It's something you would want to know? 14 A. Yes. 15 Q. Okay. 16 A. I think he just wanted me to know that he had 17 Because it was important? disclosed it to both sets of attorneys. 18 Q. 19 wasn't it? 20 A. I think they needed to know. 21 Q. So it wasn't important or it was important? 22 A. I think it's important. 23 Q. Okay. 24 25 Well, it was important that he disclosed it, And did he tell you what Mark Daniel or Tim Moore's reaction was when they heard this? A. I think he said their reaction was that they Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 67 1 2 wanted him to waive the death penalty. Q. Okay. So they discussed with him to waive the 3 death penalty -- this is before the Paul Storey case, 4 right, before the Paul Storey jury selection? 5 A. Yes. 6 Q. Okay. 7 A. Yes. 8 Q. That they discussed that when he disclosed this 9 to them before Paul Storey's jury selection, whenever it 10 was, that their reaction was, well, why don't you waive 11 the death penalty? 12 A. Yes, that's my understanding, yes. 13 Q. Did -- I mean, that seems like a reasonable 14 response, doesn't it? 15 A. Yes, it does. 16 Q. And did he tell you whether that was the Mark 17 Daniel, Tim Moore, or both of them, that discussion? 18 A. I don't recall him telling me which one it was. 19 Q. Okay. 20 Do you recall where you were when he told you? 21 A. Like where I physically was? 22 Q. Sure. 23 I mean, did he send an email? Were you standing in the hallway? 24 A. Oh, he told me, he told me verbally. 25 Q. Do you know where you were when he told you Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 68 1 verbally? 2 A. 3 Well, I would say my office or his office, somewhere in the district attorney's office. 4 Q. Okay. 5 A. (Moving head up and down). 6 Q. But you don't specifically remember? 7 A. I don't. 8 Q. I mean, some things you specifically remember, 9 10 11 12 A safe assumption. you know, I remember it, I was, you know, so and so was there, I was standing there? A. And that's true, there are certain conversations -- 13 Q. But that one you don't? 14 A. I do not. 15 Q. And so what was Robert's -- what did Robert say 16 his response was when -- when Mark Daniel or Tim Moore, 17 whichever one it was, said, well, why don't you waive the 18 death penalty? 19 A. Did Robert tell you what his response was? I think Robert suggested if that is the 20 direction they wanted to go to approach Bob Gill and ask 21 him about waiving the death penalty. 22 Q. Okay. 23 A. I do not. 24 Q. Well, it would make sense if Robert told them 25 Do you know if they did that? that, that that's what they would do, they would approach Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 69 1 somebody about that, correct? 2 A. That would make sense. 3 Q. Does Bob Gill remember them approaching? 4 A. I don't know. 5 6 MR. BRAGG: Objection, Your Honor, THE COURT: I'll sustain at this time. speculation. 7 8 Q. 9 this case? 10 A. I have not. 11 Q. I mean, have you communicated with him in any 12 (BY MR. WARE) Have you talked to Bob Gill about way about this case? 13 A. I don't think so. 14 Q. Well, I mean, have you or have you not? 15 A. I don't believe I have communicated with him. I 16 see him frequently when we both have cases set in the same 17 court. 18 is because he might have said something to me in passing. 19 But outside of that, no, there's not been any conversation 20 about this case. 21 And the only reason I say I don't believe we have Q. So that's definitely something that it seems Tim 22 Moore and Mark Daniel and maybe Bob Gill ought to remember 23 is them approaching Bob Gill about waiving the death 24 penalty? 25 MR. BRAGG: Objection, speculation, Your Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 70 1 Honor. She can't know what they are or aren't going to 2 remember. THE COURT: 3 4 Well, I'm going to go ahead and allow that question at this time, if she knows. THE WITNESS: 5 Sure. I think your question 6 originally was what was Robert's response and Robert 7 suggested they go talk to Bob. 8 did, I don't know. (BY MR. WARE) Whether or not they ever 9 Q. Do you know if they did anything? 10 A. I do not. 11 Q. I mean, did you ever -- you understood the 12 Cherrys were against the death penalty. 13 down, you and the Cherrys and whoever else and just have a 14 heart-to-heart talk about that and how that figured into 15 this case? 16 A. 17 Did you ever sit I know that I had a lot of discussions with them once the trial began. 18 Q. But about that particular issue? 19 A. About their general opposition to the death 20 21 22 23 penalty? Q. Yeah, their general opposition or their specific opposition in this case. A. I feel like I had a number of conversations with 24 them during the trial. It has always been very important 25 to me as a prosecutor for victims and their families to Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 71 1 understand what is happening, the legal process, the 2 trial. 3 us to a particular point, when a decision is made to seek 4 the death penalty, all of the factors potentially that can 5 go into that decision, that it is not an easy decision, 6 that there are questions that a jury would have to answer. 7 And they're thoughtful questions, and they're qualitative 8 questions. What -- in other words, what has happened to bring And so, yes, I sat down and explained that 9 10 to them, and I wanted them to understand the opportunity 11 that Paul Storey was given time and time again to accept a 12 life sentence. 13 Q. So -MR. WARE: 14 15 16 17 I'm going to object to all that as unresponsive, Your Honor. Q. (BY MR. WARE) Let me see if I can get you to answer my question. Did you ever sit down with the Cherrys and 18 19 have discussions or a conversation, however you want to 20 put it, about their opposition to the death penalty, about 21 that specifically? 22 A. I talked to them during the trial. 23 Q. About that specifically? 24 A. Yes. 25 Q. Okay. And -- and you also said that you told Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 72 1 them that Paul Storey was offered a life sentence? 2 A. Yes. 3 Q. When did you tell them that? 4 A. I think they were told -- I think they were told 5 in that same meeting, but I'm not positive, in that same 6 meeting with Suman. 7 know that I discussed it with them during the trial 8 because I wanted them to understand every effort was made 9 to give him the chance to take a life sentence. But I'm not positive of that. But I 10 Q. So they should remember that? 11 A. I don't know if they remember that or not. MR. WARE: 12 13 Your Honor, could we take a break? THE COURT: 14 All right. It's 10:30, so 15 we've been proceeding for some length of time. 16 a short recess at this time. 17 (Recess) 18 (Open court, defendant present) 19 THE COURT: 20 this morning. MR. BRAGG: 22 MR. WARE: 23 THE COURT: 25 Back on the record Are both sides ready to continue? 21 24 All right. Let's take Yes, Your Honor. Yes, Your Honor. Mr. Ware, do you have a few more questions to ask at this point? MR. WARE: Yes, sir. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 73 1 2 3 Q. (BY MR. WARE) Did you ever talk to anybody in appellate about whether this should be disclosed or not? A. I don't believe so. 4 MR. WARE: 5 THE COURT: 6 Q. (BY MR. WARE) May I approach, Your Honor? Very well. So part of the reason for 7 disclosing this, and I think maybe even Bob Gill may have 8 mentioned this in the conversation, is this is possibly 9 Brady information in that it's mitigating, correct? 10 A. Actually, I don't think that there's any case 11 that stands for the proposition that it is Brady 12 information. 13 14 15 Q. Do you know of any case that stands for the proposition that it's not Brady information? A. I think that a victim's or family members' 16 wishes as to the ultimate fate of an individual actually 17 are inadmissible in front of the jury. 18 Q. That's true under the Eighth Amendment and the 19 Fourteenth Amendment, possibly, if their wishes are for 20 the defendant to receive the death penalty, correct? 21 A. Well, the case -- 22 Q. Is that correct? 23 A. Actually, I don't think that's correct. 24 Q. Okay. 25 But when the case is the opposite where the State is seeking the death penalty and the victim's Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 74 1 parents do not want the jury to give the death penalty, 2 Payne versus Tennessee, those cases do not address that 3 situation, do they? 4 A. That is correct. 5 Q. Okay. But they absolutely do address the 6 situation where the victim's parents do want the death 7 penalty for the defendant, correct? 8 A. That was the factual scenario in that case. 9 Q. Okay. 10 And in other cases that have come since then? 11 A. That's correct. 12 Q. I mean, that's well known that if the victim's 13 parents want the death penalty, the Eighth Amendment, the 14 Fourteenth Amendment says the prosecutor, the State cannot 15 put them on to testify to that, correct? 16 A. Well, I actually think that -- 17 Q. I mean, correct or not correct? 18 A. Well, the case law -- the law -- 19 Q. So that's not correct? 20 21 It's a simple question, correct or not correct? A. The law says, the cases say that a -- 22 MR. WARE: 23 THE COURT: I object as nonresponsive. Well, answer the best you can, 24 and then there will be a chance for cross-examination, I 25 suppose. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 75 THE WITNESS: 1 2 3 All right. Would you please restate your question? Q. (BY MR. WARE) There's no question that the cases 4 say that it is a violation of the Eighth and maybe the 5 Fourteenth Amendment, such as in Payne versus Tennessee, 6 cases that have come since then, to put the family on to 7 say they want the jury to impose the death penalty; is 8 that correct? 9 A. That's correct. 10 Q. Thank you. 11 I'm going to hand you what has been marked 12 as Defendant's Exhibit Number 1, which I can represent to 13 you was filed in this case by Larry Moore at trial. 14 that look familiar to you? 15 A. It does. 16 Q. What is that? 17 A. It is the Defense's Motion to Produce 18 19 20 21 22 23 24 25 Does Inconsistent or Mitigating Evidence. Q. Okay. And what's the date of that filing file-marked? A. It appears to be May 10th of -- looks like 2007. Q. Okay. So May the 10th, 2007 that motion is filed, correct? A. It appears to be, yes. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 76 1 2 3 4 Q. Okay. Do you remember the hearing where that motion was heard? A. There was one hearing that I was not present for. 5 Q. Okay. 6 A. And this -- that may or may not have been that 7 8 9 10 hearing. Q. Well, I can represent to you the court reporter's notes indicate you were present for the hearing. 11 A. Okay. 12 Q. Which was February the 8th of 2008? 13 A. Okay. 14 Q. Does that make sense? 15 A. Sure. 16 Q. You were on board at that point? 17 A. Yes. 18 Q. And -- 19 A. And when I say there was a hearing that I 20 missed, the hearing would have been probably sometime 21 around the summer. 22 Q. Of 2008? 23 A. Yes. 24 Q. Okay. 25 A. I don't doubt you, Mike. Well, this was in February. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 77 1 Q. And can you look on the page behind that. 2 the page behind that, I believe. 3 order granting that motion; is that correct? And that is the actual 4 A. Yes. 5 Q. Which is likewise dated? 6 A. February 8th, 2008. 7 Q. Okay. 8 A. 10 mitigating. 11 Q. 13 And what does that hearing -- what does that motion -- what does it request? 9 12 And All information that would be inconsistent or Okay. And it really goes beyond, doesn't it? Tell me if I'm reading this correctly. The defendant would further respectfully 14 request that the Court instruct the prosecution to produce 15 any and all such evidence inconsistent with the 16 defendant's guilt, impeachment evidence, mitigating 17 evidence, or any other evidence that would be material -- 18 of material importance to the Defense even though it may 19 not be offered as testimony or exhibits by the prosecution 20 at the trial of this case on the merits. 21 Do you agree or disagree with me that the 22 fact that the Cherrys, the parents of the victim in this 23 case where you were seeking the death penalty were opposed 24 to the death penalty, you agree that that information 25 would fit within this motion's request? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 78 1 A. I agree. 2 Q. Okay. 3 A. Yes. 4 Q. Okay. And the judge granted that, correct? State's Exhibit Number 2 is just the 5 hearing on February the 8th where the judge grants the 6 motion? 7 A. Mike, I don't doubt you. 8 Q. Well, this is the first time you and I have 9 I agree. talked about this, right? 10 A. No, it's actually not. 11 Q. About this? 12 A. About this case. 13 Q. So when y'all disclosed the fact that the 14 Cherrys were against the death penalty, it was -- I mean, 15 you chose to do it, but in fact you were court ordered to 16 do just that, correct? 17 within the category of evidence that the Court ordered you 18 to disclose. Not specifically, but it fit 19 A. I think so in the broadest sense, yes. 20 Q. Let me show you State's -- Defendant's Exhibit 21 Number 3 and ask you if you can identify what that is? 22 A. 23 Material. 24 Q. 25 It's the State's First Amended Notice of Brady Okay. And this is filed with the court, right, or filed with the clerk? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 79 1 A. Yes. 2 Q. And it's in writing? 3 A. It is. 4 Q. And this was filed July the 10th of 2008, 5 correct? 6 A. Correct. 7 Q. And what is the purpose of this file -- it was 8 actually signed by Robert Foran; is that correct? 9 A. That's right. 10 Q. But you were on the case by then, obviously. 11 This was actually just prior to jury selection, I think. 12 I mean, you were involved in the case. 13 14 15 16 17 18 A. I was involved in the case, and it was prior -- it was filed prior to jury selection. Q. Okay. And did you and him talk about what to put on here? A. No -- well, we might have. I mean, let me look and see. Yes, we did. 19 20 Q. You did? 21 A. We did. 22 Q. Did you make a decision not to include the fact 23 that the Cherrys were against the death penalty? 24 make a decision not to include that on here? 25 A. No, we did not. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three Did you 80 1 Q. You didn't make a decision one way or the other? 2 A. No. 3 Q. You didn't discuss it? 4 A. No, we didn't. 5 Q. But you agree that it's not on here? 6 A. I'd agree. MR. WARE: 7 Your Honor, we'd offer -- and 8 these are all part of -- actually the clerk's file. 9 we'd offer Exhibits 1, 2, and 3 as part of this hearing. MR. BRAGG: 10 But Your Honor, I would just ask if 11 it's possible, or to the best of opposing counsel's 12 ability, to offer just for clarity sake where -- I mean, I 13 have no doubt that they are a part of the record. 14 the CCA already has this record before it, it might help 15 them when they review this case to have a record cite to 16 go with it; for example, page so and so of the clerk's 17 record from the trial or part of the Reporter's Record or 18 whatever it might be. 19 MR. WARE: 20 THE COURT: 21 MR. BRAGG: All right. But you have no I'm just making sure that this is what he represents it to be, which I'm sure it is. MR. WARE: 24 25 We can certainly do that. objection, you'd just like it to be clarified where it is? 22 23 Just If I can do that later, Your Honor. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 81 1 MR. BRAGG: No objection. 2 THE COURT: I'll permit counsel to clarify 3 where it is in the record. Looks like some page numbers 4 on some of those, anyway. 5 Defense Exhibits 1, 2, and 3. 6 Applicant's exhibits. These are actually marked Those are actually 7 MR. WARE: 8 THE COURT: But one, two, and three are MR. WARE: Habits are hard to break, Your THE COURT: I think we're all clear what 9 admitted. 10 11 Well -- Honor. 12 13 they are and who is offering them. 14 are admitted for purposes of this hearing. MR. WARE: 15 16 Q. (BY MR. WARE) So one, two, and three Thank you, Your Honor. Is it -- is it your position, or 17 do you have one, that Larry Moore and Bill Ray were told 18 about the Cherrys' opposition to the death penalty before 19 you filed or before Robert filed what's now Exhibit Number 20 3 which is a list of Brady disclosures, or were they told 21 after that list was filed? 22 believe, on July the 8th, 2008. 23 A. And this list was filed, I What I can tell you is that Robert told me on a 24 number of occasions that he and Bill had discussed the 25 Cherrys' position. I can tell -- Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 82 1 Q. The position against the death penalty, just to 2 be clear. 3 A. That is correct. 4 Q. And that would have been before that was filed? 5 A. Yes. 6 Q. Okay. 7 A. I can tell you that there were discussions I can tell you that -- 8 during jury selection, whether it be on a break, whether 9 it be in between veniremen that were had that also 10 referenced or incorporated the Cherrys' opposition to the 11 death penalty. Was Larry Moore present in the room when 12 that occurred? I don't know. 13 in the room together when that occurred? 14 you. Were Larry and Bill present I can't tell 15 Q. Who can tell us? 16 A. Well, all I can tell you is that the 17 18 19 conversations were had. Q. Now, so they were aware that the Cherrys were against the death penalty? 20 A. Yes. 21 Q. There's no doubt in your mind about that? 22 A. That is correct. 23 Q. And that would have been before trial ever began 24 they were aware that the Cherrys were against the death 25 penalty? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 83 1 A. That is my understanding, yes. 2 Q. Okay. And y'all had discussions about it with 3 a -- each other and with Bob Gill, maybe other people, and 4 y'all decided that was the thing to do, disclose that 5 information? 6 A. Yes. 7 Q. And not only that, the judge, Elizabeth Berry 8 ordered y'all to disclose such information in the motion 9 and the order that are now one, two, and three, correct? 10 A. That is correct. 11 Q. So whether the law required it or not, in this 12 particular case the judge was requiring it, correct? 13 A. Yes, in the broadest sense, yes. 14 Q. Okay. 15 Now, is -- is it your position that at some point the Cherrys changed their position? 16 A. I think -- 17 Q. I mean, did they? Because there was no question 18 they were adamantly against it at first. 19 their position? Did they change 20 A. I think their position did change, yes. 21 Q. Okay. 22 And how did they -- did they communicate that to you? 23 A. They did. 24 Q. How did they communicate it to you? 25 A. Well, throughout the trial, they participated in Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 84 1 the trial. And when I say -- 2 Q. Okay. 3 A. They sat behind us in the trial. Go ahead. They did not 4 have to appear for the trial. They did not have to 5 participate in, to watch, to witness this trial. 6 were there from the beginning all the way through the end. 7 And we talked to them after each of the witnesses. And they I think there were two witnesses, maybe, 8 9 that they did not sit in on, and that would have been the 10 medical examiner and that would have been the crime scene. 11 I don't believe they sat in for those two witnesses. 12 outside of those two witnesses, they were there, they saw 13 this case through. But 14 Q. Sure. 15 A. And there were conversations that were had many 16 17 18 times throughout the trial with the Cherrys. Q. So they sat behind y'all's table, is that what you're saying, in the audience? 19 A. 20 right. 21 table would have been immediately there. 22 sat against the wall, as I recall. 23 directly behind the jury box or to the side of the jury 24 box. 25 Q. I have to think where the jury box is. All The jury box would be on my right in CDC 3, so our Okay. They would have So really more And chances are, the jury knew exactly Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 85 1 2 3 4 who they were, at least by the end of the trial, correct? A. Well, I think that Suman identified them during her testimony. Q. They probably even knew before Suman identified 5 them that those were the victim's parents. 6 part of the reason of having them sit behind y'all so the 7 jury knows who they are; isn't that correct? 8 9 A. I mean, that's I don't know that they would have known that they were family until Suman identified them. 10 Q. Okay. 11 the trial? 12 A. Well, they were there for -- how long was The trial was -- the trial began on 13 September the 2nd of 2008 and it concluded it looks like 14 on September the 12th of 2008. 15 Q. So over those ten or so days, the jury probably 16 figured out who these -- who this nice couple was sitting 17 behind the prosecutors' table, correct? 18 19 20 21 22 A. I think they certainly knew when Suman identified them. Q. If they hadn't figured it out before, they knew when Suman identified them? A. Yes. And I think there were other people, I 23 don't think they were the only ones who sat in through the 24 trial. 25 Q. Of course, y'all wanted the jury to know who Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 86 1 they were, didn't you? 2 A. Yes. 3 Q. Okay. 4 A. She did. 5 Q. -- correct? She did not testify that she wanted the 6 7 So Suman did testify -- death penalty, did she? 8 A. That's correct. 9 Q. And in fact, as we discussed earlier, the 10 Constitution would prohibit her from testifying that she 11 wanted the death penalty; isn't that correct. 12 your understanding of the law? 13 A. I think initially. Is that But I think if -- I think 14 there's an argument to be made that it could have been 15 invited by the Defense mitigation case. 16 instance it might have allowed her to testify that she, in 17 fact, was in favor of the death penalty. 18 Q. And in that So -- so after the Defense mitigation case, did 19 y'all move to reopen and put her on to testify that she 20 was in favor of the death penalty? 21 A. We did not. 22 Q. Is it your position that you could have? 23 A. I think there is an argument to be made that we 24 could have. 25 that I have been involved in, I've never done that. However, in each of the death penalty cases Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 87 1 Q. And you didn't do it in this case? 2 A. I did not. 3 Q. In fact, you didn't do it because it's probably 4 5 a sure way for a reversal; isn't that correct? A. I think there's an argument that it would have 6 invited. I'm not going to say that it would be a 7 sure-fire way for a reversal. I don't agree with that. 8 Q. It's pretty clear law, isn't it? 9 A. I think that if there's no mitigation case, I 10 think you're correct. 11 cases where they're asking for someone's life to be spared 12 or they're suggesting that a life sentence is more 13 appropriate than the death penalty, I think the State 14 would be entitled to respond appropriately. 15 Q. 16 about that? 17 A. I did not. 18 Q. Okay. I think if the Defense puts on That's just -- did you consult with appellate So in fact, the -- and Suman, she got on 19 the stand and she pointed out, as you say, she pointed out 20 Jonas Cherry's parents, correct? 21 A. She did. 22 Q. So now the jury knows who those -- who that nice 23 couple is that's been sitting there throughout almost the 24 complete trial, correct? 25 A. That's correct. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 88 1 Q. Pretty close to the jury box, really? 2 A. I think they were three or four rows back, but 3 it might have been two rows back. They were not on the 4 front row, I remember that. 5 seated in front of them, and I think there were people 6 seated behind them as well. And I think there were people 7 Q. Throughout the trial? 8 A. I think so. 9 Q. But they were consistently there, probably the 10 people sitting in front of them and people sitting behind 11 them may have come and gone? 12 A. I think there was a pretty consistent group. 13 Q. Uh-huh. 14 Okay. And the Cherrys were part of that consistent group? 15 A. That's true. 16 Q. Okay. So the Defense did, in fact, put on 17 witnesses that asked the jurors to spare Paul Storey's 18 life, correct? 19 A. That's correct. 20 Q. And at one point either you or Robert -- I think 21 the first witness either you or Robert objected. 22 remember that? 23 A. That was Robert. 24 Q. Okay. 25 A. Uh-huh. Robert objected? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three Do you 89 1 Q. The judge overruled his objection, correct? 2 A. I think actually the first time she sustained it 3 4 and then subsequently she overruled it. Q. Okay. So the judge was saying, I think it comes 5 in, correct? I mean, she was put to the test. There was 6 an objection made and she overruled it and she allowed it, 7 correct? 8 A. That's correct. 9 Q. And then there were several witnesses after that 10 where neither you or Robert even objected, correct? 11 A. Actually, I think Robert continued to object. 12 Q. Well, you wouldn't argue with me if I told you 13 14 15 that was not correct? A. Well, I looked at the testimony last night, and I seem to remember that he did object a number of times. 16 Q. Okay. 17 A. Now, he was consistently overruled after that 18 first objection was sustained, but I think he did continue 19 to object, but -- 20 MR. WARE: 21 THE COURT: 22 MR. WARE: May I approach, Judge? Very well. I'm probably not going to offer 23 this. 24 I'll go ahead and have it marked. 25 Q. I'm just going to refresh her memory with it, but (BY MR. WARE) I'm going to show you what's been Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 90 1 marked as Defendant's Exhibit Number 4. 2 with -- this is Volume 38 of the transcript, page 166. 3 I'm not completely sure which witness this is, but it's a 4 defense witness. 5 witness. And I think Bill Ray is questioning this And he says -- 6 A. Would you like me to hold it? 7 Q. I got it. 8 testimony. 9 And let's start He says -- this is going into the You tell me if I'm reading this correctly. You know what the facts are in this case? 10 No, sir, not exactly. 11 And I explained to you basically what the 12 case was about, did I not? 13 Oh, yes, sir, you did that. 14 And you know the jury is either going to 15 sentence him to die by lethal injection or he's going to 16 go to the penitentiary for the rest of his life? 17 Yes, sir. 18 You understand there's only two options. 19 I would hope not, though. It's either life in the penitentiary -- 20 Yes, I understand that. 21 -- with no chance of parole, or he goes 22 executed -- or he gets executed? 23 Right. 24 Says: I'll pass the witness. 25 Okay. There's no objection to any of that. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 91 1 2 3 A. Well, that's because he didn't ask the question. And that was Paul Storey's father that testified. Q. So here we are again, another defense witness. Are you asking the jury to consider those 4 5 things that you've told them in making the decisions as to 6 what will happen to Paul? 7 Yes, I am. 8 Are you asking the jury to spare Paul's 9 life? 10 A. And Mr. Foran objects. 11 Q. And the Court overruled? 12 A. Right. 13 Q. Okay. 14 So those are -- those are two. And then we go -- here's another witness. Do you think if the jury chooses to spare 15 16 Paul Storey's life that he can still be off some help and 17 good to you? 18 I know he will be, sir. 19 He can still be a force for good in your 20 life, in the life of your mother and the people that care 21 about him; is that right? 22 Yes, sir. 23 Are you asking the jury to give him that 24 25 opportunity? Yes, sir. