After 23 Years on Death Row, Barry Jones Sees His Conviction Overturned: Arizona Must Retry or Release Him Immediately

Barry Jones insisted upon his innocence for more than two decades. A federal judge just threw out his conviction.

Photo: Liliana Segura

After more than 23 years insisting upon his innocence while living on Arizona’s death row, Barry Lee Jones had his conviction thrown out by a federal judge on Tuesday. In a 91-page order filed from Anchorage, Alaska, U.S. District Judge Timothy Burgess found that the verdict in Jones’s 1995 trial was the product of a “rush to judgment” by law enforcement, whose “lack of due diligence and thorough professional investigation” was compounded by the failures of Jones’s defense attorneys. Absent such failures, he wrote, “there is a reasonable probability that his jury would not have convicted him of any of the crimes with which he was charged and previously convicted.” Burgess ordered that Jones be immediately retried or released.

The order is a sharp rebuke to the Arizona Attorney General’s Office, which has stubbornly defended Jones’s conviction even as its theory of the crime has fallen apart. In a state that has exonerated nine people from death row, prosecutors fought to preserve Jones’s conviction, relying on procedural barriers while showing indifference to the grave flaws in the case. That Jones was able to overcome such barriers is extraordinary on its own — and further proof of the rot that pervaded the case at every stage. Burgess’s order comes five months after an evidentiary hearing revealed stunning neglect on the part of his defense attorneys at both the trial and post-conviction levels — and profound tunnel vision by Pima County Sheriff’s Detective Sonia Pesqueira, who led the investigation.

Jones, now 59, was convicted and sentenced to die for raping and murdering his girlfriend’s 4-year-old daughter, Rachel Gray. The child died from a blow to the stomach, which tore her duodenum, part of her small intestine, leading to a fatal condition called peritonitis. Jones was arrested shortly after dropping off the child and her mother, Angela Gray, at the hospital early in the morning on May 2, 1994. But the evidence against him was flimsy, based on a narrow window of time during which he’d been seen with Rachel in his van on the afternoon of May 1. A pair of 8-year-old twins would say they saw Jones hitting her while driving the vehicle, and drops of blood in the van and on his clothes were used as proof that Jones had raped the little girl. But there was no other evidence to support this. Investigators never even collected the clothing Rachel wore that day.

At the evidentiary hearing in Tucson last fall, Pesqueira, who has since retired, conceded that Jones became her sole suspect within hours of seeing Rachel’s body at the hospital — and that she never investigated the timing of Rachel’s fatal injury, merely assuming it had occurred the day before she died. Prosecutors nevertheless maintained that Pesqueira “followed the evidence of guilt for Rachel’s injuries, and that road led directly to Jones,” while insisting that the quality of her work was irrelevant, since the question at hand was whether Jones’s defense attorneys were constitutionally ineffective in violation of his Sixth Amendment rights. “Law enforcement has nothing to do with this case,” Assistant Arizona Attorney General Myles Braccio argued at an oral argument in March.

U.S. District Judge Timothy Burgess.

Photo: U.S. District Court, District of Alaska

Burgess disagreed. Pesqueira’s failures were inextricable from those of Jones’s defense attorneys, he found. “There were several significant red flags that should have objectively and reasonably alerted counsel to the need to investigate the evidence regarding the timing of Rachel’s injuries,” Burgess wrote. Among them was evidence of alternate suspects, such as Jones’s girlfriend, who was “a serial abuser of her children,” as Assistant Arizona Federal Public Defender Cary Sandman reminded the court last spring. At the evidentiary hearing, Pesqueira seemed clueless when shown statements alleging that Gray had hit her children and thrown them down the stairs. “That would have been a good thing to have,” she said.

That the evidence no longer supported Jones’s conviction was clear long before the hearing took place, however. In a letter to Jones’s attorneys last year, the attorney general’s office wrote that the current Pima County medical examiner “did not dispute the conclusions of your experts.” These experts have long argued that Rachel’s injuries predated the window presented by the state. Renowned pediatric pathologist Janice Ophoven, who first looked at the case in 2002, has insisted for years that Arizona’s theory of the crime was impossible. At the evidentiary hearing, Ophoven explained how Rachel’s abdominal injury developed over time, with the severity of her illness unclear until it was too late.

Burgess clearly found the defense’s experts compelling, while remaining unconvinced by the ever-shifting opinions of the state’s key witness, former Pima County Medical Examiner John Howard, whose estimates regarding Rachel’s fatal injury have been bewilderingly fluid since he first handled the case back in 1994. “Dr. Howard’s inconsistent answers are plain in the differing testimony he provided on direct examination, on cross-examination, and during examination by the Court during the evidentiary hearing,” Burgess wrote.

“Contrasting the evidence presented at trial with the evidence that could have been presented at trial” made clear that Jones’s trial was unconstitutional, Burgess found. While he did not address the issue of innocence explicitly, the new evidence “undermines considerably the confidence in the outcome,” he wrote.

A Maze of Procedural Barriers

In a lengthy investigation into the Jones case last year, The Intercept reviewed thousands of pages of trial transcripts, police records, and investigative reports that revealed several hallmarks of wrongful convictions. Two jurors from Jones’s original trial expressed misgivings about the outcome, telling The Intercept that they had been disturbed by the weak defense Jones received. One juror, Hildegard Stoecker, was particularly troubled by the case. “It lessens my faith in the judicial system,” she said.

