Criminal - The Juror

Episode Date: May 5, 2023

In 2008, Sven Berger was chosen to serve on the jury for a murder trial. He says the sentence that he and his fellow jurors handed down “felt like a mistake right away.” Sven talked about what happened next on the podcast Heavyweight, and today, we’re sharing that episode with you. Maurice Chammah originally reported on Sven’s story for The Marshall Project. Say hello on Twitter, Facebook and Instagram. Sign up for our occasional newsletter, The Accomplice. Follow the show and review us on Apple Podcasts: iTunes.com/CriminalShow. Listen back through our archives at youtube.com/criminalpodcast.  We also make This is Love and Phoebe Reads a Mystery. Artwork by Julienne Alexander. Check out our online shop.  Episode transcripts are posted on our website. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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That's BotoxCosmetic.com. That's BotoxCosmetic.com. In 2008, a man in Texas named Sven Berger got a summons for jury duty. He was working as a software developer and had recently gotten married. He and his wife had just bought a house, and he says he liked to come home from work and watch Law & Order on TV. He'd seen so much Law & Order, he thought he knew what to expect from a trial. During jury selection, he was asked how he felt about the death penalty. He said that he wasn't strongly for or against it, and was picked to be on the jury.

Sven talked about what happened next on one of our favorite podcasts, Heavyweight, a show in which the host, Jonathan Goldstein, explores the moments from people's lives that they still have regrets about. Today, we're sharing that episode with you. Here's Jonathan Goldstein. The case was the state of Texas versus Paul David Story. Story was a 22-year-old accused of the murder of Jonas Cherry, the manager of a mini golf course in Hearst, Texas.

Story and an accomplice forced Cherry into the back office, made him unlock the safe, and put the money, a few hundred dollars, in a bag. And then, they shot him multiple times. Story's trial lasted two weeks and would have felt familiar to anyone who watches TV courtroom dramas. There were lawyers with thick binders full of ballistics reports and medical examinations. Character witnesses were called and disturbing photographs of the victim's body were shown. The only thing missing was any suspense about the verdict. There was no doubt that he was guilty of murder and robbery.

And so really, as a jury, all we had to worry about was sentencing. The jury had to decide between life imprisonment or the death penalty. It seemed the victim's family knew what they wanted. It should go without saying, the prosecutor announced to Sven and the other jurors, that all of Jonas' family and everyone who loved him believed the death penalty is appropriate. The prosecutor asked the jurors to sentence Paul Story to death. The instructions stated that for the death penalty to be imposed, the jurors must judge three things to be true.

That Paul Story was guilty, that there were no mitigating circumstances like, say, mental illness or provocation, and lastly, that Story posed a future threat to his community. That was the one I had issue with. I seriously doubted that he would be a continuing threat to the prison community. And what was it about Paul's story that made you feel like you just didn't see him as a continued threat?

Um, a couple of things. His testimony... The young man Sven saw in the courtroom appeared confused, in over his head, and remorseful. This was his first offense, and some of the evidence suggested that it was Story's accomplice who'd been the mastermind behind the horrible crime, as well as the one who'd fired first. Sven was certain that Paul Story should be punished, but he didn't think he should be put to death. But in the jury chambers, there was a very different feel. Everyone else was in favor of the death penalty. who already felt strongly. I didn't think I could convince anyone of what I was thinking. I'll be honest, I was scared.

At 27, Sven was the youngest juror by about 10 years, and he was the kind of guy who avoided speaking up at all costs. At home, if his neighbor parked in his space, he let it go. At the office, if his boss told him to do something, even if he disagreed, he did it without question. In other words, even though he'd been looking forward to being a juror, when he found himself in the jury room, Sven wasn't exactly Henry Fonda in 12 Angry Men. The way he understood it, the jurors had to reach a unanimous decision, and the idea of swaying 11 strangers over to his way of thinking seemed impossible.