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 92 Do you think there's good things about your 1 2 brother? I know there's good things about my 3 4 brother. Despite everything that he may have done 5 6 and everything he has brought him here to the place that 7 he sits in front of you, do you think he is worth saving? 8 Yes, sir. 9 Thank you. No objection? 10 11 12 Pass the witness. A. I think if you look above that, on a number of other witnesses Robert lodged objections. 13 Q. But I'm saying some of it came in without 14 objection? 15 A. That is correct. 16 Q. Without going through the tedium of all the -- 17 of all the testimony, I can represent to you, and we can 18 prove this up later, that Robert objected twice, the first 19 time it was sustained, the second time it wasn't, and that 20 he didn't object after that for several more witnesses 21 that testified to that. 22 A. I think he objected more -MR. BRAGG: 23 24 25 Okay? a question? Objection, Your Honor. It sounded more like a statement. MR. WARE: Okay. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three Is that 93 1 2 Are you putting it in the MR. BRAGG: I mean, that's something that form -- 3 4 THE COURT: come to the findings of fact later on. MR. HAMPTON: 5 Judge, I've got a solution to 6 move things along. 7 it out to you, and I'll offer to do it. 8 THE COURT: 9 10 You've got the record. All right. We can point I agree that counsel certainly will have the ability to point things out. MR. WARE: 11 12 Honor. 13 Q. (BY MR. WARE) Absolutely. Thank you, Your So is it your position that -- 14 that -- well, let me ask you, whether he objected or 15 didn't object, that came in either over his objection or 16 without his objection, correct? 17 A. I would agree with you. 18 Q. So either the judge disagreed that it was 19 objectionable and/or at some point you and Robert, at 20 least for some of the witnesses, agreed that it was not 21 objectionable and didn't even bother to object to that 22 testimony? 23 A. I don't know that we agreed it wasn't 24 objectionable. 25 sorry. I think she sustained a number of -- I'm She had overruled a number of Robert's objections. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 94 1 Q. Well, we can clear that up later, whether it was 2 once or whether it was a number of them. 3 In any event, it came in. 4 I think you've already answered, y'all did not move to 5 reopen at that point and say, well, Judge, if you're going 6 to let that in, we want to put it in that the Cherrys are 7 for the death penalty -- that Jonas Cherry's family and 8 everyone who loves him are for the death penalty. 9 ever make that presentation to the judge or make that 10 Okay. And did y'all -- Did you argument to the judge? 11 A. No, I didn't. 12 Q. And you knew the judge was not going to let that 13 in, didn't you? 14 A. No, I didn't know that. 15 Q. All right. So is it your position, I guess, 16 from what you told the newspaper, that at some point the 17 Cherrys made it clear that they had changed their position 18 on the death penalty? 19 A. Yes. 20 Q. Okay. 21 And how is it that they -- did they communicate that to you? 22 A. Yes. 23 Q. Okay. 24 A. Well, there is one specific conversation. 25 When did they communicate that to you? before that conversation, as I interacted with them Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three But 95 1 through each of the witnesses -- for instance, when we 2 began with Larry Fitzgerald who testified and was the very 3 first Defense witness, after he concluded his remarks or 4 after he concluded his testimony and he discussed the fact 5 that the Texas Seven were able to escape from Huntsville 6 when they were in general population, that a man had 7 escaped from TDC while we were in trial who was housed in 8 general population, I had a discussion with them after 9 Larry Fitzgerald's testimony and they remarked, was he a 10 Defense witness or a State's witness, because it was so 11 very clear that they did not want Paul Storey to be in 12 general population and ever have the ability to escape or 13 to hurt anyone else. MR. WARE: 14 Okay. I'm going to object to 15 all that as nonresponsive, see if I can get you to answer 16 my question. 17 Q. (BY MR. WARE) When did they and how did they 18 communicate to you that they had changed their very strong 19 feelings against the death penalty to the point where they 20 believed the death penalty was appropriate in this case? 21 A. Okay. Outside of the conversations that we had 22 with other -- I mean, after and before other witnesses, 23 there was a point during the punishment phase, and I 24 believe it was after Ms. Shankle testified, and that's 25 Paul Storey's mother, that Glenn approached me. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three And I was 96 1 either at the railing or the other side of the railing, so 2 I was either this side of the railing or the other side of 3 the railing. And Glenn approached me. 4 And I -- as I 5 recall, it was after Marilyn Shankle's testimony because 6 her testimony was very emotional, it was very compelling. 7 And Glenn approached me. 8 conversation with Robert that I could not hear. 9 the part that I heard was where he said, and he said it -- 10 and he either said, do you want me to or should I tell the 11 jury that we want the death penalty? And I think there was some But then 12 Q. So you heard that part of the conversation? 13 A. Yes. 14 Q. Did you -- did you sort of do a double take and 15 go, what? All this time they've been against the death 16 penalty? 17 take a double take like that? 18 A. Did I hear what I just think I heard? Did you No, I didn't take a double take like that, 19 because I had also watched their reaction to all of the 20 evidence in the guilt-innocence phase and the punishment 21 phase. 22 Q. So you're saying it's at that point you knew 23 that they had changed their position on the death penalty 24 based on what you say you heard of this conversation that 25 you were not actually a direct part of? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 97 1 A. No. He was talking, and I think Robert was -- I 2 can't remember if Robert was to my right or my left, and 3 so he was talking to both of us. 4 5 6 7 8 9 10 11 12 Q. And what -- Tell me the whole conversation then. Let's start at the beginning. A. Well, there was a part of it I could not hear. And then what I heard him say -Q. Well, what part -- start from the beginning. what brought y'all together? You said this was after Paul Storey's mother testified? A. As I recall, the timing of it was after Marilyn Shankle's testimony. 13 Q. And before the next witness? 14 A. Well, she was actually the last punishment 15 So witness for the Defense. 16 Q. Okay. 17 A. Okay. 18 Q. But before argument? 19 A. Yes. 20 Q. Okay. 21 A. Okay. And as I recall -- As I recall, she had testified. And 22 there was a break. The jury had been taken back to the 23 jury room. 24 talking to Paul Storey about whether or not he was going 25 to testify. And I believe that is when the Defense was Okay. So it's somewhere in all of that. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three The 98 1 jury was outside of the room, and Glenn Cherry approached 2 the rail and had that conversation. 3 4 Q. And that's the first you had heard that they had changed their mind about the death penalty? 5 A. You know, I don't know that -- well -- 6 Q. That's the first you remember? 7 A. That's -- that is the first time I recall them 8 9 10 11 12 putting it that succinctly, yes. Q. Okay. And what exactly did -- relate the whole conversation. A. All I can relate to you is him coming up, there's some conversation that I could not hear. 13 Q. That's between him and Robert? 14 A. Well, I was standing there, I just couldn't hear 15 it very well. 16 Q. Well, who could hear it? 17 A. Well, I presume Robert could hear it. 18 Q. Okay. 19 So's that's the conversation between him and Robert or -- or you, whatever? 20 A. Right. 21 Q. Was there anybody else? 22 A. Well -- 23 Q. Was Judith Cherry there? 24 A. She was behind him. 25 behind him she was. I don't know how close But I believe she was to his left -- Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 99 1 no, his right, my left. 2 enough to hear. 3 to hear. I don't know that she was close I don't know that she wasn't close enough 4 Q. Was there anybody close enough to hear? 5 A. There were people, because there was a group of 6 people over there. 7 else that was a part of this conversation. 8 9 10 Q. I don't know that there was anyone So there's a lot of people there, but the only people that are part of the conversation and for sure could hear are you and Robert and Glenn Cherry? 11 A. That's correct. 12 Q. Okay. 13 A. And I don't know if our investigator -- 14 Q. Even you didn't hear the whole conversation? 15 A. That's true. I don't know if our -- I don't 16 know how close my investigator was to us. 17 he could hear it. 18 have very good hearing. 19 Q. Okay. I don't know if He probably couldn't because he doesn't So of what you could hear, just tell us 20 what happened. Tell us, you know, what was going on that 21 you couldn't hear. 22 exactly what you did perceive. Tell us what you could hear. Tell us 23 A. That he asked me if he should -- 24 Q. He asked you? 25 A. I was looking right at him and heard this. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three I 100 1 don't know if I wasn't looking at him for the first part 2 and didn't hear that. 3 he said, should I testify or do you want me to testify? 4 5 Q. Okay. But I was looking right at him and So, of course, at that point y'all had already put on your case, did you not? 6 A. Yes. 7 Q. So what even brought up him -- y'all had already 8 decided that Mr. -- or Mr. Cherry, Glenn, and Dr. Cherry, 9 Judith, were not going to testify, had you not? 10 you'd put on your case and hadn't called them? 11 A. Well, that's true. I mean, But, I mean, in theory they 12 always could have you been called in rebuttal. 13 witnesses on in rebuttal in a death penalty case. 14 15 Q. I have put Why did you decide for them not to testify in the first part? 16 A. You know, the trial was difficult for them. 17 Q. I'm sorry? 18 A. The trial was difficult for them. 19 not -- 20 Q. Okay. 21 A. They really did not know the details of their They did 22 son's execution. 23 callous way his life was taken, and it was difficult. 24 was their only child. 25 Q. We really had not shared really the He So is it your position or your testimony here Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 101 1 today that the fact that they were against the death 2 penalty had nothing to do with them not testifying at the 3 first part of the punishment stage? 4 5 A. No, I'm not going to say that had nothing to do with it. 6 Q. So it did have something to do with it? 7 A. It did have something to do with it. 8 Q. Okay. And so y'all finished your part of the 9 case and -- and -- and at that point they're against the 10 death penalty, because that had something to do with you 11 not calling them as witnesses, correct? 12 A. Well, I don't think it's as clear as you're 13 making it. 14 Q. Okay. 15 A. I mean, as we're going through the trial, they 16 are reacting and they're learning all of this information 17 that they really did not know beforehand. 18 Q. Well, they were all for Paul Storey being 19 prosecuted. 20 him being prosecuted, were they not? I mean, they were all cooperative and all for 21 A. Uh-huh. That is correct. 22 Q. I mean, they were devastated by the death of 23 their son. 24 A. Absolutely. 25 Q. They were just against the death penalty. Absolutely. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three They 102 1 2 3 4 were for life without the possibility of parole. A. I think that as the punishment phase progressed, I think their views changed. Q. Okay. But they didn't change so much that you 5 decided -- you changed your mind and decided to put them 6 on as witnesses? 7 A. That's correct. 8 Q. Okay. 9 10 11 So we're back to this conversation with Mr. Cherry, Glenn. And I think what you say you heard was, well, do you want me to testify or not testify? A. No. What he said was -- and I'm sorry, I didn't 12 finish my sentence a few moments ago when you asked me to 13 repeat it a second time. 14 to or should I testify that we want the death penalty, and 15 I said that's not necessary. 16 17 Q. What he said was, do you want me Well, what came before that? I mean, did he just blurt that out of the blue or what came before that? 18 A. No. From time to time -- 19 Q. I mean, context is everything, right? 20 THE COURT: One at a time. 21 THE WITNESS: Well, there was some 22 conversation that I could not hear. I did not hear. 23 Okay. 24 answer that. 25 recall the timing of this was after Marilyn Shankle's So when you ask me what came before that, I can't What happened in the trial before that, as I Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 103 1 testimony. 2 Q. 3 A. Okay. 4 Q. So you're testifying here under oath that you (BY MR. WARE) Okay. 5 heard Glenn Cherry say, so do you want me to testify that 6 I'm for the death penalty? 7 A. Should I or do you want me to. 8 Q. Testify that I'm for the death penalty? 9 A. That we want the death penalty, yes. 10 Q. Okay. 11 A. That's not necessary. 12 Q. Okay. 13 And what was your response? And only you and Robert and Glenn Cherry heard all that, that you know of? 14 A. That I know of, yes. 15 Q. And then what happened after that, you said, 16 17 that's not necessary? A. I think after that, I don't know if Paul Storey 18 had made his decision or not to testify or they put that 19 on the record. 20 conversation -- I don't know whether or not that 21 Q. But I mean the conversation between y'all. 22 A. I guess I'm not understanding your question. 23 Q. Well, I mean, from what I understand, you know, 24 there's kind of a break, Robert's talking to Mr. Cherry, 25 and you walk up and all you hear is, so -- and I'm Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 104 1 paraphrasing, this may not be a quote, so do you want me 2 to come up and testify that I'm for the death penalty, and 3 then you say, no, that's not necessary, and that's the end 4 of it all. 5 that? 6 A. Can you put it in any better context than Well, from time to time when there would be a 7 break, it would be like -- it would be like we would turn 8 around and the Cherrys would approach us, or we would 9 approach the Cherrys during the trial when we were on 10 break to talk about the witness, to talk about the 11 cross-examination. 12 And Glenn approached us. 13 whether I was standing on this side of the rail or that 14 side of the railing, but the conversation took place in 15 that little walkway. 16 there. I didn't just walk up, I was standing there with 17 Robert. I just couldn't hear what was said right before 18 that. 19 that's not necessary. All right. I can't say And I was standing And then Glenn made that comment, and I said, 20 Q. That's all there was to it that you remember? 21 A. Yes. 22 Q. Did you make a note -- I mean, did you think, 23 24 25 wow, you know, that's a change? A. I was surprised, but I wasn't shocked in light of the fact that I had watched them respond and react to Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 105 1 2 3 the evidence that they had heard for ten-plus days. Q. Did you ask him to explain or to elaborate on what he was talking about? 4 A. No, I did not. 5 Q. You heard that, you say, and it was like, well, 6 guess he's changed his mind, I guess he's for the death 7 penalty now. 8 9 10 11 A. Is that what you're saying? I felt like in listening to his question, with him saying that, that he believed that Storey deserved the death sentence in light of everything that he had heard. Q. But you didn't ask him to elaborate or confirm, 12 that's just the conclusion you draw from what you say you 13 heard him say? 14 A. That's correct. 15 Q. So is that when you decided to argue like you 16 17 did, when you heard that? A. That is one of the things, yes. Because 18 overnight, I wrestled with whether or not I should put him 19 on the stand. 20 21 Q. Did you talk to him about that? Did he know you were wrestling about whether to put him on the stand? 22 A. No, he did not. 23 Q. So he would have no clue. If you put him on the 24 stand the next day, it would have been cold because you 25 never talked to him about possibly putting him on the Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 106 1 2 3 4 5 stand after that? A. Well, I think we both rested and closed that day. Q. Okay. So there really wasn't an opportunity to put him on the stand the next day? 6 A. Well, I could have put him on the stand that 7 afternoon. 8 Q. Okay. 9 A. After he said that. 10 Q. But you didn't? 11 A. But I did not. 12 Q. And in fact, if what you say is true, even if 13 what you say is true, then very likely that would not have 14 been admissible, correct? 15 objected, you know, like under a whole line of Supreme 16 Court cases that that is impermissible to give victim 17 impact testimony, the judge would either sustain the 18 objection or there very likely could have been a reversal, 19 correct? I mean, if the Defense had 20 A. I don't know that I would agree with you, Mike. 21 Q. But that's a very serious issue? 22 A. It is a serious issue. 23 Q. It's a very clear-cut issue at the Supreme 24 Court? 25 A. I think -- I'm sorry, I didn't mean to interrupt Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 107 1 you. 2 Q. I'm done. 3 A. In the absence of a mitigation case, I think it 4 absolutely would be reversible error. 5 admissible. I don't think it's In light of the case that they put on and 6 7 generally what is put on in the cases that I was involved 8 in, I think there is an argument, though I've never done 9 it. Q. 10 11 But, you know, in this case we'll never know because you didn't put him on? 12 A. That's correct. 13 Q. So did you and Robert discuss this part of the 14 argument that you made before you made it? 15 A. No. 16 Q. Did you discuss it with anybody before you made 18 A. No. 19 Q. Did you discuss it after you made it? 20 A. After I made the argument? 21 Q. Yeah, did you discuss it with Robert or anyone 17 22 it? else? 23 A. No. 24 Q. Did he ever say anything to you about it? 25 A. No. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 108 1 Q. And you know what argument I'm talking about? 2 A. I do. 3 Q. Okay. The argument, and I think I'm pretty much 4 quoting it, where you say, and I think it goes without 5 saying that Jonas Cherry's family and everyone who loved 6 him believes the death penalty is appropriate, correct? 7 8 A. Well, I think it's, and it should go without saying, but the gist is the same. 9 Q. And it should go without saying? 10 A. Right. 11 Q. Now, you'll agree with me that even if 12 everything you're saying is true and even if all the 13 inferences you took from that brief conversation that you 14 say you had are accurate, that at the very least that 15 argument was outside the record. 16 Suman testifying that she was in favor of the death 17 penalty or thought it was appropriate. 18 record of Suman saying anybody else in the family believed 19 the death penalty was appropriate or that anyone or that 20 everyone who loved Jonas Cherry believed the death penalty 21 was appropriate. 22 that argument, so it was outside the record. 23 with at least that much? 24 25 A. There was no record of There was no There was no testimony that supported You agree I believe it was outside the record, but I also think that it is argument -- Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 109 1 Q. Well -- 2 A. -- and you're allowed to respond -- 3 Q. -- argument has rules, does it not? 4 A. It does. 5 Q. And as a prosecutor, as a spokesman for the 6 State of Texas, the person in authority, you have certain 7 rules you've got to go by even in argument, correct? 8 A. That is correct. 9 Q. Maybe especially in argument, correct? 10 A. I think there are rules that control closing 11 arguments. 12 Q. 13 Okay. And it's very important that there be rules in closing argument, correct? 14 A. That is correct. 15 Q. Okay. 16 And one of the rules is neither side can argue outside of the record, correct? 17 A. That's correct. 18 Q. And so -- 19 A. Well, I take that back. 20 Q. So -- 21 A. Unless you're responding to something. 22 Q. So at the very least -- well, of course, at this 23 point the other side hadn't even argued, had they? 24 A. That's right. 25 Q. Because you were the first one to argue? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 110 1 2 3 4 A. But I think you're allowed to respond to evidence that's elicited by -Q. You were the first -- you were the first one to argue, correct? 5 A. I was the first one to argue, yes. 6 Q. So certainly there was no argument that you were 7 responding to because there was -- there had been no 8 argument to respond to, correct? 9 A. I think you're allowed to respond to -- 10 Q. Let's me see if I can get you to answer my 11 question. 12 that point, correct? There had been no argument by the Defense at 13 A. I was the first attorney to argue. 14 Q. So there was no argument that you were 15 responding to, correct? 16 A. That is correct. 17 Q. Thank you. So you went up there intending to argue 18 19 outside the record, correct? 20 A. I knew what my argument was going to be, yes. 21 Q. Okay. So this was intentional when you went up 22 there and argued as you did that we just discussed, 23 correct? 24 A. It was. 25 Q. And you knew that was outside the record? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 111 1 A. I did, parts of it. 2 Q. Well, all of it was outside the record. Nobody 3 testified or put in writing or any other form of evidence 4 that said, I believe the death penalty is appropriate in 5 this case. 6 A. That's correct. 7 Q. So -- but you knew the worst that was going to Nobody testified to that, did they? 8 happen is -- the worst that could happen is that the 9 Defense would object and the judge would sustain the 10 11 12 objection, correct? A. I don't know that I would characterize it as the worst that would happen. 13 Q. 14 right? 15 A. 16 worst. 17 it could have been sustained, and then the jury would be 18 instructed to disregard. 19 Q. Or she might instruct the jury to disregard, I don't know that I would characterize it as the I think the Defense could have objected, I think Well, of course, the judge could have granted a 20 mistrial too. I mean, that would have been the next level 21 of relief the Defense would have asked for, right? 22 A. That's right. 23 Q. But you knew the judge wouldn't grant a mistrial 24 25 on that, didn't you? MR. BRAGG: Objection, Your Honor. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three That's 112 1 pure speculation. 2 would absolutely not and you knew that to be the case. 3 Unless she had a conversation with the judge about that, 4 that's pure speculation. THE COURT: 5 6 this time. 7 Q. 8 11 12 (BY MR. WARE) I'll sustain the objection at Do you believe the judge would have granted a mistrial on that? 9 10 I mean, it's categorical, oh, the judge A. I don't know what she would have done. I doubt Q. But you were willing to take that chance, it. correct? 13 A. 14 terms. 15 Q. I don't know that I thought about it in those Well, you knew it was improper and you knew -- 16 and you knew that -- that there was a possibility that the 17 judge could even go so far as to grant a mistrial, 18 correct? 19 A. I think there was -- well, I think it stands to 20 reason in any death penalty case that the families of the 21 deceased want the death penalty. 22 is a -- something that is a given in a trial. I think that is -- that Okay. 23 Q. So you could argue that in any case? 24 A. I think that is the case. 25 Q. Even though it's outside the record, that in any Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 113 1 case you don't even have to have a record on that? 2 A. It was outside of the record. 3 Q. Okay. 4 A. Correct. 5 Q. And that makes it improper? 6 A. And I should not have argued something that was 7 8 outside of the record. Q. Okay. But you were willing to do it. I mean, 9 it was important enough for you to get that in front of 10 the jury that you were willing to violate the rules in 11 order to make that argument, correct? 12 A. It was outside the record and I should not have 13 done that. 14 Q. But you did do it. 15 A. I did. 16 Q. And it was important enough for you to do that 17 at the time that you were willing to break the rules in 18 order to do it? 19 A. I didn't give it -- when I think about my 20 argument, that is a very, very small part of my argument. 21 When I think about the time that I spent drafting my 22 argument or offering my argument or thinking about my 23 argument, of all the points that I made, I probably spent 24 the least amount of time on that one. 25 Q. But you thought it was important enough to make Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 114 1 that you were willing to break the rules to do it and 2 argue outside the record in order to make it. 3 least that important. 4 5 A. It was at I don't know that I thought it was important, but I did argue outside the record. 6 Q. Okay. 7 A. I knew it was outside the record. 8 Q. Which is breaking the rules? 9 A. I knew that an objection could have been made 10 11 And you knew that was breaking the rules? and sustained. Q. So. And let's look at what you did argue. 12 didn't reopen and put on anybody, whether there was 13 anybody that could do it, to say that Jonas Cherry's 14 family and everyone who loves him believes the death 15 penalty is appropriate. 16 that? You You didn't put anybody on to say 17 A. That's correct. 18 Q. And in fact, probably based on many Supreme 19 Court cases, probably had you tried to do that, it would 20 not have been allowed into evidence, correct? 21 A. Well, I think, as I said, in the absence of a 22 defense mitigation case, I don't think it would have been 23 allowed. 24 25 Q. Okay. Well, even with a defense mitigation case, I mean, if you know the facts of Tennessee versus Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 115 1 Payne -- 2 MR. BRAGG: 3 MR. WARE: 4 Your Honor --- where they say that's not allowed -MR. BRAGG: 5 At this point I object. We 6 seem to be covering the same ground over and over, Your 7 Honor. 8 MR. WARE: 9 MR. BRAGG: No, we're not. We've already discussed Payne. 10 We've already discussed whether or not this information 11 could come in. 12 didn't put on all the people that loved him. 13 discussed this. THE COURT: 14 15 In fact, we've discussed the fact she We already I think this is repetitive. If there's a new point, go ahead and ask that question. 16 Q. (BY MR. WARE) Here's the point. Here's the 17 point. 18 injected something in the record that even if it were true 19 would be against the rules, even if it were true that 20 Jonas Cherry's parents had suddenly changed their mind 21 about the death penalty, even if that were true, you were 22 injecting something into the record that you're not 23 permitted under those cases to inject into the record. 24 You're not permitted to tell the jury that Jonas Cherry's 25 parents and everyone who loved him believed the death Not only did you argue outside of the record, you Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 116 1 penalty is appropriate. You can't put on testimony and 2 you didn't put on testimony to that effect. 3 just outside the record, you're arguing a fact -- So you're not 4 MR. BRAGG: Objection, Your Honor. 