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My Regrets as a Juror Who Sent a Man to Death Row

“If I could have done anything, it would have been to deadlock the jury, but I didn’t have the personal strength to do that.”

This article was published in collaboration with Vice.

In 2008, Sven Berger got a letter instructing him to report for jury duty. He ended up on the jury of Paul Storey, a young black man on trial for the shooting death of Jonas Cherry, an employee at a putt-putt mini golf chain in Hurst, Texas (near Fort Worth). There was little doubt about guilt, but Storey was facing the death penalty, and Berger, along with 11 other jurors, had to decide whether he should die for the crime.

They unanimously decided he should, and Storey is still on death row. But two years after the trial, a lawyer handling Storey’s appeals called the jurors and discovered that Berger was having second thoughts.

The lawyer showed Berger a new report from a psychologist, detailing Storey’s “borderline intellectual functioning,” history of depression, and other “mitigating evidence” Storey’s lawyers had not presented during the trial. Berger wrote in an affidavit that had he heard this evidence, “I would not have voted for the death penalty.”

Today, Berger works as a software engineer in Olympia, Wash. We spoke by phone and email over several weeks about his experience sentencing Storey to death, and his subsequent regrets. Here's his account of that experience.

During jury selection, when lawyers for both sides asked me questions, I saw Paul Storey in the courtroom. He was skinny, wearing a suit that clearly didn’t fit him, and his tie was tied poorly — way too long. (I wore suits every day so I noticed that sort of thing.) He appeared to be friendly, though he didn’t make much eye contact.

Maybe he was coached on how to behave.

I don’t believe I met the other jurors until the trial began, and I was the youngest by maybe ten years. The presentation of evidence was incredibly long, and actually boring for a while. Everyone was a little tense, which makes sense considering that nobody really wanted to be there.

Once we found Storey guilty — the case against him seemed airtight: he’d confessed to the shooting multiple times — lawyers made their cases for and against the death penalty over a period of two or three days. At one point, the defense presented evidence that Storey stayed out of trouble in jail during the time leading up to the trial, and participated in Bible study. I felt two ways about this: avoiding conflict is always good, but the whole finding religion thing made me suspicious of his intentions. I imagined a stereotypical prisoner, pretending to find God on the inside only to increase his chances of parole, or whatever. I'm sure this is unfounded, but we've all seen crime dramas or movies where some "reformed" criminal gets out just to inflict more harm.

To give someone a death sentence in Texas, the jury has to decide that he is capable of committing violent crime again in the future1. I didn’t believe that from what I saw — I just didn’t get the feeling he was dangerous. Maybe it was a gut feeling. But the other jurors seemed anxious to deliver the death penalty, except for one woman, who might have been sympathetic.

It was a very stressful situation, and my brain tends to block that sort of thing out, which makes recall difficult. But I know we didn't deliberate long — one to two hours, maybe. The room was pretty quiet; it felt like everyone came in already knowing how to vote.

All the other jurors thought he should be put to death.

If I could have done anything, it would have been to deadlock the jury, but I didn’t have the personal strength to do it. I was 28, and not a mature 28. I’ve grown quite a lot since then, but at the time, I was really uncomfortable speaking out. Once we were asked to decide a sentence, I felt a rush of adrenaline and my stress level shot up. I couldn't have been the only one. In times like that, I know I don't think as clearly or rationally. I almost feel that in a case like this, jurors should be required to deliberate for some minimum amount of time.

When we delivered the sentence, it was quite emotional. That one woman juror — the one I thought had been sympathetic, like me — began to weep. I handed her my handkerchief.

The decision says something about who you are, and a lot of people don’t want to look at the part of themselves that’s willing to kill someone, to send them to death.

After we delivered the death sentence, we were told we could leave out the front and talk to press or go out a back door.

Everyone took the back door.

I felt guilty about what happened. And sad. And a little helpless. I talked with my parents and my wife about how it bothered me. Eventually I started saying, “I don’t think I made the right call.” I had a friend, a police officer, who was a sounding board, and he tried to make me feel better, saying Storey’s sentence would be appealed and the case would last a long time.

Storey’s mother made a Facebook page for him. I considered sending a friend request, but then I thought if anyone looked into it and found out, it would be weird. Maybe once a month, I’d look at the page, which had pictures of him in prison — I was curious to see how he was doing or if he got clemency. But Texas doesn’t do that very often.

I've always wanted to contact Storey, yet it never felt right. What would I say? What would he say? I’m not sure I'd be open to speaking with someone who helped ensure my own execution.