He was also afraid that if he opposed the group, it would result in a hung jury and a mistrial. They'd have to start the whole process over again with a new jury. Everyone would be mad at him. So Sven said nothing. An hour and a half later, Paul Story was sentenced to death by lethal injection.

It was hard to look at him during the sentencing. We sat waiting for the judge to ask us, you know, what's the sentencing? And everyone was really tense. And the woman next to me, another juror, began crying. She was trying to hide it, you know. And I gave her my handkerchief, and she just wept. Then the foreman announced the verdict, and I think his mother cried out.

They had an exit for us to go through after we collected our things, and we were out of that courtroom fast. It felt like a mistake right away. Sven went over to his parents' house, where he had dinner, and drank scotch with his dad. He told his family about the trial, and then he went home, where he had more to drink before bed. And then that was that. Then it was over. And I went on with my life.

Or at least he tried to. But what do you do with these feelings? I was just stuck. I felt massive amounts of regret. I felt, you know, I felt guilty, you know, sending someone to death row. When you think about the people a capital murder trial affects, you think of the victims, their loved ones,

the accused and their families, and what they're going through. You don't usually think about what it does to the jurors. But for Sven, the trial wasn't something he could put behind him at the crack of a gavel. In the days and weeks after the verdict, he read every article about the case he could find. But the more he read, the more shame he felt. So eventually, he just stopped.

I realized it wasn't really healthy. At the time, Sven was a regular drinker. And it only got worse after the trial. It got a lot worse after the trial. He was drinking more, beginning as soon as he got home from work, and spending more days hungover. His wife didn't understand what was going on. It may have contributed to my divorce, which was the following year. A year after the trial, and Sven's life had changed, the new house with the hammock and the flagpole was sold, and Sven moved out of Texas.

We'll be right back. from Apple Podcasts. Each month, Apple Podcasts highlights one series worth your attention, and they call these Series Essentials. This month, they recommend Wondery's Ghost Story, a seven-part series that follows journalist Tristan Redman as he tries to get to the bottom of a ghostly presence in his childhood home. His investigation takes him on a journey

involving homicide detectives, ghost hunters, and even psychic mediums, and leads him to a dark secret about his own family. Check out Ghost Story, a series essential pick, completely ad-free on Apple Podcasts. Hey, it's Scott Galloway, and on our podcast, Pivot, we are bringing you a special series about the basics of artificial intelligence.

We're answering all your questions. What should you use it for? What tools are right for you? And what privacy issues should you ultimately watch out for? And to help us out, we are joined by Kylie Robeson, the senior AI reporter for The Verge, to give you a primer on how to integrate AI into your life. So tune into AI Basics, How and When to Use AI, a special series from Pivot sponsored by AWS, wherever you get your podcasts. Sven settled in Olympia, Washington, to start his life over.

He found an apartment for himself and his cat, Niku, but he couldn't shake his memories of the trial. When a friend bought a second-hand silver Nissan, Sven couldn't stop thinking about how that was the same car the victim, Jonas Cherry, had driven. When addressing co-workers, the name Jonas would accidentally slip from Sven's lips. And Paul Story, who still was on death row, was never far from Sven's mind. He tried to escape through alcohol, but it didn't free him from his shame. Sometimes, after a night out drinking, he'd return to a Facebook page Paul Story's mother had

made for Paul. One mother had already lost her son, and now, because Sven had been too afraid to speak up, another mother was going to as well. I'm not trying to excuse his crime. It was terrible. But to send a guy to death for any reason at all, that just, the presence in your mind, the sort of recurring thoughts about it, can that go away? For all the bad rap it gets, shame offers a certain safety. It provides a comfortable hole to hide in, away from the judgment of others.