5 MR. WARE: -- that you can't put -- 6 MR. BRAGG: 7 MR. WARE: -- correct? 8 THE COURT: All right. 9 THE WITNESS: Is there a question here? I understand that I was the 10 first attorney to argue and I was responding to -- that 11 doesn't make it okay, it was outside of the record -- and 12 I was responding to the Defense's request to spare his 13 life. 14 Q. (BY MR. WARE) Well, let's just draw an analogy. 15 Say a defendant, not this case, say a defendant failed a 16 polygraph. 17 A. (Moving head up and down). 18 Q. I mean, say in this hypothetical that's a fact, 19 Okay? Are you with me? a defendant failed a polygraph. Okay? 20 A. (Moving head up and down). 21 Q. You're nodding. 22 A. I'm sorry, I was -- 23 Q. You're following me? 24 A. Yes. 25 Q. And say there's no evidence in the trial that Is that a yes? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 117 1 this defendant failed a polygraph. 2 me? Okay? Are you with 3 A. Yes. 4 Q. And say you're at final argument. 5 I'm sorry. And, of course, polygraph tests aren't admissible anyway, right? 6 A. That's right. 7 Q. Everybody knows that, right? 8 A. That's correct. 9 Q. And almost everybody knows that what a victim's Correct? 10 family wants to happen -- or that a victim's family wants 11 the defendant executed, almost everybody knows that's not 12 admissible as well. 13 polygraphs are not admissible, right? But in any event, we agree that 14 A. That's right. 15 Q. Okay. So say you got up at final argument and, 16 number one, you argued, and besides the defendant failed a 17 polygraph, okay, I mean, number one, that would be outside 18 the record, correct? 19 A. That's correct. 20 Q. And, number two, even if it wasn't outside the 21 record, it's something you couldn't put in the record by 22 law anyway, correct? 23 A. That's correct. 24 Q. And it's the same thing here. 25 It was not only outside the record that Jonas Cherry's family and everyone Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 118 1 who loved him believed the death penalty was appropriate, 2 it's something you couldn't put in the record, just like 3 you couldn't put a polygraph test into the record. 4 MR. BRAGG: 5 asked and answered these exact questions. 6 MR. WARE: 7 THE COURT: 8 repetitive. 9 Q. Your Honor, objection. She's No, she hasn't. Well, I think this is I'm going to sustain the objection. (BY MR. WARE) But you -- it was important enough 10 to you to get this information in front of the jury that 11 you were willing to violate both of those rules outside 12 the record and inadmissible evidence, correct? 13 that important to you, correct? It was 14 A. I don't think it was that important to me. 15 Q. But you did it? 16 A. I did do it. 17 Q. Could have resulted in a mistrial, correct? 18 A. I did not think it would result in a mistrial. 19 Q. That's why you were emboldened to do it, right? 20 You knew you might get objected to, they might get 21 instructed to disregard, but you knew that you weren't 22 going to get a mistrial, didn't you, or you didn't believe 23 you were? 24 A. Mike, this was a very small part of my argument. 25 Q. Let me just -- you didn't believe that was going Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 119 1 2 3 4 to get you a mistrial, did you? A. I did not think it would result in a mistrial. I did not -Q. So you were -- so you wanted -- you wanted the 5 jury to hear that those two things outside the record and 6 something that would not be admissible in front them, it 7 was important enough to you to violate -- intentionally 8 violate those two rules and you were emboldened to do it 9 because you knew they would remember it and you weren't 10 going to get a mistrial out of it anyway, right? 11 12 MR. BRAGG: Objection, Your Honor, asked THE COURT: That has been asked and and answered. 13 14 answered. 15 Q. I'll sustain the objection. (BY MR. WARE) Now, that's all assuming this is 16 all true, correct? I mean, the fact is, if it wasn't even 17 true that Jonas Cherry's family, which included certainly 18 his parents, correct? 19 A. Yes. 20 Q. And everyone who loved him, which included his 21 parents, correct? 22 A. Yes. 23 Q. If that wasn't even true that they believed the 24 death penalty was appropriate, then that's a third 25 violation, isn't it? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 120 1 A. Yes. 2 Q. Now, assume for a moment that -- by the way, 3 after you had this conversation with Glenn Cherry in the 4 courtroom right before -- well, before final argument, 5 after the last witness but before final argument, when you 6 took from that that he had changed his mind on the death 7 penalty -- you know what I'm talking about? 8 A. Yes. 9 Q. Okay. Did you then go over to the defense 10 lawyers Larry Moore and Bill Ray and say, guess what, the 11 Cherrys have changed their mind about the death penalty? 12 Did you notify them of that? 13 A. I did not. 14 Q. So when you made that argument, they still 15 thought the Cherrys were against the death penalty, didn't 16 they? 17 A. I would presume, yes. 18 Q. So they would have thought that what you just 19 told the jury was a lie, wouldn't they? 20 A. Yes. 21 Q. So it's your position that Larry Moore and Bill 22 Ray just sat on their hands and allowed you to tell the 23 jury what they thought at the time was a lie? 24 25 MR. BRAGG: Objection, Your Honor. He's now asking her specifically what was in their minds at the Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 121 1 time. She can't testify to that, unless she knows, unless 2 they had a conversation, she can't testify to specifically 3 what was in their minds. 4 THE COURT: 5 MR. WARE: 6 9 I mean, I can rephrase the question, Your Honor. THE COURT: 7 8 Any response to that objection? Q. (BY MR. WARE) Rephrase the question. I mean, you had not informed them about the Cherrys' change in position. So as far as they 10 knew, according to you, the Cherrys or Jonas Cherry's 11 family and everyone who loved him did not think the death 12 penalty was appropriate, because they didn't -- you did 13 not inform them about your conversation with Glenn Cherry. 14 15 A. I did not inform them of the conversation with Glenn Cherry. 16 Q. Okay. I gotcha. 17 A. But -- that's okay. 18 Q. Nevertheless, they didn't object. You know, 19 Your Honor, that's not true, you know, that's not true. 20 They informed us that the Cherrys are against the death 21 penalty. 22 correct? There was nothing like that in the record, 23 A. One of the things that was talked about -- 24 Q. I mean, let me get you to answer my question. 25 Did they stand up and object to it? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 122 1 A. They did not object. 2 Q. Even though it was outside the record, even 3 though it was inadmissible evidence, and even though as 4 far as they knew at that point it was a lie? 5 A. One of the things that we talked about in jury 6 selection was the fact that this family supported our 7 prosecution of Paul Storey, that they respected the 8 process. 9 Q. So you offered life sometime in the spring 10 11 There's no question about that. of 2008, correct? 12 A. Correct. 13 Q. And you remember -- you may not have been there. 14 There was an official hearing, I think it was June the 15 9th of 2008, I know -- I don't know if it's on your 16 timeline or not, when Paul Storey was questioned about the 17 life offer and he officially turned down the life offer. 18 Does that sound familiar? 19 A. It does. 20 Q. And even though Robert Foran at that time told 21 him life would never be offered again or something to that 22 effect, in fact, y'all did offer life again, right? 23 A. That's right. 24 Q. And it's your position you were keeping the 25 Cherrys -- or somebody was keeping the Cherrys apprised of Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 123 1 all these life offers that were being made to the 2 defendant? 3 A. I think at some point they were notified that a 4 life sentence was offered. 5 continued communication at that point. 6 died right before we started jury selection, and so I was 7 not involved for the case -- not involved with the case 8 for a couple of weeks in there. 9 cared for her. 10 another week. 11 12 13 Q. Okay. I don't know that there was My grandmother She had a stroke and I And then the jury selection was put off Do you know when the last time a life offer was made to Paul Storey was? A. I remember a conversation that I came in -- you 14 mean a formal offer or do you mean when we left it 15 outstanding? 16 Q. Well, the last time -- 17 A. It was discussed? 18 Q. Yeah, sure. 19 A. Okay. I remember coming into jury selection, 20 and Larry and I were there. And my husband and I had gone 21 to mass on Sunday, and I lit a candle that Paul Storey 22 would change his mind and do the right thing. 23 in and I told Larry, Larry, I lit a candle yesterday that 24 he would change his mind, because Larry and Bill had 25 expressed tremendous frustration with Paul and his mother And I came Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 124 1 and their inability to grasp the reality of the case and 2 of the situation and of the law of parties. 3 said, well, that was a waste of a candle or that was a 4 waste of a match, or something to that effect, because he 5 said Paul is never going to take a life sentence. And Larry And so in my mind -- can I give you the 6 7 date? I cannot give you the date. But that was the last 8 time that I recall us having a serious discussion or a 9 discussion about -- 10 Q. Was it after jury selection? 11 A. No, it was in jury selection. 12 Q. During jury selection? 13 A. It was in jury selection. 14 Q. Okay. Did -- of course, one of the things you 15 could have done, you and Robert could have done is waived 16 the death penalty; is that correct? 17 18 19 20 A. That is one of the things the office could have made the decision about, yes. Q. Okay. Did you -- did you ever inquire whether you could waive the death penalty? 21 A. Did I ever ask a deputy -- 22 Q. Your supervisor or whoever you needed to ask? 23 A. I did not. 24 Q. So did anything occur in between the time of 25 this conversation when you talked about how you lit a Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 125 1 candle, etcetera, and the time that you proceeded to trial 2 under the death penalty or -- or the time that the jury 3 came back with the death penalty? 4 during that time that you believed made Paul Storey more 5 culpable or was aggravating or anything like that that 6 would cause you to continue to pursue the death penalty 7 even though you had offered a life sentence? 8 9 A. Did anything happen You mean like was there any disciplinary in jail? 10 Q. Yeah, after that time. 11 A. Or did he misbehave during jury selection? 12 Q. Anything, yes. 13 A. In addition to the extraneous offenses we 14 already had, I don't believe there was any subsequent 15 commission of a bad act or extraneous offense. 16 Q. Okay. 17 A. The answer is no. MR. WARE: 18 19 20 21 22 And -- okay. So the answer is no? Your Honor, if I could have a moment. THE COURT: I'll just point out it's 11:52. Are you nearing completion? MR. WARE: If we could go ahead and break 23 for lunch, Your Honor, I think -- I think we may be done, 24 but we may -- if I can have a few moments or the lunch 25 hour to think it over, we may can speed this up. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 126 THE COURT: 1 2 up at this point. THE WITNESS: 3 4 Well, I'm all for speeding it I'm not going to take that personally. THE COURT: 5 As far as the State's 6 anticipated cross, do you have any idea how long it might 7 be? MR. BRAGG: 8 9 10 be? I don't, Your Honor. I don't like to give too specific of -- I can tell you it won't last half a day. THE COURT: 11 12 Oh, as far as how long it might But it will be longer than the next eight minutes, right? 13 MR. BRAGG: Say again? 14 THE COURT: It will be longer than the next 16 MR. BRAGG: It certainly will, yes. 17 THE COURT: Maybe the appropriate thing at 15 18 eight minutes. this point is to take a lunch recess. 19 MR. WARE: 20 THE COURT: 21 MR. WARE: 23 THE COURT: 25 Is 1:15 an appropriate time to be back? 22 24 Yes. Yes. Why don't we recess for lunch until 1:15. (Court in recess for lunch) Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 127 1 (Open court, defendant present) 2 THE COURT: 3 Are both sides ready to continue at this time? 4 MR. BRAGG: 5 MR. WARE: 6 THE COURT: We are, Your Honor. Yes, Your Honor. All right. Before I forget 7 about it, Mr. Ware, sometime ago right after you offered 8 Exhibits 1, 2, and 3, I think you referenced Exhibit 3 as 9 having been filed on July the 8th and the actually 10 file-mark is July 10th. 11 MR. WARE: 12 THE COURT: Okay. Just for clarity, in case 13 there's any question about which instruments are being 14 identified. MR. WARE: 15 16 17 18 Your Honor. THE COURT: MR. WARE: 20 paying attention, Judge. 22 23 24 25 Well, I've been dying to interrupt and say something for a while, but now -- 19 21 Thank you for keeping me honest, THE COURT: Nobody can say you weren't I try to. Anyway, just that clarification for the record. All right. If everybody is ready, then, you may continue with your examination of the witness. MR. WARE: Thank you, Your Honor. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 128 1 2 Q. (BY MR. WARE) Ms. Jack, you know Robert Ford or you knew Robert Ford, did you not? 3 A. Robert Foran? 4 Q. Ford. 5 A. Oh, Bob Ford, I'm sorry. 6 Q. Bob Ford, yes. 7 A. Yes. 8 Q. Of course, he's -- he has -- he's deceased now. 9 10 But were you aware that he was the first state writ attorney on this case? 11 A. I was. 12 Q. Okay. 13 A. I think at some point he came through the court Did you ever talk to him about this case? 14 when he was either in the process of working on the writ 15 or had completed the writ. 16 so there were a lot of attorneys in there. 17 talking to me and he was bragging about how he was going 18 to get the case reversed. 19 He wasn't doing anything malicious. 20 it because he said he had an affidavit from Sven Berger, 21 and he was referencing the contents of that affidavit. And it was a docket setting, And he was And he was laughing about it. Well, who's Sven Berger? He was laughing about 22 Q. Do you know who Sven 23 Berger is? 24 A. He was one of the jurors in the case. 25 Q. Okay. You're aware he's a juror on the case Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 129 1 that's given an affidavit that says had he known the 2 Cherrys were -- 3 MR. BRAGG: 4 would object to this line of questioning. 5 his affidavit have actually already been -- this 6 particular affidavit, I think he's even on their witness 7 list, has not been ruled upon. 8 ruled on that particular affidavit and found it to be -- 9 they actually struck it from the record in the initial 10 state habeas proceedings, because he's a juror that's 11 basically testifying about clearly what the rule prohibits 12 him from testifying about. THE COURT: 13 At this point, Your Honor, I Sven Berger and But this court has already I understand there's usually a 14 prohibition or inadmissibility question on that. 15 Mr. Ware, do you have any response? MR. WARE: 16 But, Well, first, I wasn't even going 17 to ask about that affidavit. 18 number one, I'm asking her if she knows who Sven Berger is 19 since she brought him up, and if she knows that he's given 20 an affidavit that goes directly to her testimony here 21 today. 22 MR. BRAGG: I was going to ask about -- And to that we would raise the 23 same objections to his affidavit in that was raised to the 24 first affidavit. 25 prohibit that affidavit. The Texas Rules of Evidence clearly Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 130 THE COURT: 1 There is an admissibility issue 2 on that, for sure. I'm aware that the -- of the 3 affidavits that have been filed, and it's in the open, for 4 sure. 5 at this point. 6 Court certainly doesn't have to consider it. 7 to allow that issue to be explored and we'll see where the 8 law leads us on that. 9 question. 10 Q. I think what I'm going to do is allow the question If it's deemed to be inadmissible, the (BY MR. WARE) So I'm going So you may continue with your You're aware that Sven Berger has 11 given an affidavit saying had he known that the Cherrys, 12 that Jonas Cherry's parents were against the death penalty 13 he would never, ever, ever have voted in such a way that 14 the death penalty would be imposed and he'd held out 15 forever. 16 17 18 A. In his second affidavit, yes, I am aware of that. Q. Back to Bob Ford. You didn't talk to him about the Cherrys 19 20 You're aware that he's given that affidavit? being against the death penalty, did you? 21 A. I did not. 22 Q. As far as you know, nobody talked to him about 23 24 25 the Cherrys being -A. I can't speak to what other people may or may not have told Bob. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 131 1 Q. But I said as far as you know. 2 A. I know that I didn't speak to him about it. 3 Q. Okay. 4 And you're not aware of anyone who did speak to him about it? 5 A. I'm not aware of that. 6 Q. Okay. 7 And you know from looking through, what, there's seven boxes of files in this case? 8 A. I don't recall. 9 Q. That the DA's office has? 10 A. I don't recall the exact number. 11 Q. A bunch? 12 A. There are a number of boxes, yes. 13 Q. And you've looked through them or had the 14 I mean, several big boxes? opportunity to look through them recently? 15 A. I have. 16 Q. And you know that if Bob Gill -- excuse me, not 17 Bob Gill -- but Bob Ford was given the same opportunity to 18 look through those seven boxes and saw what you saw when 19 you looked through them and didn't see what you didn't see 20 when you looked through them, that he would not have seen 21 one scrap of paper, one note, any reference to the fact 22 that the Cherrys were opposed to the death penalty; is 23 that correct? MR. BRAGG: 24 25 Honor. Objection, speculation, Your She doesn't know what Bob -- Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 132 1 MR. WARE: I said if he saw what she saw. 2 THE COURT: With that qualification, I'll 3 allow the question. THE WITNESS: 4 5 6 Q. (BY MR. WARE) I think that's true, Mike. And Bob is -- was a tenacious lawyer; is that fair? 7 A. That is very fair. 8 Q. Ethical lawyer? 9 A. So far as I know. 10 Q. Even a ferocious lawyer -- 11 A. Yes. 12 Q. -- from time to time? 13 A. I've tried him. 14 Q. Diligent? 15 A. Yes. 16 Q. Very diligent? 17 A. (Moving head up and down). 18 Q. Is that correct? 19 A. That is correct. 20 Q. That's your opinion. 21 long time? 22 A. I had known Bob many years before his passing. 23 Q. Okay. 24 A. Well, that predated me. 25 Q. Okay. And you've known Bob a I mean, he was in the DA's office? But you'd known him many years. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three Honest 133 1 lawyer? 2 A. Yes. 3 Q. Okay. And all of those things I said about Bob 4 Ford, be fair to say those same things about Larry Moore, 5 correct? A. 6 I am tremendously fond of Larry Moore. The fact 7 that we are in this courtroom and that someone that I 8 consider a good friend of mine will be testifying, I can 9 only imagine the contradiction. 10 me. 11 Ray and Larry Moore. 12 13 14 It's very upsetting to There was a time that I was and am very fond of Bill Q. Well, the fact is we've all known each other for 25 years or more; is that correct? A. I don't know that I've known you quite that 15 long, but I've known you for a number of years. 16 know co-counsel. 17 Q. 18 about that. 19 and ethical and diligent? 20 A. I've known Larry Moore for 47 years. I don't Think Would you agree that he likewise is tenacious Larry Moore, this is my second death penalty 21 case with Larry. 22 esteem. I held him and I hold him in highest of 23 Q. And you believe that he's honest and ethical? 24 A. I do. 25 Q. And diligent? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 134 1 A. And diligent. 2 Q. Same with Bill Ray? 3 A. The same with Bill Ray. 4 Q. The same with Tim Moore? 5 A. The same with Tim Moore. 6 Q. As to all of those attributes? 7 A. That is true. 8 Q. Same with Mark Daniel? 9 A. I have not had a case -- well, I take that back. 10 I had a death penalty case against Mark Daniels (sic). 11 think Mark is a very effective lawyer. 12 very smart lawyer. I I think Mark is a 13 Q. Certainly diligent? 14 A. I think he's diligent, yes. 15 Q. A lawyer by the name of John Stickels had this 16 case on direct appeal. 17 with John Stickels about this case? 18 A. Did you ever have a conversation If I did, it was only in passing and it doesn't 19 stand out, but that's not to say that there wasn't some 20 conversation that I had. 21 Q. Okay. But you don't think you ever had a 22 conversation where you told him that the Cherrys were 23 against the death penalty? 24 A. No. 25 Q. And you certainly never had a conversation with Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 135 1 him where you told him the Cherrys were against the death 2 penalty until the close of evidence and then you had this 3 conversation with Mr. Cherry, you never went into that 4 with John Stickels? 5 A. That's right. 6 Q. Or any of these other lawyers? 7 A. That's right. MR. WARE: 8 9 Honor. THE COURT: 10 11 All right. The State may cross-examine the witness then at this time. MR. BRAGG: 12 Thank you, Your Honor. CROSS-EXAMINATION 13 14 I'll pass the witness, Your BY MR. BRAGG: 15 Q. Good afternoon, Ms. Jack. 16 A. Good afternoon. 17 Q. I'd like to go back to my opposing counsel 18 starting with the length of time you've served as a 19 prosecutor and a defense attorney. 20 mentioned a couple of cases that you worked on that are 21 capital murder cases. 22 But I'm curious, you When you were a prosecutor, how many 23 capital cases did you work on? And I don't mean just 24 those that you took to trial in front of a jury. 25 capital cases did you work on? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three How many 136 1 A. Are you asking me about cases in which the death 2 penalty was waived as well as those where the death 3 penalty was sought? 4 Q. Yes, ma'am. 5 A. I cannot give you an exact number. I tried more 6 capital waivers than I did simple homicide cases. 7 even give you a number. 8 but when you say work on, are you saying outside of the 9 presence of trying it? Probably ten, 20 plus. I can't I mean, 10 Q. Yes, ma'am. 11 A. Oh, I can't even count the number of cases that 12 I was involved in either working with the police 13 department, assisting other prosecutors, investigating 14 them at the grand jury, handling them after the grand 15 jury. 16 I was a chief prosecutor from 1998 until 17 2013, so for all of those years as the chief prosecutor 18 for the respective courts where I was assigned, I would 19 have been responsible for any capital murder case that was 20 assigned to those courts. 21 And then as a deputy chief, I would have 22 had supervisory responsibility over at least four district 23 courts and a specialized unit, generally speaking. 24 can't even begin to estimate the number of capital murder 25 cases I was involved in. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three So I 137 1 2 3 Q. What about capital murder cases where the death penalty was sought and taken -- that went to trial? A. Okay. That -- I tried six cases from beginning 4 to end where the death penalty was sought, including one 5 in which I was the special prosecutor -- I was a special 6 prosecutor in another county. 7 Q. And now as a defense attorney, how many capital 8 cases, again, just capital cases, whether there was a 9 waiver or the death penalty was sought, how many death 10 11 penalty cases have you handled? A. Well, I have -- I believe I'm involved currently 12 in six or seven at the moment. I have tried before a jury 13 one with Warren St. John earlier this year. 14 one that wound up being an open plea to the Court to the 15 lesser-included offense of injury to a child with Tim 16 Moore in front of The Honorable Scott Wisch. 17 that are outstanding with Fred Cummings, Joetta Keene, 18 Warren St. John, and I'm forgetting someone. I have tried I have cases 19 Q. But these are capital cases? 20 A. Yes. 21 Q. And the Tim Moore that you mentioned there, that 22 was the Tim Moore that was Mark Porter's attorney? 23 A. Yes. 24 Q. The same Tim Moore that opposing counsel just 25 asked you about? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 138 1 A. Yes. We concluded that matter about a week ago. 2 Q. I am curious, and I guess we can take Tim Moore, 3 for example. Of course, this writ has been filed now for 4 several months? 5 A. I believe it was filed in April of this year. 6 Q. Correct. 7 Have you and Tim Moore discussed this at all? 8 A. This case? 9 Q. Yes, ma'am. 10 A. No, we have not. 11 Q. Has he mentioned to you at all any concern that 12 he has about you serving as co-counsel with him? 13 A. No. 14 Q. During your career either as prosecutor or 15 attorney, have you received any accolades, commendations, 16 any awards, honors? 17 A. I have. 18 Q. What are those? 19 A. Well, I received the Chris Marshall Award a 20 number of years ago, and that is an award that is given to 21 a prosecutor for statewide training. 22 co-recipient of that award. And I was a I was recognized by I believe it is the 23 24 Texas Lawyer as being one of the top prosecutors in the 25 state in 2012. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 139 I recently received an award from my law 1 2 school for public service. 3 of publications, I'll put it that way. 4 Q. I've been profiled in a number I'd like to ask you about the trial file in this 5 case. Opposing counsel asked you on direct about several 6 documents, including your trial notes. 7 from your normal practice and procedure with regard to how 8 you handled these documents? Did you deviate 9 A. No. 10 Q. So do your recollections say with regard to the 11 notes you made during trial, you didn't deviate from any 12 procedure or practice that you would usually do in a case? 13 A. No. 14 Q. Now, I believe you testified on direct that 15 Mr. Foran asked you on to the case? 16 A. He did. 17 Q. He asked you on the case you said at the end of 18 '07, beginning of '08? 19 A. I think it's more like the beginning of '08. 20 Q. Do you recall when you had your first 21 interaction with Jonas' parents, that being Glenn and 22 Judy? 23 A. I do not. 24 Q. What about Suman? 25 A. If you're asking me for a specific date, I Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 140 1 don't. 2 Q. But generally around that spring of 2008 time? 3 A. Yes. 4 Q. Would you say that you developed a close 5 6 relationship with the victim's family? A. I think during the trial I was there to answer 7 any questions and to explain anything that was going on. 8 That is something that I consider very important, and I 9 did as a prosecutor. And as a defense attorney, I think 10 it's equally important to explain to clients and their 11 families the process and how we got to this point, what to 12 expect going forward and what we can have -- or what we 13 can anticipate in the future. 14 15 16 Q. Can you tell the Court a little bit about your relationship with specifically the Cherry family? A. Well, as I said earlier, I lived next door to 17 one of their relatives. And I think that it was Glenn's 18 mother. 19 where my husband and I lived when we were first married. 20 And from time to time, I would talk to him and I would 21 talk to, if it was his mother, I would talk to her. I recall seeing Glenn at the house next door to My husband recalled or recounted to me 22 23 later that he and Jonas actually played basketball 24 together. 