Despite the egregious flaws in Jones’s conviction, procedural barriers might easily have led to his eventual execution. Among the considerable obstacles was the Antiterrorism and Effective Death Penalty Act, passed one year after Jones was sent to death row. If not for a 2012 U.S. Supreme Court decision in a different Arizona case, Martinez v. Ryan, the law might well have prevented any chance for Jones to show the evidence casting doubt on his conviction. Under AEDPA, if attorneys failed to bring a claim of ineffective assistance during state post-conviction proceedings, that claim was forever barred from being heard in federal court. But Martinez carved out a “narrow exception,” as Burgess noted, holding that if such a claim was itself the result of ineffective lawyering by post-conviction counsel, a defendant should have a chance at relief.

The ruling was a lifeline for Jones. “Before Martinez, our office lost many, many, many ineffective assistance cases because the claims were never raised in the state court,” Sandman said. “If Barry’s initial appeal in the 9th Circuit had moved a little more rapidly, it could have been decided before Martinez and he might have been executed.”

“The evidentiary hearing is the key,” said Dale Baich, supervising attorney of the Arizona Federal Public Defender’s Capital Habeas Unit. “All our clients really want is one fair opportunity to have a full, fair hearing at the post-conviction level.” But such chances are exceedingly rare. Even under Martinez, there was no guarantee of a hearing. If there was any reason for Jones to feel optimistic about his chances before the ruling, it was that Burgess granted an evidentiary hearing at all. Even then, ineffective assistance claims are notoriously hard to win. Under the U.S. Supreme Court case Strickland v. Washington, Jones had to show, first, that his attorneys had provided an unconstitutionally inadequate defense, and second, that the outcome of his trial would likely have been different absent their failures. In his order, Burgess spent considerable detail explaining why Jones met the burden demanded by Strickland.

The state of Arizona has shown contempt for the resources Jones’s current lawyers have devoted to his case. “With a seemingly limitless budget, full-time counsel, investigators, support staff, and a horde of new experts, Jones has spent the past 15 years re-investigating his case,” prosecutors argued in a January filing. At the evidentiary hearing, Braccio and Assistant Attorney General Lacey Gard repeatedly contrasted the money spent by Sandman and his colleagues with the comparatively slim resources of Jones’s original attorneys, arguing that the lawyers could not be considered ineffective for having limited funds.

Burgess flatly dismissed the notion. “The Court rejects any suggestion by Respondents that trial counsel’s deficient pretrial investigation be excused on the grounds that funding for investigators and experts was lacking or inadequate,” he said. In fact, with regard to the failures of Jones’s post-conviction attorney, James Hazel, Burgess drew a parallel to the case of Anthony Ray Hinton, in which the Supreme Court found “counsel’s failure to request additional funding for an expert was unreasonable and constituted deficient performance.” Hinton was exonerated from Alabama’s death row in 2015.

“Right on Time”

On Tuesday afternoon, Jones’s legal team gathered in a conference room in their Tucson office to call Jones. “They don’t get short-notice phone calls very often,” defense investigator Andrew Sowards said. “He kind of knew something was up.” Upon hearing the news, he said, “there was a sense of relief in Barry’s voice I’ve never heard.”

In an email, the Arizona Attorney General’s Office told The Intercept that it had no comment on the order. If the state does not initiate a retrial within 45 days, Jones must be released. As they wait for the state to signal its next move, Jones’s legal team is reaching out to his family members, many of whom he has not seen in decades. In his time on death row, his three children have grown up and have kids of their own. Speaking to The Intercept over the phone last year, Jones said he felt like an emotional burden on them. “I’m hurting everybody out there by being here. I’ve got to live with that. That’s not easy.” Decades of severe isolation have taken their toll, not to mention the 33 executions carried out in Arizona since 1995, when Jones was sent to death row. “They’ve killed friends of mine,” he said.

The ruling came “right on time,” Sandman said. “He was really struggling.” As Sowards says, “It’s a tough life for a guy with that kind of conviction in any prison — especially on death row.” For 23 years, Jones has been seen as a child rapist and murderer. To be able to return to his unit to share the news was powerful vindication of what he has insisted all along: that he did not commit the crime that sent him to die.

Sowards himself was emotional over the decision. He joined the Arizona Federal Public Defender’s Office in 2008, just as Jones’s initial federal habeas petition had been denied. In the years that followed, he uncovered critical information that had been withheld by the prosecution at trial. Like all the members of Jones’s legal team, Sowards believed in his innocence.

To Sylvia Lett, Jones’s former federal habeas attorney, it was a stroke of good luck that the case fell to Burgess. Speaking to The Intercept last year, she had a hard time remembering when a federal district judge in Arizona granted relief in a death penalty case during the years she represented Jones. “It took a district judge from Alaska having the guts to say, ‘Hey, wait a second, there’s something wrong here,’” Lett said.

“It just seems like this judge got it,” Sowards said. “He saw the state’s investigation for what it was, which was shoddy, the defense investigation for what it was, which was nonexistent, and he said, ‘That’s not fair.’ And that’s how it’s supposed to work.”

Top photo: A photo of 54-year-old Barry Jones is shown by his former attorney Sylvia Lett.

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