But it can also lead to isolation and inertia. And for eight years, eight years in which Paul Story sat on death row awaiting an execution date, Sven barely talked about the trial with anybody. But then, in 2016, the year after Paul Story's federal appeal had been denied, a reporter writing a series of articles

about the judicial system approached Sven about his experience as a juror. Sven was tired of being all alone with his regrets, and so, for the first time, he opened up about his feelings. I felt guilty, he told the reporter, and sad, and a little helpless. I don't think I made the right call. Sven had hoped that talking about the trial might help, and it did, up until the article was published. That was when Sven received an uncomfortable phone call from a lawyer who'd read the article.

Sven was at work. Fearing his co-workers might overhear, he took the call outside, behind his office building. It was there that he learned that, eight years earlier, he'd misunderstood a key part of the jury instructions. I thought incorrectly, essentially. I believed I would have to convince everyone to choose life imprisonment,

when, in fact, all I had to do was decline the death penalty, and that's all it would have taken. Preventing the death sentence only required one dissenting vote. A vote Sven could have cast. So there would have been no mistrial, no hung jury, and instead of the death penalty, Paul Story would have gotten life in prison without parole.

That would have been nice to know. I could have changed... I could have let him live. After the article was published, something else happened, something Sven never expected or wanted. Paul Story's mother, Marilyn, got in touch. She reached out with an email filled with sentiments of forgiveness.

She had forgiven me, and if I wanted to, I could reach out and talk with her. Knowing that there was that forgiveness, it felt so weird. Like it wasn't something I could completely understand. For Sven, it didn't make sense. Why would Marilyn want to speak with him? How could she, of all people, forgive him for something he couldn't forgive himself? I didn't know how to deal with, I still kind of don't know how to deal with that. And I couldn't, I couldn't, I couldn't match her message. How do you mean?

Well, I wasn't sure how to reply with something as powerful as that. It just floored me. I didn't know what to say. Sven was never able to write Marilyn back. I did begin a reply, but I didn't have the courage to finish or send it. It's just, you know, there's so much pain in there. I feel like I really wrecked things up.

A few months after Sven received Marilyn's email, an execution date was set. The state would put Paul's story to death on April 12th of 2017. But then something unexpected happened. Glenn and Judith Cherry, the parents of the victim, came forward.

It seems that at the trial, the prosecution had lied. The Cherries, in spite of their son's murder, are and always have been against capital punishment. In a video they released publicly, Judith Cherry presents a statement which reads, in part,

We do not want Paul Story's family, especially his mother, to witness the purposeful execution of their son. They are innocent of his deeds. Based on this testimony, with only five days to spare, Paul Story's execution was postponed. When news of the stay of execution reached Fenn, it felt like a second chance, an opening, to finally respond to Marilyn's email. But he didn't. It's now been over two years.

He's remarried, doesn't drink anymore, but he still hasn't contacted Marilyn. And so at this point, like, what do you want? I need to apologize for not... for not doing what I should have done to begin with, for not following my gut, for not trying. Shame leads to inertia. And as even the most casual reader of the fundamentals of physics will tell you,

an inert object will remain inert until it is acted upon by an external force. In other words, it takes a little nudge. And who better to supply a little nudge than a little nudge? And so, I write Marilyn a letter. I know this is a really sensitive and deeply personal issue, it reads, and I hope I'm not being too forward. I ask Marilyn if she remembers a juror by the name of Sven Berger. About a week later, I receive a note back via email. Thank you so much for your letter, Marilyn writes. I have no ill will toward Mr. Berger. I have offered him my email address,

as well as my phone number with no reply. She also forwards me her original email to Sven, the one she sent two years ago, the one he can't stop thinking about. When I read it, I'm expecting a grand gesture of forgiveness. But Marilyn never mentions forgiveness, never even uses the word. Instead, it's just six short sentences in which Marilyn thanks Sven for the article and says she shared it with her son. Her tone's breezy. She ends with,

Have a great day! I understand that Sven, consumed by guilt, would read so much into so little. What I don't understand is why Marilyn sent him the email in the first place. We'll be right back. What software do you use at work? The answer to that question is probably more complicated than you want it to be. The average U.S. company deploys more than 100 apps, and ideas about the work we do can be radically changed by the tools we use to do it. So what is enterprise software anyway?