25 really make the connection that those Cherrys were related And when I got on the case, I did not even Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 141 1 to my neighbor. 2 initially. 3 Q. I didn't even make the connection So during the time of trial -- I mean, you 4 talked a little bit about the time of trial and how you 5 were there to answer their questions, how you were trying 6 to help them get a picture of the process and understand 7 the process. 8 about the spring of '08 is when you first met them or came 9 to know them. 10 11 What about leading up to trial? You said What was your relationship or your contact like with them? A. I think Robert had more contact with them 12 leading up to trial. I think I had more contact with them 13 during trial. 14 during the trial and after the trial. 15 reflected in their comments after the trial -- actually 16 during the trial and after the trial and in the weeks that 17 followed. 18 Q. And I think that they were very fond of me And I think that is I believe you said on direct that you could not 19 place an exact time as to when you first learned of Glenn 20 and Judy's opposition to the death penalty; is that 21 correct? 22 A. That's correct. 23 Q. But you did understand it to be a general 24 25 opposition to the death penalty? A. Yes. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 142 1 2 3 4 5 6 Q. This was an opinion they held before their son was ever brutally murdered by Paul Storey? A. This was not an opinion that was formed as a result of this crime. Q. So their opinion prior to trial had no bearing on who Paul Storey was, correct? 7 A. That's exactly right. 8 Q. Had no bearing on what they learned about him, 9 correct? MR. WARE: 10 I'm going to object to her 11 testifying to what the basis of the Cherrys' opposition to 12 the death penalty was. 13 information about the fact that they were even against the 14 death penalty. 15 into the details, the moral, ethical, spiritual reasons 16 that the Cherrys were against the death penalty in general 17 and in this case. She seems to have very sketchy And I'm going to object to her getting 18 THE COURT: Any response? 19 MR. BRAGG: Yes, Your Honor. My questions 20 aren't directed to necessarily the foundations for why 21 their -- why they developed this belief or this opinion 22 against the death penalty. 23 groundwork that the opinion was formed before this case 24 and it had nothing to do specifically with Paul Storey. 25 And she has testified that she talked to them about the It's just to simply lay the Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 143 1 death penalty and about their opposition to it. MR. WARE: 2 3 are going to testify. Well, Your Honor, the Cherrys They can testify to that. THE COURT: 4 And I'm sure they will. But 5 I'm going to go ahead and allow the question at this 6 point. 7 MR. WARE: So my objection is foundation. 8 She is not qualified to testify to this. 9 laid the proper foundation to establish her as qualified 10 to testify about all the ins and outs of why the Cherrys 11 were against the death penalty. And they've not THE COURT: Any other response to the 14 MR. BRAGG: No, Your Honor. 15 THE COURT: I'm going to overrule the 12 13 16 objection? objection and permit the questioning at this point. MR. BRAGG: 17 18 Q. (BY MR. BRAGG) Thank you, Your Honor. Now, did Suman -- or do you 19 recall learning that Suman was in favor of the death 20 penalty? 21 A. Yes. 22 Q. Did she tell you that Jonas was also in favor of 23 24 25 the death penalty? A. Yes. MR. WARE: Well, once again, I'm going to Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 144 1 object to all this as hearsay. 2 testify, then we should hear it from her. 3 what Jonas was for or against, that's, you know, double 4 hearsay. THE COURT: 5 If Suman is going to And as far as I'll sustain the hearsay 6 objection at this point and we'll see what they say. 7 State may continue. 8 9 Q. (BY MR. BRAGG) Now, you did talk about Glenn and Judy's change in opinion with regard to this particular 10 case. 11 occurred during the trial? Now, am I correct in understanding that that 12 A. Yes. 13 Q. While they were watching the proceedings 14 happening? 15 A. I think it was somewhat -- I think their opinion 16 changed. 17 as they -- I think their opinion kind of evolved over time MR. WARE: 18 19 MR. BRAGG: MR. WARE: 23 MR. BRAGG: 25 Your Honor, he was asking these exact -- 22 24 I'm going to object to speculation -- 20 21 The -- foundation. He was asking these exact same questions on direct. MR. WARE: Well, then it's repetitive. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 145 MR. BRAGG: 1 Well, no. You asked your 2 questions -- he asked his questions, now I get to ask 3 mine, Your Honor. THE COURT: 4 5 objection and allow the cross-examination on this issue. MR. BRAGG: 6 7 I'm going to overrule the Q. (BY MR. BRAGG) Thank you, Your Honor. So my question was, and maybe 8 I'll frame it a little different way. 9 leading up to trial, was it still your understanding that 10 they had -- that Glenn and Judy had a general opposition 11 to the death penalty? 12 A. Yes. Your conversations However, they understood and they 13 respected and they supported -- when Mr. Storey rejected 14 the life sentence, they supported our decision to 15 prosecute him with the knowledge that we were seeking the 16 death penalty. 17 Q. And so that -- by support, how do you -- how 18 would you define that or how could you better explain 19 that? 20 A. When I think of support, I think of not only 21 their comments but I think of their actions. I think of 22 the comments that were made to me. 23 desire to be present during this trial. 24 desire to -- to remain a witness to the punishment phase. 25 There is nothing that required them to sit I think of their I think of their Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 146 1 through this entire trial to interact with us, to be a 2 part of this. 3 understood that we were seeking the death penalty and at 4 no point did they say include me out. 5 left after guilt-innocence, but they chose to stay. And that was their choice. And they They could have They chose to witness this entire trial, 6 7 and at the end of the trial -- I mean, in guilt-innocence, 8 after we received the guilty verdict, the Cherrys hugged 9 me and they thanked me. 10 When we received the death sentence, the Cherrys hugged me and they thanked me. They were present during our closing 11 12 arguments, and in particular they were present during my 13 closing argument in punishment. 14 Judy said to me, I'm glad we did this. 15 support, I'm taking into account that compilation of words 16 and actions. 17 18 Q. When it was all over, And so when I say Who was the first chair for the prosecution team? 19 A. Robert. 20 Q. Who was the first chair for the Defense team? 21 A. Bill Ray. 22 Q. Now, you testified on direct that Robert 23 represented to you that he had had at least a conversation 24 with Bill Ray about the Cherrys' opposition to the death 25 penalty? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 147 1 2 3 A. He represented to me that there were multiple conversations, not just one. Q. Okay. And those conversations surrounded -- 4 they also entailed the offer for life that was on the 5 table; is that correct? 6 A. Yes. Okay. As Robert represented to you? I want to make sure I understand 7 what you're saying. Robert told me he conveyed a life 8 sentence. 9 Q. Right. 10 A. Yes. 11 Q. And did he tell you -- I guess my question then 12 is, did he represent to you that the conversations 13 involving a life sentence and the conversations involving 14 the Cherrys' opposition to the death penalty, were they in 15 any way intertwined or you just don't know? 16 A. I don't know. 17 Q. Now, you did talk about, though, that when, as 18 far as you were concerned, you can remember yourself 19 having a conversation during the jury selection, I'm 20 sorry, about the Cherrys' opposition to the death penalty? 21 A. Yes. 22 Q. And you had that conversation with defense 23 24 25 counsel? A. And I -- I -- it would make it much easier if I could tell you who was sitting in the room or whether both Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 148 1 were sitting in the room, but I can't do that. 2 Q. How long was voir dire in this case? 3 A. I believe it was four weeks, but I want to 4 check. 5 Q. Well, if I represented to you it was actually 6 five weeks, would you have any reason to disagree with 7 that? 8 9 10 11 A. No. I know it began on July the 21st and we concluded -- the jury was seated and sworn on August the 20th. Q. So during the portion of that over about a month 12 time, if not over a month time, you recall a conversation 13 taking place? 14 A. I do. 15 Q. Regarding -- with defense counsel? 16 A. I do. 17 Q. Regarding the Cherrys' opposition to the death 18 penalty? 19 A. I do. 20 Q. You just simply can't place the exact date it 21 22 23 happened on? A. Right. I remember there being more than one conversation. 24 Q. With defense counsel? 25 A. Yes. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 149 MR. WARE: 1 I would ask that he be specific. 2 Defense counsel Bill Ray, Larry Moore, both, or she has no 3 idea. 4 MR. BRAGG: 5 they can ask on redirect. 6 THE COURT: Your Honor, that's a question And I think it's probably 7 already been asked on direct. 8 question, you may, but I'm going to permit the question -MR. WARE: 9 10 THE COURT: 15 16 All right. You may proceed with the next question. MR. BRAGG: 13 14 If counsel just wants to keep it vague, I guess that's okay. 11 12 If you'd like to form that Q. (BY MR. BRAGG) Thank you, Your Honor. Regarding the life offer, can you explain why it was left on the table for so long? A. I think there were a number of reasons why it 17 was left on the table. I think one of those reasons for 18 me was -- were the parents of Jonas Cherry. 19 In addition to that, Mr. Moore -- Larry and 20 Bill had expressed tremendous frustration with Mr. Storey. 21 They had expressed that the family did not understand the 22 law of parties. 23 again, Mr. Storey and his mother did not grasp what they 24 believed was going to happen. 25 And try as they might time and time In addition to that, Larry and Bill had Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 150 1 been colleagues of ours for many, many years. So it was 2 also a professional courtesy that we extended it longer 3 than I ever had in any other case. And I would also add that because of my 4 5 grandmother's death, my personal circumstances, it would 6 have been much easier for Paul Storey to have taken a life 7 sentence. 8 the decision of the office. 9 like my personal -- that I should go to anybody and say, 10 look, in this situation my family is going through this, 11 maybe we should waive the death penalty. 12 that played or should play any part in it. 13 ask for that. But my personal circumstances do not enter into And so I really did not feel I didn't think So I did not 14 Q. Did y'all inform the Cherrys of the life offer? 15 A. Yes. 16 Q. You informed Glenn -- Glenn Cherry? 17 A. Yes. 18 Q. You informed Judy Cherry? 19 A. Yes. 20 Q. And you informed Suman Cherry? 21 A. Yes. 22 Q. Would you ever make a life offer in a death 23 penalty case or in a case where the death penalty is being 24 sought, would you ever make a life offer without informing 25 the victim's family? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 151 1 A. No. 2 Q. Did you also inform the Cherrys of the life 3 4 No. offer that was given to Mark Porter? A. Yes. 5 And when Tim Moore approached during 6 closing argument -- well, he didn't approach during 7 closing argument. 8 we were in the middle of closing argument. 9 concluded closing arguments, Tim Moore approached, and I 10 forget if he approached Robert or if he approached me or 11 if we were standing there together, and asked if the life 12 sentence offer for Mark Porter was still on the table. Tim Moore came into the courtroom when And once we And we also informed the Cherrys that day. 13 14 I don't know if they were still in the courtroom at that 15 point, I suspect they were still in the courtroom, and we 16 told them then, or we told them up in victim assistance. 17 And -- because we said yes, and Tim was going to go across 18 the street and talk to his client in the jail then. 19 Q. You testified the Cherrys were present for the 20 majority of trial, and that would include Glenn and Judy 21 and Suman? 22 A. I have a distinct memory of the Cherrys being in 23 the courtroom. I believe Suman also was in the courtroom, 24 but I can't recall if she was there to the extent that the 25 Cherrys were. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 152 1 Q. The par-- Glenn and Judy were? 2 A. Yes. I believe she was, but I'm not positive. 3 Because I think at that time she was living out of town. 4 I think she was in Houston I believe at the time. 5 6 7 Q. But Glenn and Judy were there for all of guilt-innocence? A. The majority of guilt-innocence? I believe that they were present during all of 8 guilt-innocence but for two witnesses. I know that I 9 remember I gave them -- I explained to them who the next 10 two witnesses or when those witnesses were going to 11 testify, and that would be the pathologist and the crime 12 scene. 13 did not want the Cherrys to see that if they could avoid 14 it, or at least wanted it to be their choice. 15 16 Q. And it was a particularly brutal crime scene and I Did they listen to your closing arguments, the State's closing arguments in guilt-innocence? 17 A. Yes. 18 Q. Now, moving to punishment, did they sit through 19 punishment? 20 A. Yes. 21 Q. The majority of punishment? 22 A. I believe they sat through all of punishment. 23 Q. Suman testified during punishment, didn't she? 24 A. She did. 25 Q. That testimony was quite powerful, wasn't it? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 153 1 A. It was perhaps one of the most compelling victim 2 impact statements I had heard. 3 excess of 200 jury trials. 4 I tried 200, but I tried in excess of probably 150 at the 5 time that I tried that case. 6 Q. And I've tried probably in Now, at that time I can't say We don't need to go through it line by line 7 because the Court can go and read the record. 8 describe why it was so powerful, just generally? 9 A. But can you She and Jonas had been married -- they were 10 about to celebrate their first anniversary. They had made 11 the decision to begin their family, and they were about to 12 embark upon trying to have kids. 13 other's best friends. And they were each And not only was her testimony powerful 14 15 because of the emotion, but she was very eloquent when she 16 described the loss that she suffered and the heartbreak, 17 that she could not go back and live at that house ever 18 again, that she had to be medicated at night to sleep. 19 And, you know, there were a number of jurors that were 20 tearful during her testimony. 21 22 Q. But you did not ask Suman whether she believed that Storey should get the death penalty, did you? 23 A. Oh, when she testified, no. 24 Q. Right. 25 I'm sorry. Yes. When she's on the stand, you did not ask her in front of the jury? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 154 1 A. Right. That's correct. 2 Q. I know you had some discussion on direct about 3 how or whether or not that testimony was -- would such 4 testimony would be proper. 5 didn't think it was proper to ask her that question? 6 7 8 A. Certainly at that time you I thought that testimony would be inadmissible to ask her that at that point. Q. And I believe on direct you said it was your 9 understanding of the case law that it was clear, or at 10 least that the case law made it clear that, generally 11 speaking, without any kind of reservations to what that 12 testimony would be, victims' families' testimony with 13 regard to the ultimate question of life or death is simply 14 not something that can be asked of a witness; is that 15 correct? 16 A. That's correct. 17 Q. Had the Defense put on the Cherry family, 18 Mr. and Mrs. Cherry to testify as to their opinion on 19 death, the general opposition or whatever, would you then 20 have responded in kind, and let's say they put that on and 21 the judge allows it to go forward, would you have then 22 sought to put on Suman as a rebuttal to that? 23 A. I can't say 100 percent, but I can say that it 24 would have been a very serious discussion. 25 would have done that. I probably Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 155 1 Q. Let me ask you as a defense attorney, would you 2 ever call the -- a family member of a victim to testify as 3 to the -- whether or not a defendant should receive life 4 or death? 5 A. I've never been in that position. 6 Q. Okay. Fair enough. Let's say you ever find 7 yourself in that position, do you think you would call 8 them? 9 A. Well, I think that testimony is inadmissible. 10 Q. Do you recall Paul Storey's mother testifying? 11 A. I do. 12 Q. And I believe on direct you discussed somewhat 13 about the conversation that occurred afterwards? 14 A. Uh-huh. 15 Q. That conversation involved Glenn Cherry, 16 correct? 17 A. Yes. 18 Q. Okay. Now, of course, after -- whenever a trial 19 reaches a break, either a lunch break or a midday break, 20 it's your experience that, generally speaking, the 21 courtroom kind of becomes abuzz? 22 A. Right. 23 Q. Different conversations break out? 24 A. (Moving head up and down). 25 Q. You may need to talk to your -- Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 156 1 A. Investigator or someone else. 2 Q. Investigator, someone else, your co-counsel. 3 You may need to talk to any number of people about any 4 number of things? 5 A. (Moving head up and down). 6 Q. Could you -- I'm sorry, could you verbalize that 7 8 9 nod? A. I'm sorry. do that. Yes, at breaks we would frequently And, you know, we would also turn around to see 10 how the family was doing, if they had any questions, or if 11 they had any comments about a witness or how testimony was 12 going. 13 investigator, hey, we need to get this next witness ready 14 or can you go get them from victim assistance or has the 15 witness arrived, do we have this. 16 breaks and talk to people behind us. 17 Q. Or, I mean, generally, you know, we'd ask an We frequently take And so I think we've all experienced this as 18 attorneys in trial. But it's fair to say that you would 19 maybe jump from one conversation to another. 20 while you're talking with your investigator, overhear 21 something and turn to that conversation. 22 say? You might, Is that fair to 23 A. Yes. 24 Q. So I know you testified on direct you can't 25 recall exactly, you know, at what point in the Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 157 1 conversation that you turned your attention to Glenn 2 Cherry; is that correct? 3 A. That's right. 4 Q. You can't remember exactly -- 5 A. I mean, I'm trying to remember how -- I know 6 where I was standing. I know where he was standing. I 7 recall Robert standing generally to my right, and I 8 believe that Judy was behind him to his right, my left. 9 And I don't know if I was looking right at him and was 10 listening to another conversation or if I was looking at 11 someone else when he -- when the conversation began. 12 13 14 Q. So you said you know where you were standing. Were you standing at counsel table? A. No. No, no, no. I had turned and can't -- and 15 this courtroom is not exactly -- it's not the same layout 16 as the court we were in. 17 side of the rail or the other side of the rail; in other 18 words, I'd gone past the swinging door. I can't recall if I was this 19 Q. Uh-huh. 20 A. But he approached us. 21 Q. He being Glenn? 22 A. I'm sorry, he being Glenn. 23 Q. Approached you and Robert? 24 A. Yes. 25 And that had happened from time to time during the trial. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 158 1 Q. And so when he approached you and, again, you 2 testified that there was some degree of conversation that 3 occurred right before you turned to -- you turned your 4 attention to Glenn; is that correct? 5 A. Yes, that's correct. 6 Q. But when you did turn your attention to Glenn, 7 at some point during the conversation that you heard, your 8 testimony is that Glenn said -- well, you go ahead and say 9 it in the words that you recall. 10 11 A. He either said, do you want me to or should I testify or tell the jury that we want the death penalty. 12 Q. And again, this is before your closing 13 arguments? 14 A. This was before closing arguments. 15 Q. What did that mean to you when he said that? 16 A. What that meant to me is that after listening to 17 guilt-innocence and all of the evidence, after listening 18 to all of the punishment phase, and both the Defense 19 mitigation case and our case, that they had reached the 20 opinion that the death penalty was appropriate. 21 Q. Going back real quick to Paul Storey's mother -- 22 or mother testifying and the other witnesses that 23 testified on his behalf and the witnesses that testified 24 that his life should be spared, those witnesses were 25 speaking of personal stories about Paul Storey? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 159 1 A. Yes. 2 Q. Sorry for the unintentional word choice there. 3 When they asked the jury in whatever form 4 or fashion to spare Paul Storey's life, it was generally 5 tied specifically to Paul Storey, to their belief that he 6 is a good person and -- 7 A. Yes. 8 Q. -- should be saved? 9 A. Yes, it was. And, I mean, there was a mixture 10 of witnesses that testified, his mother, his estranged 11 father, his brother. 12 teachers from the alternative school where he graduated. 13 I believe there were two or three friends of his mother's 14 who had ridden the bus with her and had -- had Paul drive 15 their children to and from school. 16 personal anecdotes involving Paul. 17 Q. I believe there were two to three But they all gave So going back to Paul Storey's mother's -- 18 mother finishes testifying and you have your conversation 19 with Glenn, did that affect your -- how you presented your 20 closing arguments? 21 A. Yes, it did. 22 Q. Could you describe how? 23 A. I think that in light of the case that the 24 Defense presented, that there is an argument that the 25 Cherrys' position -- Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 160 MR. WARE: 1 2 unresponsive. 3 argument. I'm going to object as He asked how that affected her closing MR. BRAGG: 4 Your Honor, I believe a 5 nonresponsive objection would be mine to make. 6 the question, I'm perfectly fine with her response. MR. WARE: 7 I'm asking I think I'm entitled to an 8 unresponsive answer -- objection as well, Your Honor. 9 don't think the State of Texas has an exclusive right to 10 I making unresponsive objections. THE COURT: 11 I understand that the Defense 12 can raise objections, but I'll just say just respond in a 13 responsive fashion if you will. 14 15 16 Q. (BY MR. BRAGG) So let me ask this question. What were you about to say, please? A. That I wrestled with whether or not tactically 17 or strategically I should have put them on the stand to 18 say that they were in favor of the death penalty. 19 wrestled with that because we closed that day and we 20 argued the next morning, as I recall. 21 Q. I And tell us, when you say you wrestled with it, 22 I think you even testified on direct that you wrestled 23 with it that night. 24 contemplating calling them back. 25 second-guessing? You don't mean to say that you were You were kind of doing a Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 161 1 A. Yes. 2 Q. Arm-chair quarterback if you will? 3 A. Yes. And it wasn't just the Cherrys, it was 4 5 Suman as well. 6 Q. Could you explain that a little bit? 7 A. Well, it wasn't just Judy and Glenn Cherry, it 8 was Suman. 9 putting them on the stand to express their feelings about 10 11 Tactically, did I make a mistake in not the appropriateness of the death penalty. Q. Your closing arguments in this case lasted about 12 15 pages; is that correct? 13 disagree with me that they lasted about 15 pages? 14 15 16 A. Thereabouts, yes. Would you have a reason to No, I would not disagree with you. Q. As far as you're aware, the complaint that's 17 been discussed in the subsequent writ, the complaint 18 that's -- the comment that's been talked about today 19 amounts to one sentence, one sentence in specific, 20 correct? 21 A. Yes. 22 Q. Okay. And that sentence is: And it should go 23 without saying that all of Jonas' family and everyone who 24 loved him believe the death penalty is appropriate. 25 Correct? That's your understanding that that's the Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 162 1 sentence we're talking about? 2 A. That was my argument, yes. 3 Q. You did not interview all of Jonas' family, did 4 you? 5 A. I did not. 6 Q. You did not speak to everyone who loved him? 7 A. I did not. 8 Q. You did not put on testimony of -- from all of 9 Jonas' family? 10 A. I did not. 11 Q. You didn't put on testimony from everyone who 12 loved him? 13 A. I did not. 14 Q. The jury was aware of that fact? 15 A. They were. 16 Q. Once you were done with your closing arguments, 17 and I think you've discussed this a little bit, but what 18 was -- what kind of interactions did you have there in the 19 courtroom once you were done with closing arguments? 20 A. The Cherrys were very grateful. They were very 21 complimentary. 22 they went to victims assistance after that. 23 They praised our arguments. And I believe At some point there was a discussion 24 because -- not contemporaneous but around that same time, 25 Tim Moore approached and asked if the life sentence was Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 163 1 still on the table. That was also a part of the 2 discussion. 3 discussion in the courtroom or whether we had it 4 upstairs -- well, that was downstairs to us, victims 5 assistance on the fifth floor. But I can't recall whether or not we had that 6 Q. 7 statement? 8 A. No. 9 Q. Did they mention to you at any point of feeling 10 Did they mention to you at any point this that you had somehow misrepresented -- 11 A. No. 12 Q. -- their opinions? 13 A. No. 14 Q. Were they angry with you at all? 15 A. No. 16 Q. Did they mention that you had lied at all? 17 A. No. 18 Q. After the verdict occurred, did you have any -- 19 what conversations, if any, did you have with the Cherrys 20 there in the courtroom? 21 A. Anytime a death sentence is imposed, it's not 22 something that anyone celebrates, nor should it be. 23 a long, exhausting process, and it's extracts a toll on 24 all of the parties involved and the family as well. 25 the Cherrys hugged me, they thanked me, and Mrs. Cherry Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three It's But 164 1 2 3 4 said, I'm glad we did this. Q. When she says this, what do you take from that? What do you take? A. The taking -MR. WARE: 5 6 I'm going to object as speculation. MR. BRAGG: 7 Your Honor, I'm simply -- I'm 8 not asking her to speculate as to what Mrs. Cherry said, 9 what Mrs. Cherry meant by this. 10 she take from that statement. THE COURT: 11 12 I'm asking her what did at this time. I'm going to allow the question Overruled. THE WITNESS: 13 I took it to mean that they 14 appreciated the process and, though it was not easy, they 15 were at peace with the verdict. 16 17 18 Q. (BY MR. BRAGG) Because they had gone through the process? A. Because they had watched the entire trial. 19 Because they had listened to the evidence. Because they 20 learned all of the steps that Paul Storey and his 21 associate went through in preparing and planning and 22 carrying out this execution. 23 hours, when the Cherrys and Suman were devastated, Paul 24 Storey and his associate Mark Porter were celebrating and 25 laughing. And they learned of the And they watched all of that. And it is Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 165 1 painful. 2 place for the death penalty. 3 4 5 Q. But I think -- they understood why there is a After the trial was over, you received a card from the Cherrys, did you not? A. I did. 6 MR. BRAGG: May I approach, Your Honor? 7 THE COURT: Very well. 8 9 10 Q. (BY MR. BRAGG) Ms. Jack, I'm handing you what's been marked as State's Exhibit 1. Do you recognize what this is? 11 A. I do. 12 Q. Is it a photocopy of the card that you received 13 from Mr. and Mrs. Cherry? 14 A. It is. 15 Q. Is it a true and correct copy of that card? 16 A. It is. Well, the first page is the envelope. 17 The second page is the back of the -- front of the card, 18 excuse me. 19 the interior of the card that we received. MR. BRAGG: 20 21 24 25 Okay. Your Honor, at this time I'd seek to admit State's Exhibit 1. 22 23 And the second -- or the third page would be MR. WARE: I don't have any objection, Your THE COURT: State's Exhibit 1 is admitted Honor. for purposes of this hearing. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 166 MR. BRAGG: 1 2 3 Q. (BY MR. BRAGG) Ms. Jack, if you can, I'd like for you to read the card. MR. WARE: 4 5 Thank you, Your Honor. I would object. The Court can read the card. 6 THE COURT: I have it right in front of me. 7 MR. BRAGG: That's fine, Your Honor. 8 I'd like to do is then just publish the card for the 9 record. What 10 THE COURT: Well, it's already an exhibit. 11 MR. BRAGG: It is. 12 MR. WARE: 13 THE COURT: It is published. Do you have a specific 14 objection to her just reading it? 15 can read it. 17 I guess I'm the one that needs to know. MR. WARE: 16 I mean, you're right, I There's no jury here, Your Honor. 18 THE COURT: I know. 19 MR. BRAGG: Okay. 20 That's fine, Your Honor. I'll just ask her specific questions in sentences. 21 THE COURT: Thank you. 22 MR. BRAGG: Thank you, Your Honor. 23 MR. WARE: Your Honor, we'll stipulate that 24 the Cherrys were very gracious, that the Cherrys were very 25 grateful that this -- that Paul Storey was prosecuted. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 167 1 We'll stipulate that certainly at the time they were very 2 fond of Christy. 3 wallowing in this right now. But I really don't see the point in MR. BRAGG: 4 And I object. Your Honor, I'm simply -- there 5 are statements in this card that I believe are important 6 not just to what Mr. -- I mean, when the Cherrys are here, 7 I fully intend to ask them about the card. 8 also like to know in Christy's mind what did this card say 9 to her. 10 But I would There are very specific statements here. I want to know what they said to her. MR. WARE: 11 It doesn't matter because the 12 card is afterwards. What matters is what was in her mind 13 when she gave this outside-the-record, illegal argument 14 that was not even true. MR. BRAGG: 15 I would argue, Your Honor, that 16 it goes to what Christy's state of mind was at the time 17 that she made the argument showing that, in fact, her 18 mindset at the time that she made the argument, she had 19 even evidence afterwards that showed her that that mindset 20 was, in fact, correct. THE COURT: 21 I'm going to overrule the 22 objection and allow the State to develop the record for 23 purposes of this hearing. 24 MR. BRAGG: 25 Q. (BY MR. BRAGG) Thank you, Your Honor. So in this card, I believe it's Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 168 1 the second sentence here, they write: 2 impressed by your professionalism and competence, some of 3 it was masterful. 4 A. Is that correct? That's correct. 5 that's what they said. 6 masterful. 7 Q. Well, that's correct that I don't know if it really was But that is indeed what they wrote. The very next sentence says: 8 9 We were genuinely We felt like we had someone who could speak on Jonas' and our behalfs 10 (sic). Is that correct? 11 A. That is correct. 12 Q. And then the last sentence there, I guess really 13 second to last sentence: Lastly, though it was difficult 14 to go through the trial, we were also very comforted by 15 some of what we learned. Is that stated there? 16 A. It is. 17 Q. And "very" is underlined twice? 18 A. And I would also add that they also appreciated 19 20 the attention to the family during the process. Q. Thank you. And just to clarify, it is signed down 21 22 there both Judy and Glenn? 23 A. Yes. 24 Q. So then I would ask to you what -- again, you 25 are not -- and I'm going to assume that it might Judy Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 169 1 writing this, although it could have been Glenn. 2 whoever wrote this, you aren't that person, but I want to 3 know what this card means to you. 4 A. This card embodies -MR. WARE: 5 What this card means to her 6 after the trial, Your Honor, is irrelevant and is 7 self-serving. MR. BRAGG: 8 9 But Again, Your Honor, I would just simply say it goes to her mindset at the time that she was 10 making the argument because we think that it will show 11 that her mindset at the time she made the argument, that 12 she had even evidence after the argument, weeks later 13 even, that bolstered her thought process. 14 THE COURT: I'm going to overrule the 15 objection at this time and permit the development of the 16 record. 17 MR. BRAGG: Thank you. 18 THE WITNESS: This card embodied what I 19 took to be the Cherrys' position about the trial, about 20 any questions that they may have had, that they were all 21 answered, that I was there for them, and that I truly was 22 echoing or expressing their sentiment when she said, and 23 thank you, we felt like we had someone who could speak on 24 Jonas' and our behalfs(sic). 25 their behalf, if I was uttering a sentence that was not If I was not speaking on Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 170 1 their wishes or inconsistent with their behavior, I can't 2 imagine they would have written that in the card. And by the same token, Mrs. Cherry -- 3 4 Dr. Cherry, excuse me, is a psychiatrist. She is not an 5 unsophisticated woman nor is she uneducated. 6 understands that words have a meaning, and she chose the 7 term "professional." 8 professionalism, and what she wrote in there is that she 9 thanked us for our professionalism. She I mean, she understands ethics and If we had said something that was 10 11 contradictory to what they had said or what they had 12 believed or what they had led us to believe, I don't 13 believe she would have chosen that word. 14 Q. (BY MR. BRAGG) Now, regarding what they 15 believed, and I do want to clarify this because I think 16 this is -- this might even be a little difficult to 17 understand, but I want to make sure we're clear here. Your contention is not that they went from 18 19 being generally opposed to the death penalty and then 20 generally in favor of the death penalty in all cases? 21 A. That's correct. 22 Q. Your contention then is what, when you talk 23 about kind of the shift of the curve, what would you say 24 that shift is? 25 A. This specific case and these specific Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 171 1 circumstances surrounding their son's execution and the 2 punishment phase that they witnessed as well. 3 4 5 6 Q. Including the fact that Paul Storey had the opportunity for life -A. Including the fact -- I'm sorry, I didn't mean to -- 7 Q. Go ahead. 8 A. Including the fact that both Paul Storey and 9 Mark Porter had the opportunity to accept a life sentence. 10 Q. And chose not to? 11 A. And chose not to. 12 Q. At least Paul Storey chose not to. 13 A. Right. Right. And at the time that this card was sent, 14 15 this card would have been sent, as best I can tell, after 16 Mark Porter accepted his life sentence. 17 nothing in this card to indicate we never knew life was on 18 table. 19 wasn't Paul Storey given the same opportunity that Mark 20 Porter was given. 21 because it's not only what it says but what it does not 22 say. 23 Q. And there's We never knew a life sentence was offered. Why So I think this card is important You executed an affidavit or at least there's an 24 affidavit that you signed that is attached to the writ, 25 you're aware of that? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 172 1 A. I am. The affidavit was prepared, though, in 2 connection as what was represented to me for clemency 3 purposes. 4 Q. 5 affidavit? 6 A. 7 8 9 10 11 12 13 How -- how were you approached to execute the A friend of mine by the name of Joetta Keene approached me. Q. And this was the same Joetta Keene that you are currently co-counsel with? A. Same Joetta Keene that I am currently co-counsel on two capital murder cases. Q. And just for -- to help out the court reporter, could you spell Joetta Keene? 14 A. I think it's J-O-E-T-T-A, and I believe it's 15 K-E-E-N-E. 16 Q. Were you aware that the subsequent writ was 17 being prepared at the time of clemency or, you know, I 18 don't know that it was, but were you aware -- did they 19 discuss at all with you the fact that they were preparing 20 a subsequent writ? 21 A. No. 22 Q. Were you asked any questions about these facts 23 at that time, at the time you executed the affidavit? 24 A. 25 purposes. Initially, no. The affidavit was for clemency Joetta had indicated that the Cherrys now no Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 173 1 longer wanted him to be put to death. And I was and I am 2 fond of the Cherrys, and I feel badly for them. 3 executed an affidavit at her request. And I And at some point, the conversation turned 4 5 to -- I remember asking her, is there some writ, and she 6 really didn't know much about it. 7 conversation with Mike Ware having to do with my 8 affidavit. 9 purposes of the writ. 10 11 And I had a subsequent I certainly didn't execute this affidavit for Let's put it that way. And that's not what I was told it was going to be used for. Q. Now, when opposing counsel is asking you 12 about -- basically asking for your opinion as to the 13 character of various attorneys, I believe there's one 14 attorney that they did not ask about, and that was your 15 co-counsel in this case. 16 with Robert Foran before? 17 with Robert Foran in addition to this case? 18 19 A. How many -- you had tried cases Or you at least tried cases I actually think this is the one and only case we ever tried together. 20 Q. But you worked together? 21 A. Yes. 22 Q. How many years did y'all work together at the 23 24 25 office -- at the district attorney's office? A. He left before I did, and he retired or resigned, would have been December of 2014. And so we Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 174 1 would have worked together almost 24 years -- well, in the 2 same office. 3 in the same court, that type of thing. I can't say that we always worked together 4 Q. 5 attorney? 6 A. Yes. 7 Q. Did you believe him to be a forthright attorney? 8 A. Yes. 9 Q. Did you believe him to seek justice in cases? 10 A. Yes. 11 Q. And that doesn't just mean that -- justice does 12 Sure. Did you believe Robert to be an honest not mean a conviction, does it? 13 A. No. 14 Q. Justice means the right result? 15 A. Robert and I have both been confronted with 16 difficult situations from time to time, sometimes having 17 to dismiss cases as serious as a capital murder. 18 Q. I'd actually like to ask you a follow-up 19 question to that. 20 from capital cases, because I believe you did testify on 21 direct that this was kind of separate and apart from any 22 other situation you'd encountered, correct, where some 23 members of the victim's family were opposed to the death 24 penalty? 25 A. During your prosecutorial career, apart Right. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 175 1 Q. But you certainly had other cases as a 2 prosecutor where -- that either the victim themselves or 3 the victim's family was not in favor of pursuing guilt or 4 not in favor of seeking a stronger punishment? 5 A. That's correct. 6 Q. How have you dealt with that in those 7 situations? 8 A. We've disclosed it to the Defense in each case. 9 Domestic violence cases, prime example of a case where 10 most victims do not want to cooperate with nor do they 11 want to prosecute the offender. I spent a number of years in crimes against 12 13 children and many of those cases involved mothers of 14 victims who did not want to see their boyfriend, husband, 15 paramour prosecuted. 16 victims themselves, they were children, and they did not 17 want to see their parents prosecuted. 18 cases I disclosed that evidence to the opposing counsel. MR. BRAGG: 19 20 Honor. THE COURT: 25 No further questions, Your Any other questions from the Applicant at this time? REDIRECT EXAMINATION 23 24 In each of those Pass the witness. 21 22 There were also cases where the BY MR. WARE: Q. Christy, I believe the conversation you and I Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 176 1 had about the affidavit, and we were talking about 2 clemency, I remember you asked me, well, I'm not going to 3 give -- or something like, are you going to come after me 4 at some point? 5 you recall that? 6 7 8 9 A. You asked me something such as that. Do I said, Mike, are you getting ready to allege some kind of misconduct? Q. that. Well, maybe that's what you said, something like And my answer was, I probably will before this is 10 all over with. 11 your honesty. You remember that? 12 A. That was not your answer. 13 Q. Okay. You said, I appreciate Well, that was my answer. 14 Well, let me ask you this. 15 which was used in the clemency, but as I assume has been 16 explained to you, that won't be decided until the judicial 17 proceeding is decided. 18 change in that affidavit? 19 A. No. 20 Q. Okay. This affidavit Is there something you want to So sometime during jury selection, I 21 believe your testimony is that somehow it's disclosed to 22 Larry and Bill that the Cherrys are against the death 23 penalty, that Mr. and Mrs. Cherry, Jonas Cherry's parents 24 are against the death penalty, correct? 25 A. I think it was disclosed prior to jury Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 177 1 selection, prior to -- 2 Q. Okay. 3 about? 4 A. 5 disclose. 6 "disclose." 7 Q. But you were there when it was talked Talked about, yes, I'm sorry. You said I have a different meaning of the word And Larry and Bill, did they say: Wait a 8 minute, you're telling me the victim's parents are opposed 9 to the death penalty but y'all are going forward with 10 death anyway? 11 A. No, they did not. 12 Q. There was no discussion like that? 13 A. No. 14 Q. There was no discussion like: Well, waive the 15 death penalty. If the parents are against the death 16 penalty, this is craziness. 17 with the death penalty when the parents are against the 18 death penalty? Why are y'all going forward There was no discussion like that? 19 A. No. 20 Q. Did Larry or Bill go: I've never heard of such 21 a situation. 22 courthouse, that the State's going forward with a death 23 penalty case when the parents are clearly against the 24 death penalty? 25 A. This is going to be the talk of the No. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 178 1 Q. Did they say: Do you mind if we go talk to 2 Levy, since you don't want to talk to them, do you mind if 3 we go talk to Levy and Curry and make sure that they're 4 aware of this outrageous situation where the State is 5 seeking the death penalty and the parents don't want the 6 death penalty? That never came up? 7 A. No. 8 Q. Now, you knew the Cherrys before all this, we 9 10 talked about that. You knew -- you were acquainted with them? 11 A. That's correct. 12 Q. Okay. 13 And you knew them to be intelligent, thoughtful people? 14 A. Yes. 15 Q. You didn't -- you didn't know before this, you 16 didn't know they were against the death penalty, or did 17 you, before this murder? 18 A. No, I had no idea. 19 Q. Okay. I mean, they're not somebody that's 20 parading it around everywhere, they just were against the 21 death penalty? 22 A. Let me back up. When I say acquaintances, I 23 only recall having met Glenn. I might have met Judy 24 before then. 25 Glenn at their shrubs between our houses, and that's where But my recollection -- I mean, I can see Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 179 1 I would talk to him because we had adjoining driveways. 2 And so I remember that. 3 conversations, if any, at all with Judy. I don't really remember many 4 Q. Okay. 5 A. And so when I say, I mean -- 6 Q. I gotcha. 7 A. Very nice man. 8 Q. Soft spoken? 9 A. Uh-huh. 10 Q. Thoughtful? 11 A. Yes. 12 Q. And, of course, Judy is a professional, as you 13 14 Glenn is a nice man? say, a psychiatrist in a women's prison, correct? A. I think she's the head -- if I'm not mistaken, I 15 think she's the head psychiatrist for the federal bureau 16 of women's prison. 17 Q. I may have -- During this when you found out they were opposed 18 to the death penalty, it didn't really -- I mean, you'd 19 never thought about it before, but it didn't really 20 surprise you, did it? 21 A. Did it surprise me that? 22 Q. That they were the sort of people that would be 23 opposed to the death penalty. 24 A. I don't know that I really thought about it. 25 Q. Okay. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 180 1 A. Whether I would be surprised or not. 2 Q. Okay. But it wasn't the sort of thing where you 3 went, did not see that coming. 4 took it in stride, I guess? You just -- you kind of 5 A. Uh-huh. 6 Q. But it was very clear that they were opposed to 7 8 9 10 Yes, I'm sorry. the death penalty? A. That they were -- they had a general opposition to the death penalty. Q. Well, I mean, have you read where they had also 11 said that they don't want Paul Storey's mother to go 12 through this? 13 A. Yes. 14 Q. And that would be particular to this case, 15 wouldn't it? 16 A. Yes. 17 Q. That's not just generally against but it's this 18 case as well? 19 A. I'm sorry, I thought you were asking me about 20 years ago. 21 Q. And so you liked them, they liked you. And, of 22 course, this was a very vulnerable time in their life, was 23 it not? 24 A. I can only imagine. 25 Q. Yeah, I can only imagine too. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 181 1 And they were very dependent on you and 2 Robert, probably you more than Robert to sort of guide 3 them through this strange system up here that we call the 4 criminal justice system, right? 5 A. Yes. 6 Q. And once again, they're not complainers, they're 7 the kind of people who are grateful for every act of 8 kindness shown them, correct? 9 10 11 A. I can't really speak to that. I can only speak to my relationship with them. Q. Okay. Well, you've probably had victims or 12 victims' families that were a lot of trouble or very 13 demanding or very needy or whatever, and they didn't fit 14 into that category? 15 A. No, they did not. 16 Q. And they were gung ho about this case being 17 prosecuted. 18 bones about how they wanted both Paul Storey and Mark 19 Porter locked up without any possibility of ever getting 20 out of prison. 21 not? 22 A. And they were gung ho -- they never made any They were very firm on that, were they I think that probably their concern came in in 23 listening as well to Larry Fitzgerald's testimony about if 24 Mark Porter and Paul Storey were given a life sentence, 25 where they would be in prison and that they would be in Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 182 1 general population. And so I think they learned that it's 2 not as secure as the Defense wanted the jury to believe. MR. WARE: 3 Well, let me object to that as 4 unresponsive and let me see if I can get you to answer my 5 question. 6 Q. (BY MR. WARE) They were very -- they never 7 wavered. They didn't come in saying, uh, you know, they 8 were very firm that they wanted him prosecuted. 9 wanted both of them prosecuted, and they wanted both of 10 them to serve the rest of their lives in prison. 11 didn't waiver at all about that, correct? They They 12 A. I think that's a fair statement. 13 Q. But they were against the death penalty? 14 A. Yes. 15 Q. And in all fairness, there is a difference 16 between life and death, is there not? 17 A. Of course there is. 18 Q. A huge difference, correct? 19 A. Yes. 20 Q. Okay. So for them, there's nothing really 21 inconsistent with them being all gung ho for the 22 prosecution and being very much in favor of and grateful 23 to you for being part of the prosecution and being in 24 favor of Paul Storey being locked up in prison for the 25 rest of his life, there's nothing inconsistent with any of Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 183 1 that while at the same time philosophically, spiritually, 2 ethically being against the death penalty. 3 nothing inconsistent there, is there? There's 4 A. No. 5 Q. Now, if what you have testified to here under 6 oath is true, Glenn Cherry at least had this 7 transformation that he communicated I guess to you and 8 Robert as you related after the close of punishment 9 evidence, correct? 10 11 A. Well, it wouldn't have been after the close. Both sides had not closed. 12 Q. Okay. 13 A. I think it was after the conclusion of the 14 15 But you were about to? Defense case. Q. Okay. And so I guess -- I mean, obviously, if 16 what you say is true, what you've testified to here under 17 oath about that conversation, and that's what you relied 18 on in making your argument that we talked about; is that 19 correct? 20 A. Yes. 21 Q. The argument was still outside the record, 22 correct? 23 A. Yes. 24 Q. And assuming for a moment that it is improper 25 for the State to put on evidence or information about how Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 184 1 the victim's family feels about the death penalty, 2 assuming that that's correct, that information was -- that 3 information shouldn't have been put before the jury in the 4 matter of an argument either, should it? 5 A. Well, I think in argument there's a little bit 6 -- I mean, I would agree it's outside the record and it's 7 an argument that should not have been made. 8 Q. Okay. And that's even if it's true, even if it 9 10 Thank you. was true what you argued, correct? 11 A. It was true, Mike. 12 Q. Well, even if it was true, it's still improper, 13 correct? 14 A. Yes. 15 Q. Okay. So -- but you understand that Glenn and 16 Judith Cherry now say that it was not true. 17 understand that, correct? 18 A. I don't know what they say now. 19 Q. Okay. You Well, is it your position that from the 20 time -- you understand that they're against the death 21 penalty now, correct? 22 23 24 25 A. I understand that they do not want to see Paul Storey executed for their son's murder. Q. So is it your position that they were against the death penalty, then they were for the death penalty, Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 185 1 and now they're against the death penalty again? A. 2 3 I don't think it's quite as black and white as you're laying out, but generally, yes. Q. 4 So you said -- do you remember saying this to 5 the Star-Telegram: Jack says she understands if the 6 parents have changed their minds about the death penalty 7 over time and would support whatever decision is made 8 regarding Storey. Do you remember saying that? 9 A. I did. 10 Q. And so what you're saying there is they must 11 have changed their minds, they must have -- you know, for 12 the last time you talked to them, they were for the death 13 penalty and they must have changed their minds? 14 A. That's right. 15 Q. Would it surprise you to know that that 16 statement they read in the paper made them very angry? A. 17 I have not talked to them in probably -- well, 18 since the trial. 19 it. 20 21 Q. So I wouldn't know how they reacted to If they say that's not true at all, would that surprise you? 22 A. That would surprise me. 23 Q. They -- and I believe they've said this in their 24 video. 25 A. Have you seen the video? I have. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 186 1 Q. I believe it says in the video and on their 2 letter they were never told that Paul Storey was ever 3 offered a life sentence. MR. BRAGG: 4 At this point, Your Honor, we'd 5 object that we're now talking about stuff that isn't a 6 part of the record of this hearing. 7 THE COURT: 8 MR. WARE: 9 Any response to that? Your Honor, she said she's seen the video and I want to get her reaction to it. THE COURT: 10 Well, I'll permit it for 11 purposes of developing a record. 12 to weigh all this eventually, anyway. 13 ahead and allow it. 14 Q. (BY MR. WARE) We'll see -- I'll have So I'm going to go Are they, likewise, inaccurate or 15 untruthful about that, that they were never told Paul 16 Storey was offered a life sentence? 17 A. I would never say that they are intentionally 18 being deceitful. I don't know if they're misremembering. 19 I don't know if they're mistaken. 20 feel guilty over time. 21 why they're saying what they're saying. I don't know if they I don't know the reasons behind 22 Q. Do you know if they even heard your argument? 23 A. I don't know how they could not hear my argument 24 25 because they were very close. Q. Were you yelling it out? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 187 1 A. Were they -- 2 Q. Were you yelling it out? 3 A. I don't know the volume. But, I mean, I 4 certainly wasn't -- it was loud enough for the entire jury 5 to hear. 6 Q. And you said that they never came up to you 7 afterwards and chided you for that argument or ever 8 brought it up specifically, I guess. What about -- what about your co-counsel or 9 10 Larry or Bill in particular, did they ever come up -- I 11 know they didn't object in trial, but they thought the 12 Cherrys were still against the death penalty. 13 made that argument, if you disclosed to them as you 14 testified to under oath several times that the Cherrys 15 were against the death penalty, they never came up to you 16 and said, what was -- what was with that argument? 17 whole deal here is the Cherrys are against the death 18 penalty and you just argued the opposite. 19 had the opportunity to go, well, guess what, Glenn Cherry 20 just told me. So when you The And then you That never happened? 21 A. That never happened. 22 Q. And you're saying that the reason that -- the 23 reason they didn't object at trial and the reason that 24 never happened, you're saying that you have no idea why, 25 because they knew -- they knew the Cherrys were against Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 188 1 the death penalty? 2 A. I do not know why they did not object. 3 Q. Or why they confronted you afterwards -- or why 4 they didn't confront you afterwards. I mean, normally in 5 most cases that would be true, wouldn't it? 6 most cases, probably the victim's family and everyone who 7 loved them might be for the death penalty. 8 wouldn't be an unusual situation, right? 9 family would be for the death penalty? Normally in I mean, that That a victim's 10 A. That's correct. 11 Q. What was extraordinary about this case is that 12 the victim's family felt the opposite, they were against 13 the death penalty. 