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Oh, I was joking. I have a couple little things if you get peckish at all. Some croissant, some of this stuff, I don't know, some cookies. No, I'm fine. Yeah, okay. Marilyn lives in Fort Worth, Texas. The two of us meet in a hotel suite downtown, where I can't stop offering her food that she can't stop refusing.

Do you want to have a coffee or a tea? No. Marilyn is tall and stately, with smiling eyes. She's in slacks, boots, and a crop blazer, all in black. She sits on the end of the couch, next to an empty armchair, and tries to give me a sense of what her life was like before the trial. I was always the life of the party. I mean, I was a jostler.

Oh, make sure you have Marilyn there because she's going to keep the party going. I was always kind of the one that everybody went to. People knew you can call me in the middle of the night. You know, if you need somebody to come pick you up, you know, call Marilyn, she'll get up, she'll go do it. Since the trial, Marilyn doesn't feel like the same person. But after 10 years, her friends and family want her to go back to being the same old Marilyn she always was.

So it went through a transition of my family not understanding because it's like, okay, you know, well, why aren't you cheery and happy like you used to, and you got to go on with your life. But this is Marilyn's life. Every day she's reckoning with the horror of her son's crime and worrying endlessly about his safety in prison. The thing that's hardest, though, is the way the people closest to her now look upon her son.

She says that everyone's past judgment on Paul, written him off as worthless and unredeemable, and they blame him for her pain. And I even had a family member where Paul is the cause of all of this. And that was very hurtful. It's like they wanted everything to be okay. But that's my child, and I love him,

and I'm not going to ever stop fighting for him. Fighting for him meant working with her son's lawyers to change his sentence to life in prison. Paul's appeals were exhausting. It took up all of her time and energy, which affected the hospitality job she worked at for over 30 years. It became extremely hard for me to concentrate at work. And I feel like it cost me my job.

After losing her job, Marilyn then lost her house. She was forced to move in with her younger son. So it's kind of like, you know, at my age, where I thought that I'd be getting ready to retire, I'm starting over. So that's a hard thing. Ten years after the trial, and everyone, her friends, her family, have all moved on. So when Marilyn read Sven's article, she saw in him someone like her,

someone who'd never gotten past that final day of the trial. When they actually gave the sentence, the death penalty, I thought I had died. I thought I had literally died. It didn't even register because I'm just like, what just happened? What have they done? You know, my whole time there, I was just looking at the jurors to try to read, okay, what are they thinking? What are they doing? I wanted them to know, if I could only tell them what kind of person he is. And I want people to know, you know, everybody, they assume that if you're involved in a heinous crime like that, that you're a monster. But he wasn't a monster. I think that might be him.

Okay, so he's going to come up. Marilyn and I have been talking for about an hour and a half when the front desk phones. How do you pronounce his name? Sven. Is it Sven? Sven, S-V-E-N. Sven, yeah.

Sven. Sven. Yeah. I hope I get that before he gets it. But before we get a chance to practice our Sven's, Sven is at the door. Hi, Sven. I'm Jonathan.

It's very nice to meet you. Nice to meet you personally. Marilyn is here. Hi. Now, how do you pronounce your name? Sven. Sven. Sven lingers in the door of the hotel room.

Here, sit down. Sure. Have a seat over there. He's bespectacled, neatly dressed in a collared shirt and sweater. He looks around and clears his throat. I'm a little nervous, so... The last time Marilyn and Sven had been in the same room was ten years ago, at the trial. Marilyn was seated behind the bar. Sven sat in the jury box.