14 extraordinary about this case, right? That was what was unusual and 15 A. Well, not the widow. 16 Q. Okay. 17 A. Okay. 18 Q. I mean -- I mean, Jonas was their only child, 19 right? 20 A. He was their only child, yes. 21 Q. So I guess what you're saying is the reason it's But I'm talking about the parents. 22 coming up now is because -- not because they felt opposed 23 to the death penalty before the murder, they felt they 24 were opposed to the death penalty during the proceeding, 25 and they are opposed to the death penalty now and have Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 189 1 always been opposed to the death penalty. What you're 2 saying is, the reason it's coming up now is because they 3 were against it, then they were for it, and now they're 4 against it again, and so they've wavered? 5 MR. BRAGG: Objection, Your Honor. She's 6 already said that she hadn't spoken to them in years. 7 doesn't know why, as he says, this is coming up now. THE COURT: 8 9 developed that with her. 10 MR. WARE: 11 12 Q. (BY MR. WARE) She I think you may have already Okay. Your Honor, I'll move on. So do you know at what point the Cherrys changed their mind? Do you have any idea? 13 A. No. 14 Q. So if, in fact, what you're saying is true -- in 15 fact, at the time -- I mean, assuming for the moment that 16 what you've testified to here under oath, that the Cherrys 17 actually transformed to in favor of the death penalty in 18 this case, in fact, if say Bob Ford had gone and talked to 19 them, according to what you say, at that point they may 20 have still been for the death penalty; is that correct? 21 A. I have no idea. 22 Q. Okay. So let me ask you this. If, in fact, 23 there's an offer of life in a death penalty case and if 24 it's turned down for whatever reason by the defendant, or 25 by counsel, anyway if it's rejected, you agree that, in Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 190 1 fact, there's virtually no reason to go talk to the family 2 of the victim? 3 A. 4 prosecutor? 5 Q. Defense attorney, yes. 6 A. No, I wouldn't agree with that. 7 Q. You as a regular habit go talk to the victim's 8 You mean if you're a defense attorney or family in a death penalty case? 9 A. I've not tried one for the death penalty, no. 10 Q. So you've never done it? 11 A. No, but I have done it on a serious case, but it 12 13 was not a capital murder case. Q. Did you at any point tell counsel that the 14 family didn't want to talk to them, didn't want to talk to 15 defense counsel? 16 A. I did not. 17 Q. Or might have Robert? 18 A. He might have. 19 Q. You would agree that there certainly would be I did not. 20 some risk in defense counsel going and talking to the 21 family of the victim in a murder case such as this? 22 A. I don't think there's any risk to it, no. 23 Q. Okay. So you don't think there's a chance that 24 it would antagonize them or offend them or anything along 25 those lines? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 191 1 A. I think it depends on how you handle the family. 2 And I think if you take an investigator with you as an 3 independent witness, then, no, I don't think there's a 4 risk. 5 Q. Okay. So -- 6 A. In fact, I don't even know if it was around that 7 time, the defense initiated victim outreach program. 8 don't know when that came into being. 9 specifically for or designed for someone to approach 10 11 12 I But that is victims' families, as I understand it. Q. Okay. But you've never tried a death penalty case as a defense lawyer? 13 A. No, I have not. 14 Q. You wouldn't fault a death penalty defense 15 lawyer in a particular case for not seeking to talk to the 16 victim's parents? 17 A. I would have if I were a defense attorney. If I 18 tried a death penalty case, if that ever happens, then I 19 would endeavor to talk to the family members. 20 21 Q. Did you endeavor to facilitate that in this case? 22 A. Did I endeavor to facilitate it? 23 Q. Yeah, the Defense talking to the family. 24 A. No. 25 I don't know that they ever approached me about talking to Suman or the parents. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 192 1 2 3 4 Q. Do you know whether they would have talked to defense counsel if they'd approached them? A. They're very nice people. I have no reason to think they wouldn't, but I don't know that for a fact. And I can also tell you, Mike, that in the 5 6 past if -- 7 Q. So let me ask you, so are you saying that you 8 are faulting Larry Moore and Bill Ray and Bob Ford and 9 Mark Daniel and Tim Moore, you are faulting them, are you 10 saying you are faulting them for never talking to Mr. and 11 Mrs. Cherry? 12 13 14 15 16 17 18 19 A. I'm saying I don't know their reasons for not contacting them. Q. That wasn't my question. Are you faulting them for not doing it? A. I don't know their reasons for not doing it. They might -Q. I know you don't know the reasons. But are you faulting them for not doing it? 20 A. I don't think it's mine to place fault on them. 21 Q. So you're not faulting them for not doing it? 22 MR. BRAGG: 23 been asked and answered. 24 MR. WARE: 25 THE COURT: Objection, Your Honor, it's Well, it's been asked and -I'll allow the response to the Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 193 1 2 last question if she has one. Q. (BY MR. WARE) Are you faulting them or are you 3 not faulting them for not talking to the Cherry family, 4 the -- Jonas Cherry's parents, for not seeking them out, 5 banging on their door, and talking to -- and seeking to 6 talk to Jonas Cherry's parents? 7 A. I am not faulting them. 8 Q. Thank you. 9 A. I do not know their reasons why they did not 10 11 contact them. Q. I take it that you still stand by your affidavit 12 and you would have no objection to the governor commuting 13 Paul Storey's sentence to life in the penitentiary without 14 the possibility of parole? MR. BRAGG: 15 16 relevance. MR. WARE: 17 18 MR. BRAGG: She didn't imply any such thing, Your Honor. THE COURT: 21 22 Well, she's gone in and even implied there's something improper about that. 19 20 Objection, Your Honor, proceeding. Well, it's irrelevant to this I know clemency is a different issue. MR. HAMPTON: 23 This is the reason it's 24 relevant. It's not exactly to this proceeding but it is 25 to the other motion that was made at the beginning of the Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 194 1 hearing, which is a -- in other words, if everybody in 2 Tarrant County is fine with commuting the death sentence 3 to life, then why can't we do that. 4 And that goes to the motion stated earlier 5 about the dis-- about your ability to appoint an attorney 6 pro tem from Tarrant County to make a decision that would 7 be unanimously supported by every character involved in 8 this case except for the Attorney General's Office. 9 MR. BRAGG: And, Your Honor, that right 10 there he just stated it goes to clemency. 11 clemency proceeding. 12 us five merit determinations and a procedural issue to 13 deal with and that's it. The CCA gave us a very -- they gave Not Ms. Jack -- MR. HAMPTON: 14 This is not a Judge, you have much greater 15 authority than that. You're able to appoint people if you 16 want or not, and that motion is there. 17 you have the very prosecutor who first offered life, then 18 successfully got death in a position to tell the governor, 19 being one of the officials to commute a death to life, you 20 might be persuaded to grant our request. 21 relevancy of it. THE COURT: 22 And, you know, if And that's the Well, I understand your purpose 23 of bringing it up. I don't think it's relevant to what 24 we're doing. 25 Court of Criminal Appeals asked to be determined. I don't think it's relevant to what the Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 195 But she's acknowledged already making the 1 2 affidavit. I'm going to sustain the objection at this 3 time, but I think she's given an affidavit. 4 that's clear. 5 6 I think MR. WARE: Can we get the answer for the THE COURT: I may not consider it, but I record? 7 8 will allow the answer just so it's out there. 9 not consider it relevant. 10 MR. BRAGG: But I may But just to be clear, Your 11 Honor, now this is an offer like a bill of exception. 12 have sustained the objection. THE COURT: 13 14 I sustained the objection. You If you want to develop what it would be, you may do so. 15 Q. (BY MR. WARE) Do you remember the question? 16 A. No. 17 Q. Yeah. 18 A. And I think what you were asking me was, did I I know it had to do with my affidavit. 19 -- I would have no objection to him receiving a life 20 sentence, and I think what my affidavit said was that I 21 was sympathetic to the Cherrys' feelings and would respect 22 whatever decision Governor Abbott deems appropriate. 23 Q. And you stand by that? 24 A. I do stand by that. 25 Q. And would you be willing to talk to the Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 196 1 governor? 2 A. Yes, I would. 3 Q. Thank you. THE COURT: 4 5 MR. BRAGG: No further questions, Your THE COURT: All right. Honor. 8 9 MR. WARE: 11 THE COURT: MR. WARE: 14 THE COURT: 16 17 Yes, Your Honor. Any issue with her going about her way at this time? 13 15 I'm sure that y'all may want to keep her on call if necessary. 10 12 Additional questions from the State then? 6 7 All right. No, Your Honor. Well, you may step down at this time. MR. WARE: We'd ask that she be reminded she's under the rule. 18 THE COURT: I was going to say, please 19 remain available in case you're needed. 20 still under oath and under the rule. Remember you're 21 THE WITNESS: 22 THE COURT: 23 (Witness leaves courtroom) 24 THE COURT: 25 Thank you. All right. Okay. Thank you. It's 2:45. We've been proceeding about an hour and a half, or almost I think. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 197 1 So why don't we take a short recess and then get the next 2 witness lined up. Thank you. 3 (Recess) 4 (Open court, defendant present) 5 THE COURT: Back on the record then. It's 6 my understanding that counsel has agreed, because of the 7 next witness' travel schedule, to go ahead and take Bob 8 Gill out of order; is that correct? MR. OTTOWAY: 9 THE COURT: 10 11 Anything else that needs to be put on the record besides that? 12 MR. WARE: 13 THE COURT: 14 MR. OTTOWAY: 15 I don't think so, Your Honor. The State is calling? The State as Respondent would be calling Judge Robert Gill. THE COURT: 16 17 That is correct, Your Honor. Let me have you raise your right hand and be sworn. 18 (Witness sworn) 19 THE COURT: 20 MR. OTTOWAY: having been first duly sworn, testified as follows: DIRECT EXAMINATION 23 24 25 Thank you, Your Honor. ROBERT GILL, 21 22 The State may proceed. BY MR. OTTOWAY: Q. Judge Gill, could you state your name for the Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 198 1 record, please. 2 A. Robert Gill. 3 Q. And could you tell the Court what your current 4 5 6 profession is? A. County. 7 Q. 8 employed? 9 A. 10 11 12 13 I'm a criminal defense attorney in Tarrant Okay. And in September of 2008, how were you I was an assistant criminal district attorney in Tarrant County. Q. And in that capacity, what was your specific position within the district attorney's office? A. I was a supervisor over the chief prosecutors 14 assigned to several of the Tarrant County district courts. 15 I was what was known as a super chief at the time. 16 17 Q. And how many -- how many chiefs would you supervise at any given time? 18 A. Four to seven. 19 Q. And in September of 2008, were you Robert 20 Foran's direct supervisor? 21 A. I don't recall. 22 Q. Do you recall having any conversations with 23 Robert Foran about the Paul Storey case? 24 A. I do. 25 Q. And can you tell the Court what that discussion Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 199 1 2 was? A. The way I remember it, late one day, late one 3 afternoon Mr. Foran came to me -- or he and I met out in 4 the hallway, actually. 5 at the time. 6 he should give the Defense some information regarding the 7 victim's family's stance on the death penalty. 8 9 10 Q. I think he was in jury selection And we had a discussion about whether or not And just so that we're clear, this is the victim of Paul Storey -- or the parents of the victim in the Paul Storey case? 11 A. Correct. 12 Q. And that discussion, do you recall what you said 13 to Mr. Foran? 14 A. 15 about it. 16 Q. I told him that he ought to inform the Defense Okay. And did you have any other discussions 17 with Mr. Foran about the Paul Storey case at all besides 18 that discussion? 19 A. No, I did not. 20 Q. Do you know whether he disclosed the position of 21 22 the parents? A. All I know is that it was his inclination to do 23 that, and he was kind of using me to verify that he was 24 doing the right thing. 25 Q. Did you have any other discussion about the Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 200 1 Storey case with Mr. Foran? 2 A. I don't recall having any other discussion. 3 Q. Do you recall having any discussion with Christy 4 Jack? 5 A. No. 6 Q. Did you have any other interaction with the Paul 7 8 Storey case? A. No. MR. OTTOWAY: 9 THE COURT: 10 11 MR. WARE: 16 Sure. CROSS-EXAMINATION 13 15 Defense may cross-examine the witness then at this time. 12 14 Nothing further, Your Honor. BY MR. WARE: Q. Bob, we've known each other a long time; is that correct? 17 A. Correct. 18 Q. You don't mind if I don't call you judge, do 19 you? 20 A. That's fine. 21 Q. What's that? 22 A. I'm kind of stuck up here. 23 24 25 I'm kind of stuck up here. I have to answer your questions no matter what you call me. Q. So I think you said you had this discussion with Robert Foran, but you have no idea what he did with what Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 201 1 you told him he should do, correct? 2 A. Correct. 3 Q. He may have disclosed it, he may not have 4 disclosed it? 5 MR. OTTOWAY: 6 MR. WARE: 7 THE COURT: Q. 8 9 How is that speculation? I'll sustain that objection. Well, you know -- you don't know that he did disclose it? MR. OTTOWAY: 10 11 (BY MR. WARE) Speculative, Your Honor. Your Honor, he answered that. He doesn't know what Mr. Foran did. 12 THE COURT: 13 ahead and allow the question and answer. THE WITNESS: 14 15 Well, I'm going to allow -- go I don't know what he did with it. 16 Q. 17 A. Or didn't do with it. 18 Q. Okay. 19 20 21 22 23 (BY MR. WARE) Okay. Do you know -- could the date have been even earlier than that or do you know? A. All I know is it was sometime after July 1st of 2008. Q. Because you were -- that's when you came back to the office; is that correct? 24 A. That's correct. 25 Q. Now, they suggested September. Is that Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 202 1 something they suggested or is that something that -- that 2 you think it was September? 3 A. I don't know when it was. All I know is it was 4 after July 1st of 2008. 5 day of the week or what month it was. I don't know specifically what Could have been July 2nd? 6 Q. Okay. 7 A. Could have been. 8 Q. Okay. Could have been July 1st. But I assume from the tenor of the 9 conversation that at least at that point, whenever it was, 10 the information that the Cherrys -- the information as you 11 understood it was that the victim's parents were against 12 the death penalty, correct? 13 A. Somebody in the family was against the death 14 penalty or didn't believe in the death penalty or 15 something to that effect. 16 17 Q. Okay. member? 18 A. Yes. 19 Q. Okay. 20 Somebody close -- some close family And he obviously had enough question about it that he asked you or talked to you about it? 21 MR. OTTOWAY: 22 THE COURT: 23 24 25 Speculation, Your Honor. Well, I'm going to overrule the objection and allow a response. THE WITNESS: My recollection was that his inclination was to turn it over and he was just verifying Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 203 1 that I thought he would be doing the right thing if he did 2 that. 3 4 Q. (BY MR. WARE) Do you know who the defense attorneys were? 5 A. No. 6 Q. Do you know Larry Moore? 7 A. I do. 8 Q. Okay. 9 A. Very. 10 Q. Very honest attorney? 11 A. Yes, sir. 12 Q. Very honest person? 13 A. Yes. 14 Q. A lot of integrity? 15 A. Yes. 16 Q. Very diligent? 17 A. I think so. 18 Q. Bill Ray was the other attorney, you know him? 19 A. I know Bill. 20 Q. Would you say all the same things about Bill 21 Is Larry Moore a very competent attorney? Ray? 22 A. Yes, sir. 23 Q. Bob Ford was the writ attorney, the state writ 24 attorney. Would you say the same things about Bob Ford? 25 A. Yes. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 204 1 Q. Tenacious? 2 A. Yes. 3 Q. Diligent? 4 A. Uh-huh. 5 Q. Okay. Correct. Did Robert Foran indicate he had asked 6 anybody else this question about what he should do with 7 this information that the Cherrys were against the death 8 penalty? 9 10 A. I do not recall -- I do not recall discussing that with him. 11 Q. Did you tell anybody about it? 12 A. Not that I recall. 13 Q. Okay. 14 15 So why did you think it was proper to disclose it? A. I thought it might be mitigating. Or at least 16 it's a close enough call that, in my opinion, you just 17 turn it over and be done with it. 18 Q. Do you -- do you have any idea why Robert Foran 19 did not list this information in his written Brady 20 disclosure? 21 MR. OTTOWAY: Be speculative, Your Honor. 22 THE WITNESS: No. 23 MR. WARE: 24 25 He's already answered, Your Honor. THE COURT: He has answered. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 205 MR. OTTOWAY: 1 2 Your Honor. THE COURT: 3 4 MR. OTTOWAY: THE COURT: Oh, okay. to listen out of both ears. MR. WARE: 9 Q. (BY MR. WARE) Sometimes you have He did respond. The answer is no. MR. OTTOWAY: 10 11 I apologize, I did not hear the answer. 7 8 I'm going to overrule that request. 5 6 Then I would move to strike, Thank you. I mean, you didn't say anything 12 like, yeah, disclose it but don't put it in writing in 13 your Brady disclosure. 14 did you? 15 A. You didn't say anything like that, No. 16 MR. WARE: 17 THE COURT: 18 MR. OTTOWAY: A few, Your Honor. REDIRECT EXAMINATION 20 22 Any other questions from the State? 19 21 I'll pass the witness. BY MR. OTTOWAY: Q. When I asked you about September of 2008, did I 23 ask you whether that disclosure occurred in 2008? 24 where you were working in September of 2008, correct? 25 A. Correct. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three I asked 206 1 2 3 Q. With respect to Christy Jack, do you have an opinion about her truthfulness? A. I would have the same opinion of Christy Jack 4 and Robert Foran that I expressed as to Mr. Moore, 5 Mr. Ray, and Mr. Ford. 6 Q. And that would be that they are truthful and 7 forthright? 8 A. Correct. 9 Q. Now, when you say -- or when you said that your 10 opinion was that they should turn it over, you're not 11 saying that's a conclusion of law, are you? 12 A. No. 13 Q. Just your opinion? 14 A. My opinion. 15 MR. OTTOWAY: 16 THE COURT: 17 Defense or the Applicant? 20 Any other questions from the RECROSS-EXAMINATION 18 19 Nothing further, Your Honor. BY MR. WARE: Q. If it was something that needed to be disclosed 21 to the Defense, would it also go without saying that if it 22 needs to be disclosed, it should have been disclosed very 23 promptly to the Defense at the soonest time? MR. OTTOWAY: 24 25 Your Honor, that's speculative. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 207 1 Q. (BY MR. WARE) Well, if it's something that needs 2 to be disclosed to the Defense such as what we're talking 3 about, would there be any reason you could think of to 4 hang on to it for weeks or months before disclosing it? MR. OTTOWAY: 5 6 Your Honor. THE COURT: 7 8 Again, that's speculative, Well, I'm going to overrule the objection, allow the response. THE WITNESS: 9 It's not something I would 10 hold on to for weeks or months, but I didn't see it as 11 anything that was an emergency either. 12 13 14 Q. (BY MR. WARE) So it should have been disclosed promptly like any other Brady? A. Yes, sir. 15 MR. WARE: 16 THE COURT: 17 MR. OTTOWAY: 18 THE COURT: 19 Pass the witness. Any other questions? Nothing further, Your Honor. Is there further need of Judge Gill from either side? 20 MR. OTTOWAY: 21 MR. WARE: 22 THE COURT: No, Your Honor. No, Your Honor. All right. 23 down and you may go about your way. 24 a trip planned for tomorrow. 25 THE WITNESS: I do. Then you may step I understand you have May I be excused? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 208 1 THE COURT: You may be excused. 2 THE WITNESS: 3 THE COURT: 4 (Discussion off the record) 5 THE COURT: Thank you very much. Off-the-record discussion. We appear to have run ourselves 6 out of witnesses about 3:10 p.m. 7 next witness, and he would be anticipated, I'm sure, to be 8 a lengthy witness; is that right? MR. WARE: 9 10 Hard to say, Your Honor, but I anticipate we'll go until quitting time with him. THE COURT: 11 12 Mr. Foran I think is the Okay. Well, is he available now? 13 MR. WARE: 14 THE COURT: Oh, okay. 15 MR. WARE: I think so. 16 Yes. there. 17 MR. OTTOWAY: 18 THE COURT: 19 Okay. MR. HAMPTON: I thought I understood No. We released everybody after him. 22 THE COURT: 23 MR. HAMPTON: 24 THE COURT: 25 I think he's out there. that you were releasing everybody. 20 21 I saw him out But Mr. Foran. Yes, sir. Okay. So both sides agree we can go ahead and take Mr. Foran? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 209 1 MR. BRAGG: Yes. 2 THE COURT: At least get him started. 3 Well, my understanding -- I understand the next witness 4 then will be Mr. Foran? 5 MR. WARE: 6 MR. HAMPTON: 7 (Witness enters courtroom) 8 THE COURT: 9 10 Yes, Your Honor. You may step up and be seated. Of course, you were sworn in as a witness earlier. THE WITNESS: 12 THE COURT: 13 THE WITNESS: 14 THE COURT: 15 MR. WARE: 21 You may be seated. Thank you. Applicant may proceed. Thank you, Your Honor. having been previously duly sworn, testified as follows: DIRECT EXAMINATION 18 20 Yes. ROBERT FORAN, 16 19 So you understand you're still under oath? 11 17 Yes. BY MR. WARE: Q. Robert, would you state your name for the record, please. 22 A. It's Robert Foran. 23 Q. Mr. Foran, you're retired from the district 24 attorney's -- the Tarrant County District Attorney's 25 office; is that correct? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 210 1 A. Yes. 2 Q. Okay. 3 A. I help some friends of mine occasionally with What do you do now? 4 pro bono for some of their clients if they need to kind of 5 spitball or figure out some trial strategies. 6 at some different business opportunities that my brothers 7 are looking into on occasion. 8 been very fruitful. And I look Unfortunately, they haven't 9 Q. Well, hope springs eternal. 10 A. Yes. 11 Q. Sounds like some of the business deals I've 12 gotten into. How long have you been retired from the 13 14 Tarrant County District Attorney's office? 15 A. I left at the end of 2014. 16 Q. And how long were you with the office? 17 A. I was -- I hired on to the office 18 September 4th of 1990 until the end of 2014. 19 some time that spilled over because I had vacation time 20 accumulated I got to take. There was 21 Q. Okay. 22 A. Almost 25. 23 Q. And what were your various assignments and what 24 25 So you were there well over 20 years? was your experience in the district attorney's office? A. I spent a year in misdemeanor. Then I was Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 211 1 promoted to felony in September 4th of 1991 to the 2 371st District Court. 3 there. 4 2 as a felony prosecutor. 5 chief, I think it was February or April of 1996, in 6 Criminal District Court No. 1. 7 over two years there. I had a variety -- I was assigned Then I was assigned to Criminal District Court No. Then I was promoted to court Then I spent a little bit And I took over the gang prosecution unit 8 9 and was in there from about 1998 to 2003. 10 assigned to Criminal District Court No. 2. 11 that, I was assigned to the 213th District Court as 12 court chief also. 13 Q. Then I was And then after And during that time how many -- how many death 14 penalty cases did you -- let me ask you how many capital 15 murder cases do you think you handled altogether, whether 16 you tried them or not? 17 A. Over 25. 18 Q. And -- 19 A. Maybe over 30. 20 Q. And how many death penalty cases did you 21 actually try to a verdict? 22 A. Six. 23 Q. Six. 24 A. Yes. 25 Q. So when -- when were you -- at some point you One of them being Paul Storey's case? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 212 1 were assigned as first chair in the Paul Storey case; is 2 that correct? 3 A. Yes. Shortly after -- after Mr. Cherry was 4 killed, the case was filed by the Hurst Police Department. 5 CDC 3 was next in the capital rotation, and so the case 6 came to me. 7 Q. 8 Okay. But that may have been sometime around October of 2006? 9 A. Yes. 10 Q. And that's the way the office worked back then, 11 12 somehow the case came to you because it was your turn? A. Well, it usually went to a court chief unless 13 someone higher up or -- had a particular interest or it 14 came under the purview of some specialized unit like the 15 gang unit or the crimes against children unit. 16 17 Q. And so -- and you're also first chair assigned to the Mark Porter case, the co-defendant as well? 18 A. Yes. 19 Q. Okay. 20 Do you remember when the case was -- the cases were indicted? 21 A. Within 90 days of the filing. 22 Q. Okay. 23 A. I wouldn't disagree. 24 25 January the 12th of 2007 sound right? I'd have to look at the file. Q. Okay. So, yeah, that's about 90 days. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three That 213 1 would have been about 90 days after filing. 2 A. Uh-huh. 3 Q. So this was -- you got two capital murder -- or 4 two defendants in a capital murder case. And, of course, 5 it's -- it's the district attorney's office, I guess 6 ultimately, the elected district attorney's decision 7 whether to pursue the death penalty or not, correct? 8 A. Yes. 9 Q. And there's a number of cases in which, you 10 know, for whatever reason the district attorney's office 11 decides not to pursue the death penalty, even though under 12 the law they could? 13 A. There are many. 14 Q. Many. 15 A. Yes. 16 Q. Or mini caps? 17 A. I never used mini caps. 18 Q. Okay. Call those waiver cases? Is that correct? But yes, waivers. We'll use waivers. And that's where the 19 death penalty is waived, and if the person is convicted of 20 capital murder, there's not any punishment, they just get 21 an automatic life sentence? 22 A. That's correct. 23 Q. And life means, depending on what the law is at 24 that time, it can mean, you know, 30 years without parole 25 or now it means and at the time this case was pending it Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 214 1 meant life without the possibility of parole? 2 A. Yes. 3 Q. Okay. 4 And that's what it means now as well, correct? 5 A. Yes. 6 Q. Okay. And so in the district attorney's office 7 back at that time, Tim Curry was still the district 8 attorney, correct? 9 A. Yes. 10 Q. Okay. And was there a process or procedure of 11 sorts in at least making a preliminary determination as to 12 whether to seek the death penalty? 13 A. Yes. 14 Q. Okay. 15 A. Usually soon after indictment or when they -- And what was that? 16 they would periodically schedule a meeting, a committee 17 meeting. 18 Mr. Curry was feeling well, I don't know if he was at the 19 meeting or not in this case, Alan Levy, whoever any of the 20 super chiefs would have been at that time, as were the 21 individuals that were right below Mr. Levy, people like 22 Greg Miller, Bob Gill. 23 in the office or not. 24 from the appellate section, Mr. Mallin, Chip Wilkinson. 