But today, he sits down in the empty armchair beside her. He can't quite bring himself to look at her. As he tells Marilyn what it was like to receive her email, he gazes down at his lap. It was very surprising. And I read it and I reread it. And I even began several letters that never went anywhere. I didn't know what to say.

What do you say about that? I don't want to write a letter that's trying to make me feel better. Do you know what I mean? Mm-hmm. From the moment the vote was cast, I had regret. I thought, I am doing the wrong thing. And although it was great hearing that, you know, you forgave me, I couldn't forgive myself exactly.

And I can't even imagine how you must feel. Okay. First of all, I want to say, I don't want you to feel ashamed because, you know, my son was involved in a crime. He made a wrong choice. And I don't ever want you to feel that you did anything wrong. You did what you felt you had to do at the time. But you came back. And for you to come out, and for you to say, hey, I made a mistake. You're right, you're wrong. I can tell by Sven's face that he isn't convinced. He doesn't feel like he's right at anything. This is because for years,

Sven has been avoiding all traces of the case. No Googling, no newspapers. He never even read the article he'd been interviewed for. So he doesn't know what Marilyn knows, which is the chain of events that his article set in motion. The jury instructions for Paul Story's case were written in dense legalese, and nowhere in their nine pages did they state that a single dissenting vote can prevent the death penalty. In fact, courts in

Texas are prohibited from telling jurors that. In theory, that's to encourage them to arrive at a consensus. But what it means is, Sven's confusion wasn't his fault. For years, legal advocates had wanted to bring a bill before the legislature that would clarify the instructions. But they needed someone who could say, I would have done things differently if I had understood. Marilyn explains to Sven that with him and the things he'd said in the article, they'd finally found that person.

There are senators in the state of Texas who have introduced a bill based on you to change the way the instructions are given to a death penalty jury. Sven, slumped in his chair, straightens up. Really? Yeah, you have no idea what sort of impact you had. I don't know anything about that. You were very instrumental.

This is, I'm shocked. While his eyes have tended to dart around the room, looking at me or down at his hands, right now, Sven is looking directly at Marilyn. She tells him that had he in fact voted against the death penalty at her son's trial, these attempts at reform might never have happened. I'm a firm believer that things happen for a reason, because this is not just about my son. It's about other mother's sons

that are on death row as well. So if this can help any other case, you know, outside of Paul's, then we've served our purpose. You came forward, so I look at you as my hero. Sven physically shrinks from the word hero. It's as though she's placed a large awkward crown atop his head. Wow. That's not the way I'd consider myself or my actions in any way. I don't feel that special. But I appreciate all your words. To me, you are. So, you know, it means a lot. That's a lot to process.

I had no idea. You didn't know any of this? No. Oh, the articles. There is a really good one in the Texas Tribune. It's one of the ones. I actually printed it out for you, but I waste Coca-Cola on it. So I didn't want to give you an article that was, but you should look it up.

Oh, this blows my mind. I need to send you some articles then because it's definitely movement. It's definitely movement. Wow. I, um, yeah, sorry, I'm a little at a loss for words. Yeah, walking in here, I didn't know what to expect. And I was a little nervous. I do feel, even just now, a little bit of weight taken off my shoulders.

Damn. I, um, this helps. This helps so much. Oh, this helps so much. After all these years, Sven is finally able to accept Marilyn's forgiveness, even if he still isn't ready to forgive himself. It chews me up today that I didn't express a dissenting opinion. I should have spoken up at least. I mean, I didn't think he would be a danger to the prison community. I didn't see a hardened criminal there.