25 Q. And it would usually consist of people like when I don't know if Parrish was still There was usually representatives Chip Wilkinson? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 215 1 2 A. Yes. And usually Alan's administrative assistant would attend, and that would be Marilyn Carter. 3 Q. She's retired now? 4 A. Yes, I believe so. 5 6 7 She retired after I did, so I don't know. Q. And this -- did you have a name for this committee, the death committee? 8 A. That's what they called it. 9 Q. The death committee? 10 A. Yeah. 11 Q. And who was on the committee would fluctuate 12 from time to time. 13 available at the time that they were ready to meet? 14 A. It might depend on whoever was You know, all I got -- I don't know exactly who 15 was a permanent part of it. 16 believe were all permanent parts of it. 17 been other people that, you know, I don't know -- I can't 18 recall whether or not the investigators would have sent a 19 representative or not, you know, for whatever input. 20 I believe I've named all of them, and they would attend if 21 they were available. 22 23 Q. Okay. All the people I named I There may have But And they'd meet once a month or every other month? 24 A. It wasn't -- I can't tell you -- 25 Q. On an ad hoc basis? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 216 1 A. Well, because sometimes we were fortunate enough 2 not to have that many pending, so I can't tell you that 3 they met on a regular schedule. 4 Q. Okay. And what would happen there? The 5 cases -- would you take up one case at each meeting or 6 several cases at a meeting or did it depend? 7 A. It would depend on how many were -- the 8 individual prosecutors assigned to the case would get a 9 notice. It might be one or two people. It might be four, 10 you know. 11 where there was more than three or four people. 12 each one of them would present all the information that 13 they were aware of at the time. 14 Q. I don't think I've ever attended a meeting And then And when you attended the meetings, is it 15 because you had a case to present or was it because you 16 were actually on the committee? 17 18 19 20 A. No. I only attended when I had a case. not on the committee. Q. Okay. So whoever had a case to present would also attend the meetings? 21 A. Yes. 22 Q. Okay. 23 I was At least when they were presenting their case? 24 A. Uh-huh. 25 Q. So you presented the Paul Storey and Mark Porter Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 217 1 cases; is that correct? 2 A. Yes. 3 Q. Okay. 4 A. I don't know the exact date. 5 Q. Okay. 6 Do you remember when that was? Do you think it was near the indictment or shortly thereafter? 7 A. It would have been after the indictment. 8 Q. Do you think it was shortly after the 9 indictment? 10 A. 11 exact date. 12 Q. Do you have a ballpark? 13 A. Again, I don't want to -- I assumed if Marilyn I don't want to guess, so I can't remember the 14 was there, she was taking notes, and her -- if she has the 15 notes, then they would be more accurate. 16 lot of stuff going on, and I don't want to just throw out 17 something and -- and lead you astray that it happened X 18 date when I don't really know. 19 Q. No, I understand. I'm not asking you to guess. 20 I'm not asking for a specific day. 21 it was sometime in 2007? 22 23 A. There's always a But, I mean, you think It would have been in the first half of 2007. That's the best I can do. 24 Q. Okay. 25 A. It would not have been later than that, because Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 218 1 I would have had to inform the Court so that -- well, 2 that's probably maybe a more accurate way of looking at it 3 is that generally when they get a capital murder case, one 4 lawyer will be appointed, and then when the committee had 5 made a decision, we would inform the Court because, 6 obviously, these take a lot of time to try and they have 7 to be scheduled. 8 be when second chair was appointed. 9 Q. And so perhaps a better guideline might So if the second chair in this case was 10 appointed in January or February of 2007, the committee 11 probably met sometime around then? 12 A. Then that would probably be the case. Or, I 13 mean, sometimes they would appoint one just in case if 14 they thought it was a complicated case or whatever. 15 that's probably a pretty good guideline. 16 Q. Okay. But And so do you -- do you remember -- and 17 if you don't, that's fine. Do you remember exactly who 18 was there when you presented the Porter and Storey cases? 19 A. No. 20 Q. But probably some array of people such as you 21 sort of gone through; is that correct? 22 A. It was generally those people. So I -- 23 Q. And they -- and really -- and so they listened 24 to everything, they maybe discuss and deliberate, and 25 then, what, did they take a vote whether to pursue the Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 219 1 2 3 4 5 6 death penalty or not? A. They would reach a decision, just tell me how to proceed. Q. Okay. And I guess ultimately it was Tim Curry's decision or whoever the -A. Yes, he would approve it. They would make their 7 recommendation to him and then he would approve it. 8 he would do that if he was present physically or he would 9 do it later. 10 Q. Okay. So you remember this meeting? And I mean, 11 you don't remember the exact date, but you remember the 12 meeting? 13 A. I remember presenting. 14 Q. Okay. And what all was discussed as far as 15 whether to pursue the death penalty or whether to waive it 16 and pursue it as a waiver? 17 A. Among themselves? They asked me about the case. 18 Generally, I was just giving them answers about the case, 19 whether or not there was evidence of premeditation, 20 whether or not there was, you know, a particular set of 21 violent circumstances, or any evidence of lack of remorse, 22 any evidence of extraneous offenses that were violent that 23 would bear on the individual's future dangerousness, any 24 other information that might actually militate in his 25 favor, because, you know, on occasion we have folks that Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 220 1 are very troubled that we wouldn't -- we would take that 2 into account. 3 Q. So we take a lot of things into account. And do you remember it being discussed and it 4 being a factor in the decision the fact that Jonas 5 Cherry's parents were against the death penalty? 6 A. I informed -- I believe I informed them at that 7 time, but Suman Cherry was in favor of it. So I had two 8 different -- I have a parent, obviously very devout 9 people, very good people, and I had also a bereaved wife 10 who had been planning a family with her husband. 11 know, that's all information that I had. 12 13 Q. Right. And, you And you didn't -- I mean, you disclosed that information to them? 14 A. I believe I did, yes. 15 Q. Well, I mean, as far as you know, it was even 16 discussed as a factor on whether to pursue the death 17 penalty or not? 18 A. I can't tell you what they -- what factors they 19 took into consideration personally. 20 group, what was important to some people and not important 21 to others, I can't tell you. 22 23 Q. Okay. You know, like any But you told them about the Cherrys' opposition to the death penalty? 24 A. I believe I did. 25 Q. And what came out of that meeting? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 221 1 A. The -- I was told that we were going to pursue 2 the death penalty but also to offer a life sentence to 3 both individuals. 4 Q. To both of them? 5 A. Yes. 6 Q. And you don't know but you think maybe that was 7 based at least in part on the fact that the Cherrys were 8 against the death penalty? 9 A. No -MR. BRAGG: 10 11 Objection, Your Honor, speculation. 12 THE WITNESS: 13 THE COURT: 14 -- I don't know. I'm going to overrule the objection and permit the answer. THE WITNESS: 15 I don't know and I don't 16 believe that that -- since that evidence based on my 17 research wouldn't have been admissible, I don't believe 18 they would have -- they would have based it solely on 19 that, especially when you have different family members 20 who have different opinions, to give greater weight to 21 theirs than to the wife. 22 Q. (BY MR. WARE) So whether it was or whether it 23 wasn't part of their decision, you knew the Cherrys were 24 against the death penalty? 25 A. I knew the parents were. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 222 1 2 Q. Yes. And you think you told them that the parents were against it? 3 A. I believe so. 4 Q. Okay. And that may or may not have been a 5 factor in their ultimate recommendation to offer life to 6 both of them, that if they turned it down, pursue the 7 death penalty? 8 9 10 11 12 A. I can't speculate as to what factors were important to them. Q. At what point did you find out that Jonas Cherry's parents were against the death penalty? A. I don't know if I was informed by one of the 13 police officers or maybe victim assistance. 14 brought that to my attention first. I forget who 15 Q. Had you talked to the Cherrys at that point? 16 A. I don't have my notes from then. I've looked 17 through the physical files to see whether or not there was 18 a, you know, any notes in there as to the first time I 19 talked to them or the first time they communicated 20 anything to me. 21 at what the AG's office has and there's no mention in 22 there, apparently. 23 where I wrote it down. I have not looked at case events. Looked So I didn't -- I don't have any notes 24 Q. Okay. 25 A. This would have been almost ten years ago. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 223 1 2 3 4 5 Q. So do you remember the first time you did talk to the Cherrys? A. I can't tell you the specific date because I didn't find any notes in my file. Q. Yet you -- you were served with a subpoena to 6 bring any papers that you had or related to this case or 7 any documents, correct? 8 A. Yes. 9 Q. And you, really, you don't have any, do you? 10 A. No. 11 Q. Right. 12 A. -- in our previous meeting, I gave the original 13 I -- the card that I gave you -- to the AG's office. 14 Q. Right. 15 A. All I had was the writ that I went and looked 16 at -- 17 Q. From the clerk's -- 18 A. -- after our meeting. 19 Q. Okay. 20 21 But you had an opportunity to go look at everything that was in the DA's file; is that correct? A. With the -- I had an opportunity to look at 22 everything that was in the possession of the attorney 23 general when they brought it up. 24 25 Q. Right. And neither your nor Christy's trial notes were in there. Would you agree? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 224 1 A. I didn't -- I was looking for mine. I wasn't 2 really particularly looking for anything with her 3 handwriting. 4 Q. Right. 5 A. I was just looking for my stuff. 6 Q. Right. 7 A. And there was a bunch of typed, you know, notes 8 for like direct examinations or crosses or stuff like 9 that. And I don't remember if I just reduced it to that 10 or we reduced it to that, but I didn't see any handwritten 11 notes. 12 Q. 13 Okay. Did you see anything about jury selection typed or otherwise in there? 14 A. No. 15 Q. Do you know what happened to those? 16 A. Mine? 17 Q. Yours or Christy's. 18 A. Well, the policy at that time, I think we had to 19 return all of our jury questionnaires and stuff. 20 know if we made it a trial exhibit or we didn't keep it or 21 we made it another exhibit, I don't recall that. 22 23 Q. Okay. I don't So you don't recall what happened to it, really? 24 A. They weren't in there. 25 Q. Huh? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 225 1 A. They're not in there, so I can't explain that. 2 Q. You didn't see anything in there, I think you've 3 already answered this, anything in there about denoting 4 that the Cherrys were against the death penalty? 5 6 A. No, I didn't see anything about that or noting Suman Cherry's position either. 7 Q. Okay. 8 A. Yes. 9 Q. Okay. 10 You just know what they were? So did you disclose that information to the four defense lawyers in these two cases? 11 A. I told Mr. Ray. 12 Q. You're talking about Bill Ray? 13 A. Yes. And I disclosed it to -- I can't remember 14 if it was Mr. Tim Moore or to Mark Daniel. I spent -- on 15 the Storey case, about 95 percent of my time was spent 16 talking to Mr. Ray since he was the lead attorney. 17 we -- otherwise, we had infrequent conversations about 18 that case as well as many others that we had. And 19 Q. So how did you disclose that to Mr. Ray? 20 A. I believe I told him verbally. 21 Q. And when was that? 22 A. After -- after the committee had made their 23 decision and after I had learned of their -- the various 24 positions. 25 Q. So you don't know when in the timeline that Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 226 1 would have been? 2 A. It's going to be in 2007 sometime. 3 Q. So would you have told Bill Ray that the parents 4 of the victim were opposed to the death penalty sometime 5 in 2007? 6 7 8 9 10 11 12 A. I would have told him that as well as Suman Cherry's position. Q. And once again, that's not reflected, your communication of that information to Bill Ray or anyone else is not in the file or anywhere that you're aware of? A. Not in the -- in any of the files I looked through, it's not in there. 13 Q. Do you think you did communicate it in writing? 14 A. No. 15 Q. So that would explain why there's nothing in the 16 files? 17 A. Right. 18 Q. Okay. 19 20 Did you make even an internal note to yourself or to the file that that had been communicated? A. No, that -- I don't recall doing that. Again, 21 I've just looked at the files recently after ten years -- 22 or not ten years, nine years. 23 Q. A while. 24 A. Yeah. 25 Q. But you believed it was important to communicate Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 227 1 2 that information? A. I believed it was information just like any 3 other information. 4 of the district attorney's office was to disclose the 5 information you had, not put it through some sort of 6 admissibility or filter but just simply if you knew 7 something, tell them, whether it was admissible or not. 8 9 10 Q. And, you know, the longstanding policy Did you ever have a conversation with Larry Moore about the Cherrys being against the death penalty? A. I don't recall having any specific conversations 11 with Mr. Moore about it. 12 that Christy and I had with Bill during one of the breaks 13 during voir dire. 14 whether or not he was paying attention or -- I don't 15 recall him participating in the conversation. 16 17 18 Q. I believe there was conversation I think Mr. Moore was present, but Was anybody else present besides Bill Ray and Larry Moore and you and Christy? A. It was just generally the four of us. The judge 19 would -- when we took breaks, everybody would kind of go 20 their own way and wait to restart. 21 Q. So did Bill or Larry, either one, say at any 22 time, Robert, why are y'all going forward with the death 23 penalty when the parents are against it? 24 that kind of discussion? 25 A. Would you have Bill Ray wanted us to waive it and I said no. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 228 1 Q. For that reason? 2 A. He mentioned that they're opposed to it and I 3 said, well, his wife is not opposed to it. 4 not -- I mean, I can't give -- I'm not going to give 5 greater weight to one part of the family than the other. 6 I needed to make my decision based on whether to 7 proceed -- whether to offer a life sentence or proceed 8 based on the evidence as I knew it. 9 Q. But you did have that discussion? 10 A. I believe so. 11 Q. Okay. 12 You know, it's And what about with Larry, did you have that discussion with Larry? 13 A. No. 14 Q. Okay. And did either one of them say, hey, 15 Robert, do you mind if we go to Levy or Curry or someone 16 with this information about the parents not being in favor 17 of going forward with the death penalty and see if we can 18 get a waiver on this case? 19 A. I don't recall them saying that. Frequently, 20 defense attorneys didn't really ask me if they could go 21 above me. 22 sometimes told me out of courtesy, but otherwise, they 23 just did it. So if they did or they wanted to, they 24 Q. So -- but as far as you know, they didn't in 25 this case? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 229 1 A. I was never informed that they did it. 2 Q. Okay. 3 A. Because, you know, sometimes when they get a no, 4 5 neither they informed me nor did my superiors. Q. So same question with Mark Daniel and Tim Moore. 6 I mean, Mark Porter turned down a life sentence as well, 7 right? 8 A. At first. 9 Q. Okay. 10 Well, he turned it down and it was off the table until after Paul Storey's case was tried, right? 11 A. Right. 12 Q. So -- and at one point he was even going to go 13 first. 14 A. Yes. 15 Q. And there was some -- Tim Moore or somebody had 16 17 You remember that? a conflict and you flipped the order? A. The scheduling of, you know, four defense 18 attorneys with a heavy load, it just kind of -- it just 19 really depended on which window opened up for the two 20 lawyers. 21 Q. So Mark Porter at one point was going to go 22 first, and you told Tim Moore and/or Mark Daniel about the 23 Cherrys, Mr. and Mrs. Cherry, Jonas Cherry's parents being 24 against the death penalty? 25 A. As well as Suman's position, yes. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 230 1 Q. Yeah, I understand. And was -- and, of course, their client 2 3 turned down a life sentence? 4 A. Yes. 5 Q. And that was all before Paul Storey went to 6 trial, right? 7 A. Yes. 8 Q. So at the time, certainly at the time Paul 9 Storey was going to trial, well, even before that, they 10 were going to go to trial first on the death penalty, 11 their client having turned down a life sentence, correct? 12 A. Yes. 13 Q. Okay. 14 reaction? 15 forward with the death penalty when the parents of this 16 28-year-old young man, their only child, are against the 17 death penalty and you're going forward with the death 18 penalty anyway? 19 A. And likewise, did they have that kind of Did they say, wait a minute, you're going Did they ever have that conversation? I don't recall having that particular 20 conversation with them in that sense because I would have 21 responded about Suman Cherry's position. 22 Their particular focus was blaming it all 23 on your client, that he, in fact, was responsible for all 24 of the shooting and that Mark Porter was simply a dupe and 25 not very bright. And that was their complete focus. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 231 1 Because there were two weapons used, I think six or seven 2 shots from one, one shot from the second gun, and their 3 position was their guy just fired because your client made 4 him to. 5 Q. Okay. 6 A. No. 7 Q. So as a result -- in fact, at one point 8 And, of course, you believed all that? Mr. Porter was going to go first, correct? 9 A. Right. 10 Q. Because you didn't necessarily believe all that? 11 A. I didn't care which one of them wanted to 12 quarrel about the honor of shooting the fatal shot. 13 believed it was a joint venture, premeditated, and their 14 opportunity was to spare themselves a trial by taking a 15 life sentence. 16 Q. I Do you have any idea why both Tim Moore and Mark 17 Daniel would say they never -- were never told at any time 18 anything close to Jonas Cherry's parents were against the 19 death penalty? 20 that? Do you have any idea why they would say 21 MR. OTTOWAY: Speculative, Your Honor. 22 THE WITNESS: I don't know -- 23 THE COURT: 24 THE WITNESS: 25 say that. I'm going to allow the answer. I don't know why they would It's a fact that I told them. I can't Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 232 1 speculate as to why they would say it. Q. 2 3 (BY MR. WARE) So at some point Christy became second chair? 4 A. In 2008. 5 Q. 2008. So at some point the order got switched 6 and Paul Storey is going to trial first. 7 to Larry and Bill that the Cherrys are against the death 8 penalty? A. 9 You've disclosed I know that I talked to Mr. Ray about it. 10 Whether or not I talked specifically to Larry I don't 11 recall that. 12 listening when we had the conversation during jury 13 selection I don't know. Q. 14 15 And whether or not he participated or was Did you tell anybody else that the parents were against the death penalty? 16 A. Well, my investigator knew it. 17 Q. And who is that? 18 A. Mike de la Flor. 19 Q. Okay. 20 A. Victim assistance Linda Bigham would have known 21 it. 22 COURT REPORTER: 23 THE WITNESS: Who? Linda Bigham. They would 24 have known that. They would have known at the time what 25 the position was of the, you know, various members of the Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 233 1 2 3 family. Q. (BY MR. WARE) Now, did you and Christy discuss how you were going to deal with that fact at trial? 4 A. Well, I didn't really think we were going to 5 have to -- 6 Q. Okay. 7 A. -- because I didn't think it was admissible. 8 The opinion, long-held belief of someone. I didn't 9 believe it fell under admissible evidence as to tell what 10 a jury who heard the evidence, what they should decide 11 based on the evidence. 12 victim impact because it wasn't as a result of the crime. 13 This was a long-held belief that they had before the trial 14 or the event. 15 have asked for a hearing. Certainly it didn't come under And so I just -- if it came up, I would 16 Q. 17 witnesses? 18 A. No. 19 Q. Did you discuss all this -- do you remember the 20 You didn't call Jonas Cherry's parents as extern Ashlea Deener? 21 A. I don't know -- 22 Q. Do you remember her? 23 A. I do. 24 Q. Okay. 25 with her? Do you remember discussing this issue Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 234 1 2 3 4 5 A. I don't remember discussing legal issues with her. Q. Do you remember her asking how you were going to deal with it? A. She didn't ask me a whole bunch of questions 6 about legal matters or trial strategy. 7 Christy's intern. 8 organizing the files and getting stuff together. 9 of the communications were with Christy. 10 Q. Okay. She was primarily She was of great assistance in But most You don't remember her asking you and 11 Christy how y'all were going to deal with it and y'all 12 answering, we're just not going to call them as witnesses? 13 14 15 16 17 A. I don't recall saying that myself. I don't know if Christy did. Q. Okay. So -- so do you remember talking to Bob Gill about the issue? A. I remember that Christy and I were updating him 18 on the progress of the case, where it stood, that we -- 19 you know, what offers were out there, the positions of the 20 various family members, both Suman and the Cherrys 21 regarding the death penalty. 22 of -- it was several -- sorry. 23 just their position. 24 25 Q. Okay. So it was kind of a number It was several things, not Do you remember when that conversation was? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 235 1 2 3 A. It would have been in 2008, and it would have been before your client's rejection of the plea offer. Q. Okay. But you had disclosed -- had you 4 disclosed the fact that the Cherrys were against -- I 5 mean, you knew the Cherrys were against the death penalty 6 long before that, correct? 7 A. Yes. 8 Q. How long did it take you to disclose that to 9 10 defense counsel? A. I don't know when it came up. 11 came up in conversations with Mr. Ray. 12 precise day. I don't -- it I don't know the 13 Q. Do you know an approximate date? 14 A. I'm not going to guess. 15 Q. Not even an approximate date? 16 A. Not willing to guess. 17 Q. Okay. 18 19 But in any event, you don't even know if it was in 2007? A. It would have been sometime in -- before -- it 20 would have been before Christy came on the case, so 21 probably in 2007. 22 Q. Probably in 2007. Okay. When you disclosed to Bill Ray? 23 24 A. Yes. 25 Q. Okay. And so in 2008 you had a conversation Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 236 1 with -- you know, Bob Gill was out of the office until 2 July 1st, 2008. A. 3 So I was incorrect on the approximate time, but 4 it would have been sometime when Bob came aboard, to 5 update him. 6 long as I had. 7 everybody up to speed. And also, Christy hadn't been on the case as And, you know, so we just brought 8 Q. Okay. 9 A. That's why I don't want to guess on any of these 10 dates. 11 Q. But you wouldn't have had a conversation with 12 Bob Gill about whether to disclose the death penalty -- 13 excuse me, disclose that the parents were against the 14 death penalty, you wouldn't have had that conversation 15 after you'd already disclosed it, would you? A. 16 I wasn't asking him for permission. I was 17 updating him on what the facts in the case were, what 18 everybody's position was. 19 me permission to disclose it or advice on how to disclose 20 it. 21 in the picture of what these two cases were -- involved. 22 He was my direct supervisor. 23 I wasn't asking for him to give I disclosed it already. Q. Okay. I was just trying to put him So if he were -- if he testified that he 24 was -- you, in part, you were asking him whether it was a 25 good idea to disclose, he remembers that differently than Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 237 1 2 3 4 you? A. If that's how he remembers, but that's not how I felt that I conveyed it or that -- how I intended it. Q. And you, in fact -- okay. So y'all proceed to trial, he turns down a 5 6 life sentence? 7 A. And then we proceed to jury selection, yes. 8 Q. Did you notify the Cherrys that you had offered 9 10 a life sentence and he had turned it down? A. We'd had a meeting all together. I believe 11 Suman was present as well as both the Cherrys. 12 explained the options -- And we 13 Q. Do you know when that was? 14 A. No. 15 Q. Was there any memo in the file denoting when 16 that was? 17 A. No. 18 Q. Okay. 19 A. All the options were explained, just as the We explained the options -- You can continue. 20 decision to pursue the death penalty, that we would -- 21 were going to make the offer of a life sentence, and if he 22 rejected it, we would pursue the death penalty. 23 Q. So you remember Christy Jack's argument to the 24 jury that -- or maybe you don't remember, but you're 25 familiar with it now, that it should go without saying Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 238 1 that Paul Storey's (sic) family and everyone who loved him 2 believed the death penalty is appropriate. 3 that? A. 4 You remember I did not recall it until I read the transcript. 5 I know we discussed briefly together, and then when I read 6 the transcript I saw the language. Q. 7 8 Okay. Did she discuss that argument with you before she made it? 9 A. No. 10 Q. Did y'all discuss that argument after she made 12 A. No. 13 Q. You would agree that Jonas Cherry's parents are 11 14 it? certainly his family, correct? 15 A. Yes. 16 Q. You would agree that they were certainly people 17 who loved him, correct? 18 A. Yes. 19 Q. You'd agree that they didn't testify at the 20 trial, correct? 21 A. Yes. 22 Q. So at the very least, that argument was outside 23 the record? 24 25 MR. OTTOWAY: Your Honor, this can be made at argument instead of asking the witness a question about Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 239 1 whether it was outside the record. 2 THE COURT: 3 MR. WARE: 4 thought processes about this argument. Well, I kind of want to get his MR. OTTOWAY: 5 6 Any response? The record is the record, Your Honor. THE COURT: 7 Well, I understand. 