I got the impression of sort of a kid who was in a situation he didn't know how to handle. I saw someone who made a terrible mistake and someone I did not believe would do it again. As Sven speaks, Marilyn's eyes well up. You know, I kept looking at the jurors, and I was like, you know, it has to be somebody on there that feels and that can see through all of this

that the prosecutor that's presenting and everything to know that my son is not a monster. No, no, never. I never saw Paul as a monster. After the crime, Marilyn's family never saw her son the same way again From that moment on, he was nothing more than a murderer And on the final day of the trial, 12 jurors confirmed that judgment Her hope had been that maybe someone had seen something else It wasn't a hope for someone to recognize in her son anything special or good

She just wanted them to see him as something other than a monster I didn't see that throughout the trial, I never saw that once or good. She just wanted them to see him as something other than a monster. I didn't see that throughout the trial. I never saw that once. Paul's story is still on death row, and Sven still can't reverse the sentence. But in speaking aloud the words that Marilyn's been repeating to herself for so long, Sven's made her feel less alone. You have some of the hurt that I have carried on my heart for the last 12 years, you just lifted it.

You have no earthly idea what that meant to me. It meant a lot. And for you to say that, it is, it... It's, um... It really eased my heart. After years of worry over what to say to Marilyn,

Sven's finally found the right words. I'm sorry I never wrote back. That's okay. I totally understood. I, uh... That's a lot. Since Sven and Marilyn's meeting, a judge made an official recommendation that based on Glenn and Judith Cherry's testimony, Paul Story's sentence be changed to life in prison without parole.

Though the Court of Criminal Appeal still has to make a final ruling, Story's lawyers are hopeful, and so is Marilyn. As for Sven, after finally responding to Marilyn, he decided to send a letter of apology to Paul Story. I couldn't find the strength to speak up in the jury room, he decided to send a letter of apology to Paul Story. I couldn't find the strength to speak up in the jury room, he wrote, and that is a mistake I will carry forever. Sven has yet

to hear anything back. That's Jonathan Goldstein, host of the podcast Heavyweight. After this episode first aired in 2018, the Texas Court of Criminal Appeals rejected the recommendation from the trial court judge, keeping Paul's story on death row. The Supreme Court declined to hear the case, but Justice Sonia Sotomayor wrote in a statement that the prosecutors in Paul Story's trial, quote, misled the jury. But then, in a move that Paul Story's defense attorneys called unprecedented, the district attorney in the same county where Paul Story had been prosecuted years earlier

asked the Texas Court of Criminal Appeals to reconsider its decision. The district attorney wrote in a motion, quote, Story should, at the very least, be granted a new punishment trial. Justice demands it. The Texas Court of Criminal Appeals has not yet responded to her motion. Heavyweight recently wrapped up the seventh season of their show.

You can listen to all of their episodes on Spotify. Next week on Criminal, more about the experience of serving on a jury, and the ways that some court systems are trying to change that experience. Heavyweight is hosted and produced by Jonathan Goldstein, along with Stevie Lane, Khalila Holt, and Mohini Medgaukar. This episode was edited by Jorge Just, with additional editing by Alex Bloomberg.

Special thanks to Emily Condon, Peter Bresnan, Emanuel Berry, Caitlin Kenney, John Michael Tuttle-Gates, Amanda Marzullo, Mike Weyer, Emily Fallis, Brian Reed, Sean Cole, Diane Wu, Christopher Switala, Ira Glass, and the rest of the team at This American Life. Maurice Chabot originally reported on Sven's story for The Marshall Project. We're including a link to his article in our show notes. Bobby Lord mixed the episode with music by Christine Fellows, John K. Sampson, Michael Hurst, Blue Dot Sessions, and Bobby Lord.

Additional music credits can be found at gimletmedia.com slash heavyweight. Criminal is recorded in the studios of North Carolina Public Radio WUNC. We're part of the Vox Media Podcast Network. Discover more great shows at podcast.voxmedia.com. I'm Phoebe Judge. This is Criminal. The number one selling product of its kind with over 20 years of research and innovation. Botox Cosmetic, Adabotulinum Toxin A, is a prescription medicine used to temporarily make moderate to severe frown lines, crow's feet, and forehead lines look better in adults. Effects of Botox Cosmetic may spread hours to weeks after injection causing serious symptoms.

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