8 seen it myself. 9 going to allow this to develop. But for purposes of this hearing, I'm 10 whatever they need to. 11 this time. 13 16 May I have a running objection? THE COURT: 14 15 So both sides can develop I'm going to allow the question at MR. OTTOWAY: 12 And I've Q. (BY MR. WARE) Very well. So at the very least the argument was outside the record? 17 A. On their position before the trial, yes. 18 Q. I mean, outside the record means there was no 19 testimony supporting -- 20 A. Right. 21 Q. -- her argument? 22 A. That all of the members -- 23 Q. That his -- that Jonas Cherry's family and 24 everyone who loves him are -- believed the death penalty 25 is appropriate. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 240 1 A. We did not elicit that testimony. 2 Q. So at the very least it was outside the record? 3 A. Yes. 4 Q. And to that extent an improper argument? 5 A. I don't -- I'm not -- I don't want to conjecture 6 about how I would phrase it. 7 introduced -- I don't want to weigh on that. 8 will say that it wasn't in the record what their position 9 was. 10 Q. Okay. Because after all, they had I just -- I And, in fact, I think you testified 11 earlier that you believe the law was you could not put it 12 in the record what their position was? 13 A. Well -- 14 Q. Because you said y'all didn't even really worry 15 about the fact that the Cherrys were against the death 16 penalty because that couldn't go in the record anyway? 17 18 A. Right, just like I couldn't put in Suman Cherry's desire for the death penalty. 19 Q. Right. 20 A. I didn't try to offer that either. 21 Q. So you would agree that it's also improper, if 22 it's not admissible as evidence, it's also improper to 23 inject it in front of the jury in final argument? 24 25 MR. OTTOWAY: Your Honor, if they want to make that argument, that's fine. I don't know, again, why Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 241 1 this needs to be questions. MR. WARE: 2 3 Well, I mean, this goes to the crux of our claims. 4 MR. OTTOWAY: 5 THE COURT: It's argument. I understand. 6 ahead and permit the development. 7 out, I think. 8 THE WITNESS: 9 MR. WARE: 11 Q. (BY MR. WARE) I'll be able to sort it What was the question? I'll move on. THE WITNESS: 10 I'm going to go Okay. So is it your testimony, I guess, 12 that at some point -- I mean, was this a lie that Christy 13 told or is it your testimony that at some point the 14 Cherrys completely reversed their position and said now 15 we're for the death penalty and that -- 16 A. No, I'm not -- I won't say that. I know that 17 Mr. Cherry approached Christy at one of the breaks after 18 the defendant's mother testified and made her plea. 19 20 21 22 Q. And you and Christy have talked about this, have you not? A. Well, I talked about it with her and I told you in your meeting -- our meeting. 23 Q. Well, you didn't, but -- 24 A. I offered to give you two affidavits summarizing 25 what our meeting was, but you didn't want it. So -- but Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 242 1 she did -- there was -- one of them approached. 2 you that one of the parents approached and -- I told 3 Q. You don't remember which one? 4 A. I believe it was Glenn, but I'm not positive. 5 Q. And when was -- when did this happen? 6 A. After -- during the punishment phase and -- 7 Q. And this is the first time anything like this 8 had happened? 9 A. I'm sorry? 10 Q. This is -- go ahead. 11 A. They -- he wanted -- he or she wanted to know I'm sorry. 12 whether or not they needed to testify in rebuttal and we 13 told them no. 14 Q. So that happened after the punishment phase? 15 A. During the punishment testimony. 16 Q. It happened during the punishment testimony? 17 A. They were in the trial court the entire trial. 18 Q. Okay. And so during the punishment testimony, I 19 think one of the two parents approached and said, do we 20 need to testify in rebuttal? 21 A. Right. I don't know -- I don't recall the exact 22 language that they used. Christy said simply no, and I 23 didn't feel -- and I agreed that there wasn't any reason 24 for them to testify in rebuttal because the facts were 25 fully developed and I didn't think they needed to have any Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 243 1 2 3 unnecessary pain to put them on. Q. And, you know, we -- So was he or she, whichever it was, was anybody else present for this conversation? 4 A. It was at the rail. I don't know who else was 5 listening. 6 Q. Okay. 7 A. And I can't tell you what the exact language 8 they -- the person, whichever one it was, used to Christy. 9 She would have a better memory on that. 10 11 12 I don't recall because the question was directed at her. Q. Okay. Well, was there a conversation with you and this person before Christy walked up? 13 A. No. 14 Q. Okay. 15 A. We were standing at counsel table. 16 Q. Okay. 17 A. Or near the gate -- 18 Q. So she should have heard anything you heard? 19 A. She should have -- she should have -- it was -- 20 the conversation was directed at her. 21 Q. So it was directed at her? 22 A. Yes. 23 Q. Not you? 24 A. No. 25 Q. Okay. And what you heard is, do we need to Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 244 1 testify in rebuttal? 2 A. Yes. 3 Q. Did you hear anything beyond that? 4 A. I can't remember the exact substance of how they 5 phrased it. 6 Q. Okay. Did -- did he -- if that's all he said, 7 he didn't get into any specifics about what he would 8 testify to in rebuttal? 9 A. I don't recall specifically what he would say. 10 I think he was -- I got the feeling that he was upset 11 that, you know -- 12 Q. 13 said, so -- 14 A. 15 16 Well, you got the feeling, but that's all he I can't recall the exact words, so I don't want to speculate as to what they were. Q. Well, I mean, are you saying that after all this 17 time since you started talking to them, whenever it was in 18 2007, here we are in 2008 and they're opposed to the death 19 penalty, opposed to the death penalty, you're maybe even 20 discussing it at the death penalty committee, you're 21 talking to Bob Gill about it, all this time you're 22 disclosing it to Larry -- 23 A. Not to Larry. 24 Q. After all this time, your position is not that 25 all of a sudden they flipped and they were for the death Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 245 1 2 3 penalty? A. No. And I disclosed it to Mr. Ray. I believe my testimony was -- 4 Q. I'm sorry, can you keep your voice up? 5 A. I disclosed it to Mr. Ray. As I previously told 6 you, I don't have a specific recollection of talking to 7 Mr. Moore about -- Larry Moore about it. 8 going to say that they flipped on whatever their opinion 9 was. 10 11 Q. And I'm not Do you remember telling the newspaper that y'all disclosed it to the lawyers and they damn well know it? 12 A. Yes. 13 Q. And you told the newspaper it was the Defense 14 that decided not to call the parents to the stand? 15 A. Yes. 16 Q. Is that correct? 17 A. Yes. 18 Q. And, of course, what you're saying is, they made 19 the decision not to call the parents to the stand even 20 though they believed the Storeys (sic) were against the 21 death penalty, correct? 22 A. Well, I conveyed it to Mr. Ray. I told him that 23 I had informed the Storeys -- not the Storeys, the Cherrys 24 of the possibility that either side could call them as 25 witnesses. And so they were aware they could possibly be Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 246 1 called as a witness. 2 information. 3 4 Q. Mr. Ray, I'd already conveyed the And you would have been surprised if they'd called them as witnesses? 5 A. I would have been surprised, but because -- 6 Q. Because they had things to say that were 7 favorable to the defendant -- 8 A. Actually -- 9 Q. -- they were against the death penalty? 10 A. I would have been surprised because I believe 11 under the state of the law at that time it was 12 inadmissible and we would have had a hearing on it. 13 also, it may have been a trial tactic rather than put up 14 a -- sympathetic parents. 15 you what went into their decision-making process. 16 only tell you what I did. 17 Q. Okay. So I don't know. And I can't tell I can But it -- certainly, it would have been 18 rational for them to attempt to put the Storeys (sic) on 19 because the Storeys (sic) were against the death penalty? 20 I mean, that much would have advanced their side. 21 A. I'm not going to guess as to what their strategy 22 was any more than what their strategy was on mitigation 23 evidence and all those other matters that were addressed 24 in the previous writ. 25 went into their thought process. I'm not going to guess as to what I don't know. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 247 1 Q. But in any event, they were certainly under the 2 belief or under the understanding that the Storeys (sic) 3 were against the death penalty at a time when they had an 4 opportunity to put them on? 5 6 7 A. I can speak as far as Mr. Ray, that I had previously informed him, so, yes. Q. So when Christy argued that, in fact, Jonas 8 Cherry's family and everyone who loved him believed the 9 death penalty was appropriate, that -- you don't remember 10 that argument? 11 A. I was pretty focused on what I was going to 12 argue. 13 Q. I understand. 14 A. And so -- I believe it was one line out of I 15 don't know how many pages of argument. It didn't really 16 make that much of an impression on me at that time because 17 it was one statement and I was focused on what I was going 18 to do. 19 Q. Well, wasn't it your impression that, whether it 20 was one statement or just one line or two lines, that it 21 was an untrue statement in that Mr. and Mrs. Cherry, the 22 parents were, in fact, against the death penalty? 23 A. It was untrue in part because they were against 24 the death penalty, but Suman, of course, and other friends 25 were in favor of it, so. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 248 1 2 Q. Okay. So the statement was untrue at least as to the parents Mr. and Mrs. Cherry? 3 A. Yes, in part. 4 Q. And your recollection is Larry -- neither Larry 5 nor Bill objected to it? 6 A. I don't recall them objecting. 7 Q. I mean, they didn't say -- they didn't say 8 outside the record. They didn't even stand up and say, 9 wait a minute, that's -- that's a lie. We've been talking 10 about -- for the last year we've been talking about how 11 extraordinary it is that the parents are against the death 12 penalty, and this case is going death penalty anyway, and 13 here she is up here lying to the jury about what we've 14 been talking about for the last year. 15 A. No. You know what, I didn't testify that we've 16 been talking about it for the last year or that they'd 17 made this argument that it was so extraordinary that we 18 were pursuing it. Mr. Ray was aware of it. 19 I can't tell you 20 what kind of communications occurred between him and 21 Mr. Moore. 22 Mr. Moore knew or didn't know and why they chose to -- not 23 to object or to sit silent. 24 25 Q. I wasn't part of them. I can't tell you what I can't speculate as to that. Nor did they approach you afterwards and say, what was up with that argument, I thought the Cherrys were Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 249 1 2 against the death penalty? A. They didn't have that conversation with me. 3 MR. WARE: 4 THE COURT: 5 The State may cross-examine the MR. OTTOWAY: Thank you, Your Honor. CROSS-EXAMINATION 7 9 We'll pass the witness. witness at this time. 6 8 So. BY MR. OTTOWAY: Q. Mr. Foran, I think we have covered this, but I 10 want to make sure it's clear. 11 case, correct? Life was offered in this 12 A. Yes, and it was extended a second time. 13 Q. When was it extended to? 14 A. During jury selection early on, the attorneys 15 for the Defense -- Mr. Moore and Christy was having a 16 conversation with Bill and with Larry early on in the jury 17 selection process, and they said something to the 18 effect -- she was asking why he didn't take the deal, and 19 they were like, we were having difficulty convincing him 20 of the reality of his situation. 21 period of time. 22 he hadn't changed his mind. 23 24 25 Q. So we extended it for a I forget how long. And they simply said So we left it at that. And so you would have been fine had he accepted a life sentence at that point? A. Just like I was fine with Mark Porter taking Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 250 1 2 3 one. I was fine either way. Q. In fact, you were the one who, you know, finalized the deal with Mark Porter, correct? 4 A. Yes. 5 Q. So whether anybody got life in this case, you 6 7 didn't have any particular druthers over punishment? A. I didn't. Either -- either would have been 8 appropriate in a plea bargain. 9 today, if either of them accepted it. 10 Q. I still believe that So you weren't trying to hold back evidence for 11 a strategic advantage so you could get the death penalty 12 in this case? 13 A. No. 14 Q. You talked about that you had a sitdown 15 conversation with Suman, Judith, and Glenn Cherry about 16 the potential routes that this case could take, correct? 17 A. Yes. 18 Q. Did you tell them ultimately what the State was 19 20 21 going to do? A. If they turned down the plea bargain, yes, that we would pursue the death penalty. 22 Q. 23 that point? 24 A. 25 And did they ever tell you not to seek death at No. They expressed their philosophy or their beliefs, their strong beliefs, but they did not say don't Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 251 1 do this. Q. 2 3 Did you keep up at all with the Boston bomber case? 4 A. No. 5 Q. Did you know that family members in that case 6 went to the press and expressed their preference for a 7 life sentence? MR. WARE: 8 9 irrelevant. MR. OTTOWAY: 10 11 I'm just asking if he knows, Your Honor. THE COURT: 12 13 I'm going to object to this as Well, I do think it's irrelevant for this matter, so I'll sustain at this time. Q. 14 (BY MR. OTTOWAY) Did you ever tell the Cherrys 15 that they couldn't tell anybody about their preference 16 with respect to -- or let's say their philosophical belief 17 regarding the death penalty? 18 A. No. 19 Q. So they certainly could have told the press, 20 couldn't they? 21 A. Yes. 22 Q. They could have told anybody that they wanted 24 A. Yes. 25 Q. Did you ever have a discussion with them about 23 to? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 252 1 2 the potential for them becoming Defense witnesses? A. At one point I always -- in every case I tell 3 people that there's a potential for the Defense to want to 4 interview you, call you as a witness, depending on what 5 you have to say. 6 didn't really want to talk about the case with the 7 Defense. I told him that, here's the thing. 8 9 At that time I believe it was Glenn who a personal decision. That is I can't give you any guidance on it. 10 And certainly the Defense is free to contact you. 11 you want me to facilitate -- if they want to contact you, 12 I would be more than happy to facilitate it, even provide 13 a conference room. 14 us, they contact us. 15 entirely up -- a possibility that the Defense would 16 contact them. 17 18 19 Q. And if So they said, well, if they contact But they understood that that was Did you ever relate to the Defense essentially the Cherrys' preference for contact? A. I believe we had a conversation with Mr. Ray and 20 Mr. Moore that they preferred not to be contacted, but I 21 explained the same information I just related and that 22 they certainly were free to contact them or not contact 23 them. 24 the Cherrys that the Defense was entitled to contact them 25 if they chose to. I certainly wasn't preventing them. I explained to Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 253 1 Q. I think a little bit earlier you had mentioned 2 if the Cherrys, and by that I mean Judith and Glenn Cherry 3 potentially became witnesses for the Defense, that you 4 would have a hearing on it? 5 A. I would have objected because I would have 6 anticipated that that was probably the only area they were 7 going into because I hardly think they would have elicited 8 victim impact. 9 10 11 Q. And why do you think they wouldn't have elicited victim impact from them? A. Because the parents in their own way were just 12 as devastated as his wife, so why -- why bring out more 13 information on how a terrible crime impacted their life. 14 Q. So calling them could have potentially 15 reiterated thrice for the devastating impact of Jonas 16 Cherry's death on the Cherry family? 17 A. I believe so. 18 Q. Do you recall whether Glenn and Judith Cherry 19 attended the guilt-innocence and punishment phases of 20 trial? 21 A. Yes. 22 Q. At any time during those proceedings, did the 23 Cherrys ever come to you and say stop pursuing the death 24 penalty? 25 A. No. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 254 1 Q. Did they ever come to you and say, this is a 2 travesty that you're proceeding the way that you are in 3 seeking the death penalty? 4 A. No. 5 Q. You had mentioned that one of the two Cherrys, I 6 believe you thought it was Glenn, approached Ms. Jack 7 about testifying? 8 A. Yes. 9 Q. Do you know why he wanted to testify? MR. WARE: 10 He's already testified to what 11 he heard, what he didn't hear. 12 speculating at this point. 13 THE COURT: 14 MR. OTTOWAY: 15 THE COURT: 16 17 Q. I'm going to object to him Any response? I'll rephrase, Your Honor. All right. (BY MR. OTTOWAY) You may. Was it your impression that Glenn Cherry wanted to testify on behalf of Mr. Storey? 18 A. No. 19 Q. And so he wanted to testify as a witness for the 20 State? 21 A. Yes. 22 Q. Did you think that he wanted to testify that he 23 24 25 didn't think the death penalty was appropriate? MR. WARE: I'm going to object to speculation at this point. I mean, unless he knows. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 255 THE COURT: 1 2 he knows. THE WITNESS: 3 4 MR. WARE: THE COURT: 8 MR. WARE: 10 trying to do here. We all know what they're trying to do THE COURT: Well, I'm going to filter all this out eventually. MR. OTTOWAY: 16 the side-bar, Your Honor. 17 THE COURT: Well, I would still object to It's not necessary to make a side-bar. You may ask your next question. 19 20 Your Honor, I would ask that to be stricken. 15 18 I mean, I know what they're MR. OTTOWAY: 13 14 I'll sustain the objection. here, and it's not right. 11 12 I'm going to object to any assumption. 7 9 He was upset by the testimony he'd heard, so I assume he wanted -- 5 6 I'll allow him to answer it if Q. (BY MR. OTTOWAY) Do you recall when one of the 21 Cherrys, and probably Glenn, approached Ms. Jack about 22 testifying? 23 A. It was sometime after Ms. Shankle's testimony. 24 Q. Now, only if you know, do you know why he 25 approached her at that time? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 256 1 2 A. He was upset about the plea for -- on behalf of her son and he wanted to testify in rebuttal. 3 Q. And this was before closing argument? 4 A. Yes. 5 Q. And you said Glenn and Judith Cherry were there 6 throughout the entire sentencing proceeding, correct? 7 A. Yes. 8 Q. So they heard the verdict of death for 9 Mr. Storey? 10 A. Yes. 11 Q. At that time did they ever approach you and 12 disagree with your decision to seek death? 13 A. No. 14 Q. At any time after the decision or, I'm sorry, 15 after the verdict for death did they ever tell you that 16 this was a travesty? 17 A. No. 18 Q. Did you ever receive anything from Glenn and 19 20 Judith Cherry after the trial? A. MR. OTTOWAY: 21 22 Myself and Christy Jack received a card. please? 23 THE COURT: 24 MR. OTTOWAY: 25 Your Honor, may I approach, You may. For purposes of the record, I am showing what has been admitted as State's Exhibit 1. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 257 1 2 Q. (BY MR. OTTOWAY) Mr. Foran, could you please take a look at that? 3 A. Yes. 4 Q. Do you know what that item is? 5 A. It is a card that I received -- or Christy and I 6 7 8 received from Glenn and Judy Cherry after the trial. Q. And to be clear, that is a photocopy of the card, correct? 9 A. Yes. 10 Q. And did you have the original card in your 11 possession? 12 A. I did. 13 Q. And why did you keep that card? 14 A. I rarely got thank-you notes, honestly, you 15 know. 16 you rarely got somebody to actually memorialize it. 17 these are -- you know, I've met a lot of very good people 18 throughout my career, and they're certainly two of the 19 best. 20 People would say thanks for doing something, but Q. And And although the letter is absolutely admitted 21 into evidence here, was there anything in there that 22 suggested that they were upset at the verdict that 23 occurred? 24 A. There's no mention of it. 25 Q. Do you know a or did you know a Robert Ford, Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 258 1 also known as Bob Ford? 2 A. Yes. 3 Q. And he was an attorney here in Fort Worth? 4 A. Yes. 5 Q. And he was what we would call a writ attorney or 6 7 8 9 10 a post-conviction attorney? A. He would also do trial work, but he did mostly appellate work, and he did writs also. Q. And did you know that he was representing Mr. Storey on his state habeas application? 11 A. I did. 12 Q. Did you ever have a conversation with Bob Ford 13 about the Storey case? 14 A. In passing, that's about -- not in any detail. 15 Q. If he had asked you any questions about the 16 case, would you have been willing to meet with him and 17 discuss the case? 18 A. Yes. 19 Q. Including the -- Judith and Glenn Cherry's 20 opposition -- philosophical opposition to the death 21 penalty? 22 A. 23 asked me. MR. OTTOWAY: 24 25 I would have answered any of his questions he No further questions, Your Honor. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 259 THE COURT: 1 REDIRECT EXAMINATION 2 3 BY MR. WARE: Q. 4 5 But you never told Bob Ford that they were against the death penalty, did you? A. 6 7 Any other questions by -- I assumed -- I didn't discuss the case in detail with Mr. Ford -- 8 Q. It's a pretty simple question. 9 A. Well, you know, I'm going to answer the question 10 as I believe -- 11 Q. You answered the -- 12 A. I'll ask it -- answer it as I believed you asked Q. Don't point at me, Robert. 13 14 it. THE COURT: 15 16 Q. 18 A. (BY MR. WARE) MR. OTTOWAY: Your Honor, this is badgering at this point. THE COURT: 21 23 Listen to my question. Oh, I'm listening. 19 22 One at a time. Let's have a question and an answer. 17 20 One at a time. simple. Q. Well, let's just keep it Ask a question, see what the response is. (BY MR. WARE) You never told Bob Ford that the 24 Cherrys were philosophically, ethically, spiritually 25 opposed to the death penalty? Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 260 1 A. I didn't discuss -- 2 Q. That's a yes or no question. 3 A. No. 4 Q. Thank you. 5 A. That's all right. 6 Q. And, in fact, the Cherrys are wonderful people, 7 8 aren't they? A. Yes, they are. 9 MR. WARE: 10 THE COURT: 11 Outstanding people. Pass the witness. Any other questions from the State? 12 MR. OTTOWAY: 13 THE COURT: 14 Nothing further, Your Honor. All right. Do y'all want to keep Mr. Foran on call? 15 MR. WARE: 16 THE COURT: 17 at this time. 18 later. 19 Rule. We do, Your Honor. All right. You may step down But remain available in case you're needed Of course, you're still under oath and under the It is 4:22 p.m. and I understand the other 20 21 witnesses have been deferred until tomorrow. 22 9:00 o'clock tomorrow morning. 23 record? 24 25 MR. WARE: So Anything else for the Your Honor, that's all. Are we contemplating going an extra day beyond tomorrow on a date Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 261 1 to be named later? THE COURT: 2 Well, I'm contemplating the 3 necessity of an additional day, and I'm going to talk to 4 the coordinator about the days. 5 otherwise scheduled to shift courts on Wednesday, so I'll 6 be prepared to go either place. MR. WARE: 7 You might know I'm We have -- we have a witness, 8 and he's given an affidavit, if they don't object to the 9 affidavit, then that might be sufficient, Fred Cummings 10 who's out of town this entire week. And I know -- I don't know if they still 11 12 intend to call Suman, but it's my understanding she's not 13 available today or tomorrow. 14 going to ask for some day outside this week to call her as 15 well, but I don't know that for a fact. 16 THE COURT: 17 So I assume that they're I understood that it was very probable that there would be another future date required. Now, from the way things have gone today, 18 19 I'm anticipating not being able to finish tomorrow unless 20 y'all pick it up. 21 else in that's currently available this week tomorrow or 22 do you think -- So do you think you can get everybody 23 MR. WARE: 24 MR. OTTOWAY: 25 I think so. I note for the record that I was efficient. Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 262 MR. BRAGG: 1 Just a point of clarification, 2 Your Honor. We anticipate -- we will need to come back at 3 a later date for Suman. 4 She had a prescheduled vacation out of state. 5 anticipating that we might stay around an extra day as 6 well? She is not available this week. THE COURT: 7 Are we If you don't finish tomorrow, I 8 would be okay, although I'm going to have to talk to the 9 coordinator about Wednesday, I mean, I will be down here 10 at one place or another on Wednesday if we don't finish 11 tomorrow, if it's convenient to get most of this in one 12 piece. 13 MR. HAMPTON: Every lawyer may have his own 14 opinion, but I'm actually hopeful, unlike today, that we 15 actually can get through what we need to tomorrow. 16 MR. WARE: I sure hope we do. I've got 17 other things to do the rest of the week, as I know 18 everybody does. 19 THE COURT: Well, let me encourage y'all to 20 try to finish tomorrow if you can. And we'll just 21 schedule some future date for those two that you talked 22 about, Mr. Cummings and Suman, I guess is her name. 23 MR. BRAGG: Yes, Your Honor. 24 THE COURT: All right. 25 Well, why don't we recess until tomorrow and we'll see what we get done Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 263 1 tomorrow. 2 MR. OTTOWAY: 3 (Proceedings adjourned) Thank you, Your Honor. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three 264 1 STATE OF TEXAS 2 COUNTY OF TARRANT 3 I, Lisa G. Morton, Deputy Official Court Reporter 4 in and for Criminal District Court Number Three of Texas 5 in and for Tarrant County, do hereby certify that the 6 above and foregoing contains a true and correct 7 transcription of all portions of evidence and other 8 proceedings requested in writing by counsel for the 9 parties to be included in this volume of the Reporter's 10 Record in the above-styled and numbered cause, all of 11 which occurred in open court or in chambers and were 12 reported by me. 13 I further certify that this Reporter's Record of 14 the proceedings truly and correctly reflects the exhibits, 15 if any, offered by the respective parties, if requested. 16 I further certify that the total cost for the 17 preparation of this Reporter's Record will be included in 18 the final volume of this record. 19 20 21 22 23 24 25 WITNESS MY OFFICIAL HAND, on this the 10th of October, 2017. PDF COPY _____________________________ Lisa G. Morton, CSR Texas CSR No. 4655, Exp:12/31/2017 Deputy Official Court Reporter Criminal District Court No. 3 401 W. Belknap, 6th Floor Fort Worth, Texas 76196 Telephone: (817)884-2767 email: lmorton@tarrantcounty.com Lisa G. Morton, CSR Deputy Official Court Reporter Criminal District Court Number Three